Current through Register Vol. XLI, No. 50, December 13, 2024
Section 151-3-4 - Hearings4.1. 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.