West Virginia Code of State Rules › Agency 1 - Accountancy › Title 1 - LEGISLATIVE RULE BOARD OF ACCOUNTANCY › Series 1-02 - Contested Case Hearing Procedure › Section 1-2-3 - Hearing Procedures

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. Any person
				or firm denied a license or substantial equivalency practice privilege by the
				Board who believes such denial was in violation of W. Va. Code
				§§
									30-1-1 et seq. and/or 30-9-1 et seq. shall be entitled to a hearing
				on the action denying such license or substantial equivalency practice
				privilege.
3.2. Any person who
				desires a hearing for the reason described in subsection 3.1. of this section
				must present a written demand for such to the Board.
3.3. When the president of the Board or his
				or her authorized designee is presented with such a demand for a hearing, he or
				she shall schedule a hearing within forty-five (45) days of receipt by him or
				her of such written demand, unless postponed to a later date by mutual
				agreement.
3.4. Charges may be
				instituted against any licensee or substantial equivalency practitioner by the
				Board when reasonable cause exists for believing that the licensee or
				substantial equivalency practitioner may have engaged in conduct or be in such
				condition that the license or substantial equivalency practice privilege should
				be suspended or revoked or that the licensee or substantial equivalency
				practitioner should otherwise be disciplined for one or more of the grounds set
				forth in W. Va. Code §
									30-9-1 et seq. or the Board's legislative rules.
				Charges may be based upon information received by way of a verified written
				complaint filed with the Board and further information gathered by the Board in
				the process of investigating such complaint. Charges may also be based upon
				information received solely through investigative activities undertaken by the
				Board.
3.5. Charges instituted
				against a licensee or substantial equivalency practitioner as described in
				subsection 3.4. of this section shall be set forth in a Complaint and Notice of
				hearing issued in the name of the Board . Such Complaint and Notice of Hearing
				shall designate the Board as the "Complainant", and shall designate the
				licensee or substantial equivalency practitioner involved in the proceeding as
				the "Respondent"; shall set out the substance of each offense charged with
				sufficient particularity to reasonably apprise the Respondent of the nature,
				time and place of the conduct or condition complained of therein; shall state
				the date, time and place for the hearing; and shall contain a statement of
				intention by the Board to appoint a hearing examiner.
3.6. Upon receipt of a demand for a hearing
				described in subsection 3.1. and 3.2. of this section, the president or his or
				her designee shall provide the demanding party with a Complaint and Notice of
				Hearing issued in the name of the Board . Such Complaint and Notice of Hearing
				shall designate the demanding party as the "Complainant", and shall designate
				the Board as the "Respondent"; shall set out the substance of each and every
				reason that the Board has denied the demanding party a license or substantial
				equivalency practice privilege with sufficient particularity to reasonably
				apprise the demanding party of the nature, time and place of the conduct or
				condition at issue therein; shall state the date, time and place for the
				hearing; and, shall contain a statement of intention by the Board to appoint a
				hearing examiner.
3.7. The Board
				may amend the charges set forth in a Complaint and Notice of Hearing as it
				deems proper.
3.8. A Complaint and
				Notice of Hearing shall be served upon the demanding party or charged party at
				least thirty (30) days prior to the date of the hearing. The Complaint and
				Notice of Hearing shall be served via certified mail, at the demanding or
				charged party's last known address as maintained in the records of the
				Board.
3.9. Upon written motion
				received by the Board no later than twenty (20) days prior to the date of
				hearing, a more definite statement of the matters charged or the reasons stated
				for denial of the license or substantial equivalency practice privilege shall
				be provided to the demanding or charged party or his or her counsel, at least
				fifteen (15) days prior to the hearing date.
3.10. Hearings shall be conducted as follows:
(a) Any party to a hearing shall have the
				right to be represented by an attorney-at-law, duly qualified to practice law
				in the State of West Virginia.
(b)
				The Board may be represented by the West Virginia Attorney General's
				Office.
(c) Irrelevant, immaterial,
				or unduly repetitious evidence shall be excluded from the hearing. Furthermore,
				the rules of evidence as applied in civil cases in the circuit courts of this
				State shall be followed. However, 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.
(d) The rules of privilege
				recognized by the law of this State shall be followed.
(e) Objections to evidentiary offers shall be
				noted in the record. Any party to the hearing may vouch for the record as to
				any excluded testimony or other evidence.
(f) Any party to a hearing may appear with
				witnesses to testify on his or her behalf; may be heard in person, by counsel
				or both; may present such other evidence in support of his or her position as
				deemed appropriate by the Board or its designated hearing examiner; and, when
				appropriate, may cross-examine witnesses called by the Board in support of the
				charges or in defense of its decision to deny the license or substantial
				equivalency practice privilege.
(g)
				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 charged or demanding party
				and/or his or her attorney in person; or if he or she cannot be found, by
				delivering such notice at his or her usual place of abode, and giving
				information of its purport, to his wife or her husband, or to any other person
				found there who is a member of his or her family and above the age of sixteen
				years; or if neither his wife or her husband nor any such person can be found
				there, and he or she cannot be found, by leaving such notice posted at the
				front door of such place of abode; or if he or she does not reside in this
				State, such notice may be served by the publication thereof once a week for
				three successive weeks in a newspaper published in this State; or such notice
				may be served by registered or certified mail.
(h) The hearing shall be open to the general
				public.
(i) Members of the Board
				and its officers, agents and employees shall be competent to testify at the
				hearing as to material and relevant matters: Provided, that no member of the
				Board who testifies at such hearing shall thereafter participate in the
				deliberations or decisions of the Board with respect to the case in which he or
				she so testified.
(j) The hearing
				may be conducted by one or more Board members or by a hearing examiner
				appointed by the Board.
(k) A
				record of the hearing, including the complaint(s), if applicable, the notice of
				hearing, all pleadings, motions, rulings, stipulations, exhibits, documentary
				evidence, evidentiary depositions and the stenographic report of the hearing,
				shall be made and a transcript thereof maintained in the Board's files. Upon
				request, a copy of the transcript shall be furnished to any party at his or her
				expense.
(l) Documentary evidence
				may be received in the form of copies or excerpts or by incorporation by
				reference.
(m) Where a hearing is
				held upon the instance of the Board after charges have been brought against a
				licensee or substantial equivalency practitioner pursuant to subsections 3.4.
				and 3.5. of this section, the Board shall have the burden of proof and shall
				present its evidence and/or testimony in support of the charges
				first.
(n) Where a hearing is held
				upon demand under the provisions of subsections 3.1., 3.2., 3.3., and 3.6. of
				this section, the demanding party shall have the burden of proof and shall
				therefore be required to present his or her evidence first.
(o) Following the conclusion of the Board's
				presentation of evidence in accordance with subsection 3.10.(m) of this
				section, the Respondent or charged party shall have the right to submit his or
				her evidence in defense.
(p)
				Following the conclusion of the demanding party's presentation of evidence in
				accordance with subsection 3.10.(n) of this section, the Board shall have the
				right to submit its evidence in defense.
(q) The Board may call witnesses to testify
				in support of its decision to deny the license or substantial equivalency
				practice privilege or in support of the charges instituted against a licensee
				or substantial equivalency practitioner; may present such other evidence to
				support its position; and, may cross-examine witnesses called by the demanding
				party or charged party in support of his or her position.
(r) All parties shall have the right to offer
				opening and closing arguments, not to exceed ten (10) minutes for each
				presentation.
(s) Hearings held by
				the Board as a result of charges instituted against a licensee or substantial
				equivalency practitioner may be continued or adjourned to a later date or a
				different place by the Board or its designee by appropriate notice to all
				parties.
(t) Motions for a
				continuance of a hearing may be granted upon a showing of good cause. Motions
				for continuance must be in writing and received in the office of the Board no
				later than seven (7) days prior to the hearing date. In determining whether
				good cause exists, consideration will be given to the ability of the party
				requesting the continuance to proceed effectively without a continuance. A
				motion for a continuance filed less than seven (7) days from the date of
				hearing shall be denied unless the reason for the motion could not have been
				ascertained earlier. Motions for continuance filed prior to the date of hearing
				may be ruled on by the Executive Secretary or Assistant Executive Secretary of
				the Board or designated hearing examiner. All other motions for continuance
				shall be ruled on by the Board member(s) or the hearing examiner presiding over
				the hearing.
(u) All motions
				related to a case set for hearing before the Board, except motions for
				continuance and those made during the hearing, shall be in writing and shall be
				received in the office of the Board at least ten (10) days before the hearing.
				Prehearing motions shall be heard at a prehearing conference or at the hearing
				prior to the commencement of testimony. The Board member(s) or the hearing
				examiner presiding at the hearing shall hear the motions and the response from
				the non-moving party and shall rule on such motions accordingly.