(A) Scope of rule. This rule governs the
practice and procedure of administrative hearings conducted by the
(B) Administrative law judges. The
commission may employ or appoint such individuals as the commission may, from
time to time, determine necessary to act as administrative law
(C) Appearances of parties.
(1) As soon as
practicable after the issuance of a complaint and the notice of hearing the
parties shall designate in writing one person to act as their representative
for all matters relevant to the complaint and hearing. A copy of this
designation shall be filed with the administrative law judge and served on all
parties. The designation shall include the address, email address and telephone
and facsimile numbers of all representatives.
(2) An attorney may not
withdraw his or her designation for a party without leave of the administrative
(3) An attorney who is
not admitted to practice law in Ohio may be granted leave to appear on behalf
of a party on a pro hac vice basis after they have satisfied the requirements
specified by the Supreme Court of Ohio.
(4) The complainant shall
be a party to the proceeding and may be present at the hearing. Each respondent
may appear at the hearing through one designated representative. Except as
provided under paragraph (F) of rule 4112-3-06 of the Administrative Code, the
respondent may examine and cross-examine witnesses and the complainant, and may
introduce documentary or other evidence. Complainant and respondent's
representative may be called to testify or be cross-examined by opposing
counsel and may sit at the respective counsel tables despite a separation of
(5) Where the complaint
alleges an unlawful discriminatory practice described in division (H) of
section 4112.02 of the Revised Code, an aggrieved person who intends to examine
and cross-examine witnesses, introduce documentary or other evidence, or
otherwise participate in the presentation of evidence in support of the
complaint, must file and serve a designation as described in paragraph (C)(1)
of this rule.
(6) A designation filed
beyond the time period set forth in paragraph (C)(1) of this rule may be
considered and accepted by the administrative law judge, provided that
accepting the designation is necessary to effectuate justice between the
parties and will neither affect the substantial rights of, nor unduly
prejudice, any of the parties.
(D) Conduct of hearings. Hearings shall
be conducted consistent with this rule by the full commission or one or more
commissioners or by one or more administrative law judges or any combination of
the above who are designated by the commission for such purpose. If more than
one commissioner or administrative law judge conducts a hearing, one of them
shall be designated by the commission as the presiding member.
(E) Pre-hearing conferences. At any time
before the hearing begins, the administrative law judge may direct the parties
to participate in one or more pre-hearing conferences, submit pre-hearing
memoranda or both. The pre-hearing conference may be conducted by telephone or
at any place selected by the administrative law judge.
(1) The purpose of the
conference shall be to simplify and clarify the issues and to address any other
matter that will tend to expedite the proceedings, including the avoidance of
undue repetition or complication in the presentation of evidence or argument.
These matters may include but are not limited to:
(a) The necessity or desirability of amending the complaint or
(b) The possibility of obtaining stipulations of fact, or
admissions of undisputed facts. The commission expects the parties to stipulate
evidence to the fullest extent to which complete or qualified agreement can be
reached, including all material facts that are not or fairly should not be in
(c) Reviewing the contents of and establishing the authenticity
(d) Requests for the issuance of subpoenas;
(e) Schedules for taking of depositions and the use of
depositions in the proceeding;
(f) Schedule for the completion of discovery;
(g) An agreement limiting the number of expert witnesses and
other witnesses and limiting the subject matter of their
(h) The disclosure of the names and addresses of
(i) The exchange of documents intended to be offered in evidence;
(j) The possibility of settlement.
(2) Whenever a
pre-hearing conference is held, the administrative law judge, at the request of
any party, shall issue an order which recites the matters discussed, the
agreements reached, and the rulings made at the pre-hearing conference. The
order shall be served on the parties and shall be filed in the record of the
proceedings on the complaint.
(3) Should a party fail
to comply with the regulations of the commission regarding pre-hearing
conferences or submission of pre-hearing memorandums, after being served with
due notice and an opportunity to comply, said failure may constitute a waiver
of all objections to the agreements reached, if any, and any order or ruling
with respect thereto.
(F) Pre-hearing motions.
(1) Unless the commission
determines otherwise in a particular case, and prior to the hearing on any
complaint, all motions made to the commission relating to the complaint and the
hearing thereon shall be filed with and ruled upon by the administrative law
judge. Recommendations by the administrative law judge to grant motions to
dismiss shall be forwarded to the commission for consideration.
(2) Every motion,
memorandum and supporting document filed with the administrative law judge
shall be served on all the parties or their representatives with proof of
(3) All motions shall
contain a memorandum stating the reasons in support of the motion and citing
the authorities upon which the movant relies. If the motion requires
consideration of facts not appearing in the record, the movant shall also serve
and file copies of all affidavits, depositions or other documentary evidence
they desire to present in support of the motion. Any party opposing a motion
may file a responsive memorandum within fourteen days after service of the
motion. The movant may file a reply within seven days after service of the
responsive memorandum. Where the circumstances warrant and upon equitable terms
and conditions, the administrative law judge may modify the time periods
specified in this rule.
(G) Time of hearing. A hearing shall be conducted as set forth in
the notice of hearing, except as such may be changed by the administrative law
judge as set forth below:
(1) The administrative law judge may
postpone or continue any hearing upon his or her own motion or upon motion of a
party for good cause shown and proper diligence.
(2) A motion for postponement served
less than five days in advance of a hearing or made at the hearing shall not be
granted unless the movant demonstrates that an extraordinary situation exists
which could not have been anticipated and which would justify the granting of
(H) Procedure at hearings.
(1) Except as otherwise
provided in this paragraph, the evidence in support of the complaint shall be
presented at the hearing by counsel for the commission pursuant to division
(B)(5) of section 4112.05 and section 4112.10 of the Revised Code.
(a) If an aggrieved person files a designation in accordance with
paragraph (C)(5) of this rule, the evidence in support of the complaint shall
be presented by counsel for the commission and by the aggrieved person or their
Notwithstanding the participation of the
aggrieved person, counsel for the commission shall serve as lead counsel and
retains the authority to manage and direct the manner of case preparation and
presentation of evidence in support of the complaint at the hearing, including
but not limited to the selection and use of expert and lay witnesses, as
necessary or appropriate in pursuit of the public interest and the
accomplishment of the purposes of Chapter 4112. of the Revised Code.
(b) If the aggrieved person does not file a designation in
accordance with paragraph (C)(5) of this rule, the evidence in support of the
complaint shall be presented solely by counsel for the commission.
(2) The person or persons
conducting a hearing shall not be bound by the Ohio rules of evidence, but
shall take into account all reliable, probative and substantial evidence.
Irrelevant, immaterial, unreliable, and unduly repetitious evidence may be
(3) The administrative
law judge may examine witnesses, admit or exclude testimony or other evidence,
rule upon objections, and take such other actions as are necessary and proper
to conduct the hearing.
(4) Where hearings are
conducted by three or more commissioners and/or administrative law judges, all
rulings and determinations shall be made by majority rule.
(5) Written stipulations
of fact may be introduced in evidence, if signed by the parties to be bound
thereby, or their representative. Oral stipulations may be made on the record
at the hearing.
(6) The administrative
law judge may continue a hearing from day-to-day or adjourn it to a different
place as is permitted by law, or by agreement of the parties, adjourn it to a
(7) The administrative
law judge shall permit the parties or their representatives, and other persons
permitted to appear pursuant to paragraph (C) of this rule to argue orally
and/or to submit written briefs. The commission 's attorney may file a
written brief within twenty-one days after receipt by the commission's
attorney of the transcript of the public hearing. The respondent and
complainant or their representatives may file briefs within twenty-one days of
being served with the brief of the commission's attorney, and the
commission's attorney may file a reply brief within ten days of being
served with the brief of the respondent. These time periods may be extended as
the administrative law judge may determine for good cause shown.
(8) The testimony taken
at the hearing shall be under oath and shall be reduced to writing and filed
with the commission. Thereafter, at its discretion, the commission, upon notice
to the parties, may take further testimony or hear arguments or order an
administrative law judge to do so. The parties may be present and be heard at
(9) Standards of conduct
(a) All persons appearing before the commission or an
administrative law judge shall conform to the standards of ethical conduct
required in the courts of the state of Ohio.
(b) An administrative law judge shall, for good cause shown, bar
from participation in a particular proceeding any person who refuses to comply
with his or her directions or who engages in disorderly conduct, dilatory
tactics, or contemptuous language in the course of the proceeding.
(10) All hearings shall
be open to the public, unless for good cause, the commission shall decide
(11) Any person appearing before the
commission as a non-party witness in any public hearing shall have a right to
be accompanied, represented and advised by an attorney whose participation in
the hearing, or other proceeding, shall be limited to the protection of the
rights of the witness and who may not examine or cross-examine
(I) Transcript of hearing.
(1) A record shall be
made of all hearings before an administrative law judge. The record may be
recorded by stenographic means, by the use of audio-electronic recording
devices or by video recording devices as the administrative law judge may
direct. Hearings before an administrative law judge which are recorded
electronically shall be transcribed into written form. Opening and closing
statements shall not be included in the transcripts unless the administrative
law judge so directs.
(2) A party may request
the administrative law judge to provide a court reporter for a hearing if the
administrative law judge has not elected to do so. In such case, the requesting
party shall be responsible for payment of the court reporter's fees and
expenses, including the cost of production of the transcript, the original of
which shall become the official transcript.
(J) Post-hearing motions. Unless the commission determines
otherwise in a particular case, all post-hearing motions made before issuance
of the administrative law judge's report shall be addressed to the
administrative law judge and shall be ruled upon by him or her subject to
commission approval, modification or disapproval pursuant to rule 4112-3-09 of
the Administrative Code.