Current through Register Vol. XLI, No. 50, December 13, 2024
Section 4-2-3 - Hearing Shall Be Conducted As Follows3.1. Any party to a hearing shall have the right to be represented by an attorney at law, duly qualified to practice in the State of West virginia.3.2. The board may be represented by the Office of the Attorney General.3.3. The rules of evidence as applied in civil cases in the circuit courts of this State shall be followed.3.4. Hearings conducted by the Board or by a hearing examiner appointed by the Board, upon a complaint issued by the Board, are a continuance of the investigation designated to enable the Board to properly discharge its administrative functions and authority. The purpose of such hearing is to afford the Respondent an opportunity, in person or by counsel or other representative, to respond to the complaint, to present his position, to present evidence in support of his contention, to examine and cross-examine evidence and witnesses produced in support of the complaint and to argue orally at the hearing.3.5. The hearing shall be held at such time and place as is 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 Respondent in person or by registered mail.3.6. The hearing shall not be open to the general public unless the Respondent makes and files a written request therefor with the Board or with the hearing examiner.3.7. The purpose of the hearing shall be to further inquire into the matters set forth in the complaint or any amended complaint, and to record evidence and arguments in support of the same and in opposition thereto, so that the Board may determine all issues.3.8. The hearing may be conducted by a Board member, or by a hearing examiner appointed by the Board.3.9. A record of the hearing shall be prepared under the supervision of the Board, if the hearing is conducted by it, or by a hearing examiner who conducts the hearing on behalf of the Board. 3.10. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.3.11. Initially, the Board shall be given an opportunity to present evidence, including testimony, papers, records, agency staff memoranda and documents in the possession of the Board, in support of its position.3.12. Every party shall have the right of cross-examination of witnesses who testify, and following the conclusion of the Boards presentation, shall have the right to submit rebuttal evidence.3.13. The Board shall have the right to cross-examine witnesses providing rebuttal testimony.3.14. Following the presentation of all evidence, every party, including the board, shall have the right to offer argument, not to exceed ten (10) minutes for each presentation.3.15. The state or local organization which represents the profession to which the Respondent belongs may intervene in any hearing for the purpose of assisting in the prosecution of the complaint, or may with the consent of the Respondent, intervene for the purpose of assisting the Respondent in contesting the complaint.3.16. Hearing examiners are not authorized or empowered to suspend or revoke any licensor to place any licensee or probation. The function of a hearing examiner is to preside at the hearing and to cause to be prepared a record of the hearing so that the Board can discharge its functions. The hearing examiner shall prepare recommended findings of fact and conclusions of law for submission to the Board.3.17. Summons and subpoenas may be issued by the Chairman of the Board and by hearing examiners appointed by the Board.3.18. The Board or its hearing examiner may institute proceedings in circuit courts to punish persons for contemptuous or contumacious conduct directed to the Board or to its hearing examiner in the course of hearings.3.19. The Respondent shall serve his answer within thirty (30) days after service of the complaint upon him. Upon failure of the Respondent to respond to the complaint as required, all of the allegations set out therein as to conduct or conditions of the Respondent may be taken by the Board as confessed by the Respondent.3.20. Hearings may be continued from one day to another, or adjourned to a later date or a different place by announcement thereof or by appropriate notice to all parties.3.21. A continuance may be granted by the Chairman or his designee for good cause shown. A written notice of continuance shall be filed at least five (5) days prior to the hearing date.