How was the ALJ Code of Conduct
established?
In 2004, the State Legislature amended the West
Virginia Governmental Ethics Act, directing the
State Ethics Commission, in consultation with the
West Virginia State Bar, to draft a Code of Conduct
for State Administrative Law Judges. As directed, a
Code of Conduct was drafted, using the Model Codes
of Judicial Conduct for State Administrative Law
Judges developed by the National Association of
Administrative Law Judges and the American Bar
Association as guides. Following the required public
comment period, the proposed Code was submitted for
review by the Legislature’s Legislative Rule
Making Review Committee and approved by the
Legislature during the 2005 regular session. The
Code became effective on July 1, 2005.
Where can the Code be found?
The Code was written to comply with W. Va. Code §
6B-2-5a. The text of the Code is published in the
Code of State Rules at 158 C.S.R. 13 (2005) while
the procedures for processing complaints against
ALJs are set forth in 158 C.S.R. 5
(2005).
ALJ
Code of Conduct (PDF)]
[ALJ
Procedural Rule (PDF)]
Who does the Code cover?
The rule defines a "state administrative law
judge" as "any public employee, public
officer or contractor functioning as a hearing
officer, referee, trial examiner or other position
in state government to whom the authority to conduct
an administrative adjudication has been delegated by
an agency or by statute and who exercises
independent and impartial judgment in conducting
hearings and in issuing recommended decisions or
reports containing findings of fact and conclusions
of law in accordance with applicable statutes or
rules. . . ." For example, a hearing examiner
who conducts a hearing for a state agency on a
license or permit revocation and an administrative
law judge who issues a decision on an employee
grievance are covered as are contractors who perform
similar functions for state agencies.
What are some of the standards
of judicial conduct in the Code?
In
very general terms, the Code provides that
...........
Complaints
Where can someone file a complaint regarding the
actions of a hearing examiner or administrative law
judge?
The Ethics Commission has sole responsibility for
investigating and resolving violations of the Code
of Conduct for Administrative Law Judges. Any
citizen who is aware of a violation of the Code may
make a written complaint with the Commission. These
written complaints must be verified by oath or
affirmation. Here is a sample verification
form. verification
form
The Ethics Commission is not
the avenue for a dissatisfied party to seek to
overturn an adverse ALJ decision. Instead, such
litigants should use the appeal process. The
Ethics Commission does not have the power to
overturn any ALJ’s decision.
How does the complaint process operate?
The West Virginia Ethics Commission Committee on
Standards of Conduct for Administrative Law Judges
acts as an Investigative Panel. If a Complaint is
filed, it is first referred to the Investigative
Panel. The Investigative Panel must first determine
whether the allegations, if taken as true,
constitute a material violation of the Code. If this
finding is made, then the Investigative Panel will
issue a Notice of Investigation. It has authority to
subpoena evidence and testimony although no person
alleged to have violated the Code is required to
give testimony.
At the conclusion of the investigation, the
Investigative Panel will either find probable cause
or dismiss the case. If it finds probable cause,
then a statement of charges is issued and the matter
set for a public hearing. A hearing examiner will be
employed to preside at the public hearing. He or she
will then issue a recommended decision. The members
of the Ethics Commission who have not served on the
Investigative Panel will consider the recommendation
and make a final determination. It will impose
sanctions if it finds by clear and convincing
evidence that there is a material violation.
What penalties can the Commission impose for a
violation of the Code?
Administrative Law Judges found guilty of a
material violation of the Act may receive a written
admonishment and be fined up to one thousand dollars
per violation. In appropriate circumstances, the
Commission may also order restitution, direct that
he or she cease and desist from a particular course
of action, or recommend that the person be suspended
or his or her employment be terminated.
Are there any consequences if someone files a
complaint in bad faith?
If the Commission finds that a complaint was made
in bad faith, either knowing that the allegations
are untrue or in reckless disregard for the truth,
it may issue sanctions against the complainant.
Possible sanctions include ordering the payment of
reasonable attorney fees and actual costs to the
respondent, reimbursing the Commission for its
investigative costs and being barred from filing any
further complaints with the Commission until all
monetary sanctions have been satisfied.
