Senate Bill No. 245
(By Senator Yoder)
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[Introduced February 2, 1995;
referred to the Committee on the Judiciary;
and then to the Committee on Finance.]
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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.