H. B. 4773
(By Delegates Douglas, Varner, Butcher, Caputo, Prunty, Willison
and L. Smith)
[Originating in the Committee on Government Organization]
[February 25, 2000]
A BILL to amend and reenact section eight, article five, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to continuing the
office of administrative law judges.
Be it enacted by the Legislature of West Virginia:
That section eight, article five, chapter twenty-three of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. REVIEW.
§23-5-8. Continuation of office of administrative law judges;
powers of chief administrative law judge and said office.
(a) The workers' compensation office of administrative law
judges previously created pursuant to chapter twelve, acts of the
Legislature, one thousand nine hundred ninety, second extraordinary
session, is hereby continued and designated to be an integral part of the workers' compensation system of this state. The office of
judges shall be under the supervision of a chief administrative law
judge who shall be appointed by the governor, with the advice and
consent of the Senate. The previously appointed incumbent of that
position who was serving on the second day of February, one
thousand nine hundred ninety-five, shall continue to serve in that
capacity unless subsequently removed as provided for in subsection
(b) of this section.
(b) The chief administrative law judge shall be a person who
has been admitted to the practice of law in this state and shall
also have had at least four years of experience as an attorney.
The chief administrative law judge's salary shall be set by the
compensation programs performance council created in section one,
article three, chapter twenty-one-a of this code. Said salary
shall be within the salary range for comparable chief
administrative law judges as determined by the state personnel
board created by section six, article six, chapter twenty-nine of
this code. The chief administrative law judge may only be removed
by a vote of two thirds of the members of the compensation programs
performance council and shall not be removed except for official
misconduct, incompetence, neglect of duty, gross immorality or
malfeasance and then only after he or she has been presented in
writing with the reasons for his or her removal and is given
opportunity to respond and to present evidence. No other provision of this code purporting to limit the term of office of any
appointed official or employee or affecting the removal of any
appointed official or employee shall be applicable to the chief
administrative law judge.
(c) By and with the consent of the commissioner, the chief
administrative law judge shall employ administrative law judges and
other personnel as are necessary for the proper conduct of a system
of administrative review of orders issued by the workers'
compensation division which orders have been objected to by a
party, and all such employees shall be in the classified service of
the state. Qualifications, compensation and personnel practice
relating to the employees of the office of judges, other than the
chief administrative law judge, shall be governed by the provisions
of the statutes, rules and regulations of the classified service
pursuant to article six, chapter twenty-nine of this code. All
such additional administrative law judges shall be persons who have
been admitted to the practice of law in this state and shall also
have had at least two years of experience as an attorney. The
chief administrative law judge shall supervise the other
administrative law judges and other personnel which collectively
shall be referred to in this chapter as the office of judges.
(d) The administrative expense of the office of judges shall
be included within the annual budget of the workers' compensation
division.
(e) Subject to the approval of the compensation programs
performance council pursuant to subdivisions (b) and (c), section
seven, article three, chapter twenty-one-a of this code, the office
of judges shall from time to time promulgate rules of practice and
procedure for the hearing and determination of all objections to
findings or orders of the workers' compensation division pursuant
to section one of this article. The office of judges shall not
have the power to initiate or to promulgate legislative rules as
that phrase is defined in article three, chapter twenty-nine-a of
this code.
(f) The chief administrative law judge shall continue to have
the power to hear and determine all disputed claims in accordance
with the provisions of this article, establish a procedure for the
hearing of disputed claims, take oaths, examine witnesses, issue
subpoenas, establish the amount of witness fees, keep such records
and make such reports as are necessary for disputed claims, and
exercise such additional powers, including the delegation of such
powers to administrative law judges or hearing examiners as may be
necessary for the proper conduct of a system of administrative
review of disputed claims. The chief administrative law judge
shall make such reports as may be requested of him or her by the
compensation programs performance council.
(g) Pursuant to the provisions of article ten, chapter four of
this code, the office of judges shall continue to exist until the first day of July, two thousand three, unless sooner terminated,
continued or reestablished by act of the Legislature.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates language that would be
added.