Appeals as a result of a disciplinary order shall be filed with the commission, in writing, not more than ten (10) calendar days after the employee is served with an order of suspension, demotion, or dismissal, as a result of disciplinary action pertaining to a classified employee. The appellant shall deposit with the City Finance Director the amount of $250.00 or an affidavit of indigence when filing the appeal. The affidavit of indigence and indigence requirements shall be substantially the same as used by the local courts.
Upon receipt from an employee in the classified service of the city, of a timely appeal, the commission shall set a time and place to hear such appeal and shall notify the appointing authority and the employee thereof. (See Rule 2.1 regarding appointed hearing officers)
In addition to what has been stated in Rule 13 concerning probationary employees, there shall be no appeals as it relates to any employee from layoffs, abolishments, displacements, transfers, or reclassifications; moreover, the provisions regarding felony convictions and related conduct and penalties in O.R.C. 124.34 apply under these rules, except that the rules and procedures contained herein supersede O.R.C. 124.34 as to how, when, and to what extent officers and employees are reduced in pay or position, fined, suspended or removed and as to how and when and to what extent notice is given; finally, these rules control the appeal process.
An appointing authority is estopped to raise the illegal appointment of an employee to defeat the tenure rights which would have been due that employee had employee been lawfully appointed.
"Orders" may be affirmed only if each of the following criteria are satisfied:
1) The copies of the order is filed with the commission and served on the employee which shall each bear the signature of the appointing authority or their designee; and,
2) The appointing authority or their designee shall serve the employee with a copy of the order on or before the effective date of the action; and,
3) The appointing authority or their designee shall serve the employee with a copy of the order either on the date or before the employer files copies with the commission; and,
4) The appointing authority or their designee shall file a copy of the order with the commission within ten (10) calendar days after a copy of the order has been served on the employee, unless good cause can be shown for failure to file timely; and,
5) The order shows, on its face, a list of particulars which form the basis for the order.
Disaffirmance of an order under this rule shall not be a bar to again filing based upon the same allegations.
An "order" is served on an employee when:
1) It is personally served upon the employee; or,
2) It is received by the employee at the employee's last known address, by certified mail, return receipt requested; or,
3) It is left at the usual place of residence, or last known address of the affected employee, with an adult residing therein.
If the service by certified mail under paragraph (2) of this rule is returned with an endorsement showing the service was refused or unclaimed, then the "order" may be sent by ordinary U.S. mail, evidenced by a certificate of mailing.
Employees shall notify the appointing authority or their designated agent, in writing, of any changes of address throughout their employment. An "order" will not be disaffirmed based upon an appointing authority's failure to serve the employee with a copy of the order where the employee has failed to notify the appointing authority of a change of address and the appointing authority has attempted to serve a copy of the order to the employee's last known address. The burden is on the employee to prove the appointing authority was notified of a change in the employee's address.
Amendment of the orders of suspension, demotion or dismissal as a result of disciplinary action may be made by the appointing authority at any time provided the employee receives a copy of the amended order prior to ten (10) calendar days before the time set for the hearing as herein provided. The ten (10) calendar day requirement may be waived by the Commission.
Material not originally present in an "order" may, at any other time, at the discretion of the commission, be added to the order after it is furnished to the employee or filed with the commission. The Commission shall freely allow after acquired evidence to be added to the order at any time. Material may be deleted from an " order" at any time, at the discretion of the commission.
1) Such added material, may be made the basis of a subsequent order.
2) An appointing authority or their designee may correct errors at any time.
3) Upon written notice to the employee, an appointing authority or their designee may withdraw an "order" at any time.
Employees shall not be disciplined for acts which have been known or should have been known to the appointing authority more than two (2) years prior to the issuance of an "order."
1) Whether an appointing authority knew or should have known of the occurrence of events giving rise to disciplinary action is a question of fact to be determined by the commission.
2) The length of time between the occurrence of the action, the appointing authority's knowledge of the incident, and the imposition of discipline will be factors in the commission's determination of the appropriateness of the disciplinary action.
This rule does not bar discipline based upon a criminal conviction, less than two (2) years old, even though the incidents giving rise to such conviction occurred more than two (2) years prior to the imposition of discipline; moreover, this rule does not bar discipline when complicity to a criminal act exists by a person of higher authority to the employee.
All incidents, which occurred prior to the incident for which a non-oral disciplinary action is being imposed of which an appointing authority has knowledge and for which an employee could be disciplined, are merged into the non-oral discipline imposed by the appointing authority. Incidents occurring after the incident for which a non-oral disciplinary action is being imposed, but prior to the issuance of the non-oral disciplinary order, are not merged and may form the basis for subsequent discipline.
1) For purposes of this rule, knowledge of an appointing authority will include knowledge of those persons with authority to impose non-oral discipline for the appointing authority, except when those persons of higher authority to the employee are in complicity with the employee in committing a violation for which non-oral discipline may be imposed.
2) For purposes of this rule, non-oral discipline includes written reprimands and suspension orders. It does not include a written memorandum of oral counseling or written warnings.
Once discipline is imposed for a particular incident, that incident shall not be used as the basis for subsequent discipline, but may be used for purpose of demotion and/or dismissal.
The appointing authority shall prove, by a preponderance of the evidence, the factual allegations in a disciplinary order. Failure to prove all of the allegations contained in an order does not, as a matter of law, require disaffirmance of an order.
The commission shall expressly confine itself to the following issues:
1) Whether or not there was a proper order issued (i.e., compliance with the requirements of Section 14.3 of these rules); and,
2) Whether or not the allegation or allegations were proven by a preponderance of the evidence; and,
3) Whether or not the discipline action that was imposed by the appointing authority was appropriate.
The commission is empowered to and shall affirm or disaffirm an order. The commission is also empowered to reduce any discipline action that was imposed by the appointing authority, and may do so, when one of the following findings are made by the commission, that
1) The appointing authority at the time of making the order acted in an arbitrary or capricious manner when imposing the discipline.
2) The appointing authority at the time of making the order abused its discretion when imposing the discipline.
3) Disparity of treatment exists between similarly situated employees, with similar work records, for similar type misconduct which resulted in the disciplinary action and that in the public’s best interest, a reduced disciplinary action is appropriate.
4) The evidence as was presented to the Commission by the parties during the appeal was such that, in the best interest of public service, a reduced disciplinary action is appropriate.
An appellant is not entitled to back pay or benefits as a result of an order of suspension or termination by the appointing authority, unless the commission finds, based on preponderance of the evidence as proven by the appellant, that criteria 1 or 2 occurred.
The commission may find that the appointing authority "substantially complied" with the procedural requirements for issuing discipline, preparing and serving the order, serving the employee, etc., when the commission determines that the employee was not materially prejudiced.
All appeals to the commission shall be in writing. Notices of appeal shall include the following information:
1) The appellant's name, address, and telephone number; and,
2) The name, address, and telephone number of the appointing authority; and,
3) A description or summary of the action which is being appealed.
Appellants shall notify the commission, in writing, of any change of address during the pendency of an appeal.
If a disciplinary suspension, demotion or dismissal is alleged and no "order" has been filed with the commission, the employee shall prove, by a preponderance of the evidence, that the disciplinary suspension, demotion or dismissal occurred.
Investigations may, at the discretion of the commission, be conducted by an exchange of correspondence between the commission and the parties. Unless a party can show good cause for its failure to respond, decisions will be based on the information received within the response time allowed. In the commission's discretion, investigations may be set for hearing.
Upon completion of an investigation, the commission may order the correction of a violation.
All hearings conducted pursuant to these Rules and Procedures shall be administrative in nature and the commission shall not be bound by formal rules of evidence or procedure. The strict rules of evidence do not apply to hearings before the commission. Evidence that is admissible in a hearing before the Commission is defined as follows: (1) Reliable evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) Probative evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) Substantial evidence is evidence with some weight; it must have importance and value. Furthermore, hearsay is admissible in the civil service proceeding.
Evidence of prior disciplinary action is inadmissible to prove the existence of any incident alleged in an "order."
For purposes of this rule, prior disciplinary action consists only of those written reprimands, suspensions, or dismissals contained in the employee's personnel file.
The commission 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.
At any time prior to a hearing, the commission may order evidence taken in the form of questionnaires.
The commission may require questionnaires to be submitted at a hearing or to be returned by mail.
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.
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.
All witnesses at any hearing before the commission shall be placed under oath and shall testify under oath or affirmation.
A witness may be accompanied and advised by legal counsel. Participation by counsel is limited to protection of his or her client's rights. Counsel for a non-party witness may neither examine nor cross-examine any witness, without the prior consent of the commission.
Should a witness refuse to answer a question ruled proper at a hearing or disobey a subpoena, the commission may initiate contempt proceedings.
The following paragraphs apply to crimes and criminal conduct other than felonies within the meaning of O.R.C. 124.34, as such felonies do not allow an appeal to the commission.
Conviction of any crime in a court of competent jurisdiction is conclusive evidence of the existence of all of the elements of that crime. The mere conviction of any crime is not conclusive evidence that disciplinary action based upon the conviction is appropriate, unless the committing of the crime is the alleged violation.
A conviction can be established only through certified copies of the original journal entry from the court in which the conviction was obtained.
Evidence of conviction of a crime is inadmissible unless a connection is established between the crime and the particulars alleged in a disciplinary order.
Indictment for or allegation of a criminal offense does not in itself establish a statutory basis for discipline; however, when coupled with a factual basis in considering the evidence, may be a cause for discipline.
A duplicate may be admitted to prove the content of a document, recording, or photograph unless:
1) A genuine question is raised as to the authenticity of the original; or
2) The commission determines it would be unfair to admit the duplicate in lieu of the original.
At any time prior to the issuance of a final order, the commission may take notice of the contents of any classification specification.
This rule does not limit the commission's authority to take notice at a hearing of any fact, including the contents of any personnel file maintained by the commission.
The commission may hear evidence of disparate treatment between the appellant and other employees of the 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 or her representative.
Evidence of disparate treatment may be considered in evaluating the appropriateness of the discipline which was imposed. (See Rule 14.8)
The party filing an appeal is designated "appellant." The other party is designated "appellee".
Scheduling notices shall be mailed to the parties and their representatives by regular U.S. mail, with proof of mailing required to his or her last address on file with the commission, at least thirty (30) calendar days in advance of the hearing.
Upon its own motion or upon the motion of any party, the commission may continue a hearing.
1) Requests for continuance shall be addressed to the Clerk of the commission being the City Finance Director (or Council Clerk when one exists). A request for continuance will not automatically stay the hearing, but must be expressly granted.
2) Requests for continuance shall be made, in writing, at least ten (10) 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 commission. If a party requests a continuance less than ten (10) calendar days prior to hearing, then that party shall inform the commission 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 commission will not again issue subpoenas when a hearing has been continued unless specifically requested to do so in writing.
Absent compelling circumstances, hearings shall not be continued due to the unavailability of a subpoenaed witness. The commission 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.
If two (2) or more appeals involve substantially identical issues of fact and law, the commission may consolidate them into a single hearing upon its own motion or upon the motion of either party.
Any person, unless prohibited by law, may represent himself or herself. An employee may be represented by an Attorney. The commission may allow representation by a person not an attorney so long as the person does not receive any compensation from the employee for such representation.
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 commission, that party is not required to appear personally at the hearing.
Representatives shall enter their appearances in writing.
One who has entered an appearance as the representative of a party is that party's representative of record unless and until a written withdrawal is filed with the commission.
If more than one (1) person enters an appearance as a party's representative, communications shall be sent as follows:
1) If one of the representatives entering an appearance has been designated, in writing, to receive communications from the commission, all communications shall be sent to that representative.
2) If no representative has been designated to receive communications from the commission, all communications shall be sent to the representative who last entered an appearance.
3) If it is impossible to determine who last entered an appearance, all communications shall be sent to the representative whose name is first in alphabetical order.
If an appellant dies during the pendency of an appeal, the executor or administrator of his or her estate shall, upon motion, be substituted for him or her. An appeal shall be held open for a reasonable time to permit this substitution.
If the appointing authority changes during the pendency of an appeal, the new appointing authority is automatically substituted without formal motion or order.
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.
Procedural motions, not determinative of the final outcome of an appeal, may be acted upon at any time after receipt by the commission without awaiting a response from the opposing party.
Within ten (10) calendar days of service of a non-procedural motion, a party shall serve a written response on the opposing party and file a copy of that response with the commission. The commission may rule on any non-procedural motion once the time to respond has run. Upon motion of the affected party, the commission may extend the time to reply to a non-procedural motion.
The commission may rule on any non-procedural motion at a record hearing, even if ten (10) 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.
At any time prior to the issuance of a final order, the commission may require briefs from the parties. Briefs shall address questions put to the parties by the commission and shall be filed within the time limits set by the commission.
1) The commission may limit both the number of reply briefs and the time for their preparation and filing.
2) If a party fails to submit a brief within the time limit, the commission may exclude his or her brief from its consideration.
Upon motion, the commission may hold the record open for receipt of briefs.
A document is filed when it is received and time stamped by the office of the Finance Director (or Council Clerk when one exists) or other designated officer.
For purposes of calculating the appeal time in a disciplinary action, the filing date of an "order" is the date the order is time stamped by Finance Director (or Council Clerk when one exists) or other designated officer.
Either an original or a legible copy of any document required to be served by these rules shall be filed with the commission not more than five (5) calendar days after service.
All pleadings to be filed with the commission shall be on eight-and-one-half inch (8 ") by eleven inch (11") paper.
Any document required by these rules to be served upon a party may be served either personally or by mail. 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 upon the date of personal transmission of the document.
All motions and briefs shall contain the name, address, and telephone number of the person submitting the motion or brief.
A motion shall be considered by the commission 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 that was served.
Communications regarding scheduling shall be sent to all parties and their representatives.
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.
The commission may extend the time for filing or responding to motions and briefs.
1) Requests for extension of time shall be made, in writing.
2) Requests for extension of time in appeals before the commission shall be directed to the Finance Director (or Council Clerk when one exists) or designated officer.
Procedural orders may be issued by the commission at any time prior to the issuance of a final order.
If a party fails to comply with a procedural order, the commission may dismiss the appeal or grant other appropriate relief to the opposing party.
The commission shall determine the order in which a hearing shall proceed.
The hearing, when conducted by commission members, shall be conducted, when practical, with all current members of the commission present. When the hearing is conducted by an appointed hearing officer, the commission members need not be present; however, in the event commission members are present, the member or members shall remain quiet during the hearing. At the conclusion of the hearing, after deliberation, utilizing the report or recommendation of the appointed hearing officer if a hearing officer is utilized, any decision regarding the outcome of the appeal by the commission shall be made by a majority vote of the commission members. The hearing shall be in public unless waived in writing by the parties prior to the time of the hearing at which time it may be held in executive session, at the discretion of the commission; however, any action of the commission must be in public. The commission shall confine its decision to those things found in Rule 14.8. The standard and any procedural rules adopted by the commission under any provision or subsection of this Rule 14 or Rule 2.1 supersede any contrary provisions of O.R.C. 124.34.
The commission shall hear the evidence upon the order as filed by the appointing authority. In the hearing of such appeals, the order of procedure shall be as follows:
1) The appointing authority shall adduce their evidence in support of the order;
2) The employee shall then produce such evidence as the employee may wish to offer in defense;
3) The appointing authority may offer evidence in rebuttal;
4) The commission may, in its discretion, hear arguments.
The commission may make inquiry in the matter through evidence presented at the hearing. The commission may continue the hearings as is necessary and required to receive all relevant testimony and evidence.
At all hearings conducted pursuant to this Rule, the appointing authority and the employee may be represented by legal counsel.
Either party may call the opposing party to testify as if on cross-examination.
The commission may require, limit, or eliminate opening statements and closing arguments.
Copies of exhibits shall be made available to the commission as they are identified. If the hearing is heard by the full commission, three copies of all exhibits must be submitted to the commission. Parties shall exchange documents and exhibits prior to the hearing. Hearings will not be delayed to facilitate an exchange or review of the exhibits.
In hearings before a hearing officer, parties shall provide the commission one (1) copy of all exhibits.
The parties are encouraged to discuss stipulations and settlement prior to the start of a hearing.
All parties, witnesses and attorneys are required to arrive at the designated location of the hearing at the scheduled hearing time.
All record hearings shall be audio recorded unless the commission orders a stenographic record. The recording by the commission is the official record.
Recordings may be destroyed after:
1) A final board order has been issued; and
2) Ninety (90) calendar days have passed from the mailing of notice of the final order of the commission to the parties; or ninety (90) days after a transcript has been received by the commission from its official stenographer, subject to record retention schedules.
Any party may tape record or have a stenographer present at the hearing, provided such recording does not interfere with the hearing.
When a transcript is requested of the commission after a hearing by the commission or hearing officer, but before briefs are filed with the commission, the commission shall transmit a written transcript of each hearing appealed to a court of common pleas. The cost of the transcript must be paid by the losing party in the court of common pleas.
Transcripts for a party's own use may be obtained through the Finance Director (or Council Clerk when one exists) or designated person. The cost of the transcript is to be paid by the party requesting the transcript. A deposit shall be first posted with the Finance Director or Council Clerk when one exists, prior to any transcript being prepared. The deposit shall equal an estimated amount due for said preparation.
Transcripts must be requested within sixty (60) days following the mailing of the final order.
Any person may listen to the recording of a hearing. In order to do so, a person must make prior arrangements with the commission. Under no circumstances shall any person remove the original recording from the commission's control.
Any member of the commission shall have the power to administer oaths and affirmations to witnesses and to take testimony concerning the matter before the commission.
The commission, through its chairman, or an appointed hearing officer, shall have the power to subpoena and require the attendance of witnesses, and the production of pertinent documents, records, and other evidence; moreover, the Commission, through its chairman, or an appointed hearing officer, shall have the power to issue procedural orders and approve appeal withdrawals, consented dismissals (with or without settlement agreements). The chairman, or an appointed hearing officer, shall also have the authority to approve indigent status related to deposits and other costs associated with an appeal. (See Rule 2.1)
Upon a properly prepared precipe, signed by the requesting party, the commission shall cause to be issued subpoenas for such persons and documents as the requesting party deems necessary. The party shall submit a written 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 (5) witnesses, prior approval is required.
The commission shall, upon request of a party to an appeal, supply precipe and subpoena forms to the requesting parties who are responsible for completing and serving subpoenas. A subpoena is deemed served when:
It is personally served upon the person by a process server or persons permitted to serve subpoena under the rules of civil procedure; or
It is received by the person at the person's last known address by certified mail, return receipt requested; or
It is left at the usual place of residence, or last known address of the person, with an adult residing therein by a process server or persons permitted to serve subpoena under the rules of civil procedure; or
If the service by certified mail as provided by 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.
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.
The commission may, when directed by a party, mail subpoenas by ordinary United States mail to the last known address of the person as directed by the party requesting the subpoena.
1) The commission shall not mail subpoenas less than fourteen (14) calendar days in advance of a hearing. If subpoenas cannot be mailed more than fourteen (14) calendar days in advance of a hearing, the Civil Service Commission shall, on request, hold the subpoenas so they can be served on the witness at the hearing.
2) If the commission is requested to serve the subpoena by ordinary mail, then the subpoena is deemed delivered when mailed.
To be enforceable, witnesses shall receive their subpoenas at least seven (7) calendar days prior to the hearing. Subpoenas duces tecum shall be received at least ten (10) calendar days prior to the record hearing. Absent proof a witness has received a subpoena in a timely manner, the commission shall not enforce the subpoena nor hold the record open for the testimony of an unsubpoenaed non-appearing witness.
Hearings shall not be continued due to the absence of a witness subpoenaed under this rule.
The commission will not again issue subpoenas when a hearing has been continued unless specifically requested to do so in writing.
Upon motion and for good cause, the commission may quash any subpoena. Motions to quash shall be raised, in writing, 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.
Witnesses may not be subpoenaed to prehearings.
No character witness shall be subpoenaed to attend hearings. This prohibition does not pertain to witnesses testifying to the credibility of another witness.
To the extent as permitted by law, O.R.C. 124.09 (G) shall apply under the limited adoption of O.R.C. 124.40, as limited by Chapter 155 of the Codified Ordinances and rule 2.1 of these Rules, which gives municipal civil service commissions all other powers and duties which respect to the civil service of the city, city school district and city health district as conferred upon the director of administrative services and state personnel board of review.
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 commission, provided they were either subpoenaed or were parties to the action.
Mileage shall be paid to any subpoenaed witness, not a party, who works or resides outside of Henry County and who incurs unreimbursed travel expense to attend hearings before the commission. Neither parking costs nor food and lodging are reimbursable.
Parties may not subpoena themselves.
Mileage and witness fees shall not be paid to anyone who fails to register at the hearing attended.
Any costs associated with any subpoena shall be taxed to the losing party.
Witness fees and mileage costs shall be deposited with the Finance Director (or council clerk when one exists) prior to the issuance of any subpoena, subject to refund to the prevailing party. In the event that the said Finance Director or council clerk is of the opinion that the deposit on file regarding the appeal is sufficient to cover the costs, then the additional deposit under this paragraph may be waived by the Finance Director or council clerk.
When an appellant withdraws an appeal, the appellant shall be deemed for the mere purpose of paying costs associated with subpoenas, the losing party, unless otherwise agreed to by the parties.
If neither the appellant nor appellant's authorized representative appears at a hearing, the commission may dismiss the appeal.
If neither the appellee nor appellee's authorized representative appears at a hearing, the commission may grant appropriate relief, including disaffirmance of the order.
If neither party appears at a hearing, the commission may, based upon the information available to it, resolve the appeal in the manner it deems appropriate.
An appeal may be withdrawn any time prior to the issuance of the final order of the commission. All withdrawals shall be in writing and shall be signed by either the appellant or appellant's representative.
An appeal may be settled by the parties thereto any time prior to the issuance of a final order of the commission. The commission will accept signed settlement agreements and incorporate them into its final order. All settlement agreements shall be in writing and shall be signed by all affected parties and their representatives.
If the commission is notified a case has been withdrawn or settled, and no settlement agreement or withdrawal is filed with the commission within fourteen (14) calendar days of the notification to the commission, then the commission shall schedule the case for a hearing.
1) On written request of the opposing party, a party shall, at least twenty-eight (28) calendar days prior to the first scheduled record hearing, provide to the requesting party the documents intended to be introduced at the hearing and a list of witnesses and shall provide to the commission a list of documents intended to be introduced at the hearing and a list of witnesses. Such requests must be served upon the opposing party at least forty-two (42) calendar days prior to the first scheduled record hearing.
2) Upon receipt of a written request, and at least twenty-eight (28) calendar days prior to the first scheduled record hearing, a party shall permit the opposing party to view and copy, at the opposing party's expense, any documents intended to be introduced at a hearing.
3) If a party fails, without good cause, to comply with paragraphs (1) and (2) of this Rule, such testimony or documents may, upon motion of the adversely affected party, be excluded from a hearing before the commission. Failure to serve requests for documents and a list of witnesses or for the examination of documents at least forty-two (42) calendar days before the first scheduled record hearing waives all right to move to exclude such evidence.
4) The commission may extend times as established in this rule and continue hearings in order to permit discovery under this rule.
5) Discovery, as it pertains to the exchange of documents and witness lists, may be supplemented as set forth in the applicable Ohio Rules of Civil Procedure.
The commission may order depositions upon motion of any party.
1) A motion to take deposition shall be filed, in writing, with the commission at least fourteen (14) calendar days prior to a record hearing. The commission may continue a hearing for depositions. Absent compelling reasons, the commission may grant such motions.
2) The cost of such deposition shall be borne by the party requesting the deposition.
3) If a deposition is to be submitted into evidence as a testimonial deposition, the deposition must be submitted on videotape. As an alternative to videotaping the testimonial deposition, the party requesting the deposition can request the assigned hearing officer to be present at the deposition.
The commission may, on its motion, order depositions taken at a time and place of its choosing. Such depositions shall be recorded on videotape and may be used in the resolution of an appeal.
Any party may move to make an "order" definite and certain as follows:
1) An employee may move to make definite and certain any factual allegations contained in an "order."
2) An appointing authority may move to make definite and certain any assertion of dismissal, demotion or suspension when no "order" has been filed with the commission.
Motions to make definite and certain shall specify, with particularity, what information is sought.
Failure to serve a motion to make definite and certain at least twenty-one (21) calendar days prior to the record hearing waives all right to move to exclude evidence under this rule. A party shall serve a written response to the motion to make definite and certain within fourteen calendar days after receipt of the motion.
The commission shall, upon proper motion, determine the adequacy of a party's response.
The commission may extend the time to respond to a motion to make definite and certain, continuing the case if necessary.
If a party fails to respond adequately to a motion to make definite and certain, the opposing party may move to exclude all evidence which is the subject of the motion.
A representative's work product is not discoverable.
At any time prior to a record hearing, the commission may, on its own motion or upon motion of any party, direct the parties or their representatives to participate in a prehearing.
Prehearings may be held for the following purposes:
1) To simplify or clarify issues;
2) To obtain stipulations and admissions;
3) To exchange documents and witness lists;
4) To discuss matters intended to expedite the proceedings.
Final commission orders, procedural orders and reports and recommendations may be issued based upon information obtained at a prehearing.
All prehearings shall be summarized on the record and may, at the discretion of the commission, be recorded.
The commission may assign a hearing officer and such hearing officer shall have the powers and duties as found in Rule 2.1. The assigned Hearing Officer shall submit a report and recommendation to the commission.
Reports and recommendations shall be sent by certified United States mail to the appellant's representative (or to appellant, if unrepresented) and to appellee's representative.
Report and recommendations mailed by certified mail and returned to the commission shall be reissued by regular United States mail and will be deemed delivered the third (3rd) calendar day after mailing.
Report and recommendations mailed by certified or regular United States mail which are returned to the commission as undeliverable and addressed to the address on file with the commission shall be placed in the case file and the opposing party shall be notified. If the address is incorrect, the report and recommendation will be again mailed.
A copy of the report and recommendation may be secured in person by the parties, in lieu of mailing, from the office of the commission after signing a receipt for the report and recommendation.
No objection may be made to any decision of an assigned Hearing Officer prior to the submission of the report and recommendation.
Objections to a report and recommendation shall be filed, in writing, within ten (10) calendar days after appellant's receipt of the report and recommendation. Responses to objections shall be filed, in writing, within ten (10) calendar days after the opposing party's objections have been filed.
1) The commission may extend the time to file objections or responses to the report and recommendation.
2) Objections to reports and recommendations should include both a brief statement of the case and a concise statement of each area of disagreement, together with supporting arguments and memoranda. Parties' objections or responses must be limited to evidence presented at hearing. Objections and responses to objections containing arguments based on evidence not already in the record shall be stricken.
3) All objections and responses to objections shall have attached a certificate of service. If none is attached, then the commission will not consider the objection or response.
The commission may accept, reject, or modify, in whole or in part, any report and recommendation.
The commission may take additional evidence, hear arguments, issue a stay order pending the decision of the board on a motion for reconsideration or remand an appeal to an assigned commission officer for further consideration or hearing.
If a hearing is held before the members of the commission, then they, except as provided in Rule 14.36 will issue a final order and opinion regarding their decision. Final orders shall be signed by the chairman of the commission. The original order shall be placed in the case file.
A copy of the final order of the commission shall be sent by certified United States mail to the appellant's representative (or to appellant, if unrepresented) and by regular United States mail to the appellee's representative (or the appellee if unrepresented).
1) A copy of the final order mailed by certified mail and returned to the commission shall be reissued by regular United States mail and will be deemed delivered the third (3rd) calendar day after mailing.
2) A copy of the final order mailed by regular or certified United States and returned to the commission as undeliverable and addressed to the address on file with the commission shall be placed in the case file and the opposing party shall be notified. If the address is incorrect, the final order will be again mailed.
3) A copy of a final order may be secured in person by the parties, in lieu of mailing, from the office of the commission after signing a receipt for the order.
Any party may move for reconsideration of a final order of the commission. Motions for reconsideration shall be filed within ten (10) calendar days of mailing of the final order. After a motion for reconsideration has been filed, and if no appeal has been filed in a court of common pleas, then a stay of the order will be issued pending the reconsideration. The opposing party will then have ten (10) calendar days to file a response to the motion for reconsideration. The filing of a notice of appeal of a commission order divests the commission of jurisdiction to rule on a motion for reconsideration. The filing of a motion for reconsideration does not toll the time to appeal the commission’s final order.
The parties if not contrary to ordinance or resolution, and where otherwise authorized by law, may appeal a final decision of the commission in accordance with the applicable section of Chapter 25 of the Ohio Revised Code to the Common Pleas Court of Henry County, Ohio, except in cases where Chapter 119 of the Ohio Revised Code may apply.
The finance director (or council clerk when one exists) or designated officer of the commission shall certify only one (1) copy of the record to the court of common pleas in any appeal.
Upon filing with the commission a notice of appeal to the court of common pleas, the party filing such notice shall deposit with the commission a sum in accordance with the following schedule:
1) If audio recordings is requested, the sum of $1.00 or the actual costs of the media, whichever is greater.
2) If transcripts are requested, the sum of $250.00 or the estimated cost of the transcriptions, whichever is greater.
3) In the event the hearing was recorded by a stenographer, the sum of $250.00 or the estimated cost of the transcription, whichever is greater.
After the commission has received the deposit, the transcript and copies of the file will be prepared and the actual cost of those items will be calculated. If the deposit exceeds the costs of these items, then a refund of the excess will be issued; if the deposit does not cover the full amount, then it will be retained in accordance with this rule.
The deposit will be retained by the commission until the appeal process has been completed. If the deposit does not cover the full amount of the costs, and the costs have been assessed to the party who paid the deposit, then that party will be billed for the remaining costs and the deposit will not be returned. Should the costs be assessed to the opposing party, then that party will be billed for the full amount of the costs and the deposit will be returned to the party who paid the deposit.
If a person alleges the inability to pay the deposit, then an "Affidavit of Indigence" must be completed. Said affidavit is available from the commission upon request.
Upon the submission of the affidavit, the commission will determine if the person is or is not excused from paying the deposit.
These rules govern practice and procedure in all proceedings before the commission. Judicial invalidation of one (1) rule shall not be considered or construed as to invalidate any other rule.
The commission shall maintain, in accordance with the commission's retention schedule, records of all appeals filed, together with the dates of pending hearings, final action on the appeals and the dates on which the most recent filings, hearings or final actions occurred.
All representatives appearing before the commission shall conform to the standards of ethical conduct required of attorneys practicing before the courts of the State of Ohio.
The commission may bar from participation in hearings before it any representative who refuses to comply with its directions or who engages in dilatory tactics or contemptuous behavior in the course of any proceeding before the commission. (Ord. 016-12. Passed 3-5-12.)