Royse v. City of Dayton , 195 Ohio App. 3d 81 ( 2011 )

[Cite as Royse v. Dayton, 195 Ohio App.3d 81, 2011-Ohio-3509.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
ROYSE,
Appellant, : C.A. CASE NO. 24172
v. : T.C. CASE NO. 2008 CV 8296
: (Civil Appeal from
CITY OF DAYTON et al., Common Pleas Court)
Appellees. :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of July, 2011.
. . . . . . . . .
Terry W. Posey, for appellant.
John J. Danish, Dayton Law Director, and Norma M. Dickens,
and Jonathan W. Croft, Assistant City Attorneys, for appellee.
. . . . . . . . .
GRADY, Presiding Judge.
{¶ 1} Plaintiff, Ronald Royse, appeals from an order of the
court of common pleas affirming the decision of the Civil Service
Board of the city of Dayton.
{¶ 2} Royse was employed by the Dayton Fire Department for
14 years. On May 14, 2007, he submitted to a random drug screen
pursuant to the collective-bargaining agreement between the city
of Dayton and the International Association of Firefighters, Local
2
136 AFC–CIO. The test results were positive for cocaine.
Pursuant to the collective-bargaining agreement, Royse then was
evaluated by a substance-abuse professional and completed a
drug-and-alcohol-education program. On May 31, 2007, Royse was
subjected to a return-to-duty drug screen, which was negative.
Royse then returned to work with the Dayton fire department.
{¶ 3} As a result of his May 14, 2007 positive drug test, Royse
was scheduled to submit to eight follow-up, random drug screenings
after his return to work. His first two follow-up tests were
negative, but his November 16, 2007 follow-up test result was
positive for cocaine. Following a predisciplinary hearing, the
city of Dayton discharged Royse from his employment with the Dayton
fire department.
{¶ 4} Royse appealed his termination to the board. At the
hearing before the board, two witnesses, Ken Thomas and Maurice
Evans, testified on behalf of the city of Dayton. They described
the process that takes place when a firefighter is submitted to
a random drug test. Evans and an employee of Concentra Medical
Center collect the urine samples from the firefighter being tested.
The samples are sealed and shipped to ATN, a laboratory in
Memphis, Tennessee. ATN performs tests on the samples to determine
whether the samples contain drugs. ATN then sends the results
of the tests to Alternative Safety and Testing Solutions (“ASTS”),
3
a company in Michigan. A medical-review officer employed by ASTS
then reviews the results produced by ATN to determine whether the
test results are positive or negative for the presence of marijuana,
cocaine, amphetamines, opiates, or PCP. If the medical-review
officer interprets the results of ATN’s study to be positive for
any of these five substances, the medical-review officer attempts
to contact the employee. Finally, ASTS sends the medical-review
officer’s positive-test report to Ken Thomas, the safety
administrator for the city of Dayton.
{¶ 5} At the hearing before the board, the city of Dayton
submitted copies of the medical-review officer’s two reports that
found that Royse’s urine samples tested positive for cocaine on
May 14, 2007, and November 16, 2007. No person testified regarding
the methodology of the tests performed by ATN or the results of
the tests that ATN forwarded to ASTS. Further, no person testified
on behalf of ASTS regarding what particular data the medical-review
officer reviewed or why the officer concluded that Royse’s test
results were positive for cocaine.
{¶ 6} Royse objected to the admission of the medical-review
officer’s positive reports based on tests performed by ATN as
inadmissible hearsay. The board overruled the objection and
affirmed Royse’s discharge on August 21, 2008. Royse filed a
notice of appeal from the board’s decision in the court of common
4
pleas pursuant to R.C. Chapter 2506. On July 6, 2010, the court
affirmed the board’s decision. Royse filed a notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “The trial court erred in applying a deferential standard
of review instead of conducting a trial de novo.”
{¶ 8} Royse argues that the trial court applied an incorrect,
deferential standard of review in reviewing the board’s decision.
According to Royse, the trial court should have conducted a de
novo review of the board’s decision instead of giving the board
deference on evidentiary and credibility issues. Royse’s argument
relies on R.C. 124.34(C), which provides for an appeal “on questions
of law and fact.”
{¶ 9} “[A] member of a fire or police department may utilize
either of two distinct avenues of appeal to the court of common
pleas from a decision of suspension, demotion or removal from office
by a municipal civil service commission. First, if an appeal is
brought on questions of law and fact under [R.C. 124.34,] * * *
the procedure on appeal is governed by the Appellate Procedure
Act. In such a case, the trial court is required to conduct a
de novo review of the civil service proceedings. The court may
conduct an independent judicial examination and determination of
conflicting issues of fact and law. The court may, in its
discretion, hear additional evidence, and may substitute its
5
judgment for that of the commission. Second, if an appeal to the
court is brought pursuant to [R.C. Chapter 2506], * * * the court
is required to allow additional evidence only in the circumstances
enumerated in the statute, and the court must give due deference
to the administrative resolution of evidentiary conflicts.”
(Footnotes omitted.) 15 Ohio Jurisprudence 3d (2006) 698, Civil
Servants, Section 605. See Resek v. Seven Hills (1983), 9 Ohio
App.3d 224; Giannini v. Fairview Park (1995), 107 Ohio App.3d 620.
{¶ 10} Royse did not identify in his notice of appeal from the
board’s decision which statutory avenue of appeal he invoked.
In his brief filed with the court of common pleas, however, Royse
identified R.C. Chapter 2506 as providing the proper standard of
review. Further, he noted in a motion to strike that this case
was an administrative appeal brought pursuant to R.C. 2506.04.
Finally, in his reply brief submitted to the trial court, Royse
reiterated the standard used by trial courts when conducting a
review pursuant to R.C. Chapter 2506. At no point did Royse mention
R.C. 124.34 to the trial court or that he desired a trial de novo.
{¶ 11} The doctrine of invited error estops an appellant, in
either a civil or criminal case, from attacking a judgment for
errors the appellant induced the court to commit. Under that
principle, a party cannot complain of any action taken or ruling
made by the court in accordance with the party’s own suggestion
6
or request. State v. Woodruff (1983), 10 Ohio App.3d 326.
{¶ 12} Royse induced the court to apply the R.C. Chapter 2506.04
standard of review the court applied. Royse may not now argue
that in doing so, the court erred in not applying the R.C. 124.34
standard instead.
{¶ 13} When reviewing an administrative appeal pursuant to R.C.
2506.04, the trial court considers the “whole record,” including
any new or additional evidence admitted under R.C. 2506.03, and
determines whether the administrative order is unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative
evidence. Henley v. Youngstown Bd. of Zoning Appeals (2000), 90
Ohio St.3d 142, 147. The trial court correctly applied that
standard of review to Royse’s appeal from the board’s decision.
{¶ 14} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 15} “The trial court erred in considering the evidence of
the drug tests as a matter of evidence and of law.”
{¶ 16} The standard of review to be applied by an appellate
court in an R.C. 2506.04 appeal is “more limited in scope” than
the standard of review applied by the common pleas court to the
board’s decision. Henley, 90 Ohio St.3d at 147, quoting Kisil
v. Sandusky (1984), 12 Ohio St.3d 30, 34. In Henley, the Ohio
7
Supreme Court explained:
{¶ 17} “ ‘[R.C. 2506.04] grants a more limited power to the
court of appeals to review the judgment of the common pleas court
only on “questions of law,” which does not include the same
extensive power to weigh ”the preponderance of substantial,
reliable, and probative evidence,” as is granted to the common
pleas court.’ * * * Appellate courts must not substitute their
judgment for those of an administrative agency or a trial court
absent the approved criteria for doing so.” Id. at 147, quoting
Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.
(1988), 40 Ohio St.3d 257, 261. A “question of law” is “‘[a]n
issue to be decided by the judge, concerning the application or
interpretation of the law.’” Henley at 148, quoting Black's Law
Dictionary (7th Ed.1999) 1260.
{¶ 18} The trial court found that the testimony of the city
of Dayton’s two witnesses and documentary evidence of Royse’s
drug-test records were competent and probative evidence that
supported the board’s decision. Royse argues that the trial court
erred in affirming the board’s decision because the primary
evidence on which the board relied, the report of a medical-review
officer who had reviewed the results of drug tests that the officer
concluded were positive for drugs, was inadmissible hearsay
evidence under the Ohio Rules of Evidence and the board’s own rules
8
and regulations.
{¶ 19} “As a general rule, even apart from specific statutes,
administrative agencies are not bound by the strict rules of
evidence applied in court. * * * However, an administrative agency
should not act upon evidence which is not admissible, competent,
or probative of the facts which it is to determine. * * * The hearsay
rule is relaxed in administrative proceedings, but the discretion
to consider hearsay evidence cannot be exercised in an arbitrary
manner.” Haley v. Ohio State Dental Bd. (1982), 7 Ohio App.3d
1, 6.
{¶ 20} Dayton Civil Service Board Rules and Regulations 14.5(A)
provides that “[t]he admission of evidence shall be governed by
the rules applied by the Courts of Ohio in civil cases.” Therefore,
while the application of the rules of evidence may be somewhat
relaxed in administrative proceedings, the board itself chose to
adopt a rule that requires it to apply the fundamentals of the
rules of evidence in its proceedings.
{¶ 21} Dayton Civil Service Board Rules and Regulations 14.5(D)
provides that “[t]he Board or 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 take such other actions as are necessary and proper
for the conduct of such hearing. * * *” This rule explains the
9
authority of the board to control its hearings, but does not give
the board authority to ignore its rule, or the well-established
precedent that “the discretion to consider hearsay evidence cannot
be exercised in an arbitrary manner.” Haley, 7 Ohio App.3d at
6.
{¶ 22} It is undisputed that the documents concerning Royse’s
drug test that were submitted by the city of Dayton to the board
were hearsay in that they were offered to prove the truth of the
matter asserted. Evid.R. 801(C). Generally, hearsay evidence
is inadmissible unless it fits within an exception to the hearsay
rule. Evid.R. 802, 803, 804. The trial court found that the
drug-test records qualified as an exception to the hearsay rule
under the “business records” exception in Evid.R. 803(6). That
exception provides:
{¶ 23} “Records of regularly conducted activity. A memorandum,
report, record, or data compilation, in any form, of acts, events,
or conditions, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course
of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony
of the custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
10
circumstances of preparation indicate lack of trustworthiness.”
{¶ 24} Royse provided urine samples to Concentra Medical
Center, which then shipped the samples to ATN, a company in Memphis,
Tennessee. ATN tested the urine samples for the presence of five
different substances. ATN then forwarded the test results to a
medical-review officer in Michigan. The medical-review officer
reviewed the test results and determined that two of Royse’s tests
were positive. The medical-review officer’s report of his
findings was then provided by him to the city of Dayton, which
relied on the report to terminate Royse and to demonstrate the
cause of his termination in the proceedings before the board.
{¶ 25} “To be admissible under Evid.R. 803(6), a business record
must display four essential elements: (1) it must have been kept
in the regular course of business; (2) it must stem from a source
who had personal knowledge of the acts, events, or conditions;
(3) it must have been recorded at or near the time of the
transaction; and (4) a foundation must be established by the
testimony of either the custodian of the record or some other
qualified person.” State v. Comstock (Aug. 29, 1997), Ashtabula
App. No. 96-A-0058.
{¶ 26} The medical-review officer’s reports were produced as
part of his work for his employer, ASTS, which supplied the report
to the city of Dayton. “The information in reports that a business
11
receives from outside sources is not part of its business records
for the purposes of Evid.R. 803(6).” Babb v. Ford Motor Co. (1987),
41 Ohio App.3d 174, 177. See also State v. Jackson, Ashtabula
App. No. 2007-A-0079, 2008-Ohio-6976, at ¶ 32. Therefore, the
city of Dayton cannot establish that the medical-review officer’s
records were its own business records admissible under Evid.R.
803(6). The trial court erred in finding the business-records
exception satisfied.
{¶ 27} Authentication, which is evidence sufficient to support
a finding that the matter in question, including documentary
evidence, is what its proponent claims, is a condition precedent
to admissibility of that matter in evidence. Evid.R. 901(A).
Illustrative examples of proof of authentication are set out in
Evid.R. 901(B)(1)through (10). A showing that an exception to
the rule against hearsay applies satisfies the example in Evid.R.
901(B)(10). The example most frequently applied is in Evid.R.
901(B)(1): “Testimony of witness with knowledge. Testimony that
a matter is what it is claimed to be.”
{¶ 28} No witness with personal knowledge testified about ATN’s
internal recordkeeping or testing procedures or about the
recordkeeping at ASTS. Evid.R. 602. The city of Dayton’s only
two witnesses at the hearing before the board were Ken Thomas and
Maurice Evans. Ken Thomas is the safety administrator for the
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city of Dayton. He testified that he has never been to ATN’s
laboratories and has never observed their testing process. He
did not exhibit sufficient knowledge of ATN’s actual testing
procedures or internal recordkeeping. Further, he testified that
the medical-review officer does not perform any tests on the urine
samples but instead reviews the results of the testing performed
by ATN.
{¶ 29} Maurice Evans is the city of Dayton’s designated employer
representative. He testified regarding his familiarity with the
process used in collecting urine samples for drug tests. But he
does not test the urine samples and relies on others to provide
those test results.
{¶ 30} In short, there is no evidence of record demonstrating
that the documentary evidence of positive test results and the
ultimate conclusions reached therefrom were trustworthy. This
is the very type of evidence that the requirement of authentication
in Evid.R. 901(A) was meant to preclude from consideration.
Without testimony from a witness who could testify, based on
personal knowledge, regarding the testing procedures and internal
recordkeeping of ATN and ASTS, the board and trial court should
not have relied on the positive test results. Therefore, the trial
court erred in finding that the board’s decision was supported
by the preponderance of substantial, reliable, and probative
13
evidence.
{¶ 31} The record suggests that instead of the business-records
exception to the rule against hearsay, the city of Dayton attempted
to authenticate the records of the medical-review officer’s report
pursuant to Evid.R. 901(B)(9), which allows authentication through
“[e]vidence describing a process or system used to produce a result
and showing that the process or system produces an accurate result.”
To do that, the process or system must be described, and there
must be evidence that the process or system produces an accurate
result. Those matters may be established by the testimony of a
person with knowledge of the process or system. Weissenberger,
Ohio Evidence Treatise (2010), Section 901.121. The testimony
of the city of Dayton’s two witnesses was insufficient to satisfy
those requirements.
{¶ 32} We do not, as Judge Hall suggests, hold that the formal
and technical requirements of the Rules of Evidence must be
satisfied in administrative proceedings. Weissenberger writes:
“Conceptually, the function of authentication or identification
is to establish, by way of preliminary evidence, a connection
between the evidence offered and the relevant facts of the case.
The connection is necessary in order to establish the relevancy
of the particular item, since an object or item is of no relevance
if it is not attributed to, or connected with a particular person,
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place, or issue in a case.” Id. at Section 901.1.
{¶ 33} The city of Dayton offered the report as relevant to
prove the central issue in the case, which is that Royse had used
cocaine. But absent evidence of the process by which that
conclusion was reached, the report demonstrates nothing more than
that the conclusion was reached by persons who did not testify
and in accordance with a method of analysis that remains
unexplained. As evidence, it is nothing more than proof that the
report had been received by the city of Dayton from a person it
engaged to prepare such reports. That bare fact does not
demonstrate that Royse had used cocaine, which was the basis for
his discharge on which the board was required to pass.
{¶ 34} The second assignment of error is sustained. The
judgment of the trial court is reversed, and the cause is remanded
for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
FAIN, J., concurs.
HALL, J., dissents.
HALL, Judge, dissenting:
{¶ 35} I agree with the disposition of the first assignment
of error finding that the appellant pursued his administrative
15
appeal below as an R.C. 2506.01 appeal rather than pursuant to
R.C. 124.34. Therefore, he cannot now argue that the trial court
should have considered his appeal under the standards applied to
the latter section.
{¶ 36} However, because I believe that the Dayton Civil Service
Board had authority to rule on objections to admit or exclude
evidence, and that the Dayton Civil Service Board reasonably and
constitutionally admitted the reports of the appellant’s second
positive cocaine drug test, the trial court was correct in affirming
the Board’s decision that he be discharged from his position as
a firefighter.
{¶ 37} The result of the majority’s opinion, which will require
the Dayton Civil Service Board to adhere to the Ohio Rules of
Evidence, is unnecessary and undesirable. Admittedly, Dayton Civil
Service Board Rules and Regulations 14.5 states:
{¶ 38} “Procedure at hearings. A. The admission of evidence
shall be governed by the rules applied by the Courts of Ohio in
civil cases.”
{¶ 39} In an administrative setting, however, this rule need
not, and should not, be construed as adopting the Ohio Rules of
Evidence for hearings. A more reasonable interpretation is that
the rule refers to the manner of presenting evidence and the general
procedure for conducting a hearing. Otherwise, the words “in civil
16
cases” are superfluous. Those words distinguish the procedure for
the presentation of evidence at the civil-service level from the
procedure applicable in criminal cases. The rules of evidence apply
to both civil and criminal cases, so it is reasonable to infer
that the words “in civil cases” were included to encompass the
process for admitting evidence, not to require application of
the rules of evidence themselves.
{¶ 40} Moreover, Section 5(D) of Civil Service Rule 14
specifically states that “[t]he Board or 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.” This specific
language in Section 5(D) prevails over the introductory Section
(5)(A) and grants the board plenary authority to determine the
admissibility of evidence.
{¶ 41} A virtually identical rule appears in the decision of
this court more than 20 years ago in Emmons v. Miamisburg (Mar.
27, 1989), Montgomery App. No. 11197. There, Section 11.1 of the
Miamisburg Civil Service Rules and Regulations stated:
{¶ 42} “Appeal and Hearings: No legal rules of evidence shall
be required and the Civil Service Commission shall determine the
manner of conduct of such hearings.” (Emphasis added).
17
{¶ 43} The next rule, Section 11.2, is identical to current
Dayton Civil Service Board Rule 14, Section 5. It stated:
{¶ 44} “Procedure at Hearings: The admission of evidence shall
be governed by the rules applied by the Courts of Ohio in civil
cases.” (Emphasis added.)
{¶ 45} This language from Section 11.2 of the Miamisburg Civil
Service Rules and Regulations, which is of similar vintage to the
Dayton rule, cannot possibly be construed to adopt the Ohio Rules
of Evidence because the previous section (11.1) specifically
excluded the “legal rules of evidence.” Likewise, Dayton
Civil-Service Board Rule 14, Section 5(A), need not, and should
not, be construed to apply the Ohio Rules of Evidence to Dayton
civil-service hearings.
{¶ 46} Applicable rules, case law, and statutory procedure all
support the notion that rules of evidence should not apply to a
civil-service hearing. The Rules of Evidence explicitly state
that they govern proceedings “in the courts of this state.”
(Emphasis added.) Evid.R. 101(A). The Ohio Supreme 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 (1996), 74 Ohio
St.3d 415, 417. This court, too, has held that hearsay is
admissible in administrative hearings as long as discretion to
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admit is not arbitrarily applied. Haley v. Ohio State Dental Bd.
(1982), 7 Ohio App.3d 1, 6.
{¶ 47} Ohio administrative agencies are to determine what
evidence is to be admitted in their proceedings. R.C. 119.09
states that “[t]he agency shall pass upon the admissibility of
evidence.” “[A]dministrative agencies are not bound by the rules
of evidence applied in courts.” Black v. Ohio State Bd. of
Psychology, 160 Ohio App.3d 91, 2005-Ohio-1449, at ¶ 17, citing
Haley at 6. The Ohio Administrative Code, which promulgates rules
for various administrative hearings, states: “The ‘Ohio Rules of
Evidence’ may be taken into consideration by the board or its
attorney hearing examiner in determining the admissibility of
evidence, but shall not be controlling.” Ohio Adm.Code
4732-17-03(D)(10).
{¶ 48} Rules of evidence do not apply, statutorily, to workers’
compensation hearings. For example, R.C. 4123.10 provides: “The
industrial commission shall not be bound by the usual common law
or statutory rules of evidence or by any technical or formal rules
of procedure.” Similarly, the Ohio Rules of Evidence statutorily
do not apply to unemployment-compensation hearings. In this regard,
R.C. 4141.281(C)(2) provides that “[h]earing officers are not bound
by common law or statutory rules of evidence or by technical or
formal rules of procedure.” Such proceedings are no more or less
19
significant than Dayton Civil Service Board hearings. And the
foregoing statutory provisions express the concept recognized by
this court in Haley, and others. See, e.g., Day Lay Egg Farm v.
Union Cty. Bd. of Revision (1989), 62 Ohio App.3d 555, 556
(recognizing that administrative agencies are not bound by rules
of evidence). Furthermore, in reviewing a decision of an
administrative board, a common pleas court must give “due deference
to the administrative resolution of evidentiary conflicts” and,
therefore, must not substitute its judgment for that of the
administrative agency. Hawkins v. Marion Corr. Inst. (1990), 62
Ohio App.3d 863, 870.
{¶ 49} The Dayton Civil Service Board’s “Order on Appeal,”
signed and entered August 21, 2008, is a reasoned and balanced
decision as to why the board admitted the evidence presented about
the appellant’s positive-drug-test results. The appellant’s
underlying protection is that the hearing was required to comport
with procedural and substantive due process. The “process” the
appellant was due was the hearing before the Civil Service Board,
of which he received notice and an opportunity to be heard. He
introduced not a shred of evidence that his test results were
inaccurate or unreliable. He presented nothing to the effect that
he denied abusing cocaine, the possession of which, if not
prescribed, is a felony. A separately preserved one-half of the
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tested urine sample was available to him for independent testing.
Yet, upon hearing of the second positive drug report, rather than
have his own confirmatory test, he checked himself into a
drug-treatment facility. He refused the city’s request for his
medical records, which may have corroborated the test results.
Under these circumstances, the appellant was accorded due process.
{¶ 50} In addition to a strict legal analysis why the rules
of evidence do not apply in administrative settings, there are
numerous practical implications here: (1) this is an administrative
proceeding in which strict rules of evidence should not apply,
(2) administrative officials often are not legally trained or
versed in the nuances of evidentiary rules, (3) at the
administrative level, 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,
(4) out-of-state test suppliers are routinely relied upon for
accuracy in many walks of life, including medicine, and (5) nothing
in the record suggests that Royse ever denied having a cocaine-abuse
problem.
{¶ 51} The majority holding effectively reinstates a cocaine
abuser as a firefighter. I dissent.
. . . . .