Current through Register Vol. XLI, No. 50, December 13, 2024
Section 23-3-6 - Hearing Procedure6.1. Any applicant denied a license who submits a written demand for hearing to the Board within twenty (20) days following the denial is entitled to a hearing on the action denying the license. Any professional surveyor against whom a complaint is filed, may at any time following receipt of a Notice of alleged violation, but before a hearing before the board is scheduled, submit a written demand for a hearing.6.2. When the Chairman of the Board or his or her authorized designee is presented with a demand for a hearing, he or she shall schedule a hearing not less than ten (10) nor more than thirty (30) days of receipt of the written demand, unless postponed to a later date by mutual agreement.6.3. Following receipt of a professional surveyor's response to a Notice of alleged violation, and determination by the Board that probable cause exists for the Board to find that the professional surveyor committed misconduct for which he or she may be disciplined by the Board, the Secretary shall provide the professional surveyor charged with an Order, issued in the name of the Board, scheduling the case for formal hearing before the Board. The Order shall be served by certified mail, return receipt requested, upon the charged party at least thirty (30) days prior to the date of hearing. The Order shall state with particularity, by reference to the W. Va. Code or Rule of the Board thereunder, the matters charged in the complaint. The Order shall state the date, time and place for the hearing. The Board may thereafter amend the charges set forth in the Order, except that a hearing based on amended charges is subject to the same thirty (30) day notice requirement.6.4. The Order scheduling a case for formal hearing before the Board shall include a time frame order requiring all parties to a disciplinary action, within fifteen (15) days of the service of the Order but not later than three days prior to the scheduled date of the hearing, to exchange the following: 6.4.a. A list of proposed witnesses at hearing with addresses and telephone numbers;6.4.b. Copies of documentary evidence and lists of exhibits intended to be introduced into evidence at hearing; and6.4.c. Copies of any witness statements in the possession or under the control of the Board.6.4.d. The time frame for exchanging witness lists, statements of Board witnesses, copies of documentary evidence and lists of exhibits may be extended by agreement of the parties.6.4.e. The Board has a continuing duty to disclose exculpatory evidence.6.5. Upon written motion received by the Board no later than twenty (20) days prior to the date of hearing, a more definite statement of the matters charged or the reasons stated for denial of a license shall be provided to the demanding or charged party or his or her counsel, at least fifteen (15) days prior to the hearing date.6.6. Hearings shall be conducted as follows: 6.6.a. Any party to a hearing shall have the right to be represented by an attorney-at-law, duly qualified to practice law in the state of West Virginia.6.6.b. The Board shall be represented by the West Virginia Attorney General's Office or, with the consent of the Attorney General, an attorney member of the Board or attorney-at-law duly qualified to practice law in the state of West Virginia and hired by the Board. An attorney member of the Board who represents the Board at hearing may not participate in final deliberations of the Board or vote on the final disposition of the case.6.6.c. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded from the hearing. Furthermore, the rules of evidence as applied in civil cases in the circuit courts of this state shall be followed. However, when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.6.6.d. The rules of privilege recognized by the laws of West Virginia shall be followed.6.6.e. Objections to evidentiary offers shall be noted in the record. Any party to the hearing may vouch the record as to any excluded testimony or other evidence.6.6.f. Any party to a hearing may appear with witnesses to testify on his or her behalf; may be heard in person, by counsel or both; may present other evidence in support of his or her position as is considered appropriate by the Board and, when appropriate, may cross-examine witnesses called by the Board in support of the charges or in defense of its decision to deny a license.6.6.g. The hearing shall be held at a time and place designated by the Board, but no hearing shall be conducted unless and until at least thirty (30) days written notice thereof has been served upon the charged or demanding party and/or his or her attorney in person; or if he or she cannot be found, by delivering the notice at his or her usual place of abode and giving information of its purport, to his wife or her husband, or to any other person found there who is a member of his or her family and above the age of sixteen (16) years; or if neither his wife or her husband nor any such person can be found there, and he or she cannot be found, by leaving the notice posted at the front door of the place of abode; or if he or she does not reside in this state, the notice may be served by the publication thereof once a week for three successive weeks in a newspaper published in this state; or the notice may by served by registered or certified mail.6.6.h. The hearing shall be open to the general public.6.6.i. Members of the Board and its officers, agents and employees are competent to testify at the hearing as to material and relevant matters, but no member of the Board who testifies at the hearing may participate in the deliberations or decisions of the Board with respect to the case in which he testified.6.6.j. The hearing shall be conducted by a quorum of the Board or, in the discretion of the Board, an attorney licensed within this state hired by the Board to serve as hearing examiner, to make written findings of fact and conclusions of law, and to make nonbinding recommendations to the Board as to the appropriate disposition of the case.6.6.k. A record of the hearing, including the complaint(s), if applicable, the notice of hearing, all pleadings, motions, rulings, stipulations, exhibits, documentary evidence, evidentiary depositions and the stenographic report of the hearing, shall be made and a transcript thereof maintained in the Board's files. Upon request, a copy of the transcript shall be furnished to either party at his or her expense.6.6.l. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.6.6.m. At any hearing upon a complaint filed against a professional surveyor, or any hearing under subsection 5.2 of this Rule, the Board shall have the burden of proof and shall present its evidence and/or testimony in support of the charges first.6.6.n. Where a hearing is held upon demand under the provisions of subsections 6.1 of this rule following a denial of a license on the grounds that an applicant is not qualified for a license, the demanding party shall have the burden of proof and shall therefore be required to present his or her evidence first. The Board may require the person demanding the hearing to give security for costs and if the demanding party does not substantially prevail, costs may be assessed against them and may be collected in a civil action or by other proper remedy.6.6.o. Following the conclusion of the Board's presentation of evidence in accordance with subsection 6.6.m of this section the Respondent or charged party shall have the right to submit his or her evidence in defense.6.6.p. Following the conclusion of the demanding party's presentation of evidence in accordance with subsection 6.6.n of this section, the Board shall have the right to offer its evidence in rebuttal.6.6.q. The Board may call witnesses to testify in support of its decision to deny a license or in support of the charges instituted against a professional surveyor; may present other evidence to support its position; and, may cross-examine witnesses called by the demanding party or charged party in support of his or her position.6.6.r. All parties shall have the right to offer opening and closing arguments, not to exceed ten (10) minutes for each presentation.6.6.s. Hearings held by the Board as a result of a complaint filed against a professional surveyor may be continued or adjourned to a later date or different place by the Board or its designee by appropriate notice to all parties.6.6.t. Motions for a continuance of a hearing may be granted upon a showing of good cause. Motions for continuance must be in writing and received in the office of the Board no later than seven (7) days before the hearing date. In determining whether good cause exists, consideration will be given to the ability of the party requesting the continuance to proceed effectively without a continuance. A motion for a continuance filed less than seven (7) days from the hearing date may be denied unless the reason for the motion could not have been ascertained earlier. Motions for continuance filed prior to the date of hearing shall be ruled on by the Chairman or Secretary of the Board. All other motions for continuance shall be ruled on by the Board member(s) or the member presiding over the hearing.6.6.u. All motions related to a case set for hearing before the Board, except motions for continuance and those made during the hearing, shall be in writing and shall be received in the office of the Board at least ten (10) days before the hearing. Prehearing motions may be heard at a prehearing conference or at the hearing prior to the commencement of testimony. The Board member(s) presiding at the hearing shall hear the motions and the response from the non-moving party and shall rule on the motions accordingly.