Bill Text: WV SB129 | 2016 | Regular Session | Introduced
Bill Title: Providing state agency administrative hearing examiners be chosen from panel of 5 examiners
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2016-01-13 - To Judiciary [SB129 Detail]
Download: West_Virginia-2016-SB129-Introduced.html
WEST virginia legislature
2016 regular session
Introduced
Senate Bill 129
By Senator Laird
[Introduced January 13,
2016;
Referred to the Committee on the Judiciary.]
A BILL to amend and reenact §29A-5-1 of the Code of West Virginia, 1931, as amended, relating to providing that hearing examiners conducting state agency administrative hearings be selected from a panel of five hearing examiners by a process in which the state agency first strikes two hearing examiners and the respondent subsequently strikes two hearing examiners; and making stylistic changes.
Be it enacted by the Legislature of West Virginia:
That §29A-5-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. CONTESTED CASES.
§29A-5-1. Notice required; hearing; subpoenas; witness fees, etc.; depositions; records.
(a) In any contested case
all parties shall be afforded an opportunity for hearing after at least ten
days' written notice. The notice shall contain the date, time and place of the
hearing and a short and plain statement of the matters asserted. If the agency
is unable to state the matters in detail at the time the notice is served, the
initial notice may be limited to a statement of the issues involved.
Thereafter, upon application a more definite and detailed statement shall be
furnished. An opportunity shall be afforded all parties to present evidence
and argument with respect to the matters and issues involved. The required
notice must be given as specified in section two, article seven of this
chapter. All of the testimony and evidence at any such hearing shall be
reported by stenographic notes and characters or by mechanical means. All
rulings on the admissibility of testimony and evidence shall also be reported.
The agency shall prepare an official record, which shall include reported
testimony and exhibits in each contested case, and all agency staff memoranda
and data used in consideration of the case, but it shall not be is
not necessary to transcribe the reported testimony unless required for
purposes of rehearing or judicial review. Informal disposition may also be
made of any contested case by stipulation, agreed settlement, consent order or
default. Each agency shall adopt appropriate rules of procedure for hearing in
contested cases.
(b) For the purpose of
conducting a hearing in any contested case, any agency which now has or may be
hereafter expressly granted by statute the power to issue subpoenas or
subpoenas duces tecum or any member of the body which comprises such the
agency may exercise such that power in the name of the agency.
Any such agency or any member of the body which comprises any such agency may
exercise such that power in the name of the agency for any party
upon request. Under no circumstances shall does this chapter
be construed as granting grant the power to issue subpoenas or
subpoenas duces tecum to any agency or to any member of the body of any agency
which does not now by statute expressly have such power. When such that
power exists, the provisions of this section shall apply. Every such
subpoena and subpoena duces tecum shall be served at least five days before the
return date thereof, either by personal service made by any person over
eighteen years of age or by registered or certified mail, but a return
acknowledgment signed by the person to whom the subpoena or subpoena duces
tecum is directed shall be is required to prove service by
registered or certified mail. All subpoenas and subpoenas duces tecum shall be
issued in the name of the agency, as aforesaid, but any party requesting
their issuance must see that they are properly served. Service of subpoenas
and subpoenas duces tecum issued at the instance of the agency shall be is
the responsibility of the agency. Any person who serves any such
subpoena or subpoena duces tecum shall be is entitled to the same
fee as sheriffs who serve witness subpoenas for the circuit courts of this
state; and fees for the attendance and travel of witnesses shall be the same as
for witnesses before the circuit courts of this state. All such fees
shall be paid by the agency if the subpoena or subpoena duces tecum were
issued, without the request of an interested party, at the instance of the
agency. All such fees related to any subpoena or subpoena duces tecum
issued at the instance of an interested party shall be paid by the party who
asks that such subpoena or subpoena duces tecum be issued. All requests by
interested parties for subpoenas and subpoenas duces tecum shall be in writing
and shall contain a statement acknowledging that the requesting party agrees to
pay such the fees. Any such agency may compel the attendance of
witnesses and the production of books, records or papers in response to such
subpoenas and subpoenas duces tecum. Upon motion made promptly and in any
event before the time specified in a subpoena duces tecum for compliance
therewith, the circuit court of the county in which the hearing is to be held,
or the circuit court in which the subpoena duces tecum was served, or the judge
of either such court in vacation, may grant any relief with respect to
such subpoena duces tecum which either such court, under the West
Virginia Rules of Civil Procedure for Trial Courts of Record, could grant, and
for any of the same reasons, with respect to a subpoena duces tecum issued from
either such court. In case of disobedience or neglect of any subpoena
or subpoena duces tecum served on any person, or the refusal of any witness to
testify to any matter regarding which he or she may be lawfully
interrogated, the circuit court of the county in which the hearing is being
held, or the judge thereof in vacation, upon application by such the
agency or any member of the body which comprises such the agency,
shall compel obedience by attachment proceedings for contempt as in the case of
disobedience of the requirements of a subpoena or subpoena duces tecum issued
from such the circuit court or a refusal to testify therein.
Witnesses at such these hearings shall testify under oath or
affirmation.
(c) Evidentiary depositions may be taken and read as in civil actions in the circuit courts of this state.
(d) All hearings shall be
conducted in an impartial manner. The agency, any member of the body which
comprises the agency, or any hearing examiner or other person permitted by
statute to hold any such hearing for such that agency, and
duly authorized by such the agency so to do, shall have the
power to may: (1) Administer oaths and affirmations; (2) rule upon
offers of proof and receive relevant evidence;(3)regulate the course of the
hearing;(4) hold conferences for the settlement or simplification of the issues
by consent of the parties; (5) dispose of procedural requests or similar
matters; and (6) take any other action authorized by a rule adopted by the
agency in accordance with the provisions of article three of this chapter. Notwithstanding
any provision in this code to the contrary, in any such hearing to be conducted
by a hearing examiner, the hearing examiner shall be selected from a panel of
five hearing examiners by a process in which the agency first strikes two
hearing examiners from the panel and the respondent subsequently strikes two hearing
examiners from the panel.
(e) Except where otherwise provided by statute, the hearing in any contested case shall be held in the county selected by the agency.
(f) Notwithstanding the
provisions of subparagraph (a) of this section, upon request to the agency from
any party to the hearing, all reported testimony and evidence at such the
hearing shall be transcribed, and a copy thereof furnished to such the
party at his or her expense. The agency shall have the responsibility
for making arrangements for the transcription of the reported testimony and
evidence, and such the transcription shall be accomplished with
all dispatch.
NOTE: The purpose of this bill is to provide that hearing examiners conducting state agency administrative hearings be selected from a panel of five hearing examiners by a process in which the state agency first strikes two hearing examiners and the respondent subsequently strikes two hearing examiners. The bill also makes stylistic changes.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
