Current through Register Vol. XLI, No. 50, December 13, 2024
Section 77-8-6 - Issuance of Charge6.1. Reasonable cause of determination6.1.1. If a conciliation agreement under section 5.2 of these regulations has not been executed by the complainant and the respondent, and approved by the commission, the commission, within the time limits set forth in section 6.1.4, shall determine whether, based on the totality of the factual circumstances known at the time of the decision, reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur. The reasonable cause determination will be based on the facts concerning the alleged discriminatory housing practice, provided by complainant and respondent and otherwise disclosed during the investigation. In making the reasonable cause determination, the commission shall consider whether the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in court. 6.1.1.a. In all cases not involving the legality of local zoning or land use laws or ordinances: 6.1.1.a.1. If the commission determines that reasonable cause exists, the commission will immediately issue a charge under section 6.2 of these regulations on behalf of the aggrieved person, and shall notify the aggrieved person and the respondent of this determination by certified mail or personal service.6.1.1.a.2. If the commission makes an initial determination that no reasonable cause exists, the commission shall issue a short and plain written statement of the facts upon which the commission has based its determination; and shall notify the aggrieved person and the respondent of the determination, and of the reconsideration procedures provided by section 6.4 of these regulations, which notice shall be by certified mail or personal service.6.1.1.a.3. If a request for reconsideration is not filed within ten (10) days of notice to an aggrieved party of the commission's initial determination of no reasonable cause, or upon reconsideration pursuant to section 6.4 of these regulations the executive director determines that there is no reasonable cause, the commission shall make a final determination that no probable cause exists, and the commission shall: issue a short and plain written statement of the facts upon which the commission has based the no reasonable cause determination; dismiss the complaint; notify the aggrieved person and the respondent of the dismissal (including the written statement or facts) by certified mail or personal service; and make public disclosure of the dismissal.6.1.2. If the commission determines that the matter involves the legality of local zoning or land use laws or ordinances, the commission, in lieu of making a determination regarding reasonable cause, shall refer the investigative materials to the attorney general for appropriate action under the West Virginia Fair Housing Act, W. Va. Code '5-11A-15, and shall notify the aggrieved person and the respondent of this action by certified mail or personal service.6.1.3. The commission may not issue a charge under section 6.2 regarding an alleged discriminatory housing practice, if an aggrieved person has commenced a civil action under a state or federal law seeking relief with respect to the alleged discriminatory housing practice, and the trial in the action has commenced. If a charge may not be issued because of the commencement of such a trial, the commission will so notify the aggrieved person and the respondent by certified mail or personal service.6.1.4. The commission shall make a reasonable cause determination within one hundred (100) days after filing of the complaint, unless it is impracticable to do so.6.1.5. If the commission is unable to make the determination within the one hundred (100) day period specified in section 6.1.4, the commission will notify the aggrieved person and the respondent, by certified mail or personal service, of the reasons for the delay.6.2. Issuance of charge 6.2.1. A charge: 6.2.1.a. Shall consist of a short and plain written statement of the facts upon which the commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur;6.2.1.b. Shall be based on the final investigative report; and6.2.1.c. Need not be limited to facts or grounds that are alleged in the complaint.6.2.2. Within three (3) business days after the issuance of the charge, the commission shall assign the case to an administrative law judge for hearing pursuant to these regulations, and shall serve the charge and notifications in accordance with 2.3. of these rules, and shall notify the attorney general of the filing of the charge.6.3. Election of civil action or provision of administrative proceeding6.3.1. If a charge is issued under section 6.2 of these regulations, a complainant (including the attorney general or the commission), a respondent, or an aggrieved person on whose behalf the complaint is filed may elect, in lieu of an administrative proceeding under these regulations, to have the claims asserted in the charge decided in a civil action under the West Virginia Fair Housing Act, W. Va. Code '5-11A-13(o).6.3.2. The election must be made not later than twenty (20) days after the receipt of service of the charge. The notice of the election must be filed with the commission and served on the attorney general, the respondent, and the aggrieved person on whose behalf the complaint was filed. The notification will be filed and served in accordance with section 2.3 of these regulations.6.3.3. If an election is not made under this section, the commission will maintain an administrative proceeding based on the charge in accordance with the procedures set forth herein.6.3.4. If an election is made under this section, the commission shall immediately notify and authorize the attorney general to commence and maintain a civil action seeking relief under the West Virginia Fair Housing Act, W. Va. Code '5-11A-13(o), on behalf of the aggrieved person in the appropriate circuit court. Such notification and authorization shall include transmission of the file in the case, including a copy of the final investigative report and the charge, to the attorney general.6.4. Reconsideration of administrative dismissal.The following procedures shall apply whenever there is an initial determination of no reasonable cause, or when a complaint is otherwise dismissed, except when a complaint is dismissed by an administrative law judge or pursuant to a settlement reached by the parties or pursuant to a conciliation agreement between the commission and the respondent, in which cases these procedures do not apply:
6.4.1. An aggrieved person may apply to the commission, through its compliance director or such other person as the executive director may designate, for an administrative reconsideration of the dismissal of her/his complaint. Requests for reconsideration shall be in writing, shall state specifically the grounds relied on, may contain new evidence not previously considered by the commission and shall be filed at the commission office within ten (10) days from the date of the aggrieved person's receipt of such copy.6.4.2. The commission shall forward a copy of the request for administrative reconsideration of a dismissal and any material in support thereof to the respondent, who may respond thereto within ten (10) days of receipt of such copy.6.4.3. Within twenty (20) days after receipt by the commission of the request for reconsideration, the matter will be referred to the commission's attorney, or such other person as the executive director may designate, who will consider any new evidence and secure new information as may be necessary and appropriate. The reconsideration shall be scheduled to be heard by the attorney or other designated person within forty (40) days after such referral.6.4.4. The aggrieved person and respondent shall be given at least ten (10) days' written notice of the time and place of the reconsideration. The notice shall be given by personal delivery or by certified mail, return receipt requested, and shall advise the aggrieved person that she/he must be present at the reconsideration and may be accompanied by counsel.6.4.5. If after having received proper notice, the aggrieved person does not appear at the reconsideration, the aggrieved person shall be deemed to have waived all rights to reconsideration unless it is shown to the satisfaction of the executive director or the chairperson that the failure to appear was due to circumstances beyond the aggrieved person's control.6.4.6. The commission's attorney or other designated person shall preside at the reconsideration and shall be provided with all information in the commission file pertaining to the complaint under reconsideration. The presiding person, after considering the evidence, shall file a report and recommendation with the executive director which shall recommend that the dismissal of the complaint be upheld, reversed, or modified or that the complaint be remanded for further investigation. The report shall be filed with the executive director within fifteen (15) days after the reconsideration.6.4.7. If upon consideration of the report the executive director determines that further investigation is warranted, further investigation shall be conducted.6.4.8. The executive director shall make a final determination as to whether there is reasonable cause.6.5. Prompt judicial action 6.5.1. If at any time following the filing of a complaint, the commission concludes that prompt judicial action is necessary to carry out the purposes of these regulations, the commission may authorize the attorney general to commence a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint. The commencement of a civil action by the attorney general under this section will not affect the initiation or continuation of proceedings under this part or administrative proceedings under these regulations.6.5.2. If the commission has reason to believe that a basis exists for the commencement of proceedings against the respondent under W. Va. Code '5-11A-15, or proceedings by any governmental licensing or supervisory authorities, the commission shall transmit the information upon which that belief is based to the attorney general and to other appropriate authorities.