Current through Register Vol. XLI, No. 38, September 20, 2024
4.1. Demand for Hearing; Form Required - Any
party who demands a hearing to have determined any constitutional rights, legal
rights, duties interests or privileges of specific parties as required by law
shall specify in writing the grounds relied upon as a basis for the relief
requested.
4.2. Hearing on Written
Demand - When the executive secretary is presented with a demand for a hearing,
the executive secretary shall conduct a hearing or cause a hearing to be
conducted within forty-five (45) days of receipt of such written demand, unless
postponed to a later date pursuant to these rules. However, if the executive
secretary shall determine that the hearing demanded:
(A) Would involve an exercise of authority in
excess of that available under law; or
(B) Would serve no useful purpose; the
executive secretary shall, within twenty (20) days of the receipt of such
demand enter an Order refusing to grant the hearing as requested, incorporating
therein the reason for such refusal. Appeal may be taken from such Order as
provided in Chapter 29A, Article 5, Section 4 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 executive secretary shall within twenty
(20) days provide the party making such demand, any employee or employer and
any other party appearing to have an interest therein with a notice of hearing,
providing the executive secretary 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 to be considered or shall incorporate by reference an
attached document so stating;
(C)
Such other matters as are pertinent thereto.
Such notice shall be given at least ten (10) days in advance
of the date of 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 and employer may be
represented by the office of the attorney general or counsel; if there is a
conflict between the agency and employer one may be represented by the attorney
general and the other shall be represented by counsel;
(C) The rules of evidence as applied in civil
cases in the circuit courts of this state shall be followed; irrelevant,
immaterial or unduly repetitious evidence shall be excluded;
(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 specifically precluded by
law, if it is of a type commonly relied upon by reasonably prudent persons in
the conduct of their affairs;
(E)
The hearing shall be conducted under the rules of privilege recognized by
law;
(F) Documentary evidence may
be received in the form of copies or excerpts or by incorporation by
reference;
(G) Initially the agency
shall be given opportunity to present evidence, including testimony, papers,
records, agency staff memoranda and documents in the possession of the agency
in support of its position; the employer, if not represented by the agency,
shall then be given such opportunity;
(H) Every party shall have the right of
cross-examination of witnesses who testify, and following the conclusion of the
agency's and employer's presentation, shall have the right to submit rebuttal
evidence;
(I) The agency and
employer shall have the right to cross-examine witnesses and provide rebuttal
evidence;
(J) Objections to
evidentiary offers shall be noted in the record. Any party may vouch the record
as to any excluded testimony or other evidence;
(K) Judicial notice shall be taken of
judicially cognizable facts; all parties shall be afforded an opportunity to
contest the facts so noticed;
(L)
Statutes, rules and regulations, and executive orders may be recognized and
need not be admitted into the record;
(M) Following the presentation of all the
evidence, every party, including the agency and employer, shall have the right
to offer argument, not to exceed a reasonable time limit as determined by the
executive secretary or the hearing examiner.
