Chapter 124-9 Evidence

124-9-01 Rules of evidence.

The rules of evidence prevailing in civil actions in Ohio courts of general jurisdiction are adopted for use in hearings before the board, except as modified by these rules.

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 , 124.328 , 124.34 , 124.40 , 124.56
Prior Effective Dates: 7/1/79

124-9-02 Hearsay.

The board may permit the introduction of evidence otherwise excludable as hearsay. A foundation, establishing both the reliability of the testimony and its necessity, shall be laid before hearsay may be admitted.

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 , 124.328 , 124.34 , 124.56
Prior Effective Dates: 7/1/79

124-9-03 Cumulative testimony.

The board may limit cumulative testimony.

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 , 124.34 , 124.56
Prior Effective Dates: 7/1/79

124-9-04 Prior discipline.

(A) Evidence of prior discipline is inadmissible to prove the existence of any incident alleged in a "section 124.34 order."

(B) For purposes of this rule, prior discipline consists only of those written reprimands, fines, suspensions, reductions, or removals contained in the employee's personnel file.

(C) The board may admit evidence of prior discipline if it is offered to prove either:

(1) Notice to an employee that particular conduct is unacceptable; or

(2) A continuing problem justifying harsher discipline than might otherwise have been imposed.

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 , 124.34
Prior Effective Dates: 7/1/79, 2/14/86, 3/1/93

124-9-05 Questionnaires.

(A) At any time prior to a hearing, the board may order evidence taken in the form of questionnaires.

(B) The board may require questionnaires to be submitted at a hearing or filed prior to the hearing.

(1) Questionnaires shall be treated as admissions and may be completed with the advice of a party's representative.

(2) All questionnaires shall bear the oath or affirmation of the party completing them.

(C) Questionnaires may be used as the sole basis for deciding any appeal. Failure to respond to a questionnaire may result in dismissal of the case.

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

124-9-06 Stipulations.

Stipulations may be accepted by the board only when both parties consent to the stipulation.

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

124-9-07 Witnesses.

(A) All witnesses at any hearing before the board shall testify under oath or affirmation.

(B) A witness may be accompanied and advised by legal counsel. Participation by counsel is limited to protection of his client's rights. Counsel for a non-party witness may neither examine nor cross-examine any witness.

(C) Should a witness refuse to answer a question ruled proper at a hearing or disobey a subpoena, the board may initiate contempt proceedings.

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

124-9-08 Conviction of a crime.

(A) Conviction of any crime in a court of competent jurisdiction is conclusive evidence of the existence of all of the elements of that crime. Conviction of any crime is not conclusive evidence that disciplinary action based upon the conviction is appropriate. The appointing authority shall prove the existence of one or more of the grounds set forth in section 124.34 of the Revised Code as the basis for disciplinary action.

(B) A conviction can be established only through certified copies of the original journal entry from the court in which the conviction was obtained.

(C) Evidence of conviction of a crime is inadmissible unless a connection is established between the crime and the particulars alleged in a disciplinary order.

(D) Indictment for or allegation of a criminal offense does not establish a statutory basis for discipline under section 124.34 of the Revised Code.

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 , 124.34
Prior Effective Dates: 7/1/79, 2/14/86

124-9-09 Best evidence.

A duplicate may be admitted to prove the content of a document, recording, or photograph unless:

(A) A genuine question is raised as to the authenticity of the original; or

(B) The board determines it would be unfair to admit the duplicate in lieu of the original.

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

124-9-10 Administrative notice.

(A) At any time prior to the issuance of a final order, the board may take notice of the contents of any classification specification filed with the secretary of state.

(B) This rule does not limit the board's authority to take notice at a hearing of any fact, including the contents of any personnel file maintained by the director of administrative services, when it is lawfully empowered to do so under the "Ohio Rules of Evidence."

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

124-9-11 Disparate treatment.

(A) The board may hear evidence of disparate treatment between the appellant and other similarly situated employees of the same appointing authority for the purpose of determining whether work rules or administrative policies are being selectively applied by the appointing authority or to determine whether the discipline of similarly situated employees is uniform. Requests for discovery under this rule shall be limited to information relating to specific incidents or persons known to the employee or his representative.

(B) Evidence of disparate treatment will be considered in evaluating the appropriateness of the discipline which was imposed.

(C) Evidence of disparity in the classification of co-workers is not admissible in reclassification appeals.

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 , 124.34
Prior Effective Dates: 2/14/86