In an administrative hearing involving a public employee discipline, the agency who had the burden of proof, prepared a declaration under the penalty of perjury for a witness in lieu of a direct testimony. The declaration is basically nothing but an attempt to authenticate an investigation report that the witness had no role in its preparation (the witness was the complaining party in this investigation report). While this witness did not testify, the employee subject of the discipline took the stand and refuted the allegations made by this witness and provided evidentiary documents to show that the allegations were not true. The rule of the forum is that a hearsay is admissible but insufficient to establish a fact and the employee vigorously objected to the admission of the declaration.
Marshall C. DisnerLitigation LawyerFarmington Hills, MI ·
As a former administrative law judge, having heard unemployment cases for eight years and other administrative matters I would give no weight to the proposed declaration.
Michael Raymond DaymudeLitigation LawyerSherman Oaks, CA ·
"The rule of the forum is that a hearsay is admissible but insufficient to establish a fact and the employee vigorously objected to the admission of the declaration." This sentence is gobbledygook. How is a vigorous objection different than any other? A declaration under oath is generally admissible in most administrative proceedings and not necessarily hearsay. If you object to the introduction of the declaration, subpoena the witness to testify live. If not, the trier of fact will determine the facts based upon all admissible evidence. The ALJ will determine the weight given to all the evidence, including the testimony of the employee, and will determine the facts based upon that evidence.
Administrative hearsay cannot be the basis for which an ALJ premises a finding. However, if it is not objected to, an ALJ may let the evidence in and premise a finding upon it. If it was indeed "vigorously objected to" and the evidence was admitted nonetheless, if the ALJ makes findings that would have been made even without this particular evidence, chances are good that you will not be able to overcome. Please seek experienced counsel to assess on the microscopic level.
You are describing a statement that is "administrative hearsay," a term that is not conferred by statute or regulation but is in common usage in admin hearings. Admin hearsay is a nightmare to understand and use effectively. Every single year it is a key issue for extended training at ALJ training retreats, and there is much misinformation on this evidence issue among ALJs. As an advocate in admin hearings (and a former ALJ who endured way too much State training on this issue), I never anticipate more than a 50-50 potential that the ALJ will make a right ruling on an admin hearsay issue. That said, I am not persuaded that your issue was wrongly decided.
You had the right to prevent testimony from coming in solely by declaration. It is not clear that you exercised that right. Once the ALJ admitted the evidence, you had some good options for diluting it past all utility. It is not clear that you exercised any of those options. But these are sophisticated and abstract skills that require a lot of experience to understand, much less apply.
You are, of course, correct about the burden of proof in these hearings. But if there is any issue on which the admin hearing process is a chronic fail, this is that issue. Again, I necessarily treat every admin case as if the burden is on the employee/licensee. Belt and suspenders.
My suggestion is that you consult with a skilled and experienced admin law attorney who can help you to determine whether you have a sound 1094.5 writ or a good petition for reconsideration or even a new hearing. There are an array of potential remedies, and the varying requirements for each are distinct and subtle. Admin law with employment rights in the balance is dangerous territory -- way more perilous than a misdemeanor and no place to be learning by doing.
