Title 214 W. Va. C.S.R.

Underground Facilities Damage Prevention Board Underground Facilities Damage Prevention Board

Series 01 Board Meetings, Organization, and Operation

W. Va. Code R. § 214-1-1 General

1.1. Scope. -- This rule governs the conduct of the Underground Facilities Damage Prevention Board meetings. It is intended to comply with the requirements of the State Administrative Procedures Act and the State Freedom of Information Act.

1.2. Authority. -- W. Va. Code §24C-1-1 et seq.

1.3. Filing Date. -- June 29, 2020.

1.4. Effective Date. -- July 30, 2020.

W. Va. Code R. § 214-1-2 Definitions

2.1. “Underground Facilities Damage Prevention Board or Board” means the public body created by the West Virginia Legislature in W.Va. Code §24C-1-1 et seq.

2.2. “Administrative Procedures Act” means the statute, W.Va. Code §6-9A-1 et seq., governing the conduct of public meetings held by any administrative or legislative unit of state, county or municipal government including any subunit or committee authorized by law to exercise some portion of executive or legislative power.

2.3. “Freedom of Information Act” means the statute, W. Va. Code §29B-1-1 et seq., governing the availability of public records to the public.

2.4. “Person” includes any natural person, corporation, partnership, firm or association.

2.5. “Public record” means any writing containing information prepared or received by a public body, the content or context of which, judged either by content to context, relates to the conduct of the public’s business.

2.6. “Quorum” means a simple majority of the members of the Board which is required in order to take any official action by the Board. Board members who attend and vote at any meeting by telephone are officially in attendance and are counted toward establishment of a quorum.

2.7. “Writing” means, in the context of a public record, any books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics.

W. Va. Code R. § 214-1-3 Parliamentary Procedure

3.1. Meetings of the Board will be conducted in accordance with Roberts Rules of Order. The Executive Secretary is Parliamentarian unless the Boards elects a Board member as Parliamentarian.

W. Va. Code R. § 214-1-4 Regular Meetings

4.1. The Board will hold at least two meetings a year, or as often as necessary to conduct the business of the Commission.

4.2. Business to come before the Board will be placed on an agenda and properly posted in accordance with this rule and the Open Meetings Act. Matters, not on the agenda, which are brought up for discussion during the meeting which require action by the Board, will be addressed at a future meeting.

4.3. Notice of all regular meetings must be posted at least five (5) business days prior to the date of the meeting on the Secretary of State’s website, on the Board’s website (need to imbed the link) and other locations the Board may designate. The notice must include the date, time and place of the meeting.

4.4. The agenda for all regular meetings must be posted three (3) days prior to the date of the meeting. It may be posted in a central location in the Board’s office and on the Board’s website. A link to the Board’s website may be posted on the Secretary of State’s website if authorized by the Administrative Law Division of the Secretary of State’s office.

4.4.1. The agenda may be amended up to three (3) days before the meeting date and posted in the same manner as the original agenda was posted.

W. Va. Code R. § 214-1-5 Special Meetings

5.1. Special meetings of the Board may be called by the Chairman or Chairwoman of the Board when a matter must be addressed before the next regularly scheduled meeting of the Board but do not rise to the level of an emergency.

5.2. Notice of any special meeting must be posted at least five (5) business days prior to the date of the meeting on the Secretary of State’s website, on the Board’s website (need to imbed the link) and other locations the Board may designate. The notice must include the date, time and place of the meeting.

5.3. The agenda for all special meetings must be posted two (2) days prior to the date of the meeting. It may be posted in a central location in the Board’s office and on the Board’s website. A link to the Board’s website may be posted on the Secretary of State’s website if authorized by the Administrative Law Division of the Secretary of State’s office.

5.3.1. The agenda may be amended up to three (3) days before the meeting date and posted in the same manner as the original agenda was posted.

W. Va. Code R. § 214-1-6 Emergency Meetings

6.1. Emergency meetings may be called by the Chairman or Chairwoman in the event that a matter requires immediate official action by the Board’s. Notice of the meeting must be given as soon as practicable prior to the meeting date in the same manner as other meeting notices. The notice must state the time, place and purpose of the meeting and the facts and circumstances of the emergency. The agenda is limited to the emergency matter.

6.2. Emergency matters may be added to a scheduled meeting agenda by amending the agenda. The amended agenda must provide the facts and circumstances which warrant adding the emergency item to the agenda.

W. Va. Code R. § 214-1-7 Minutes

7.1. The Secretary of the Board prepare written minutes of all Board meetings. The minutes must contain at a minimum:

7.1.1. The date, time and place of the meeting.

7.1.2. The name of each Board member and staff member in attendance.

7.1.3. All motions, proposals, resolutions, and measures proposed, the name of the Board member proposing the same, and its disposition.

7.1.4. The results of all votes and, upon the request of any Board member, the vote of each member by name.

W. Va. Code R. § 214-1-8 Open Proceedings

8.1. All meetings of the Board will be open to the public, except when the Board holds an executive session pursuant to W. VA. Code§6-9A-4.

8.2. Any person desiring to address the Board at any meeting may do so provided that such person registers to address the Board at least 15 minutes prior to the scheduled meeting time.

8.3. The Board may remove a member of the public from a meeting who the Board determines is disrupting the meeting to the extent that the orderly conduct of the meeting is compromised.

8.4. The Board will create and enforce reasonable guidelines for public attendance at any meeting where there is not enough room for all members of the public who wish to attend.

W. Va. Code R. § 214-1-9 Executive Session

9.1. The Board may enter into executive session upon a motion by a Board member. The motion must state the reason or reasons for going into executive session as provided in W. Va. Code §6-9A-4. This includes, discussion of personnel matters or pending litigation; to consider matters involving the purchase, sale or lease or real property, or to plan or consider an official investigation.

9.2. The matter or matters under discussion during executive session may not be voted on during executive session. The vote, which is an official action of the Board must be open to the public. However, the Board may vote to give its attorney settlement authority to enter into negotiations and provide a settlement range in executive session. If a settlement is reach, then the settlement agreement, including the amount, becomes a matter of public record unless sealed by a court.

W. Va. Code R. § 214-1-10 Public records of the Commission

10.1. The written records of the business of the Board are public records and subject to the requirements of the West Virginia Freedom of Information act, W. Va. Code §29B-1-1 et seq.

10.2. All requests for records under the Freedom of Information Act must be sent to the Executive Secretary, who is the official custodian of the records, at 206 Berkley Street, Charleston, WV 25302.

Series 02 Rules of Procedures for Complaints and Contested Cases Before the West Virginia Underground Facilities Damage Prevention Board

W. Va. Code R. § 214-2-1 General

1.1. Scope. -- This rule establishes the procedures for complaints, informal dispositions of complaints, and formal hearings before the West Virginia Underground Facilities Damage Prevention Board.

1.2. Authority. -- W.Va. Code §24C-1-2a and W.Va. Code §24C-1-9(e)(1)

1.3. Filing Date. -- JUNE 1, 2023.

1.4. Effective Date. -- JULY 01, 2023.

1.5. Applicability. -- This rule applies to any person that is subject to the jurisdiction of the one-call system and the West Virginia Underground Facilities Damage Prevention Board.

W. Va. Code R. § 214-2-2 Filing of a Complaint

2.1. Any person may file a complaint with the Board alleging a violation of W.Va. Code 24C-1-1 et seq. The complainant shall file the complaint in writing, the complaint shall be verified, and shall include, at a minimum, the following:

2.1.a. Complainant’s Name.

2.1.b. Complainant’s Business, if any.

2.1.c. Complainant’s Email Address.

2.1.d. Complainant’s Physical Address.

2.1.e. Complainant’s Phone Number.

2.1.f. Date of Complaint.

2.1.g. Date of Alleged Violation.

2.1.h. Location of Alleged Violation.

2.1.i. Type of Alleged Violation.

2.1.j. Documentary Evidence, if any.

2.1.k. Name of Alleged Violating Entity (if known).

2.1.l. Violator’s Phone Number (if known).

2.1.m. Violator’s Email Address (if known).

W. Va. Code R. § 214-2-3 Investigation of Complaints

3.1. The Board shall conduct any reasonable inquiry or investigation it considers necessary to determine the truth and the validity of the allegations set forth in a verified complaint in a manner consistent with the provisions of W.Va. Code §24C-1-1 et seq.

3.2. Any person who is found to have violated the provisions of W.Va. Code §24C-1-1 et seq. by failing to notify the one-call system shall be issued a citation and subject to training required by the Board, the civil penalties provided for in W.Va. Code §24C-1-9, or both.

3.3. A citation issued to a person shall be set forth in the name of the Board.

3.4. Any person to whom a citation is issued who (a) challenges the validity of or the verified allegations contained within a citation, (b) does not complete the training as ordered, or (c) who does not satisfy the civil penalties, may, within 30 days of the receipt of a citation, request a hearing before the Board.

W. Va. Code R. § 214-2-4 Hearing Procedure

4.1. Any person who desires a hearing must present a written demand for such to the Board within 30 days of issuance of a citation.

4.2. When the Board or its authorized designee is presented with such a demand for a hearing, it shall schedule a hearing within forty‑five (45) days of receipt by it of such written demand unless postponed to a later date by mutual agreement.

4.3. Civil penalties may be instituted against any person by the Board when probable cause exists for believing that the individual may have engaged in conduct, practices or acts that are in violation of the provisions of W.Va. Code §24C-1-1 et seq. or the Board's rules. Civil penalties may be based upon information received by way of a verified written complaint filed with the Board and further information gathered by the Board or its authorized designee in the process of investigating such complaint. Civil penalties may also be based upon information received solely through investigative activities undertaken by the Board.

4.4. A Notice of Hearing shall be served upon the demanding party at least thirty (30) days prior to the date of hearing.

4.5. Hearings shall be conducted as follows:

4.5.1. Any party to a hearing shall have the right to be represented by an attorney, duly qualified to practice law in the state of West Virginia, or to represent his or herself.

4.5.2. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded from the hearing.

4.5.3. 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 and, when appropriate, may cross‑examine witnesses called by the Board in support of the citation.

4.5.4. 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 demanding party and/or his or her attorney in person; or if he or she cannot be found 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.

4.5.5. The hearing shall be open to the general public, unless requested to be closed to the public by the demanding party.

4.5.6. The hearing shall be conducted by a quorum of the Board.

4.5.7. A record of the hearing, including the citation(s), if applicable, the notice of hearing, all documentary evidence, and testimony in support thereof 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 by the transcriptionist at his or her own expense.

4.5.8. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.

4.5.9. Where a hearing is held upon demand of any person to whom a citation is issued, the demanding party shall have the burden of proof.

4.5.10. Motions for a continuance of a hearing may be granted upon a showing of good cause.

W. Va. Code R. § 214-2-5 Transcription of Testimony and Evidence

5.1. All testimony, evidence, arguments and rulings on the admissibility of testimony and evidence shall be transcribed. The Board shall have the responsibility to make arrangements for the transcription of the reported testimony and evidence, and each party to the hearing shall bear their own expense in obtaining a copy of such transcription.

5.2. A transcript of the hearing shall be provided to all members of the Board for review at least ten (10) days before the vote is taken on its decision in any matter.

W. Va. Code R. § 214-2-6 Submission of Proposed Findings of Fact and Conclusions of Law

6.1. Any party may submit proposed findings of fact and conclusions of law at a time and manner designated by the Board.

W. Va. Code R. § 214-2-7 Conferences; Informal Disposition of Complaints

7.1. At any time during an investigation, the Board may dismiss the complaint if it determines that there is not sufficient evidence to warrant further proceedings.

7.2. At any time prior to the hearing or thereafter, the Board may hold conferences for the following purposes:

7.2.1. To dispose of procedural requests, prehearing motions or similar matters;

7.2.2. To simplify or settle issues by consent of the parties; or,

7.2.3. To provide for the informal disposition of cases by stipulation or agreement.

7.3. The Board may cause such conferences to be held on its own motion or by the request of a party.

7.4. The Board may also initiate or consider stipulation or agreement proposals with regard to the informal disposition of cases and may enter into such stipulations and/or agreements without conference.

W. Va. Code R. § 214-2-8 Orders

8.1. Any final order entered by the Board following a hearing conducted pursuant to these rules shall be made pursuant to the provisions of W.Va. Code §29A‑5‑3. Such orders shall be entered within forty‑five (45) days following the submission of all documents and materials necessary for the proper disposition of the case, including transcripts, and shall contain findings of fact and conclusions of law.

8.2. The findings of fact and conclusions of law must be approved by a majority of the Board either by a poll or vote at a meeting before a final order is entered. A copy of the final order approved by a majority of the Board shall be served upon the demanding party and/or his or her attorney of record, if any, within ten (10) days after entry by the Board by personal service or by registered or certified mail.

W. Va. Code R. § 214-2-9 Appeal

9.1. An appeal from any final order entered in accordance with these rules shall comply with the provisions of W.Va. Code §29A-6-1 et seq.