SB275 SFA #1 Tarr 2-23

Johnson  7909

 

Senator Tarr  moved to amend the bill on pages thirty-three through thirty-seven, by striking out all of section eleven-a and inserting in lieu thereof a new section, designated section eleven-a, to read as follows:

§23‑5‑11a. Workers’ Compensation Board of Review generally; administrative powers and duties of the board; effective July 1, 2022.


(a) The “Workers' Compensation Board of Review”, which may also be referred to as “the Board of Review” or “the board” is hereby continued and granted exclusive jurisdiction over all objections to decisions of the Insurance Commissioner, private carriers, and self-insured employers, whichever is applicable, including any and all matters pending before the Office of Judges after September 30, 2022.

(b) The board consists of five members.

(c) The Governor shall appoint, with the advice and consent of the Senate, five attorneys qualified in accordance with subsection (f) of this section to serve as members of the Board of Review. A member of the Board of Review may be removed by the Governor for official misconduct, incompetence, neglect of duty, gross immorality, or malfeasance and then only after notice and opportunity to respond and present evidence. No more than three of the members of the board may be of the same political party. The Governor shall set the salary of the members of the board: Provided, however, That the annual salary of a member of the Board of Review shall not exceed $125,000. Members are entitled to be reimbursed for actual and necessary travel expenses incurred in the discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.

(d) Of the initial appointments of the two additional seats created during the 2021 Regular Session, one member shall be appointed for a term ending December 31, 2006 2025; one member shall be appointed for a term ending December 31, 2027.. Thereafter, The appointments shall be for six-year terms.

(e) A member of the Board of Review must, at the time he or she takes office and thereafter during his or her continuance in office, be a resident of this state, be a member in good standing of the West Virginia State Bar, have a minimum of 10 years’ experience as an attorney admitted to practice law in this state prior to appointment and have a minimum of five years’ experience in preparing and presenting cases or hearing actions and making decisions on the basis of the record of those hearings before administrative agencies, regulatory bodies or courts of record at the federal, state or local level.

 (f) No member of the Board of Review may hold any other office, or accept any appointment or public trust, nor may he or she become a candidate for any elective public office or nomination thereto. Violation of this subsection requires the member to vacate his or her office. No member of the Board of Review may engage in the practice of law during his or her term of office.

 (g) A vacancy occurring on the board other than by expiration of a term shall be filled in the manner original appointments were made, for the unexpired portion of the term.

 (h) The board shall designate one of its members in rotation to be chair of the board for as long as the board may determine by order made and entered of record. In the absence of the chair, any other member designated by the members present shall act as chair.

(i) The Board of Review shall meet as often as necessary to conduct the board’s administrative business and make rules of practice and procedure, at such times and places as the chair may determine. Two members shall be present in order to conduct administrative business and make rules of practice and procedure. All decisions of the board upon administrative matters, pursuant to this section, shall be determined by a majority of the members of the board.

(j) The Board of Review shall, from time to time, promulgate rules of practice and procedure for the review and determination of all objections filed with the board. The board does not have the power to initiate or to promulgate legislative rules as that phrase is defined in §29A-3-1 et seq. of this code. Any rules adopted pursuant to this section which are applicable to the provisions of this article are not subject to §29A-3-9 through §29A-3-16 of this code. The board shall follow the remaining provisions of chapter 29A of this code for giving notice to the public of its actions and the holding of hearings or receiving of comments on the rules.

 (k) The Board of Review may hire a clerk, hearing examiners, and other professional and clerical staff necessary to carry out the requirements of this article. It is the duty of the clerk of the Board of Review to attend in person, or by deputy, all the sessions of the board, to obey its orders and directions, to take care of and preserve in an office, kept for the purpose, all records and papers of the board and to perform other duties as prescribed by law or required of him or her by the board. All employees of the board serve at the will and pleasure of the board. The board’s employees are exempt from the salary schedule or pay plan adopted by the Division of Personnel: Provided, That for the purpose of any applicable Division of Personnel Class Specifications, hearing examiners must be classified under a class with “attorney” in the class title. All personnel of the Board of Review are under the supervision of the chairman chair of the Board of Review.

(l) The administrative expenses of the Board of Review shall be included within the annual budget of the Insurance Commissioner, and the Insurance Commissioner shall have administrative authority and oversight over the Board of Review.

(m) The amendments to this section made during the 2021 Regular Session of the Legislature shall become effective on July 1, 2022: Provided, That the board is authorized to promulgate rules and hire staff, pursuant to subsection (k) and (l) of this section respectively, prior to July 1, 2022, to the extent necessary to comply with the requirements of this article that shall become effective on that date.;


And,

On pages fifty-nine through sixty-one, by striking out all of section eight and inserting in lieu thereof a new section, designated section eight, to read as follows:

§51-11-8. Election of judges; initial appointment and election; vacancies; length and conditions of judicial terms.


(a) Judges of the Intermediate Court of Appeals shall be elected on a nonpartisan basis to serve 12-year terms, subject to the exceptions for initial appointments and elections contained in subsection (b) and subsection (c) of this section. Each judge shall be elected by the voters of the counties within the geographical district of the court in which he or she will serve.

(b) Nomination and appointment to fill initial vacancies. — The Governor shall appoint, with advice and consent of the Senate, three judges to serve in each district of the Intermediate Court of Appeals. The judges shall be nominated and appointed according to the following procedure:

(1) The Judicial Vacancy Advisory Commission shall, no later than January 1, 2022, compile and certify a list to the Governor of the eight most qualified persons in each district to serve as judges of the Intermediate Court of Appeals: Provided, That each person on the list must meet the requirements of §51-11-7 of this code at the time such person will begin his or her term on the court.

(2) The Governor shall review the list certified by the Judicial Vacancy Advisory Commission and nominate three qualified candidates to serve as judge in each judicial district. The Governor shall make his or her nominations without regard to political partisanship or affiliation.

(3) The initial appointment term for each of the judges, at the discretion of the Governor, shall be as follows: one judge shall be selected to serve a two-year term in each district, one judge shall be selected to serve a four-year term in each district, and one judge shall be elected to serve a six-year term in each district.

(4) Upon confirmation by the West Virginia Senate, an individual appointed to serve as a judge for the Intermediate Court of Appeals pursuant to this subsection shall take an oath of office and commence his or her duties on July 1, 2022.

(c) Initial election of judges. — The initial election of the judge in each district appointed for an initial term of two years to the Intermediate Court of Appeals shall take place during the primary election of 2024, and each subsequent initial election shall take place as the initial appointed term is ended. For the purposes of the initial election of judges pursuant to this subsection, the Secretary of State shall, in each district, establish three separate divisions corresponding to the judicial terms on the ballot. The candidates for election in each numbered division shall be tallied separately, and the eligible candidate receiving the highest numbers of votes cast within a numbered division in his or her district shall be elected to serve the corresponding judicial term.

(d) Regular election of judges. — Following the initial election of judges pursuant to subsection (c) of this section, during the primary election in every year during which a sitting judge’s term will expire, a judge shall be elected to each district of the Intermediate Court of Appeals to serve a 12-year term commencing on July 1 of that year.

(e) Vacancies. If a vacancy arises before the expiration of a judicial term, the vacancy shall be filled by the same nomination and appointment process provided in subsection (b) of this Code, subject to the following requirements:

(1) The list of candidates for a single vacancy, submitted to the Governor by the Judicial Vacancy Advisory Commission, shall include the names of no more than the five nor less than the two most qualified persons to fill the judicial vacancy in the Intermediate Court of Appeals.

(2) If the vacancy occurs less than two years and seven months before the expiration of the original term, the judge shall be appointed to fill the vacancy for the length of the unexpired term.

(3) If the vacancy occurs more than two years and seven months before the expiration of the original term, the vacancy shall initially be filled by the nomination and appointment process, followed by a subsequent election, during the next occurring primary election, to fill the vacancy for the length of the unexpired term.

(f) The judges of each district of the West Virginia Intermediate Court of Appeals shall periodically select one judge to serve as chief judge for their respective district, pursuant to rules promulgated by the Supreme Court of Appeals.

(g) No person sitting as a judge of the Intermediate Court of Appeals may retain his or her position as judge upon becoming a candidate for any elected public office, judicial or nonjudicial.

(h) The Legislature recognizes that the Chief Justice of the West Virginia Supreme Court of Appeals has authority to temporarily assign judges to the Intermediate Court of Appeals pursuant to section eight, article VIII of the Constitution of West Virginia, in the event that a judge is temporarily unable to serve on the court.

 

 

Adopted

Rejected