[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
                                                                   12

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,
                                                                        14

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
                                                                   18

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
                                                                      20

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.

                              . . . . .
