An employee filing an appeal with SPBR is not required to retain legal counsel. You may represent yourself (pro se) before the Board or you may feel more comfortable hiring an attorney to represent you. An attorney who represents you in an appeal must file a notice of appearance with the Board. If you choose to have an attorney represent you, all communication from the Board will go to that person (with a copy of the communication also sent to you), and all communication from you to the Board or the Administrative Law Judge (ALJ) assigned to your appeal should go through your attorney as well.
SPBR employees cannot give you legal advice or represent you in a hearing. The Board is a neutral agency that conducts hearings and renders a legal decision regarding your appeal. SPBR employees may only provide information regarding procedural issues associated with your appeal.
Notice of Date and Time
You will receive written notice of the time and date of any settlement conference, status conference, pre-hearing or record hearing scheduled in your appeal. If you are represented by an attorney who has filed a notice of his or her appearance with SPBR, both you and your attorney will receive a notice. If you cannot attend on the date and time shown on your hearing notice, you must contact the Board as soon as you know of the problem. A request for a continuance must be made in writing, at least 10 calendar days prior to the hearing, unless good cause is shown for failing to do so. A request for a continuance does not automatically stay the hearing, but must be expressly granted by an ALJ or the Board. You must also contact the opposing party's attorney to see if they will agree to the change. If you file an appeal and neither you nor your authorized representative attend the hearing, the appeal will be dismissed.
A record hearing is very similar to a trial in court, with witnesses, exhibits and rules of evidence. Either an ALJ or the full Board will preside at the hearing, depending upon whom your appeal has been assigned to. The employer is almost always represented by an attorney. All hearings are digitally recorded. Transcripts of the hearing may be ordered by either party, but the requesting party must pay all required transcriptionist fees.
When the record hearing begins, each side may present an opening statement. This tells the ALJ or Board what each side intends to prove. Each side then offers relevant evidence to prove its case. Evidence can be sworn testimony taken under oath at the hearing, or certain kinds of documents, such as business records. You must prove the accuracy of documents you submit, so if possible you should bring the original document or a certified copy of the document. The employer usually presents its evidence first. The employer's attorney or representative will ask questions on direct examination of its witnesses. When the employer is finished, the employee will have an opportunity to ask questions of the witnesses on cross-examination. The employee may present evidence after the employer has presented its case. As the employee finishes with each witness and his or her own testimony, the employer will have an opportunity to cross-examine each of the employee's witnesses. Before the record hearing ends you must submit all of the evidence that you want the ALJ or Board to consider. Closing arguments may be presented by each side after all of the evidence has been received. Closing arguments address only those facts brought out in the testimony of witnesses or documents received into evidence. In some cases, the ALJ or Board may want the parties to submit written instead of oral arguments.
Depending on your case, you may want to bring witnesses who know about the issues involved in the charges against you. If there are documents, such as business records, that help prove your case, try to bring the original and two copies. You may bring photographs or other items that are relevant to your defense. Items you want considered must be left with the ALJ or the Board.
If you are a party to an appeal, you have the right to subpoena witnesses and relevant documents to be produced at the hearing. Contact the Board well before your hearing to request subpoenas. Please reference O.A.C. 124-11-17 for specific requirements. It is your responsibility to determine how to serve subpoenas correctly. The procedure is outlined in the Board's administrative rules. If you are requesting more than five subpoenas, you will need to get prior approval from the Board.
Cases often settle without going to hearing. Settlement provides parties with the opportunity to fashion their own remedy to a problem and is especially useful when the parties will have an ongoing relationship after the appeal process is concluded. Contact the opposing party's attorney to see if you can work something out. If you are represented by an attorney in your appeal before the Board, your attorney should also participate in any settlement negotiations. The parties may conduct their own settlement negotiations or call on SPBR for assistance.
If both parties are willing to have SPBR participate in the settlement process, a confidential, informal settlement conference will be scheduled to determine whether a compromise agreement can be reached. The Board's neutral representative will direct the settlement discussions but the representative is not formally presented with evidence and will not make a judgment regarding any issue in dispute.