1513-3-16 Conduct of evidentiary hearings.

(A) The reclamation commission shall conduct hearings and other proceedings in such a manner as to render a fair and complete decision on all issues which are presented, and shall take any steps consistent with the impartial discharge of its duties which appear reasonable and necessary to ascertain all relevant facts.

(B) Burden of persuasion.

(1) In review of notices of violation and cessation orders, the division of mineral resources management shall have the ultimate burden of persuasion as to the validity of the notice of violation or cessation order.

(2) In review of civil penalty assessments, the division of mineral resources management shall have the ultimate burden of persuasion as to the fact of the underlying violation and as to the amount of the penalty.

(3) In review of any other orders or decisions of the chief of the division of mineral resources management, the ultimate burden of persuasion shall rest with the appellant.

(1) The reclamation commission shall not be bound by the “Ohio Rules of Evidence” as promulgated by the Ohio supreme court.

(2) Parties shall have the right of presentation of evidence, cross-examination, objection, motion and argument.

(3) The commission will rule upon the admissibility of evidence, but any party may object to the admission of any evidence and except to the ruling of the commission thereon.

(4) If any party objects to the admission or rejection of any evidence or to other limitations of the scope of any examination or cross-examination, he shall state briefly the grounds for such objection, and the record may include argument thereon, as allowed by the commission.

(5) An exception at any stage of the hearing is unnecessary to lay a foundation for review whenever a matter has been called to the attention of the commission by objection, motion or otherwise and the commission has ruled thereon.

(6) If the commission refuses to admit evidence, the party offering the same may make a proffer thereof, and the proffer shall be made a part of the record of the hearing. Proffers may consist of testimony or documentary evidence. Proffers may be made in the following manner:

(a) A summary statement by counsel as to the content of the expected testimony;

(b) Questions propounded upon the witness and answered; or

(7) Official or public documents relating to the proceeding may be considered by the commission in adjudicating the case, but copies thereof may be substituted in the record of the proceedings. If certain official or public documents entered as part of the record are required by the chief for use by the division of mineral resources management pending the appeal, the chief may retain such documents subject to recall by the commission.

(D) A stipulation concerning issues of fact or authenticity of documents before the commission must have the concurrence of all parties to an appeal. A stipulation may be oral or written, and if written, shall be signed by all the parties and filed with the commission prior to hearing. Such a stipulation is binding upon the commission. A stipulation shall be enforced by the commission during proceedings and may serve as a basis of any final order of the commission.

(E) Written testimony.

(1) Affidavits may be admitted only if the evidence is otherwise admissible and all parties agree that affidavits may be used in lieu of oral testimony by a witness and if the party desiring to use affidavits files the affidavit with the commission and serves written notice to every other party at least five days prior to the hearing.

(2) The use of a deposition in lieu of the deponent’s oral testimony at hearing shall be allowed under the same provisions as are articulated in rule 32 of the “Ohio Rules of Civil Procedure.” A party desiring to use a deposition, or any designated part thereof, at hearing shall file the deposition with the commission and serve written notice to every other party at least five days prior to hearing.

(3) Objection may be made at the hearing to receiving in evidence any written testimony for any reason which would require the exclusion of the evidence if the witness were then present and testifying. The commission shall rule upon the admissibility of written testimony upon its attempted use at hearing. A determination of the admissibility of a deposition shall be made as though the witness were then present and testifying.

(4) When another action involving the same subject matter is or has been brought between the same parties or their representatives or successors in interest, all affidavits or depositions lawfully taken in one proceeding may be used in the other as if originally taken therefor. In the second action the admissibility of the written testimony shall again be determined.

(F) Witnesses.

(1) The commission may limit the number of witnesses upon any issue and may require any party to present additional evidence on any issue.

(2) The commission may require each party in an appeal to identify prior to the commencement of a hearing each person who is or may be present and his interest or who will or may be a witness for his cause in the appeal.

(3) Upon motion of a party or in the commission’s discretion, the commission may order the separation of witnesses at hearing, provided that the commission shall not exclude:

(a) A party; or

(b) An officer or employee of a party who is designated as its representative by its attorney; or

(4) A witness at any hearing shall testify under oath or affirmation, which may be administered by any member of the commission, by a hearing officer or by a court reporter.

(5) At a hearing where witnesses are called, only one attorney for each party may examine or cross-examine a witness unless otherwise permitted by the commission.

(6) The commission may examine on record the interested parties or witnesses.

(G) If the appellant fails to appear personally or by counsel or other authorized representative at a hearing scheduled after being duly notified of the hearing by the mailing of a notice of hearing to such party’s last known address, and if good cause for such failure to appear is not shown, the commission shall dismiss the appeal.

(H) By agreement of the parties, a case may be submitted for decision on briefs; however, the reclamation commission may direct that the case be heard in an evidentiary hearing or argued before the commission.

(I) The reclamation commission may order the parties to a proceeding to submit post-hearing briefs or proposed findings of fact and conclusions of law at a time designated by the commission, on issues raised on the appeal or upon possible errors or omissions in the record or on any issues as the commission in its discretion shall determine. The commission may also order the parties to submit written closing arguments or proposed findings of fact and conclusions of law at the conclusion of hearing.

(J) The commission may order additional oral argument upon particular issues assigned a priority by the commission or upon which the commission desires further instructive guidance from counsel.

(K) At any time after hearing and prior to the issuance of a decision, the commission may on its own motion, or in its discretion upon a showing of good cause, reopen the appeal for further proceedings.

Effective: 01/26/2009

R.C. 119.032 review dates: 01/27/2009 and 10/01/2013

Promulgated Under: 119.03

Statutory Authority: 1513.05

Rule Amplifies: 1513.13, 1513.131, 1514.09

Prior Effective Dates: 11/1/1984, 3/7/1986, 2/5/1999, 6/10/2004