Update: On June 13, 2012, the Court dismissed this case as improvidentally accepted.
Read the analysis of the oral argument in this case here.
On May 9, 2012, the Supreme Court of Ohio will hear oral argument in the case of Ronald L. Royse v. City of Dayton, et al. The issue in this case concerns the firing of a Dayton firefighter for failing a drug test and the proper rules for admission of evidence in an administrative hearing.
Ronald Royce was a former member of the U.S. Marine Corps who joined the Dayton Fire Department in 1995 and received excellent reviews. As part of the Dayton Fire Department’s labor union agreement with the city of Dayton, members of the fire department had to submit to random drug tests. According to the terms of the collective bargaining agreement, these tests were to be conducted by the Department of Transportation (DOT) method of testing.
In May of 2007, Royse submitted to a non-DOT drug test where he was found to have traces of cocaine in his system. Royse did not protest the findings and instead went through a three-day rehabilitation program. Royse was tested for four months thereafter once a month and was always clean. But then he was tested against in November 2007, and another trace of cocaine was identified. Royse was subsequently fired.
Royse appealed his firing to the Dayton Civil Service Board, which upheld the firing. During that hearing, Royse objected to the admission of his drug sample as inadmissible hearsay evidence. Dayton allowed it saying that it was covered by Rule 803(6) of the Ohio Rules of Evidence , a hearsay exception for business records. Royse argued that the business record exception does not apply to third parties like the ones who conducted his drug test. None of them testified at trial.
After the Board upheld his firing, Royse appealed to the Montgomery County Common Pleas court. Royse argued (1) that the drug test was inadmissible hearsay and (2) the drug test itself violated the terms of the labor agreement because it was a non-DOT test. The trial court upheld the Board’s decision. The Second District Court of Appeals reversed, finding that the drug test was inadmissible hearsay and should not have been admitted. The Supreme Court of Ohio accepted the case on discretionary review.
Dayton first argues that it is settled law that the Ohio Rules of Evidence do not apply to administrative proceedings. In a municipal civil service commission hearing, a more relaxed standard of evidence applies so that the drug test was properly admitted. While the rules of evidence expressly govern proceedings in the courts of the state, administrative agencies are to determine the evidence to be admitted in their own proceedings. Dayton produced a list of all the civil service commission guidelines from the major cities in Ohio and none of them follow Ohio’s rules of evidence—they use a relaxed standard of evidence and some even explicitly say that they will admit hearsay.
Dayton also argues that the standard of review on appeal is whether the trial court’s decision is supported by reliable, probative and substantial evidence and is in accordance with law, and the court of appeals was wrong to reverse the trial court. The evidence was extensive, detailed, and reliable, and was more than sufficient to prove Royse was guilty of having a second positive drug test result in violation of the City’s Substance Abuse Policy. Finally, the City argues that if the Court finds the rules of evidence are to be strictly applied in the hearing, the drug test results met the requirements for admission under Rule 803(6), the business records exception to the hearsay rules. To qualify for admission under that rule, a foundation must be laid the custodian of the record or by “some other qualified witness”, a requirement that was met here by the City’s Safety Administrator.
Royse argues that while Dayton did not have to abide by the rules of evidence, the city was required to do so because its civil service commission explicitly stated it would be “governed by the rules applied by the Courts of Ohio in civil cases ” and that “governed” means what it says—not guided by, as Dayton had argued, but controlled by.
Further, Royse argues that Dayton cannot even make up its own mind about which argument it wants to advance. At the civil service board hearing, Dayton argued that the drug test should come in under the business records exception to hearsay but at the trial court and the court of appeals, Dayton’s brief did not even mention business records; instead Dayton has changed its argument and now says that the rules of evidence do not apply.
Royse argues that Dayton’s newest arguments—that O.R.C. 731.23.1 prevented Dayton from adopting the Ohio Rules of Evidence–fails because Dayton waived the argument by not introducing it at trial or before the civil service commission.
Royse argues that the Court of Appeals decision—that that the Board had chosen to be governed by the Rules of Evidence, that the test results were hearsay , and that no hearsay exception applied—were matters of law, not discretion, was legally correct and should be affirmed. Even under a relaxed evidentiary standard, the test results would not be admissible. Under the hearsay rule, there is no broad exception to allow business records prepared by third parties. The proper procedure in this case would have been to have the company which did the testing authenticate the drug test records, but that did not occur.
Student Contributor: Sarah Topy