Cervella v. Lake County Commissioners (June 17, 1996), Lake App. No. 95-L-094, unreported, 1996 WL 648836. Evidence gathered during a criminal investigation may be considered in support of Appellee's decision to terminate Appellant; where Appellant was not dismissed solely upon an indictment of a criminal charge, State, ex rel. Baran v. Fuerst is inapposite. View Court of Appeals Decision | View Common Pleas Decision | View SPBR Order

Cuyahoga County Dept. of Human Services v. Hutchinson (July 15, 1993), Cuyahoga App. No. 62986, unreported, 1993 WL 266938. Evidence regarding a specific incident is correctly excluded where the incident did not form the basis of the discipline appealed.

Turner v. Madison Correctional Institution (Aug. 19, 1992), Clark App. No. 2863, unreported, 1992 WL 206647. A reviewing court may admit additional evidence when it is satisfied that such evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency; new evidence that was not in existence at the time of the agency hearing is not "newly discovered" evidence and may not be admitted as a the reviewing court does not have the authority to consider evidence that was not before the trial court.

Ohio Dept. of Liquor Control v. Henry (Oct. 29, 1991), Franklin App. No. 91AP-641, unreported, 1991 WL 228833. Where an incomplete copy of an order has been filed with the state personnel board of review due to clerical error, evidence concerning the charges not filed with the Board may not be excluded and the board may recess or continue the hearing to allow the employee time to prepare and gather witnesses; where the record indicates no reasonable explanation except possible clerical error for the filing of an incomplete order with the state personnel board of review, the Board's failure to find a good-cause exception to allow the missing page to be filed is not supported by the record. View Court of Appeals Decision | View Common Pleas Decision | View SPBR Order

Metz v. Hubbell (June 4, 1990), Shelby App. No. 17-89-9, unreported, 1990 WL 82551. Even in a non-adversarial setting, evidence sufficient to show gross sexual imposition necessarily would be sufficient to sustain the civil charge of immoral conduct.

Geronimo v. Ohio State Medical Board (Jan. 29, 1982), Lucas App. No. L-81-186, unreported, 1982 WL 6244. R.C. 119.09 permits the admission of additional evidence at the discretion of the administrative agency. View Court of Appeals Decision

Ward v. Attorney General (Sept. 8, 1995), Clermont Co., No. 94CV0268, unreported. An error in misdating an order of removal is not a sufficient basis for disaffirming an order of removal where there is reliable, probative and substantial evidence presented that the R.C. 124.34 order was signed prior to the filing of the order with the state personnel board of review. View Common Pleas Decision

Bishop v. Ashtabula County Sheriff's Department (Aug. 22, 1994), Franklin Co., No. 93CVF12-8983, unreported. Where supporting evidence is submitted by letter and not in affidavit form with certified copies of attached documents pursuant to O.A.C. 121-11-07-(A)(2), appellant, who was represented by counsel during the administrative process, may waive the right to object to the form of the evidence by failing to respond to it. View Common Pleas Decision | View SPBR Order

    A. Admissibility

Kennedy v. Marion Correctional Institution (1994), 69 Ohio St.3d 20. Evidence of specific instances of conduct on the part of complaining witnesses is not admissible as character evidence in a proceeding before the state personnel board of review under Evid.R. 404(A)(2) since the action is not a criminal prosecution; it is not admissible under Evid. R. 404(A)(3) because it does not concern credibility of the witnesses; it is not admissible under Evid.R. 401 because it is irrelevant, as it does not tend to make the existence of any fact that is of consequence to the determination of the action any more or less probable. View Court of Appeals Decision | View SPBR Order

State, ex rel. Martin v. Cleveland (1993), 67 Ohio St.3d 155. A public document need not, within its four corners, specify the premise of confidentiality to witnesses or the threat to their physical safety in order to be exempt from release under R.C. 149.43(A)(2)(b) or (d).

State, ex rel. Hamblin v. City of Brooklyn (1993), 67 Ohio St.3d 152. Witness statements may be exempted under R.C. 149.43(A)(4) as trial preparation materials; scientific and forensic tests and submissions for such tests may qualify as exempt work product under R.C. 149.43(A)(2)(c).

Hall v. Johnson (1993), 90 Ohio App.3d 451; dismissed 68 Ohio St.3d 1447. Exhibits are properly authenticated when there is evidence sufficient to support finding that the matter in question is what the proponent claims.

Curtis v. Muskingum County Sheriff (Apr. 13, 1994), Muskingum App. No. 93-46, unreported, 1994 WL 140705. Pursuant to R.C. 119.12, a reviewing court is confined to the record as certified to it by an agency whose order is appealed from and may not admit additional evidence on an issue where the original trier of fact previously admitted and considered evidence on the matter. View SPBR Order

Lowe v. Portage/Geauga Detention Center (1989), PBR 87-RMD-10-0727. Polygraph examinations admissible but their reliability and probative value was insufficient to shift the balance of the evidence given the established shaky credibility of the witness who was examined by the polygraph. View SPBR Order

    B. Chain of Custody

Hall v. Johnson (1993), 90 Ohio App.3d 451; dismissed 68 Ohio St.3d 1447. When item is sufficiently authenticated to be admissible, but chain of custody remains doubtful, possibility that exhibit may be misleading is an issue of weight of the evidence.

Hall v. Johnson (1993), 90 Ohio App.3d 451; dismissed 68 Ohio St.3d 1447. Chain of custody of urine samples and lab tests was not legally sufficient with respect to employee's dismissal for cocaine use, given that urine samples had been destroyed and employee's testimony indicated that none of the chain of custody measures required by administrative regulation were taken.

    C. Polygraph Tests

Poole v. Perini (1981), 659 F.2d 730; cert denied 455 U.S. 910. Polygraph evidence is admissible at the discretion of the trial court when there is mutual consent.

City of Warrensville Heights v. Jennings (1991), 58 Ohio St.3d 206. A police officer may be dismissed for just cause when he refuses to obey a superior's reasonable order to take a polygraph test providing he has been informed as part of such order of the subject of the intended inquiry, which is specifically and narrowly related to the performance of the officer's official duties; that the officer's answers cannot be used against him in any subsequent criminal prosecution; and that the penalty for refusal is dismissal.

Hawkins v. Marion Correctional Institute (1990), 62 Ohio App.3d 863; cert denied 55 Ohio St.3d 705. An order of the state personnel board of review adopting examiner's recommendation that the employee be removed was not based on highly prejudicial, inadmissible evidence, absent showing in record that examiner relied on knowledge of administration of polygraph tests or results thereof; record of examiner's actions on motion in limine, on motion to strike reference to polygraph examination from removal order and admonishment of counsel showed that he understood limitations on that evidence and requirements that fact finder not consider it.

Hawkins v. Marion Correctional Institute (1990), 62 Ohio App.3d 863; cert denied 55 Ohio St.3d 705. Chain of custody of stolen weapon did not have to be established to support removal for malfeasance based on theft of handgun while appellant was employed at correctional institute.

City of Zanesville v. Sheets (1987), 38 Ohio App.3d 24. Polygraph results are inadmissible when presented before the civil service commission in a disciplinary action against a policeman.

Moss v. Nationwide Mutual Insurance Co. (1985), 24 Ohio App.3d 145. Polygraph evidence taken without consent is admissible with the proper cautionary instruction when bad faith is claimed.

Swolsky Enterprises v. Halterman (1983), 12 Ohio App.3d 23. An employee may be dismissed for just cause when the employee signed a pre-employment agreement agreeing to submit to a polygraphic examination and later refuses to do so.

    D. Public Records

State, ex rel. James v. Ohio State University (1994) 99 Ohio St.3d 1. Promotion and tenure records maintained by a state-supported institution of higher education are "public records" and are subject to public records disclosure requirements of R.C. 149.43(B).

State, ex rel. Beacon Journal Publishing Co. v. City of Akron (1994), 70 Ohio St.3d 605. R.C. 149.43 does not mandate that a city disclose the social security numbers of all of its employees upon demand.

State, ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619. A police department may establish reasonable hours of availability for inspection of public records, but must make copies available at actual cost without charges for labor or employee time; a request for inspection must be complied with within a reasonable time.

State, ex rel. Beacon Journal Publishing Co. v. Kent State University (1993), 68 Ohio St.3d 40. In order to exempt law enforcement investigatory records from release, a court must consider (1) whether or not the record is a confidential law enforcement record; and (2) whether or not the release of the record would create a high probability of disclosure of any one of the four kinds of information specified in R.C. 149.43(A)(2).

State, ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439. A trial judge's personal handwritten notes made during the course of a trial are not public records and not subject to disclosure under R.C. 149.43.

State, ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFL-CIO v. Gulyassy (1995), 107 Ohio App.3d 729. Drafts of proposed changes to statute, prepared by state agency, constituted "records" within meaning of Public Records Act, as serving to document agency's policies, operations and activities, even though in draft form and relating to the legislative arena.