H. B. 2330

(By Delegates Douglas, Moore, Ashley and Rowe)

(Introduced February 2, 1995; referred to the
Committee on Government Organizatin then Finance.)

A BILL to amend chapter twenty-nine-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article four-a, relating to creating the state office of administrative hearings.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended, by adding thereto a new article, designated article four-a, to read as follows:
ARTICLE 4A. OFFICE OF ADMINISTRATIVE HEARINGS.
§29A-4A-1. Legislative findings.
The Legislature recognizes that administrative agencies in the executive branch of government in this state have traditionally exercised a mix of governmental functions. Not only have they acted as executive agencies, executing the law, but they have also performed quasi-legislative functions, making law and policy, and have also exercised a quasi-judicial or adjudicatory function by expounding and enforcing the law. This blending of governmental functions, although contrary on its face to the constitutional doctrine of separation of powers, has been validated and is an apparently permanent feature in modern state government.
However, the Legislature finds that although the blending of governmental functions or powers in administrative agencies may be legitimate and appropriate, those functions and powers may be procedurally organized and structured within those agencies in a manner which is no longer efficient and which may not best serve the interests of the affected citizens who deal with executive agencies or the interests of the agencies themselves. Administrative adjudication, in particular, often takes place in a procedural context which is not well-suited to current conditions.
Under the traditional administrative structure, a decision by an agency is frequently adjudicated by an internal tribunal which is practically, and often formally, dependent on the administering or enforcing authority within the agency. In some cases, the person adjudicating the matter in question is a direct employee of the agency whose action is being reviewed. In many instances, the agency head holds the power of final review, a power used as a means to control the direction of policy development. The perception, if not the reality, is that fairness and impartiality are diminished by this process.
The Legislature finds that the public interest requires uniform standards and procedures in administrative adjudications before independent tribunals to increase the efficiency of the adjudicatory process and to facilitate the establishment and maintenance of fairness and impartiality. Actions of agencies which affect the personal or property rights, privileges, immunities, duties, liabilities or obligations of persons may best be adjudicated before a well-organized, independent, professional office of administrative hearings.
§29A-4A-2. Definitions.
In this article, unless the context or subject matter clearly requires otherwise, the following terms shall have the meanings ascribed to them:
(1) "Administrative law judge" means an attorney appointed by the chief administrative law judge to conduct or preside over hearings.
(2) "Agency" or "administrative agency" means any state board, bureau, commission, division, department or other instrumentality or agency of the state authorized by law to conduct adjudicative proceedings, except those in the legislative or judicial branches of government.
(3) "Hearing" means an adjudicative proceeding conducted by the office of administrative hearings wherein one or more parties to the proceeding seeks a review of agency action as embodied in an order, decree, decision, determination or ruling by the agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a person.
(4) "Office" means the office of administrative hearings.
§29A-4A-3. State office of administrative hearings created.
The state office of administrative hearings is hereby created. The office is attached to the department of administration for the purpose of utilizing the administrative support and services of the department. The office is not subject to control, supervision or direction by the department of administration.
§29A-4A-4. Chief administrative law judge.
The office is under the direction of the chief administrative law judge, who must be free of any association that would impair his or her ability to function officially in a fair and objective manner. The chief administrative law judge must be an attorney, admitted to the bar of this state, who has a demonstrated knowledge of administrative law and procedures. The chief administrative law judge is appointed by the governor for a term ending on the thirtieth day of June, one thousand nine hundred ninety-six, and may be removed for cause. The salary to be paid to the chief administrative law judge is fixed by the governor.

§29A-4A-5. Interim powers and duties of chief administrative law judge.

(a) The chief administrative law judge of the office of administrative hearings is authorized and directed to study the subject of administrative law and procedure in all of its aspects; to consult with administrative agencies; and to formulate recommendations for the structure and operations of a central system for administrative adjudications for various state agencies. On or before the first day of November, one thousand nine hundred ninety-five, the chief administrative law judge shall submit a report to the governor, the president of the West Virginia Senate and the speaker of the House of Delegates setting forth recommendations for the organization and operation of the office in a manner which promotes the interests of fairness and impartiality, the independence of adjudicatory tribunals within the office, the uniformity of procedures and the expedition of the business of the office.
(b) The chief administrative law judge is authorized and directed to employ such clerical and other specialized or technical personnel as may be necessary to comply with the requirements of this article;
(c) The report required to be submitted in accordance with the provisions of subsection (a) of this section shall include, but not be limited to, the following recommendations:
(1) Proposed statutory provisions for the duties and responsibilities of the chief administrative law judge to administer and manage the personnel, staff services and business of the office, including financial administration and budget preparation, recordkeeping, information systems and statistical controls, purchasing, planning, instruction, case flow management, and assignments of administrative law judges and hearing examiners;
(2) Proposed statutory qualifications for persons to be appointed by the chief administrative law judge to the positions of administrative law judge and hearing examiner;
(3) Proposed statutory provisions or procedural rules to establish general rules and guidelines relating to procedures and practice in prehearing, hearing and posthearing stages of the adjudicatory processes of the office;
(4) Proposed programs for reviewing issues and problems relating to administrative hearings and the administrative process;
(5) Proposed programs for the continuing training and education of administrative law judges, hearing examiners and agencies with regard to their responsibilities; and
(6) Proposed programs with standards and procedures for evaluating the performance of administrative law judges and hearing examiners, focusing principally upon three areas of judicial performance: competence, productivity and demeanor.

§29A-4A-6. Termination.

The provisions of this article shall terminate and be of no further force and effect after the thirtieth day of June, one thousand nine hundred ninety-six.