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 ALJ Opinions

 


The following ALJ opinions are available for viewing as pdf documents

ALJ AO 2006-01 issued May 4, 2006

ALJ AO 2006-02 issued October 5, 2006


ALJ AO 2007-01 issued November 1, 2007

ALJ AO 2008-01 issued September 4, 2008

ALJ AO 2008-02 issued September 4, 2008

ALJ  AO 2009-01 issued February 4, 2010

ALJ  AO 2010-01 issued April 1, 2010

ALJ  AO 2010-02 issued October 7, 2010  

ALJ AO 2011-01 issued October 6, 2011

ALJ AO 2012-01 issued August 2, 2012

ALJ AO 2012-02 issued August 2, 2012



INDEX to ALJ Advisory Opinions 

The Committee on Administrative Law Judges began issuing opinions in 2006.  This index includes all opinions issued from 2006-01 through present.

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APPEARANCE OF IMPROPRIETY

2010-01         The mere presence of a financial and business relationship between a part-time ALJ and his private law firm partner who seeks to appear in a representative capacity before another ALJ in the ALJ’s employing agency tends to reflect adversely on the impartiality of the administrative judicial process.

2010-02        The mere fact that an ALJ was terminated by a State employer--whose attorneys regularly appear before the ALJ's employing agency on behalf of the State agency the ALJ formerly represented--reflects adversely on the impartiality of the ALJ. (non-precedential opinion)

2010-02         An ALJ for a state agency whose former employment by the State of West Virginia as an attorney assigned to the employment unit of a State agency was terminated; has a conflict of interest that requires a lifetime ban on the ALJ hearing cases involving his former agency client.  (non-precedential opinion)

2011-01          Code of Conduct for Administrative Law Judges prohibits an Administrative Law Judge from traveling to and from hearings with members of the agency when the agency is a party to the underlying complaint

2012-01     ALJ’s previous law enforcement career does not require disqualification from hearing cases even though his agency’s proceedings involve participation of law enforcement officials as essential witnesses.
ALJ may not preside over proceedings in which his son is a witness, or participated in the investigation. 
ALJ’s membership in law enforcement social/charitable organization to which other officers who testify before the ALJ’s agency belong does not meet the definition of a proceeding in which the ALJ’s impartiality might reasonably be questioned. 
ALJ should disclose on the record his previous employment as a law enforcement officer and his membership along with any testifying officer’s membership in the social/charitable law enforcement organization.  Either party or counsel may then decide whether to file a motion to disqualify the ALJ.
ALJs are expressly prohibited from direct involvement in raising funds for organizations to which they belong.

2012-02     The assignment of one agency’s ALJ to hear cases for another, related agency does not violate the ALJ Code of Conduct so long as the related agency does not interfere with the independence of the ALJ.
The related agency’s creation of files and scheduling of hearings constitute ministerial tasks and thus do not compromise the integrity of the judicial process requiring disqualification.
If the related agency were to direct the ALJ to rule in the related agency’s favor, or otherwise exercise substantive control over the proceeding or outcome, then the ALJ Code of Conduct would be implicated.

 

CONFLICT OF INTEREST / DISCLOSURE

2009-01         An ALJ for a state agency state agency who previously worked for a statewide union that represents public education employees may hear cases where the grievant is a member of and represented by his former employer, so long as the grievant  is not an individual he represented during his previous employment, or is not represented by a former associate of the Requester, so long as the Requester discloses to the parties his previous employment and responsibilities related thereto.    

2010-02        An ALJ for a state agency whose former employment by the State of West Virginia as an attorney assigned to the employment unit of a State agency was terminated must disqualify himself from cases involving his former client agency, absent the agency's consent. (non-precedential opinion)

2012-01     ALJ’s previous law enforcement career does not require disqualification from hearing cases even though his agency’s proceedings involve participation of law enforcement officials as essential witnesses.
ALJ may not preside over proceedings in which his son is a witness, or participated in the investigation. 
ALJ’s membership in law enforcement social/charitable organization to which other officers who testify before the ALJ’s agency belong does not meet the definition of a proceeding in which the ALJ’s impartiality might reasonably be questioned. 
ALJ should disclose on the record his previous employment as a law enforcement officer and his membership along with any testifying officer’s membership in the social/charitable law enforcement organization.  Either party or counsel may then decide whether to file a motion to disqualify the ALJ.
ALJs are expressly prohibited from direct involvement in raising funds for organizations to which they belong

CONFLICT OF INTEREST / RECUSAL

2006-01         When engaged in the outside practice of law and/or in volunteer/pro bono services, ALJ must take steps to avoid conflict of interest and recuse himself from presiding over cases involving his former or present clients, attorneys with whom he practiced within the past two years, and attorneys to whom he referred, or from whom he received referral of a case.

2006-02         ALJ whose sister works: for the same agency, is the agency’s representative at the hearing over which the ALJ presides, and whose decision the ALJ reviews must recuse himself from presiding over such cases.

2006-02         For purposes of Rule 4.3.d.1.E, the following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, or niece.

2006-02         ALJ with actual bias or prejudice concerning a party, a party’s lawyer or a party’s representative shall disqualify her/himself.

2006-02         The fact that an ALJ’s impartiality might reasonably be questioned may require her/his disqualification.

2007-01         When engaged in the outside practice of law, ALJ must take steps to avoid conflict of interest and recuse himself from cases that involve attorneys, within the last two years with whom he practiced; against whom he practiced; to whom he referred a case; or from whom he received referral of a case. 

2007-01         Since the ALJ presides over matters involving governmental employers, in his private practice the ALJ must not practice before any state agency, department, board, commission, college, university, institution, state board of education, department of education, county board of education, regional educational service agency or multi-county vocational center.

2008-02         An attorney who divests herself of her practice of representing public employees may preside over cases for the state agency before which her former clients’ cases are pending under the condition that she recuse herself from hearing any cases:   that involve attorneys within the last two years; with whom she practiced; against whom she practiced; to whom she referred a case; or from whom she received referral of a case; in which a former or present client is a party; and in which she or an associate served as a lawyer in the case. 

2009-01         An ALJ for a state agency who previously worked for a statewide union that represents public education employees must wait two years before hearing and deciding matters filed by public education employees.  (Under different facts, a shorter time period may be reasonable, but here no undue burden on the employing agency.) 

2009-01         An ALJ for a state agency who previously worked for a statewide union that represents public education employees must recuse himself from participation in any case where an individual he represented was a party.  He shall not be required to recuse himself from all other cases where the grievant is a member of and represented by his former employer, so long as the grievant:  is not an individual he represented during his previous employment, or is not represented by a former associate of the Requester.

DEFINITION OF ADMINISTRATIVE LAW JUDGE

2006-02         Although not an ALJ by job title, a hearing examiner or grievance evaluator, whose job description requires him/her to: adjudicate administrative hearings; research cases; review physical, financial or employment information; draft decisions; and make decisions based on admissible evidence, is an ALJ and subject to the Code of Conduct.

 2008-01 & 2008-02              Although an ALJ by job title, attorney whose sole responsibility is to mediate cases is not subject to the Code of Conduct.  The attorney will not conduct hearings, adjudicate contested matters, make recommended findings of facts or conclusions of law, or issue judicial decisions

FINANCIAL/BUSINESS INTERESTS

 2010-01         The mere presence of a financial and business relationship between a part-time ALJ and his private law firm partner who seeks to appear in a representative capacity before another ALJ in the ALJ’s employing agency tends to reflect adversely on the impartiality of the administrative judicial process.

INDEPENDENCE

2012-02     The assignment of one agency’s ALJ to hear cases for another, related agency does not violate the ALJ Code of Conduct so long as the related agency does not interfere with the independence of the ALJ.
The related agency’s creation of files and scheduling of hearings constitute ministerial tasks and thus do not compromise the integrity of the judicial process requiring disqualification.
If the related agency were to direct the ALJ to rule in the related agency’s favor, or otherwise exercise substantive control over the proceeding or outcome, then the ALJ Code of Conduct would be implicated.

 JURISDICTION

2006-02         Although not an ALJ by job title, a hearing examiner or grievance evaluator, whose job description requires him/her to: adjudicate administrative hearings; research cases; review physical, financial or employment information; draft decisions; and make decisions based on admissible evidence, is an ALJ and subject to the Code of Conduct

 2008-01 & 2008-02 The Code of Conduct applies to contractors. 

 2008-01 & 2008-02  Although an ALJ by job title, attorney whose sole responsibility is to mediate cases is not subject to the Code of Conduct.  The attorney will not conduct hearings, adjudicate contested matters, make recommended findings of facts or conclusions of law, or issue judicial decisions. 

 2010-01         The Committee only has jurisdiction over ALJs, not members of an ALJ’s private law firm.

 2010-01          The Rules of Professional Conduct govern the practice of law by West Virginia attorneys.  The Office of Disciplinary Counsel (ODC) of the West Virginia State Bar interprets and enforces the provisions of those Rules.  This Committee has no jurisdiction over the interpretation of any provision of those Rules, and defers to ODC to answer questions regarding the interpretation thereof.

MEDIATION

2008-01 & 2008-02         ALJs whose sole duty is to mediate complaints are not subject to the provisions of the ALJ Code of Conduct.  Mediation assists the parties in identifying, clarifying and resolving issues regarding a grievance at any stage of the grievance process.  A mediator does not conduct hearings, adjudicate contested matters, make recommended findings of facts or conclusions of law, or issue judicial decisions.

2010-02    Mediation requires the parties to trust the mediator, yet when a ALJ's former employer perceives that the ALJ is biased against it due to his termination, the ALJ is prohibited from mediating cases involving his former client agency absent the Agency's consent.

2010-02    ALJs who adjudicate and mediate complaints are subject to the provisions of the ALJ Code of Conduct in the performance of all their duties as ALJs.

MISCELLANEOUS

2007-01         An employer may impose more stringent requirements on its ALJs than those set forth in the Code of conduct for ALJs.

OUTSIDE PRACTICE OF LAW

2006-01         ALJ may engage in the outside practice of law with certain conditions

2007-01         ALJ may engage in the outside practice of law so long as he does not allow his private practice to take precedence over his judicial duties

2007-01         ALJ may engage in the outside practice of law with certain conditions so as to avoid any conflict of interest

2007-01         ALJ may engage in the outside practice of law with certain conditions so as to avoid the use of public resources for private gain.

2008-01 & 2008-02  Although an ALJ by job title, attorney whose sole responsibility is to mediate cases faces no restrictions on outside practice of law.  As with all mediations, however, should a case involving an employer or client arise, disclosure and recusal is required.

 2008-02         ALJ who divests herself of her practice of representing public employees may adjudicate cases for the state agency before which her former clients’ cases are pending without delay, with certain conditions so as to avoid any conflict of interest.

 2008-02         ALJ may engage in the outside practice of law so long as she does not practice before the employing state agency.

 2008-02         ALJ may engage in the outside practice of law so long as she does not accept the representation of a client who is a party before the state agency if there is a likelihood that such person will appear before the agency.   

2010-01         Code of Conduct for ALJs prohibits the continued employment of the part-time Administrative Law Judge if his private law firm partner appears in a representative capacity before another ALJ in the ALJ’s employing agency

REFERRALS

2006-01         ALJ’s contracts for the payment and acceptance of referral fees before the effective date of the Code of Conduct, coupled with his stated intention to discontinue such practice, render moot the question of whether the payment and acceptance of such referral fees violate the Code of Conduct.

2007-01         The Ethics Commission may refer inquiring ALJs to the WV State Bar for advice concerning compliance with the Rules of Professional Conduct.

RELIABLE SOURCES

2006-02         Although not bound by decisions of the Judicial Investigation Commission, the Ethics Commission may look to them for guidance.

REVOLVING DOOR

2008-02         There is no revolving door provision in the Code of Conduct.  An attorney who divests herself of her practice of representing public employees may adjudicate cases for the state agency before which her former clients’ cases are pending without delay, with certain conditions so as to avoid any conflict of interest.

 


 

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