Administrative Law Judges
Code of Conduct for Administrative Law Judges
The Ethics Commission administers a Code of Conduct for Administrative Law Judges serving in the executive branch of state government.
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 ...........
An ALJ must:
» Uphold the integrity of the law
» Be independent and impartial
» Not be compensated based on outcome
» Avoid both impropriety and the appearance of impropriety
» Not belong to an organization that practices invidious discrimination
» Maintain order in proceedings
» Avoid ex parte communications
» Not comment publicly on matters before him or her
» Avoid conflicts of interest
» Disqualify herself or himself when appropriate
An ALJ may:
» Pursue avocational activities
» Participate in civic and charitable activities
» Act as an arbitrator
» Accept appointments to governmental committees
» Practice law
» Lecture, write and speak on professional matters
» Engage in political activity to improve the law
However, an ALJ’s participation in such activities must not:
» Cast doubt on impartiality
» Demean the office
» Interfere with performance
» Create a conflict of interest
» Be contrary to state law or agency rules
» Command excessive fees or reimbursements
In addition, an ALJ must refrain from:
» Using her or his position for personal gain
» Using his or her position for the benefit of an organization with which the ALJ is affiliated
» Financial dealings that reflect adversely on impartiality
» Publicly displaying campaign material where judicial activities are performed
» Soliciting political funds while serving as a full-time ALJ
» Running for an elected position while serving as a full-time ALJ
How can I get guidance on the meaning and application of this Code of Conduct?
As noted above, much of the Code is written in very general terms. The West Virginia Ethics Commission’s Committee on Standards of Conduct for State Administrative Law Judges is authorized to provide written advisory opinions to anyone who wants to know if their conduct is governed by the Code, or in the case of someone who is subject to the Code, whether a particular future action or course of conduct will be acceptable under the Code. The Committee’s previous ALJ Advisory Opinions may be viewed in .pdf format by clicking here. Opinions
Written advisory opinions provide immunity under the complaint process to the requester, or any similarly situated person, when relied upon in good faith. The Commission’s Executive Director and Legal Staff also provide informal advice by telephone, including whether an advisory opinion has previously been rendered on a particular issue. They can be reached toll free from anywhere in West Virginia at 1-866-558-0664 or by electronic mail at firstname.lastname@example.org.
The Complaint Process
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.
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.