Senate Bill No. 692
(By Senator Kessler)
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[Introduced March 23, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §22A-5-1 and §22A-5-2 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto two new sections, designated §22A-5-3 and
§22A-5-4, all relating to creating a full-time administrative
law judge for the Office of Miners' Health, Safety and
Training; and providing the method for appointment of members
of the board.
Be it enacted by the Legislature of West Virginia:
That §22A-5-1 and §22A-5-2 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto two new sections, designated §22A-5-3 and
§22A-5-4, all to read as follows:
ARTICLE 5. BOARD OF APPEALS.
§22A-5-1. Board of appeals.
There is hereby continued a board of appeals, consisting of three members. Two members of the board shall be appointed by the
Governor, one person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
the
working miners
of the state, and one person who by reason of
previous training and experience may reasonably be said to
represent the viewpoint of the operators.
When appointing the
member representing the viewpoint of the working miners in the
state, the Governor shall request from the major employee
organization representing coal miners within the state a list of
three nominees for the position on the board. The highest ranking
official within the major employee organization representing coal
miners within this state shall submit a list of three nominees for
the position on the board. The nominees shall have a background in
health and safety. The Governor makes the appointment from the
requested list of nominees. When appointing the member
representing the viewpoint of the operators of the state, the
Governor shall request from the major trade association
representing operators in this state a list of three nominees for
the position on the board. All nominees shall be persons with
special experience and competence in health and safety. There
shall be submitted with this list a summary of qualifications of
each nominee. For purposes of this section, the major trade
association representing operators in this state is that
association which represents operators accounting for over one half of the coal produced in mines in this state in the year prior to
the year in which the appointment is to be made. The third person,
who is chair of the board and who must not have had any connection
at any time with the coal industry or an organization representing
miners, is selected by the two members appointed by the governor.
The term of
the two office of members of the board
appointed by the
Governor is five years.
The third person who is the administrative
law judge of the board, shall be appointed, compensated and removed
pursuant to the provisions of section three of this article.
The function and duties of the board is to hear appeals, make
determinations on questions of miners' entitlements due to
withdrawal orders and appeals from discharge or discrimination, and
suspension of certification certificates.
In performing these
functions, at least a quorum of the board shall be present and the
board may act on these duties by a majority vote.
The
chair administrative law judge of the board has the power
to administer oaths and subpoena witnesses and require production
of any books, papers, records or other documents relevant or
material to the appeal inquiry.
The
chair administrative law judge shall subpoena any witness
requested by a party to a hearing to testify or produce books,
records or documents. Any witness responding to a subpoena so
issued shall receive a daily witness fee to be paid out of the
state treasury upon a requisition of the State Auditor equivalent to the rate of pay under the wage agreement currently in effect
plus all reasonable expenses for meals, lodging and travel at the
rate applicable to state employees. Any full payments as
hereinbefore specified shall be in full and exclusive payment for
meals, lodging, actual travel and similar expenses and shall be
made in lieu of any lost wages occasioned by such appearance in
connection with any hearing conducted by the board.
Each member of the board The administrative law judge shall be
paid in accordance with section three of this article, the two
remaining board members shall be paid the same compensation and
expense reimbursement as is paid to members of the Legislature for
their interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. No
reimbursement for expenses shall be made except upon an itemized
account, properly certified by such members of the board. All
reimbursement for expenses shall be paid out of the State Treasury
upon a requisition upon the State Auditor.
Board members
and the administrative law judge, before
performing any duty, shall take and subscribe to the oath required
by Section five, Article IV of the Constitution of West Virginia.
§22A-5-2. Powers transferred to the board of appeals.
(a) There are hereby transferred to the board of appeals all
functions of the Director of the Office of Miners' Health, Safety and Training relating to the review of orders and notices as set
forth in section seventeen, article one of this chapter.
(b) There are hereby transferred to the board of appeals all
functions of the Director of the Office of Miners' Health, Safety
and Training relating to the review of penalty assessments as set
forth in subdivision (3), subsection (a), section twenty-one,
article one of this chapter.
(c) Judicial review of decisions by the board of appeals shall
be available and conducted in the same fashion as set forth in
section nineteen, article one of this chapter.
(d) The board has jurisdiction to review violations issued
under section sixty-six, article two of this chapter, but has no
jurisdiction to alter the amount of the civil administrative
penalty other than which the director has under that section.
§22A-5-3. Administrative law judge; appointment, term and
vacancy; qualifications; compensation; conflicts of
interest prohibited; removal.
(a) There is created the position of administrative law judge
within the Office of Miners' Health, Safety and Training. The
administrative law judge shall be a classified employee of the
Office of Miners' Health, Safety and Training hired by the
director:
Provided, That the administrative law judge shall
exercise independent judgment in deciding the cases before it.
(b) The administrative law judge shall be a citizen of the United States and a resident of this state who is admitted to the
practice of law in this state.
(c) The salary of the administrative law judge shall be set by
the Director of the Office of Miners' Health, Safety and Training
created in section three, article one, chapter twenty-two-a of this
code. The salary shall be within the salary range for comparable
administrative law judges as determined by the State Personnel
Board created by section six, article six, chapter twenty-nine of
this code.
(d) The administrative law judge shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be
associated with any group or entity which is itself engaged in the
active practice of law:
Provided, That nothing in this paragraph
may be construed to prohibit the administrative law judge from
being a member of a national, state or local bar association or
committee, or of any other similar group or organization, or to
prohibit the administrative law judge from engaging in the practice
of law by representing himself, herself or his or her immediate
family in their personal affairs in matters not subject to this
article.
(3) Not engage directly or indirectly in any activity,
occupation or business interfering or inconsistent with his or her
duties as administrative law judge;
(4) Not hold any other appointed public office or any elected
public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve
on or under any committee of any political party.
(e) The Director of the Office of Miners' Health, Safety and
training may remove the administrative law judge only for cause.
§22A-5-4. Contested case procedure before the board.
(a) Notwithstanding any provision of this code to the
contrary, including the procedural rules found in 37 CRS §1-1 et
seq., all hearings before the board shall be conducted in
accordance with the contested case provisions of article five,
chapter twenty-nine-a of this code.
(b) All hearings before the board are open the public. All
records of the board are public records.
(c) The administrative law judge has the power to rule on all
pretrail motions and any other matters as are necessary to properly
hear and decide cases before it.
(d) The administrative law judge shall write all orders,
findings of fact and conclusions of law, decisions, and opinions of
the board.
NOTE: The purpose of this bill is to create a full-time
administrative law judge to dispose of prehearing and post-hearing
procedural matters, write opinions, orders and decisions regarding
the cases heard by the board, and to administer the day-to-day
activities of the board.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§22A-5-3 and 22A-5-4 are new; therefore, strike-throughs and
underscoring have been omitted.