IN THE SUPREME COURT OF

RONALD L. ROYSE, CASE NO. 2011-1477

Plaintiff-Appellee, vs. On Appeal from the Montgomery County Court of Appeals, Second CITY OF DAYTON, et al., Appellate District,

Defendants-Appellants. Case No. 24172

APPELLANT CITY OF DAYTON'S RESPONSE TO NOTICE REGARDING JURISDICTIONAL STATUS

Terry W. Posey (#0039666) John J. Danish (#0046639) 7460 Brandt Pike City Attomey Dayton, Ohio 45424 Norma Dickens (#0062337) (937) 236-6444 Assistant City Attorney (937) 236-6000 (fax) Jonathan W. Croft (#0082093) [email protected] (Counsel of Record) Assistant City Attorney 101 West Third Street Terry W. Posey, Jr. (#0078292) P.O. Box 22 (Counsel of Record) Dayton, Ohio 45401 Thompson Hine LLP (937) 333-4100 Austin Landing I (937) 333-3628 (fax) 10050 Innovation Drive jonathan.croft @ daytonohio.gov Suite 400 Dayton, Ohio 45342 COUNSEL FOR RESPONDENT - (937) 443-6600 APPELLANT, (937) 443-6635 (fax) CITY OF DAYTON, OHIO [email protected]

COUNSEL FOR PETITIONER- Stephen L. Byron (#0055657) APPELLEE RONALD ROYSE (Counsel of Record) Rebecca K. Schaltenbrand (#0064817) Ice Miller LLP I = Formerly Schottenstein, Zox & Dunn Uff, ^ F D Co., LPA JAN 13 2017 CLERK OF COURT 4230 State Route 306, Suite 240 Willoughby, Ohio 44094 (440) 952-2303 (216) 621-5341 (fax) [email protected]

Steven J. Smith (#0001344) Ice Miller LLP F^iii^crly Sc-hoiieristein, Zox & L-junn Co., LPA 250 West Street Columbus, Ohio 43215 (614) 462-2700 (614) 462-5135 (fax) [email protected]

John Gotherman (#0000504) Ohio Municipal League 175 South Third Street #510 Columbus, Ohio 43215 (614) 221-4349 (614) 221-4390 (fax) [email protected]

COUNSEL FOR AMICUS CURIAE OHIO MUNICIPAL LEAGUE

2 TABLE OF CONTENTS

TABLE OF CONTENTS ...... 3

INTRODUCTION ...... 4

BACKGROUND ...... 4

D IS CUS S ION ...... 5

CONCLUSION ...... 8

CERTIFICATE OF SERVICE ...... 9

3 I. INTRODUCTION

This case involves a question of whether a municipal civil service board in an

administrative hearing is bound by the Ohio Rules of Evidence. With this case, the Court has an

opportunity to clarify the admissibility of hearsay in administrative proceedings and the obligation

of administrative hearing officers to intesnret and apply the Ohio Rules of Evidence. This Court

accepted jurisdiction over this case on November 16, 2011 after reviewing memoranda from both

sides as well as an additional memorandum in support of jurisdiction submitted on behalf of the

Ohio Municipal League. Subsequently, the City of Dayton's Civil Service Board proposed

amending its Civil Service Rules and the Commission of the City of Dayton approved the

amendments on December 14, 2011. Now, Petitioner-Appellee, Ronald Royse, is urging the court to revoke its jurisdiction in light of this rule amendment.

II. BACKGROUND

Ronald Royse was employed with the City of Dayton Fire Department as a firefighter.

However, after two positive drug test results revealed his use of cocaine, and a plea of no contest during his pre-disciplinary hearing, Appellee was terminated. Subsequently, Appellee appealed his termination to the Dayton Civil Service Board ("Board"), which held a de novo hearing during which it received testimonial and documentary evidence relating to Appellee's positive drug screens. Said evidence included, but was not liniited to, testimony from the City's Safety Officer and another City employee who oversees the collection of the urine samples used in the drug testing process. Neither the Medical Review Officer, a non-City employee located in Michigan, nor a witness from the laboratory, non-City employees located in Tennessee, performing the test, testified regarding their findings. However, the Civil Service Board, based upon the testimony of the two City witnesses regarding the bargained-for procedures involved in the drug testing

4 process, also admitted into evidence the laboratory reports from the City's testing facility showing

the positive test results, as well as two reports from the City's Medical Review Officer interpreting

the test results. The Civil Service Board issued its Order on Appeal on August 21, 2008, affirming

Appellant's discharge from employment. Subsequently, the Montgomery County Court of

Common Pleas affirmed the Order of the Civil Service Board. Anpellee apnealed to the Second

District Court of Appeals of Montgomery County. The Appellate Court found that the Trial Court

erred in finding that the Decision of the Board was supported by substantial, reliable, and

probative evidence, in that there was no evidence of record demonstrating that the documentary

evidence of the positive test results, and the conclusions of the Medical Review Officer reached

therefrom, were trustworthy, in violation of Evidence Rule 901(A). Drug tests, conducted in

accordance with policies and procedures, and applicable federal and state are substantial,

reliable, and probative evidence.

III. DISCUSSION

The Ohio Rules of Evidence explicitly state that they govern proceedings "in the courts of this state." Evid. R. 101(A) (Emphasis added). Additionally, this Court has held that "Evid. R.

101(A) does not mention administrative agencies as forums to which the Rules of Evidence apply." Orange City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 74 Ohio St.3d

415, 417, 1996-Ohio-282. The City of Dayton's Civil Service Board's rules demonstrate an intention to be able to consider any and all evidence it considers relevant, probative, and reliable.

Accordingly, Dayton Civil Service Board Rule 14, Section 5(A), previously stated: "Procedure at

Hearings. A. The admission of evidence shall be governed by the rules applied by the Courts of

Ohio in civil cases." Additionally, Dayton Civil Service Board Rule 14, Section 5(D), which should be read in pari material with Section 5(A), previously specifically stated that "the Board or

5 Hearing Officer conducting a hearing shall have full authority to control the procedure of the

hearing, to admit or exclude testimony or other evidence, to rule upon all objections, and to take

such other actions as are necessary and proper for the conduct of such hearing."

In the City's Memorandum in Support of Jurisdiction, the City argued that in an

administrative hearing, these rules should not be construed as adopting the Ohio Rule.a of

Evidence. A more reasonable interpretation is that these rules refer to the manner of presenting

evidence and the general procedure for conducting a hearing. This logic also holds true for the

City's amended Rule 14, a portion of which states as follows: "The Board or Hearing Officer

conducting a hearing shall have full authority to control the procedure of the hearing, including the

authority to admit or exclude testimony or other evidence and to rule upon all objections. In doing

so, the Board or Hearing Officer shall not be bound by the Rules of Evidence. The Board or

Hearing Officer conducting the hearing shall have the authority to take any actions that it deems

necessary and proper for the conduct of such hearing." Even under the new rule, a similarly

situated party feeling aggrieved could question the level of guidance afforded to the Rules of

Evidence. Likewise, as illustrated in the Chart of Administrative Agencies and Application of

Evidentiary Rules on Page 4 of Appellee Notice Regarding Jurisdictional Status, such a party could also do so under the rules of Civil Service Commissions of the cities of Columbus, Akron,

and Findlay, to name a few. Any state or local administrative agency issuing a decision made under a rule which refers to the Ohio Rules of Evidence would be subject to unnecessary and unreasonable review and additional burdens. Such an outcome is contrary to this Court's direction that "evidence which might constitute inadmissible hearsay where stringent rules of evidence are followed must be taken into account in proceedings where relaxed rules of evidence are applied."

Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41, 44, 430 N.E. 2d 468.

6 In effect, the City's Amended Rule does nothing more than clarify what was already its intention, as well as its practice, of admitting evidence it determines is reliable, substantial and probative, notwithstanding that such evidence does not meet the strict requirements of the Ohio

Rules of Evidence.

The implications of this case are plainly statewide, at a minimum. The Court of Appeals, by its decision, ultimately requires municipal civil service boards, and the scores of other adniinistrative agencies throughout the state not specifically regulated by statute, to strictly follow the Ohio Rules of Evidence in administrative hearings. The effect of such a decision, if allowed to stand, will lead to a substantial increase in the volume of administrative appeals coming before the courts of the state involving evidentiary issues arising in a variety of administrative contexts, such as employment and zoning matters. Additionally, if such a decision is allowed to stand, it will place a significant burden on adniinistrative agencies to compel the attendance of, perhaps, out-of- state witnesses in order to satisfy the authentication requirements contained in the Rules of

Evidence. As Judge Hall points out in his dissent, "there is no burden or expense-shifting mechanism, such as a request for admissions, to require parties either to admit apparent facts or to bear the cost of proving them." In short, the Court of Appeals would require administrative agencies to expend resources and exercise powers that they do not have, for the purpose of strictly adhering to the Rules of Evidence, when the well-settled of Ohio is that they do not apply in administrative proceedings.

Appellee points to this Court's language in State v. Bartrum for the proposition that this

Court's "role as a court of last resort is not to serve as an additional court of appeals on review, but rather to clarify rules of law arising in courts of appeals that are matters of public or great general interest." State v. Bartrum (2008), 121 Ohio St.3d 148, 153 (O'Donell, J., dissenting). Appellee

7 also cites Section 2(B)(2)(3), Article IV of the Ohio Constitution for the basis for this Court's ability to direct a court of appeals to certify its record "[i]n cases of public or great general interest" Similarly, under S.Ct. Prac. R. 12.1, this Court may find that there is no substantial constitutional question or question of public or great general interest after accepting a case for determination nn the merits in,iirsiiant tn S.Ct, Prac. R. 16.

IV. CONCLUSION

For the foregoing reasons, this Court has properly exercised jurisdiction over this case as it presents a question of great public and general interest to state and local governments throughout

Ohio, and the rule change presented does not eliminate said question.

Respectfully submitted,

JOHN J. DANISH #0046639 CITY ATTORNEY

By Jogafhan W. Croft #008209 (Counsel of Record) Assistant City Attorney Norma M. Dickens #0062337 Assistant City Attorney 101 West Third Street P.O. Box 22 Dayton, Ohio 45401 (937) 333-4100 telephone (937) 333-3628 facsimile j onathan. croft @ daytonohi o. gov

COUNSEL FOR APPELLANT, CITY OF DAYTON, OHIO

8 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing has been sent by ordinary U.S. Mail and, postage prepaid, this 13th day of January, 2012 to the following:

Terry W. Posey, Jr. (#0078292) (Counsel of Reeord for Petitioner-Appellee Ronald Royse) Thompson Hine LLP Austin Landing I 10050 Innovation Drive Suite 400 Dayton, Ohio 45342

Terry W. Posey (#0039666) 7460 Brandt Pike Dayton, Ohio 45424

Stephen L. Byron (#0055657) (Counsel of Record forAmicus Curiae Ohio Municipal League) Ice Miller LLP Formerly Schottenstein, Zox & Dunn Co., LPA 4230 State Route 306, Suite 240 Willoughby, Ohio 44094

zt^ athan W. Croft Assistant City Attotney

9