H. B. 2787
(By Delegates Boggs, Barker, Manchin, Michael,
Perry, Ross, Shaver and Swartzmiller)
[Introduced February 24, 2009; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §24-1-9 of the Code of West Virginia,
1931, as amended, relating to the Public Service Commission;
recommended decisions by hearing commissioner, examiner or
panel; and service of decisions on parties, including by
electronic transmission.
Be it enacted by the Legislature of West Virginia:
That §24-1-9 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. GENERAL PROVISIONS.
§24-1-9. Recommended decision by hearing commissioner, hearing
examiner or panel.
(a) Any order recommended by a single hearing commissioner, a
hearing examiner or a panel consisting of a hearing examiner and a
single commissioner with respect to any matter referred for hearing
shall be in writing and shall set forth separately findings of fact and conclusions of law, which findings of fact shall make specific
reference to the evidence in the record which supports such
findings, and shall be filed with the commission. A copy of such
recommended order shall be served upon the parties who have
appeared in the proceeding.
The commission may serve a copy of the
recommended order by certified mail or first class mail. As an
alternative to service by mail, the commission may serve a party by
electronic transmission when the party has the capability to
receive the electronic transmission and has furnished an electronic
address. Any such electronic transmission shall contain a "return
receipt" mechanism to assure the commission that a recommended
order was received. Service is complete by mail when the
recommended order is placed in the mail to the address furnished by
the party. Service is complete by electronic transmission when the
recommended order is sent to the electronic address provided by the
party.
(b) Before any order is recommended, the parties shall be
afforded an opportunity to submit, within the time prescribed by
the hearing commissioner, hearing examiner or panel proposed
findings of fact and conclusions of law and briefs.
(c) Within the time prescribed, the parties shall be afforded
an opportunity to file exceptions to the recommended order and a
brief in support thereof, provided the time so fixed shall be not
less than fifteen days from the date of
mailing by certified mail service of such recommended order.
to the parties.
(d) In all proceedings in which exceptions have been filed to
a recommended order, the commission, before issuing its final
order, may afford the parties an opportunity for oral argument.
When exceptions are filed, as herein provided, it shall be the duty
of the commission to consider the same and if sufficient reason
appears therefor, to grant such review or make such order or hold
or authorize such further hearing or proceeding as may be necessary
or proper to carry out the purposes of this chapter. The
commission, after review, upon the whole record, or as supplemented
by a further hearing, shall decide the matter in controversy and
make appropriate order thereon.
(e) When no exceptions are filed within the time specified,
such recommended order shall become the order of the commission
five days following the expiration of the period for filing
exceptions unless the order is stayed or postponed by the
commission:
Provided, That the commission may, on its own motion
before such order becomes the order of the commission, review any
such matter and take action thereon as if exceptions thereto had
been filed.
(f) The commission, a hearing commissioner, a hearing examiner
or panel to whom a matter is referred may expedite the hearing and
decision of any case if the public interest so requires by the use
of pre-trial conferences, stipulations and agreements, prepared testimony, depositions, daily transcripts of evidence, trial briefs
and oral argument in lieu of briefs, as appropriate.
NOTE: The purpose of this amendment is to delete the require
ment of the commission to serve recommended decisions by certified
mail and to allow a service by electronic transmission, when
available to the parties.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.