*1 ROYSE, Appellant, v. al., Appellees.
CITY OF DAYTON et
Royse Dayton,
as
[Cite
No. 24172. July
Decided
Terry Posey, appellant. W. Director, Dickens, Danish, Norma M. and Jonathan Law Dayton J. John Croft, City Attorneys, appellee. W. Assistant
Grady, Presiding Judge. of the court of common Plaintiff, from order Royse, appeals Ronald
{¶ city Dayton. Board of the of the Civil Service affirming the decision for 14 On Department years. Fire employed by was to the collective- drug to a random screen May he submitted *3 Associa- Dayton the of and the International city between bargaining agreement for positive The test results were tion of Local 136 AFC-CIO. Firefighters, Royse then was collective-bargaining agreement, Pursuant cocaine. a professional completed drug-and-alcohol- a evaluated substance-abuse 31, 2007, return-to-duty a Royse subjected was to program. May education On screen, Dayton to work with the Royse which was then returned drug negative. fire department. test, to May positive drug Royse a of his was scheduled As result to work. His drug screenings to random after his return eight follow-up,
submit test follow-up were but his November follow-up negative, first two tests hearing, city a of positive Following predisciplinary result was for cocaine. employment department. from his with the fire Dayton discharged Royse hearing to At the before the Royse appealed his termination the board. 4}{¶ Evans, board, witnesses, on two Ken Thomas and Maurice testified behalf firefighter that takes when a city Dayton. They process place of described the Evans and an of Concentra Medical drug employee submitted to a random test. samples tested. The samples firefighter being collect the urine from the Center ATN, a Tennessee. ATN shipped laboratory Memphis, are sealed and contain samples drugs. to determine whether the performs samples tests on the Safety Testing to Alternative ATN then sends the results of the tests (“ASTS”), employed officer company Michigan. a medical-review Solutions by ATN to determine whether the produced then reviews the results ASTS cocaine, marijuana, of positive negative presence test results are interprets or PCP. If the medical-review officer amphetamines, opiates, substances, any to be of these five study positive results of ATN’s Finally, ASTS sends attempts employee. officer to contact the medical-review Thomas, safety- positive-test the medical-review officer’s to Ken city Dayton. for the of administrator board, of city Dayton copies At the before the of submitted hearing Royse’s samples that urine reports
the medical-review officer’s two found 14, 2007, person 2007. No positive May tested for cocaine on and November ATN or the results regarding methodology performed by testified of the tests Further, that ATN forwarded to no testified on behalf person of tests ASTS. what data the medical-review officer reviewed or regarding particular ASTS for cocaine. why Royse’s positive the officer concluded test results were Royse objected positive the admission of the medical-review officer’s reports performed by hearsay. based on tests ATN as inadmissible The board objection Royse’s discharge August overruled the and affirmed on Royse appeal filed a notice of from the board’s decision the court of common July to R.C. 2506. On the court affirmed the Chapter decision. a appeal. board’s filed notice
FIRST ASSIGNMENT OF ERROR trial court applying “The erred deferential standard of review instead a trial de novo.” conducting incorrect, Royse argues that the trial court deferential applied in reviewing According Royse,
standard review the board’s decision. trial court should have conducted de novo review of the board’s decision instead of giving evidentiary credibility Royse’s the board deference on issues. 124.34(C), relies on argument provides appeal questions R.C. which for an “on *4 law and fact.” may member of a fire or utilize either of two police department “[A]
distinct avenues of to the court of common from a appeal decision of suspension, by municipal demotion removal from office a civil service commis- First, if appeal brought questions sion. an is on of law and fact under [R.C. * * * 124.34,] procedure appeal governed by Appellate on Procedure case, Act. In a trial required such court is to conduct a de novo review of the proceedings. may judicial civil service The court conduct an exami- independent may, nation and determination of issues of fact and law. The court in conflicting discretion, may hear additional substitute its for that judgment Second, appeal brought pursuant of the commission. if an to the court is to [R.C. * * * 2506], in Chapter required only the court is to allow additional evidence statute, give circumstances enumerated and the court must due deference omitted.) (Footnotes resolution of evidentiary administrative conflicts.” (2006) 698, Servants, Jurisprudence 3d Civil Section 605. See Resek v.
85
Seven Hills
(1983),
224,
Giannini v.
395,
566;
9
App.3d
Ohio
9 OBR
459 N.E.2d
Fairview Park
(1995),
620,
App.3d
Ohio
which avenue of appeal he invoked. In his brief filed with court however, common pleas, Royse identified Chapter providing R.C. 2506 as Further, proper standard of review. he in a noted motion to strike that this case was an appeal administrative brought pursuant Finally, to R.C. 2506.04. in his court, reply brief submitted to the trial Royse reiterated the standard used trial courts when a conducting review Chapter R.C. 2506. At no point did mention R.C. 124.34to the trial court or that he desired a trial de novo. The doctrine of invited error an estops appellant, either a civil or case,
criminal from attacking judgment for errors the appellant induced the court to commit. Under that principle, party complain cannot of any action taken or ruling made the court in accordance with the party’s suggestion own State v. or request. (1983), Ohio 10 OBR Woodruff N.E.2d 457. Royse induced the court apply Chapter R.C. 2506.04 standard of
review applied. the court Royse may so, not now that in argue doing the court erred not applying the R.C. 124.34 standard instead. When reviewing an appeal pursuant 2506.04, administrative
{¶ R.C. 13} trial record,” court considers the “whole including any new or additional evidence 2506.03, admitted under R.C. and determines whether the administrative order is unconstitutional, illegal, arbitrary, unreasonable, capricious, or unsupported by substantial, the preponderance reliable, and probative evidence. Henley Youngstown Bd. Zoning Appeals 90 Ohio St.3d 433. The trial court correctly applied standard of review to Royse’s appeal from the board’s decision. assignment The first of error is overruled.
SECOND ASSIGNMENT OF ERROR “The trial court erred in considering the evidence of the drug
{¶ tests as a 15} matter of evidence and of law.” The standard of review to be applied by court in appellate
{¶ an R.C. *5 appeal 2506.04 in scope” “more limited than the standard of review applied by pleas the common court to the board’s decision. Henley, 147, at St.3d 433, Kisil v. 735 N.E.2d Sandusky quoting (1984), 30, Ohio St.3d 12 OBR 26, 465 In Henley, N.E.2d 848. the Supreme Ohio Court explained: “ appeals of to the court power a more limited grants 2506.04] ‘[R.C. law,” which on of only “questions court pleas of the common judgment
review preponderance “the weigh power same extensive not include the does evidence,” to the common granted as is substantial, reliable, probative * * * those of an judgment not substitute their courts must Appellate court.’ so.” doing criteria for approved absent the or a trial court agency administrative Relations Emp. Edn. v. State Dist. Bd. City Lorain School quoting Id. at “ of law” is 257, 261, “question ‘[a]n N.E.2d 264. 40 Ohio St.3d Bd. interpretation or concerning application by judge, issue to be decided ” Ed.1999) (7th 1260. Dictionary Law quoting at Black’s Henley the law.’ two testimony city Dayton’s of the trial found that the The court compe were drug-test records documentary Royse’s evidence of witnesses and argues decision. supported that board’s probative tent and evidence primary because the affirming the board’s decision that the trial court erred officer who relied, of a medical-review the board evidence on which positive that officer concluded were tests drug had reviewed the results Rules of Evidence evidence under Ohio hearsay was inadmissible drugs, regulations. own rules and the board’s statutes, rule, administra specific even from general apart “As a in court. applied strict rules of evidence are not bound agencies
tive * * * However, not act evidence which is agency upon should administrative it admissible, of the facts which is to determine. probative or competent, not * * * the discre- proceedings, in administrative but hearsay rule is relaxed in an manner.” arbitrary cannot be exercised hearsay tion to consider evidence (1982), 7 7 OBR Dental Bd. Ohio Haley Ohio State 14.5(A) Regulations provides Rules and Dayton Civil Service Board by the Courts applied shall the rules governed admission of evidence be “[t]he Therefore, of the rules of evidence application while the of Ohio civil cases.” the board itself chose to proceedings, in administrative may be somewhat relaxed the rules of evidence it to the fundamentals of requires apply a rule that adopt proceedings. 14.5(D) provides Regulations Board Rules and Dayton Civil Service authority full hearing shall have Hearing conducting Officer Board “[t]he or other testimony to admit or exclude hearing, procedure control the necessary other actions as are objections, all and take such upon to rule ” * * * explains This rule hearing. of such for the conduct proper the board give but does not hearings, to control its authority of the board *6 discretion that “the precedent rule, or the well-established authority ignore arbitrary manner.” in an exercised evidence cannot be hearsay to consider 1262. at 7 OBR App.3d Haley, test Royse’s drug concerning that the documents undisputed It is they in that hearsay to the board were of by city the were submitted 801(C). Gener- asserted. Evid.R. of the matter the truth prove offered to were exception it fits within an unless is inadmissible hearsay evidence ally, drug-test that the court found 802, 803, The trial 804. rule. Evid.R. hearsay records” under the “business hearsay rule to the exception as qualified records 803(6). exception provides: That in Evid.R. exception memorandum, report, activity. conducted regularly of “Records conditions, acts, events, made at or form, or of record, any compilation, or data if knowledge, a with by, person transmitted from information by, the time or near if it was activity, business conducted regularly in the course of kept memorandum, report, to make the activity of business regular practice the custodian or testimony of record, by all as shown compilation, or data 901(B)(10), the source of unless by Rule provided witness or as qualified other lack of information indicate of preparation method or circumstances or the trustworthiness.” Center, which then Medical samples urine to Concentra Royse provided ATN tested ATN, Tennessee. Memphis, samples company
shipped then ATN of five different substances. presence for the samples the urine The medical- Michigan. officer in to a medical-review forwarded the test results Royse’s that two of tests and determined the test results review officer reviewed then findings his was report officer’s The medical-review positive. were to terminate report which relied on the city Dayton, him to the provided in the before proceedings of his termination to demonstrate the cause Royse and the board. 803(6), display record must a business admissible under Evid.R. “To be
{¶
(1)
course
kept
regular
have been
it must
four essential elements:
acts,
(2)
of the
personal knowledge
who had
business;
it must stem from a source
(3)
at or near the time
events,
conditions;
have been recorded
it must
(4)
testimony of either
established
transaction;
a foundation must be
v. Comstock
State
qualified person.”
or some other
custodian of the record
96-A-0058,
work for his
not
sources is
receives from outside
that a business
reports
information
“The
803(6).” Babb v. Ford
of Evid.R.
purposes
records for the
of its business
part
(1987), 41
Motor Co.
Ohio
{¶ 27} in question, evidence, the matter including documentary is what propo claims, nent is a precedent condition to admissibility of that matter in evidence. 901(A). Evid.R. examples proof Illustrative of authentication are set out in (10). Evid.R. 901(B)(1)through showing that an exception to the rule against 901(B)(10). hearsay applies satisfies the example Evid.R. example The most 901(B)(1): frequently is in applied Evid.R. “Testimony of witness with knowledge. that a Testimony matter is what it is claimed to be.” No witness personal with knowledge testified about ATN’s internal recordkeeping or testing procedures or about at recordkeeping ASTS. Evid.R. 602. city The of Dayton’s only two at witnesses the hearing before the board were Ken Thomas and Maurice Evans. Ken Thomas safety is the administrator for city Dayton. He testified that he has never to been ATN’s laboratories and has never observed their testing process. He did not exhibit knowledge sufficient of ATN’s actual testing procedures or internal Further, recordkeeping. he testified that the medical-review officer does not perform any tests on samples the urine but instead reviews the results of the testing performed by ATN. Maurice city Evans is the of Dayton’s designated employer representa-
tive. He regarding testified his familiarity with the process used in collecting urine samples drug tests. But he does not test the urine samples and relies on others to provide those test results. short, In there is no evidence of record demonstrating that the docu-
mentary positive evidence of test results and the ultimate conclusions reached therefrom trustworthy. were very This is the type of evidence that require- 901(A) ment of authentication in Evid.R. was meant preclude from consider- ation. testimony Without from a witness who could testify, personal based on knowledge, regarding the testing procedures and internal of ATN recordkeeping ASTS, the board and trial court should not have positive relied on the test Therefore, results. trial court erred in finding that the board’s decision was supported preponderance substantial, reliable, probative evidence. The suggests record that instead of the exception business-records against the rule hearsay, city of Dayton attempted to authenticate the records of the 901(B)(9), medical-review officer’s Evid.R. which allows used to system or describing process through “[e]vidence authentication accurate system produces or process that the showing result produce described, must be and there that, must be system or process To do result.” Those matters an accurate result. system produces that the or process evidence process of the knowledge with testimony person of a by the may be established 901.121. Treatise Section Ohio Evidence Weissenberger, system. satisfy those insufficient to two witnesses was city Dayton’s testimony of requirements. and technical hold that the formal not, suggests, Hall Judge do as We in administrative must satisfied Rules of Evidence be
requirements function of authentica- Weissenberger “Conceptually, writes: proceedings. establish, a connection by way preliminary is to tion or identification The connection facts of the case. offered and the relevant the evidence between item, since an relevancy of the particular to establish the necessary order to, with a or connected no if it is not attributed object or item is of relevance at 901.1. in a case.” Id. Section place, or issue particular person, *8 to the central report prove offered the as relevant city Dayton The {¶ 33} But evidence of case, that had used cocaine. absent Royse in the which is issue reached, report the demonstrates which that conclusion was process by the testify who did not by persons than that the conclusion was reached nothing more As unexplained. that remains analysis with a method of and in accordance had received evidence, than that the been nothing proof it is more That bare fact reports. it to such person engaged prepare from a city Dayton cocaine, for his which was the basis that had used does not demonstrate to required pass. which the board was discharge on trial of the judgment of error is sustained. assignment The second
{¶ 34} reversed, consistent proceedings cause is remanded for further court is and the with this opinion. reversed
Judgment and cause remanded. Fain, J., concurs. J.,
Hall, dissents.
Hall, Judge, dissenting: finding first of error disposition assignment I with the agree appeal as an R.C. 2506.01 appeal administrative below pursued his appellant Therefore, that the argue cannot now to 124.34. he rather than R.C. applied his under the standards appeal trial court should have considered latter section. However, I Dayton because believe that the Civil Service Board had evidence,
authority objections rule on to admit or exclude and reasonably Civil Service Board constitutionally admitted the reports appellant’s test, second cocaine positive drug the trial court was correct affirming the Board’s decision that he be discharged position from his as a firefighter. majority’s The result of the opinion, which will require Dayton Civil Evidence,
Service Board to adhere to the Ohio Rules of unnecessary Admittedly, Dayton undesirable. Civil Service Board Rules and Regulations 14.5 states: “Procedure at A. hearings. The admission of gov- evidence shall be
erned applied by rules the Courts of inOhio civil cases.” however, In an setting, not, not, administrative this rule need should be construed as adopting the Ohio Rules of Evidence for hearings. more reasonable interpretation is that the rule refers to the manner of presenting evidence general and the for procedure conducting Otherwise, a hearing. words “in civil cases” are superfluous. Those words distinguish procedure the presentation of evidence at the civil-service level procedure from the applica- ble in criminal cases. The rules of evidence apply cases, both civil and criminal so it is reasonable to infer that “in words civil cases” were included to encompass the process admitting not to require application of the rules of evidence themselves. Moreover, 5(D) Section of Civil Service Rule 14 specifically
{¶ states that Board or Hearing “[t]he Officer conducting shall full hearing authority have control the procedure of the hearing, to admit or testimony exclude or other evidence, to rule upon objections, all and to take such other actions as are *9 necessary proper and for the conduct of such hearing.” specific This language 5(D) (5)(A) Section prevails over the introductory Section grants and the board plenary authority to determine the admissibility of evidence. A virtually identical appears rule in the decision of this court
{¶ 41}
more than
(Mar.
20
years ago
27,
v. Miamisburg
1989),
Emmons
Montgomery App. No.
11197,
There,
{¶ 42} and of the Civil Service Commission shall determine the of manner conduct of such added.) hearings.” (Emphasis rule, 11.2, The next Section is identical to current Dayton Civil Service
{¶ 43} 14, Board Rule Section 5. It stated:
91
governed
shall be
The
of evidence
Hearings:
admission
“Procedure at
added.)
cases.” (Emphasis
of Ohio in civil
the Courts
by
applied by
the rules
Rules
Miamisburg
11.2 of the
Civil Service
from Section
language
This
rule,
possibly
cannot
vintage
Dayton
which is of similar
Regulations,
section
previous
Rules of
because
adopt
to
the Ohio
Evidence
be construed
Likewise,
(11.1)
Dayton Civil-
rules of evidence.”
“legal
excluded the
specifically
not,
to
5(A),
not,
should
be construed
Rule
need
Board
Section
Service
hearings.
Rules of
to
civil-service
the Ohio
Evidence
apply
law,
support
all
rules,
statutory procedure
case
Applicable
hearing.
not
a civil-service
should
to
apply
notion that rules
evidence
“in the courts of
they
that
explicitly
govern proceedings
state
Rules of Evidence
added.)
101(A).
has
Court
Supreme
Evid.R.
The Ohio
(Emphasis
this state.”
101(A)
to
agencies as forums
not mention administrative
held that “Evid.R.
does
Edn. v.
Dist. Bd.
apply.” Orange City
Rules of Evidence
School
which the
415, 417,
1223.
(1996),
N.E.2d
Bd.
St.3d
Cty.
Revision
Ohio
Cuyahoga
as
court, too,
hearings
in administrative
hearsay
has
that
admissible
This
held
v.
Dental
arbitrarily
Haley
not
Ohio State
applied.
as discretion
admit is
long
1262.
App.3d
7 OBR 453 N.E.2d
Bd.
Ohio
are
what
is to be
to determine
evidence
agencies
Ohio administrative
pass
shall
agency
“[t]he
in their
R.C. 119.09 states
proceedings.
admitted
by
not
admissibility
agencies are
bound
upon
“[Administrative
of evidence.”
Psychology,
in courts.”
State Bd.
rules of evidence
Black Ohio
applied
¶
91,
hearings.
any
by
law or
rules of evidence or
by
statutory
not
the usual common
be bound
the Ohio Rules of Evidence
procedure.” Similarly,
technical or formal rules of
hearings.
regard,
In this
not
statutorily
apply
unemployment-compensation
do
4141.281(C)(2)
by
are not bound
common
provides
“[h]earing
officers
R.C.
procedure.”
or formal rules of
statutory rules of evidence
technical
law or
Dayton Civil
Board
significant
are more or less
than
Service
proceedings
Such
no
recognized
statutory provisions express
concept
hearings.
foregoing
And
See,
Cty.
Egg Farm v. Union
Haley,
Day Lay
and others.
e.g.,
this court
*10
556,
(1989),
555,
(recognizing
Revision
Bd. Of
evidence). Furthermore,
are not bound
rules of
agencies
administrative
board,
reviewing decision of an administrative
common
court
give
must
“due
deference
the administrative resolution
evidentiary
and,
conflicts”
therefore, must not substitute
judgment
for that of the administrative agency.
Hawkins v.
Marion Corr. Inst
62 Ohio App.3d
(¶ The Dayton Civil Service Board’s “Order on Appeal,” signed and August entered is a reasoned and balanced decision why as to the board admitted the evidence presented about the appellant’s positive-drug-test results. appellant’s underlying protection is that hearing was required to comport procedural with and substantive due process. The “process” appellant was due was the hearing Board, before the Civil Service of which he received notice and an opportunity to be heard. He introduced anot shred of evidence that his test results were inaccurate or unreliable. He presented nothing the effect cocaine, that he abusing denied possession which, if not prescribed, is a felony. separately preserved one-half of the tested sample urine was available him Yet, for independent testing. upon hearing of the second positive drug report, rather than test, have his own confirmatory he checked himself into a drug-treatment facility. He city’s refused the request records, for his medical which may have corroborated the test results. circumstances, Under these appellant was process. accorded due In addition to a strict legal analysis why rules evidence do not
apply in administrative settings, there are numerous practical implications here: (1) this is an administrative proceeding which strict rules of evidence should (2) apply, not administrative officials often are not legally trained or versed (3) rules, nuances of evidentiary level, at the administrative there is no burden or mechanism, expense-shifting such as a request admissions, to require parties either to admit apparent (4) facts or them, to bear the cost of proving out-of-state test suppliers are routinely relied upon accuracy in many life, walks of (5) including medicine, and nothing suggests record that Royse ever denied having a cocaine-abuse problem. The majority holding effectively reinstates a cocaine abuser aas
firefighter. I dissent.