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.