Chapter 102-9 Hearings on Complaints

102-9-01 General hearing procedures.

(A) The commission shall schedule a hearing within ninety days after the filing of a complaint, but may continue the hearing at the request of any party .

(B) The commission may conduct any inquiry appropriate to determine whether the respondent is unable to afford counsel without undue hardship, including, but not limited to, relying on forms and procedures promulgated by the Ohio Public Defender's Commission regarding indigent status.

(C) All witnesses at any hearing before the commission shall testify under oath or affirmation. A witness may be accompanied and advised by legal counsel. Participation by a witness's counsel will be limited to protection of the client's rights. Counsel for a non-party witness may neither examine nor cross-examine any witness.

(D) If a complaint is dismissed, the commission shall , on the written request of the respondent, make a public report of its findings. In such case, all evidence and the record of the hearing shall remain confidential unless the respondent requests, in writing, that the evidence and record be made available for public inspection.

(E) The filing of a request, motion or notice related to a commission hearing shall comply with the following:

(1) Any notice specifying the date, time, and place for a hearing mailed by the commission shall be served by certified mail. If the certified mail is returned unclaimed, the commission shall serve the notice by regular mail with a certificate of mailing, or by personal service to the accused. Any legal representative of record shall also be served the notice by regular mail at the address on file.

(2) The mailing date of any document mailed by the commission shall be the date appearing on the certified mail receipt or certificate of mailing, or date personal service was made as sworn to by an employee or agent of the commission.

(3) A document may be filed with the commission by hand-delivery, or regular U.S. mail, or encrypted electronic mail. If multiple copies of the same document are filed, only the first to be received by the commission will be time stamped and retained.

(4) A document is filed with the commission when the document is received and time stamped at the commission office located in Columbus, Ohio. Documents received after 4:30 p.m. on a business day will be time stamped as received by the commission the next business day.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05
Rule Amplifies: 102.06
Prior Effective Dates: 2/23/76, 7/16/77, 6/8/81, 1/1/02

102-9-02 Counsel.

(A) Counsel shall enter their appearances in writing.

(B) A person who has entered an appearance as counsel for the accused shall remain counsel of record until a written withdrawal is filed with, and approved by, the commission.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05, 102.06
Rule Amplifies: 102.05
Prior Effective Dates: 1/1/02

102-9-03 Discovery and depositions.

(A) On receiving a written request, the responding party shall provide a list of the witnesses, including name, address, phone number and summary of the expected testimony, and the documents the responding party intends to introduce at the hearing. Any request shall be made at least twenty calendar days before the hearing date. The response shall be filed with the commission and provided to the requesting party within fourteen calendar days after receipt of the request.

(B) A party shall permit the requesting party to examine and copy, at the requesting party's own expense, any evidence and documents intended to be used against the requesting party. Any request shall be made at least twenty calendar days prior to the hearing date. The responding party shall make the records available to the requesting party within fourteen calendar days after receipt of the request.

(C) If a party fails, without good cause, to comply with paragraphs (A) and (B) of this rule, the requested testimony and documents may, upon motion of the adversely affected party, be excluded from the hearing before the commission. The commission will determine whether a party has complied with paragraphs (A) and (B) of this rule.

(D) The commission may continue a hearing on its own motion or the motion of any party, for good cause shown, to permit discovery under paragraphs (A) and (B) of this rule.

(E) All discovery shall be completed at least five calendar days before the hearing date unless extended by the commission.

(F) All discovery matters that should come before the commission shall be decided by the commission chairman, or vice-chairman in the chairman's absence or unavailability, or hearing officer if appointed by the commission.

(G) A legal representative's work product is not subject to discovery.

(H) The executive director, or general counsel in the absence of the executive director, shall have the authority to issue subpoenas pursuant to section 102.06 of the Revised Code subject to the "Subpoena Issuance Policy" as adopted by the commission on July 23, 2015. This policy and its amendments are available at the office of the commission.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05
Rule Amplifies: 102.06
Prior Effective Dates: 2/23/76, 7/16/77, 6/8/81, 1/1/02

102-9-04 Motions.

(A) The commission chairman, vice-chairman in the chairman's absence or unavailability, or hearing officer if appointed by the commission, shall rule on all motions.

(B) All motions will specifically state both the relief sought by the moving party and the basis for granting such relief.

(C) All motions shall be filed in writing and served at least five business days prior to the hearing date. The commission may waive the five-day requirement for good cause shown. Dispositive motions are not permitted to be filed under this rule.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05
Rule Amplifies: 102.05 , 102.06
Prior Effective Dates: 6/8/81, 1/1/02

102-9-05 Continuances.

(A) Hearings may be continued on the commission's own motion or the motion of any party, for good cause shown.

(1) Requests for continuance shall be in writing and addressed to the chairman of the commission or the hearing officer assigned to the complaint in accordance with rule 102-9-09 of the Administrative Code. The request must be made not later than five calendar days prior to the scheduled date of the hearing. The chairman or hearing officer may waive the five-day requirement for good cause shown.

(2) Each party must contact all of the witnesses subpoenaed by that party and inform them of any continuance.

(B) If a continuance is granted, the commission shall establish a new hearing date.

The time within which a hearing must be held shall be extended by the period of any continuance granted.

(C) Absent compelling circumstances, hearings will not be continued due to the unavailability of a subpoenaed witness. The commission may hold the record open or accept a trial deposition in lieu of oral testimony.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05, 102.06
Rule Amplifies: 102.06
Prior Effective Dates: 6/8/81, 1/1/02

102-9-06 Briefs.

The commission may require briefs from the parties. Within its discretion, the commission may provide page and time limits for the filing of briefs. The commission may grant a motion for an extension of time, for good cause shown, for the filing of a brief. Each party shall serve a copy of the brief on the commission or hearing examiner and the opposing party.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05, 102.06
Rule Amplifies: 102.06
Prior Effective Dates: 6/8/81, 1/1/02

102-9-07 Subpoenas.

(A) The commission shall issue subpoenas on the written request of any party.

(B) The commission chairman, vice-chairman in the absence or unavailability of the chairman, or hearing officer if appointed by the commission, may grant a motion to quash a subpoena, for good cause shown, at any time.

(C) Requests for subpoenas must be received by the commission at least fifteen calendar days before the date of the hearing.

(D) Subpoenas may be served personally by the commission, its designee, or a designated process server, or by certified mail, return receipt requested, or it may be directed to the sheriff of any county .

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05, 102.06
Rule Amplifies: 102.06
Prior Effective Dates: 6/8/81, 1/1/02

102-9-08 Evidence.

(A) The commission may admit any relevant evidence that it determines to be reliable, probative, and substantial.

(B) The Ohio Rules of Evidence may be taken into consideration in determining the admissibility of evidence, but it shall not be controlling.

Effective: 6/29/2017
Five Year Review (FYR) Dates: 04/04/2017 and 06/29/2022
Promulgated Under: 111.15
Statutory Authority: 102.05, 102.06
Rule Amplifies: 102.06
Prior Effective Dates: 6/8/81, 1/1/02

102-9-09 Hearing Examiners.

(A) The commission may establish the qualifications of, appoint, and fix the compensation of, hearing examiners pursuant to section 102.05 of the Revised Code. The commission may authorize the executive director to designate the hearing examiners.

(B) The respondent will be given the opportunity to object to the appointment of a hearing examiner, for good cause shown.

(C) Hearing examiners will have the same power and authority to conduct hearings as the commission.

(D) Within thirty days after the hearing, the hearing examiner must submit to the commission a written report, which must include, but need not be limited to:

(1) Findings of fact;

(2) Conclusions of law; and

(3) Recommendations of action to be taken by the commission.

(E) A copy of the report must be sent to the respondent, who will have twenty days from the date the report is mailed to file written objections to the findings of fact and conclusions of law in the report. The commission will review, approve, modify, or disapprove the recommendations of the hearing officer. No recommendation will become the findings of the commission until ordered by the commission. Findings of the commission have the same effect as if the hearing had been conducted by the commission.

(F) Nothing contained in this rule precludes the commission from appointing a member of the commission to serve as a hearing examiner.

Five Year Review (FYR) Dates: 04/04/2017 and 04/01/2022
Promulgated Under: 111.15
Statutory Authority: 102.05
Rule Amplifies: 102.05 , 102.06
Prior Effective Dates: 2/23/76, 7/19/77, 6/8/81, 1/1/02