Current through Register Vol. XLI, No. 38, September 20, 2024
4.1. Demand for
hearing; form required. - Any party appealing a decision to the Agency or to
the Director may demand a hearing to have determined any legal rights, duties,
interests or privileges of specific parties. The party seeking a hearing shall
specify in writing the grounds relied upon as a basis for the
relief requested and must do so within fifteen (15) days from the date of
action from which the party is appealing.
4.2. Hearing on written demand. - When the
Director is presented with a demand for a hearing as described in Subsection
4.1 of this section he shall conduct a hearing within forty-five (45) days of
receipt by him of such written demand, unless postponed to a later date by
mutual agreement. However, if the Director shall determine that the hearing
demanded:
(a) Would involve an exercise of
authority in excess of that available to him under law, or
(b) Would serve no useful purpose, he shall,
within twenty (20) days of the receipt of such demand enter an order refusing
to grant the hearing as requested, incorporating therein his reason for such
refusal. Appeal may be taken from such order as provided in section four,
article five, chapter twenty-nine-a of the West Virginia Code of 1931, as
amended.
4.3. Notice of
hearing. - Upon the receipt of a demand for a hearing as described in
Subsection 4.1 of this section, the Director shall, within twenty (20) days,
provide the party making such demand with a notice of hearing providing the
Director has not entered an order denying a hearing as provided in Subsection
4.2 of this section. Such notice shall contain:
(a) The date, time and place of the
hearing;
(b) A short plain
statement of the matters asserted; and
(c) A statement of intention to appoint a
hearing examiner, if one is to be appointed, pursuant to Section 8 herein; such
notice shall be given at least ten (10) days in advance of the date of the
hearing.
4.4. How
hearings conducted. - Hearings shall be conducted as follows:
(a) Any party shall have the right to be
represented by an attorney at law, duly qualified to practice in the State of
West Virginia;
(b) The agency may
be represented by the Office of the Attorney General;
(c) The rules of evidence as applied in civil
cases in the circuit courts of this State shall be followed;
(d) When necessary to ascertain facts not
reasonably susceptible to proof under said rules of evidence, evidence not
admissible thereunder shall be admitted, except where precluded by statute, if
it is of a type commonly relied upon by reasonably prudent men in the conduct
of their affairs;
(e) The agency
shall be bound by the rules of privilege recognized by law;
(f) Documentary evidence may be received in
the form of copies or excerpts or by incorporation of reference;
(g) Initially the appellant shall be given
the opportunity to present evidence including testimony, papers, records and
documents in support of his position;
(h) Every party shall have the right of
cross-examination of witnesses who testify, and shall have the right to submit
rebuttal evidence;
(i) The agency
shall have the right to cross-examine witnesses providing rebuttal testimony;
and
(j) Following the presentation
of all the evidence, every party, including the agency, shall have the right to
offer argument, not to exceed a reasonable time limit as determined by the
Director or the hearing examiner.
