Current through Register Vol. XLI, No. 50, December 13, 2024
Section 87-7-9 - Complaints; Determination of Probable Cause9.1. The State Fire Marshal, or his or her designee, shall be empowered with the authority of investigating and administratively handling any complaint filed alleging a violation of sections 7 and/or 8 of this rule.9.2. Any person, firm, corporation, member of the State Fire Commission, State Fire Marshal, or public officer, upon observing an infraction of the requirements of Section 7 or 8 of this rule may file a written complaint with the office of the State Fire Marshal. The State Fire Marshal may provide a form for this purpose, but a complaint may be filed in any written form.9.3. To the extent possible, the complaint should describe the alleged violation which prompted the complaint, including any of the following information:9.3.1. The name and address of the certified individual or applicant against whom the complaint is lodged;9.3.2. The date of the alleged unlawful act;9.3.3. The nature of the alleged unlawful act; and9.3.4. The location of the alleged unlawful act.9.4. The State Fire Marshal shall maintain a separate file for each complaint received, and each file shall have a number assigned to it. The individual that is the subject of the Complaint shall be deemed and hereinafter referred to as the "Respondent".9.5. The State Fire Marshal shall maintain a complaint log which records the receipt of each complaint, its nature and its disposition.9.6. Upon receipt of a complaint, the State Fire Marshal shall issue one of the following acknowledgments to the complainant:9.6.1. That the matter will be reviewed by the State Fire Marshal;9.6.2. That the complaint is outside the jurisdiction of the State Fire Commission and State Fire Marshal, with suggestions, if any such exist, as to how the complainant might best obtain a resolution of his or her problem; or,9.6.3. That more information will be required in order to adequately review the individual complaint.9.7. If the State Fire Marshal acknowledges the complaint under subsection 9.6.1, or 9.6.3, the State Fire Marshal shall send a copy of the complaint, including any supporting documentation, by certified mail to the Respondent for his or her written comment. If the acknowledgement falls under 9.8.2, the State Fire Marshal may, in his/her discretion, notify the Respondent with a copy of the complaint and inform the Respondent that the complaint is being dismissed for lack of jurisdiction and no further action is necessary by the Respondent. 9.8 If the matter is being further reviewed or investigated pursuant to subsection 9.6.1, or 9.6.3, the State Fire Marshal shall afford the Respondent an opportunity to submit a written response to the State Fire Marshal within thirty (30) days of the date of such correspondence, or waive the right to do so.9.8.1. A copy of the complaint sent to the certificate holders or applicants shall be considered properly served when sent to their last known address. It is the responsibility of the certificate holder or applicant to keep the State Fire Marshal informed of his or her current address.9.9. After acknowledgement of a complaint under subdivision 9.6.1 or 9.6.3, the State Fire Marshal shall cause to be conducted any reasonable inquiry or investigation he or she considers necessary to determine the truth and the validity of the allegations set forth in the complaint. At his or her discretion, the State Fire Marshal may assign a designee to inquire or investigate the complaint. 9.9.1. If a complaint is assigned to a designee, the designee shall timely review and investigate the complaint. Upon completion of the inquiry/investigation, the designee shall provide the State Fire Marshal with a written report. The report shall contain a statement of the allegations, a statement of facts, and an analysis of the complaint including a description of the inspection, the records reviewed, and interviews conducted, and a statement of the designee's findings and recommendations.9.9.2. During the course of the inquiry/investigation, the designee shall provide an update to the State Fire Marshall at least every sixty days (60) about the status and anticipated duration of the investigation. The State Fire Marshal may direct or cease certain activities of the designee in order to facilitate a timely resolution of the inquiry/investigation.9.10. The State Fire Marshal, or designee, may issue subpoenas and subpoenas duces tecum to complete the State Fire Marshal's investigation and to determine the truth or validity of complaints.9.11. As part of any inquiry or investigation, the Respondent shall be afforded an opportunity to have an investigative interview which, at the discretion of the State Fire Marshal (or designee), may be recorded and transcribed by a court reporter. A copy of such recording or transcription shall be placed in the investigation file.9.12. Notwithstanding subdivision 9.11, to facilitate the disposition of a complaint, the State Fire Marshal, or designee, may request any person to attend an informal conference at any time prior to the State Fire Marshal entering any order with respect to the complaint. The State Fire Marshal, or the designee, shall give notice of the conference, which shall include a statement of issues to be informally discussed. Statements made at a conference may not be introduced at any subsequent hearing on the merits without the consent of all parties to the hearing. No prejudice shall attach for failure to attend a conference pursuant to a request.9.13. Upon completion of the inquiry/investigation by the State Fire Marshal (or designee), the State Fire Marshal shall make a recommendation to the State Fire Commission as to the disposition of the complaint. The State Fire Marshal, or designee, shall make his or her respective written findings and recommendations known to the State Fire Commission, and the State Fire Commission shall make a determination whether or not probable cause is found to limit or restrict a certification, suspend a certification or revoke any certification issued by the State Fire Commission.9.13.1. At any point in the course of an investigation or inquiry into a complaint, the State Fire Marshal may decide to recommend to the State Fire Commission that there is not and will not be sufficient evidence to warrant further proceedings, or that the complaint fails to allege misconduct for which a certified individual or applicant may be sanctioned by the State Fire Commission: Provided, that the State Fire Marshal or designee shall make their respective findings and recommendations to the State Fire Commission in writing prior to the State Fire Commission dismissing the complaint.9.13.2. At any point in the course of an investigation or inquiry, the State Fire Marshal may recommend to the State Fire Commission that there is sufficient evidence to warrant a finding of probable cause that a violation has occurred.9.14. If the State Fire Commission finds probable cause that a violation may have occurred, a Formal Complaint setting forth a statement of violations, along with a Notice of Hearing, shall be issued by the State Fire Commission. The administrative procedures governing the Complaint and Hearing are more fully set forth in Series 9 of Title 87 (W.Va. C.S.R. § 87-9-1et seq.)