Current through Register Vol. XLI, No. 50, December 13, 2024
Section 7-2-4 - Procedural Rules for Hearings4.1. Notice of Hearings.(a) Within sixty (60) days of filing complaint, the presiding officer shall set a hearing date and time. Notice of the hearing date and time shall be served on respondent and counsel for respondent, if any, by first class mail addressed to the last known mailing address of such person. Such notices shall be mailed not less than thirty (30) days before the hearing date. All complaints, unless dismissed by the Board as unfounded, trivial or settled informally, shall be heard within six months after the date each complaint was received and filed.(b) Hearings may be rescheduled by the presiding officer and, once begun, continued from time to time, for cause shown as the interests of justice may require.4.2. Prehearing Matters. The presiding officer, with or without the request of a party, may schedule a prehearing conference to narrow the issues to be heard, to estimate the time which will be required for the hearing, rule upon prehearing motions, and, when appropriate, negotiate informal disposition of the complaint.4.3. Hearings Generally. (a) Conduct and Order of Hearing. (1) Upon calling on for hearing any complaint, the presiding officer may cause the complaint to be read and shall offer the respondent the opportunity to reply. The Hearing Panel may receive evidence from its investigator or staff. Respondent, directly or by counsel, may present evidence in defense against the complaint. All testimony given shall be subject to cross-examination by the opposing party. The Board may receive rebuttal evidence after respondent's presentation. Any member of the Hearing Panel may inquire to any witness at any time.(2) After the receipt of all evidence, respondent and Board staff, directly or by counsel, may be allowed to make closing arguments.(3) If the respondent is not a natural person, the respondent shall be represented by counsel. The Board or its staff may be represented by counsel.(4) Failure of the respondent to appear, without cause, shall not result in delay or postponement of the hearing.(b) The Record. The record of a hearing shall consist of the testimony and documentary and physical evidence admitted into evidence by the Hearing Panel, all judicially cognizable facts so noticed, and the administrative decision or order ruling upon the complaint. All hearing proceedings on the record shall be recorded by stenographic means. Any party may obtain a transcript of the proceedings at the party's expense.(c) Testimony. Witnesses shall testify under oath or affirmation.(d) Evidence. (1) The West Virginia Rules of Evidence shall apply. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. 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. The Hearing Panel shall be bound by the rules of privilege recognized by law. Objections to evidentiary offers and the ruling thereupon shall be noted in the record. Any party to any such hearing may vouch the record as to any excluded testimony or other evidence.(2) Only the evidence admitted into the record and judicially cognizable facts so noticed shall be considered in the determination of the complaint.(3) Depositions may be taken and read or otherwise received as evidence in accordance with Rules 30 and 32 of the West Virginia Rules of Civil Procedure.(e) Conformance. Upon motion of any member of the Hearing Panel or any party assigning error or omission in any part of any transcript, the presiding officer 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 as appropriate so as to make it conform to the truth.(f) Deliberations. Hearing Panels may deliberate and issue decisions in person, by telephone conference, or by written correspondence, including electronic communications.(g) Open Meetings and Executive Sessions. Pursuant to W. Va. Code § 6-9A-1, the Board may by majority vote hold hearings under these rules in executive session unless the respondent requests an open meeting. In any event, the vote upon the final decision of the Hearing Panel shall be in open session.4.4. Standard of Proof. To impose any sanction or penalty, the findings of the Hearing Panel in support thereof must be proved by a preponderance of the evidence.4.5. Subpoena and Contempt Power. The Hearing Panel shall have power to issue subpoenas or any other lawful process through the presiding officer at the request of any party. Subpoenas may be issued for attendance of witnesses or the production of documentary evidence. Subpoenas and other process may be served in accordance with the West Virginia Rules of Civil Procedure. All witnesses shall be entitled to such witness fees and expenses as in any civil proceeding in this State. The Hearing Panel may apply to any circuit court for an order requiring any person to comply with the presiding officer's directions in maintaining order at a hearing or to compel compliance with subpoenas.4.6. Criminal Convictions. (a) An engineer who has been convicted of a crime that reflects adversely on the engineer's honesty, trustworthiness or fitness as an engineer, or of any felony, shall, within thirty days of entry of the order or judgment of conviction, forward a copy of the order or judgment to the Board's Administrator. A plea or verdict of guilty or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the meaning of this rule. Any other person may file a copy of the order or judgment with the Board.(b) Upon receipt of the order or judgment, which shall be conclusive evidence of the guilt of the crime or crimes of which the engineer has been convicted, the Board Administrator shall treat the order or judgment as a complaint for misconduct and violation of professional responsibility.(c) A respondent may present evidence and argument in support of mitigation based on, but not limited to, the nature of respondent's misconduct, surrounding facts and circumstances, previous ethical violations, the willfulness of the conduct, and the adequacy of respondent's previous opportunity to present evidence.4.7. Reciprocal Discipline. (a) A final adjudication in another jurisdiction, whether state or federal, of misconduct constituting grounds for discipline of a registered professional engineer in that jurisdiction or a voluntary surrender of a license to practice engineering in connection with a disciplinary proceeding in that jurisdiction shall, for the purposes of proceedings under these rules, conclusively establish such conduct.(b) A registrant in this State against whom any form of public discipline has been imposed by the authorities of another jurisdiction, whether state or federal, or who voluntarily surrenders his or her license to practice engineering in connection with such disciplinary proceedings shall notify the Board of such action in writing within ten days thereof. Failure to notify the Board shall constitute an aggravating factor in any subsequent disciplinary proceeding. Any other person may notify the Board of such action by submitting a complaint.(c) If the registrant intends to challenge the validity of the disciplinary order entered in the foreign jurisdiction or the voluntary surrender of his or her license to practice engineering in connection with a disciplinary proceeding, the registrant must request a formal hearing and file with the Board a full copy of the record of the disciplinary proceedings which resulted in imposition of the disciplinary order or the voluntary surrender of a license to practice engineering.