Current through Register Vol. XLI, No. 50, December 13, 2024
Section 190-4-6 - Contested Case Hearing and Disposition6.1. Hearings shall be conducted in accordance with the provisions of W. Va. Code §5-29A and the board's rules.6.2. The board shall deliver to the parties a notice of hearing. The notice of hearing shall fix the time and place for hearing and shall contain those notice terms as required by the West Virginia Administrative Procedures Act. The notice shall also contain a statement requiring the appraiser to submit an answer to the complaint within twenty (20) days after receipt of the notice of hearing. A written notice of hearing, together with a statement of charges, shall be personally delivered or mailed to the appraiser by certified mail, return receipt requested, at least thirty (30) days before the hearing date.6.3. The statement of charges shall set forth the acts or omissions with which the appraiser is charged, including standards of professional practice and professional conduct rule(s), W. Va. Code §30-38 et seq., or any rules of the board alleged to have been violated, and shall be in sufficient detail to enable the preparation of the appraiser's defense.6.4. The answer shall contain the following information:6.4.a. The name, address and telephone number of the appraiser;6.4.b. Specific statement regarding any or all allegations in the complaint which shall be in the form of admissions or denial, and may also contain explanation, remarks or statement of mitigating circumstances; and6.4.c. Any additional facts or information the appraiser deems relevant to the investigation and which may be of assistance in the ultimate determination of the case.6.5. Discovery procedures shall consist of those procedures authorized under the State Administrative Procedures Act found in W. Va. Code § 29A-5-1, et seq.6.6. Hearings shall be held at a time and place determined by the board, but in no event less than thirty days after the notice of hearing is given.6.7. Any member of the board has the authority to administer oaths and to examine any person under oath.6.8. If a licensee, upon whom a proper notice of hearing has been served, fails to appear in person at the hearing, the board or presiding officer may proceed to conduct the hearing (or may enter such other order or judgement deemed appropriate) and the licensee shall be bound by the results of such hearing to the same extent as if the licensee were present.6.9. Before testimony is presented, the record shall show the identity of any board members present, of the presiding officer, and of the primary parties and their representatives, and shall reflect that all testimony is being recorded. The licensee may challenge any member of the board for cause prior to the commencement of the hearing; the members of the board (with the challenged member abstaining) shall decide by the majority vote whether cause exists and whether the challenged member shall participate in the hearing. The board or presiding officer shall set dates, times and rules for hearings and shall rule on all issues. Hearings shall generally be conducted in the following order, subject to modification at the discretion of the board or presiding officer: 6.9.a. The presiding officer may read a summary of the charges and answers thereto, and other responsible pleadings filed by the licensee prior to the hearing.6.9.b. The assistant attorney general representing the State's interest before the board may make a brief opening statement, which may include a summary of charges and the witnesses and documents to support such.6.9.c. The licensee shall be offered the opportunity to make an opening statement.6.9.d. The presentation of evidence on behalf of the State, including a summary at the close of the evidence on behalf of the State.6.9.e. The presentation of evidence on behalf of the licensee.6.9.f. Rebuttal evidence on behalf of the State, if any.6.9.g. Rebuttal evidence on behalf of the licensee, if any.6.9.h. Closing arguments, if any, by all interested parties on behalf of the board and on behalf of the licensee.6.10. The board may grant immunity from disciplinary action to a witness, but only upon a majority vote of the board members present. If the hearing is being presided over by an administrative law judge or hearing examiner, the administrative law judge or hearing examiner shall have authority to grant immunity from disciplinary action before the board to a witness. The official record of the hearing shall include the reasons for granting the immunity.6.11. Admissibility of evidence at the hearing shall be governed by the terms of the West Virginia Administrative Procedure Act. Copies of documents offered as evidence at the hearing shall be provided to opposing parties. Copies must also be furnished to members of the board. Notwithstanding the foregoing, to the extent the licensee believes he or she is being asked to reply to accusations, charges, innuendoes, or facts for the first time in the hearing, the licensee shall be afforded the opportunity to respond to any such evidence to the board either in writing or at a subsequent scheduled meeting of the board; the assistant attorney general assigned to prosecute the case before the board shall, however, be allowed to continue to present evidence during the hearing.6.12. When a majority of the board presides over the reception of evidence at the hearing, the decision is a final decision.6.13. Upon the motion of the board or any party assigning error or omission in any part of any transcript, the board or its appointed administrative law judge or hearing examiner shall settle all differences arising as to whether such transcript truly discloses what occurred at the hearing and shall direct that the transcript be corrected and/or revised as appropriate so as to make it conform to the truth.6.14. At the conclusion of any contested case hearing the board shall make Findings of Fact and Conclusions of Law and may:6.14.a. Dismiss the charges. In the event the charges are dismissed, and before a decision by the board is reported, the file shall be confidential;6.14.b. Impose one or more sanctions as considered appropriate in the circumstances for the discipline of a licensee. Available sanctions include, but are not limited to, denial of a license or renewal thereof, administrative fine not to exceed one thousand dollars per day per violation, probation, revocation, suspension, reexamination, restitution, require additional education, censure, denial of future license, downgrade of license, reprimand, impose all costs associated with the investigation and prosecution of the licensee upon the licensee, or any other sanction pursuant to W. Va. Code § 30-38-1, et seq.6.15. The board may elect to have an administrative law judge or hearing examiner conduct the hearing. 6.15.a. In such cases where the board elects to utilize an administrative law judge or hearing examiner, the administrative law judge or hearing examiner shall: 6.15.a.1. Be in control of the proceedings as presiding officer;6.15.a.2. Have the authority to administer oaths;6.15.a.3. Have the authority to admit or exclude testimony or other evidence; and6.15.a.4. Have the authority to rule on all motions and objections.6.15.b. At the conclusion of a hearing, the administrative law judge or hearing examiner shall prepare a proposed order which shall contain findings of fact and conclusions of law. The board may request that the administrative law judge or hearing examiner additionally prepare and submit proposed disciplinary action, if any and where warranted, to be taken against the licensee in the proposed order. The board may accept, reject or modify the proposed decision of the administrative law judge or hearing examiner.6.16. Contested case hearings shall be recorded either by mechanical or electrical means or by certified shorthand reporters. Contested case hearings or any part thereof shall be transcribed at the request of any party, with the expense of the transcription to be charged to the requesting party.