Chapter 124-11 Procedure

124-11-01 Denomination of parties.

The party filing an appeal is denominated "appellant." All other parties are denominated "appellee."

R.C. 119.032 review dates: 02/10/2014 and 02/10/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-02 Notice of hearings.

Scheduling notices shall be sent to the parties and their representatives by ordinary United States mail, by state of Ohio inter-departmental mail, or electronically.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79

124-11-03 Continuances.

(A) Upon its own motion or upon the motion of any party, the board may continue a hearing.

(1) Requests for continuance shall be addressed to the administrative law judge assigned to the appeal or, if the appeal is set before the state personnel board of review, addressed to the board's chairperson or principal administrative officer. A request for continuance will not automatically stay the hearing, but must be expressly granted.

(2) Requests for continuance shall be filed at least ten calendar days prior to a scheduled hearing date, unless good cause is shown for failing to do so. Exceptions to this rule may be made at the discretion of the board. If a party requests a continuance less than ten calendar days prior to hearing, then that party shall inform the board of the opposing party's consent or opposition to the continuance request.

(3) Each party shall contact its subpoenaed witnesses and inform them of the continuance. Failure to notify the opposing party or opposing party's counsel of a continuance which has been granted may be treated as a failure to appear by the party requesting the continuance if the opposing side appears for the hearing.

(4) The board will not re-issue subpoenas when a hearing has been continued unless the party requesting subpoenas files a timely request to do so .

(B) Absent compelling circumstances, hearings shall not be continued due to the unavailability of a subpoenaed witness. The board may hold the record open or accept a testimonial deposition. The cost of testimonial depositions taken under this rule shall be borne by the requesting party.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-04 Consolidations.

If two or more appeals involve substantially identical issues of fact and law, the board may consolidate them into a single hearing upon its own motion or upon the motion of either party.

R.C. 119.032 review dates: 02/10/2014 and 02/10/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-05 Appearances.

(A) Any person, unless prohibited by law, may represent himself or herself.

(B) Any party who has a statutory representative must be represented by that representative, unless the party files written authorization from the statutory representative authorizing other representation.

(C) Provided a party has not been subpoenaed and has authorized his or her representative to represent him or her in all facets of a hearing before the board, that party is not required to appear personally at the hearing.

(D) Representatives shall file a notice of appearance with the board.

(E) One who has filed a notice of appearance as the representative of a party is that party's representative of record unless and until a notice of withdrawal is filed with the state personnel board of review.

(F) If more than one person files a notice of appearance as a party's representative, communications shall be sent as follows:

(1) If one of the representatives who has filed a notice of appearance has been designated, in writing, to receive communications from the board, all communications shall be sent to that representative.

(2) If no representative has been designated to receive communications from the board, all communications shall be sent to the representative who last filed a notice of appearance.

(3) If it is impossible to determine who last filed a notice of appearance, all communications shall be sent to the representative whose name is first in alphabetical order.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86, 3/1/93, 4/16/09

124-11-06 Substitution of parties.

(A) If an appellant dies during the pendency of an appeal, the executor or administrator of his estate shall, upon motion, be substituted for him. An appeal shall be held open for a reasonable time to permit this substitution.

(B) If the appointing authority changes during the pendency of an appeal, the new appointing authority is automatically substituted without formal motion or order.

R.C. 119.032 review dates: 02/10/2014 and 02/10/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79

124-11-07 Motions.

(A) All motions shall state, with particularity, both the relief sought and the basis for such relief.

(1) All motions, and any supporting documentation shall be served on the opposing party.

(2) Motions to dismiss an appeal shall be supported by affidavits, made on personal knowledge, setting forth facts as would be admissible in evidence. Affidavits shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers referred to in an affidavit shall be attached thereto. When a motion is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials. An adverse party's response, by affidavit or otherwise, shall set forth specific facts showing there is a genuine issue in dispute.

(B) Procedural motions, not determinative of the final outcome of an appeal, may be acted upon at any time after receipt by the board without awaiting a response from the opposing party.

(C) Within ten calendar days of service of a non-procedural motion, a party shall serve a response on the opposing party and file a copy of that response with the board. The board may rule on any non-procedural motion once the time to respond has run. Upon motion of the affected party, the board may extend the time to reply to a non-procedural motion.

(D) The board may rule on any non-procedural motion at a record hearing, even if ten calendar days have not elapsed since service. Provided the time for response to a non-procedural motion has not run, an oral response may be presented at the record hearing.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-08 Briefs.

(A) At any time prior to the issuance of a final order, the board may require briefs from the parties. Briefs shall address questions put to the parties by the board and shall be filed within the time limits set by the board.

(1) The board may limit both the number of reply briefs and the time for their preparation and filing.

(2) If a party fails to file a brief within the time limit, the board may exclude the party's brief from its consideration.

(B) Upon motion, the board may hold the record open for filing of briefs.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79

124-11-09 Filing.

(A) A document is filed when it is received in writing and time stamped by the office of the state personnel board of review or when it is received by electronic transmission of information to the designated email address of the board or the board's fax equipment. Any document received after five p.m. on a business day, or received at any time on a non-business day, shall be considered to be filed on the next business day . The date and time of receipt of a document filed electronically is the time stamp provided by the state personnel board of review's email system or fax equipment; the time stamp provided by any other computer system or equipment shall not alter the time of receipt.

(B) A document filed electronically shall contain an electronic signature or an /s/ notation followed by the name of the filer.

(C) If there is a defect in filing due to the failure of the state personnel board of review's equipment, the board may waive such defect if no undue prejudice would result.

(D) Any party or representative who lacks the capability to send or receive documents electronically must file a written letter with the state personnel board of review requesting relief from electronic service of documents. The party or representative requesting relief shall show good cause why it is not feasible to send or receive documents electronically.

(E) In a proceeding before an administrative law judge, a party must file an original and one legible copy of any document. In a proceeding before the full board, a party must file an original and two legible copies of any document. When more than one case file is involved in a proceeding, then the above required documentation must be submitted for each case file. Multiple copies of documents filed electronically are not required.

(F) All documents to be filed with the board shall be printed on or formatted for eight-and-one-half inch by eleven-inch paper.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86, 3/1/93, 3/28/98, 5/17/01, 4/16/09

124-11-10 Service.

(A) All documents filed with the board shall be served upon the opposing party. Failure to comply with this rule may result in the board striking the document from the record.

(B) Any document required by these rules to be served upon a party may be served personally, by United States mail, by a courier delivery service company, or electronically. When a party is represented by a representative who has entered an appearance, service shall be made upon that representative. Service is complete on the date of mailing, or on the date of personal transmission of the document, or on the date of electronic transmission.

(C) All motions and briefs shall contain the name, mailing address, email address, if applicable, and telephone number of the person filing the motion or brief.

(D) A motion shall be considered by the board only if a certificate of service appears on it. Any statement, signed by either the moving party or the party's representative, is an acceptable certificate of service so long as it contains all of the following information:

(1) Date of service,

(2) Method by which service was made,

(3) Address where service was made, and

(4) Name of the person or authority who was served.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 3/1/93

124-11-11 Communications to representatives and parties.

Communications regarding scheduling shall be sent to all parties and their representatives.

R.C. 119.032 review dates: 02/10/2014 and 02/10/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.34
Prior Effective Dates: 7/1/79

124-11-12 Computation and extension of time.

(A) The date of occurrence of the event causing time to run is not counted in the computation of any time limit under these rules. The last day of a time period is included in the computation of time under these rules. If the last day of a time period is not a regular business day, then the time period shall extend to the end of the next regularly scheduled business day.

(B) The board may extend the time for filing or responding to motions and briefs.

(1) Requests for extension of time shall be made in writing or electronically.

(2) Requests for extension of time shall be directed to the person responsible for handling the appeal.

(a) Requests for extension of time in appeals assigned to an administrative law judge shall be directed to the administrative law judge responsible for the appeal.

(b) Requests for extension of time in appeals assigned to the members of the state personnel board of review shall be directed to the chairperson of the board or the board's agent.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-13 Procedural orders.

(A) Procedural orders may be issued by the board at any time prior to the issuance of a final order.

(B) If a party fails to comply with a procedural order, the board may dismiss the appeal or grant other appropriate relief to the opposing party.

R.C. 119.032 review dates: 02/10/2014 and 02/10/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-14 Procedure in record hearings.

(A) The board shall determine the order in which a hearing shall proceed.

(B) Either party may call the opposing party to testify as if on cross-examination.

(C) The board may require, limit, or eliminate opening statements and closing arguments.

(D) Copies of exhibits shall be made available to the board as they are identified. Exhibits may be submitted in written format or by CD, DVD, or USB flash drive. If the hearing is heard by the full board, three copies of all exhibits must be submitted to the board. Parties shall exchange documents and exhibits prior to the hearing. Hearings will not be delayed to facilitate an exchange or review of the exhibits.

(E) In hearings before an administrative law judge, parties shall provide the board two copies of all exhibits.

(F) The parties are encouraged to discuss stipulations and settlement prior to the start of a hearing.

(G) All parties, witnesses and attorneys are required to arrive at the board's offices at the scheduled hearing time.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-15 Record of hearings.

(A) The board shall make a sound recording of all record hearings. The board's recording is the official record.

(B) Sound recordings of hearings may be erased after:

(1) A final board order has been issued; and

(2) Ninety calendar days have passed from the mailing of notice of the final order of the board to the parties; or ninety days after a transcript has been received by the board from its official stenographer.

(C) Any party may make a sound recording or have a stenographer present at the hearing, provided such recording does not interfere with the hearing, as determined by the administrative law judge or the board.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-16 Transcripts/listening to and copying hearing recordings.

(A) The board shall transmit a transcript of each hearing appealed to a court of common pleas.

(B) Transcripts for a party's own use may be obtained through the board's stenographer. The cost of the transcript is to be paid by the party requesting the transcript.

(C) Transcripts must be requested within sixty days following the mailing of the final order.

(D) Any person may listen to the board's recording of a hearing. In order to do so, a person must make prior arrangements with the board . Any person may obtain copies of recorded activity by supplying the board with an unused USB flash drive for duplication. Such duplication shall be completed by the board within seven working days.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86, 3/1/93

124-11-17 Subpoenas.

(A) Consistent with Chapter 124-9 of the Administrative Code, a party may request the board to issue subpoenas for documents and subpoenas for up to five witnesses. The party shall file with the board a list of witnesses and a summary of each witness's testimony prior to the issuance of the subpoenas. If a party deems it necessary to subpoena more than five witnesses, prior approval is required and the board will rule on the need to call any of the witnesses the party requests to be subpoenaed.

(B) Subpoenas shall be issued in either of two ways:

(1) The board shall supply subpoenas to the parties who are responsible for completing and serving subpoenas. A subpoena is deemed served when:

(a) It is personally served upon the person; or

(b) It is received by the person at the person's last known address by certified mail, return receipt requested; or

(c) It is left at the usual place of residence, or last known address of the person, with an adult residing therein , or is left with the subpoenaed witness's government employer who has agreed to timely provide the subpoena to the witness.

(d) If the service by certified mail under paragraph (B)(1)(b) of this rule is returned with an endorsement showing the service was refused or unclaimed, then the subpoena may be sent by ordinary mail, evidenced by a certificate of mailing; and

(e) The party serving the subpoena shall file a copy of the subpoena, properly endorsed as to service, at or prior to the hearing for which the subpoena was issued.

(2) The board shall mail subpoenas by ordinary United States mail to the last known address of the person as directed by the party requesting the subpoena.

(a) The board shall not mail subpoenas fewer than fourteen calendar days in advance of a hearing. If subpoenas cannot be mailed more than fourteen calendar days in advance of a hearing, the board shall, on request, hold the subpoenas so they can be served on the witness at the hearing subject to the provisions contained within paragraph (C) of this rule.

(b) If the board is requested to serve the subpoena by ordinary mail, then the subpoena is deemed delivered.

(C) To be enforceable, witnesses shall receive their subpoenas at least seven calendar days prior to the hearing. Subpoenas duces tecum shall be received at least ten calendar days prior to the record hearing. Absent proof a witness has received a subpoena in a timely manner, the board shall not enforce the subpoena nor hold the record open for the testimony of an unsubpoenaed non-appearing witness.

(D) Hearings shall not be continued due to the absence of a witness subpoenaed under paragraph (B) of this rule.

(E) The board will not re-issue subpoenas when a hearing has been continued unless the party requesting the subpoenas files a timely request to do so.

(F) Upon motion and for good cause, the board may quash any subpoena. Motions to quash shall be filed with the board and served upon the opposing party prior to a hearing. Unless a motion to quash has been granted, a witness shall attend the hearing to which he or she was subpoenaed subject to the provisions contained within paragraph (C) of this rule.

(G) Witnesses may not be subpoenaed to prehearings.

(H) No character witness shall be subpoenaed to attend hearings. This prohibition does not pertain to witnesses testifying to the credibility of another witness.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86, 3/1/93, 3/28/98, 5/17/01

124-11-18 Mileage reimbursement and subpoenaed witness fees.

(A) Public employees may be paid witness fees only if they were subpoenaed to a hearing which they attended at a time they were not scheduled to work. Public employees shall be paid by their appointing authority for the time they are absent from their jobs to attend hearings before the board, provided they were either subpoenaed or were parties to the action.

(B) Mileage shall be paid to any subpoenaed witness, not a party, who works or resides outside of franklin county and who incurs unreimbursed travel expense to attend hearings before the board. Neither parking costs nor food and lodging are reimbursable.

(C) Parties may not subpoena themselves.

(D) Mileage and witness fees shall not be paid to anyone who fails to register at the hearing attended.

R.C. 119.032 review dates: 02/10/2014 and 02/10/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56 , 2335.05 , 2335.06
Prior Effective Dates: 7/1/79, 3/3/86

124-11-19 Failure to appear.

(A) If neither the appellant nor appellant's authorized representative appears at a hearing, prehearing, or other scheduled matter, the board may dismiss the appeal.

(B) If neither the appellee nor appellee's authorized representative appears at a hearing, prehearing, or other scheduled matter, the board may grant appropriate relief, including disaffirmance of the order.

(C) If neither party appears at a hearing, prehearing, or other scheduled matter, the board may, based upon the information available to it, resolve the appeal in the manner it deems appropriate.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79, 2/14/86

124-11-20 Settlements and withdrawals.

(A) An appeal may be withdrawn any time prior to the issuance of the final order of the board by filing a notice with the Board. All withdrawals shall be signed by either the appellant or appellant's representative.

(B) An appeal may be settled by the parties thereto any time prior to the issuance of a final order of the board. The board will accept signed settlement agreements and incorporate them into its final order. All notices of settlement shall be filed with the board, and shall be signed by all affected parties and their representatives.

(C) If the board is notified a case has been withdrawn or settled, and no settlement agreement or withdrawal notice is filed with the board within the time frame set by the board, then the board shall schedule the case for a hearing.

Effective: 03/24/2014
R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 124.03
Rule Amplifies: 124.03 , 124.14 , 124.328 , 124.33 , 124.34 , 124.40
Prior Effective Dates: 7/1/79, 2/14/86