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Chapter Three

Functions of the Review Commission

A.  Commission Procedure

  1. When an interested party files a timely appeal to a Director's determination, the Director shall either: {ORC §4141.281(A) and (B)}
     
    1. Issue a redetermination, which is similarly appealable; OR
       
    2. transfer the appeal to the Review Commission.

  2. When an appeal is transferred to the Review Commission, the Commission shall provide a fair hearing to the interested parties. {ORC §4141.281(C)(1)}
     
  3. When an interested party files a timely request for review to a hearing officer's decision, the Review Commission shall consider the request and either allow or disallow the request. {ORC §4141.281(C)(3)(4)(5) and (6)}
     
    1. The disallowance of a request for review is the final decision of the Commission, and may be appealed to a Court of Common Pleas under Ohio Revised Code Section 4141.282.
       
    2. If a request for review is allowed, or if an appeal is removed to the Commission either by its own motion or upon a referral from a hearing officer, the Commission may rewrite the decision affirming, modifying, or reversing the prior decision, or may remand the matter for a new hearing.
     
 

B.  Hearing Procedure

  1. Neither the claimant nor any employer has any burden of proof, as is required in a court of law. The hearing is de novo, meaning that it is a new hearing, not dependent upon any prior proceeding. Nevertheless, the Director's file pertaining to the case shall be considered part of the record. {ORC §4141.281(C)(2) and (3)}
     
    1. If all interested parties to a decision agree, in writing, to waive the hearing, the hearing officer shall issue a decision based upon the evidence of record. {ORC §4141.281(D)(2)}
       
    2. Hearings may be conducted either in person or by telephone.
       
      1. A telephone hearing may be changed to an in-person hearing if the requesting party is willing to travel to the hearing location determined by the Commission. {ORC §4141.281(D)(3)}
         
      2. Evening telephone hearings are available for a claimant or sole proprietor who is employed during normal business hours. If a conflict concerning a request for an evening hearing and an in-person hearing arises, the Commission shall schedule the hearing by telephone during the evening hours. {ORC §4141.281(D)(4)}
         
       
    3. The hearing will be recorded by the Commission. No other manual, mechanical, or electronic recording shall be permitted. {OAC 4146-7-01}

  2. The principles of due process in administrative hearings shall be applied in hearings held before the Review Commission. {ORC §4141.281(C)(2)}
     
    1. The Hearing Officer shall control the conduct of the hearing, excluding irrelevant or cumulative evidence, and give weight to the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of serious affairs.
       
    2. The Hearing Officer has an affirmative duty to question parties and witnesses in order to ascertain the relevant facts and to fully and thoroughly develop the record.
       
    3. The Hearing Officer is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure.
       
    4. Hearsay evidence is admissible in unemployment hearings under Ohio Revised Code Section 4141.281(C)(2). Hearsay evidence may be considered persuasive even in the face of sworn hearing testimony. Todd v. ODJFS, 2004 Ohio App. LEXIS 1948; but see Taylor v. Board of Review (1984), 20 Ohio App. 3d 297 (holding it unreasonable to deny credibility of a party's sworn testimony when contradicted only by hearsay evidence).
       
    5. After considering all of the evidence, the Hearing Officer shall issue a written decision which affirms, modifies, or reverses the Director's determination in a manner that appears just and proper. This decision shall set forth the facts as the Hearing Officer finds them to be, cite the applicable law, and give the reasoning for the decision. {ORC §4141.281(C)(2) and (3)}
       
    6. Polygraph results are admissible in unemployment hearings and may be considered in weighing credibility. Perez v. Cuyahoga County Auditor, 2005 Ohio App. LEXIS 1172.
       
    7. The due process hearing held, and the decision issued, by the Review Commission can cure procedural errors previously made in the matter by ODJFS. Cohen v. Toledo Public Schools, 2004 Ohio App. LEXIS 6387, discretionary appeal not allowed, 105 Ohio St. 3d 1545.
       
     
  3. At any Review Commission hearing or proceeding, any interested party may appear in person, by counsel, or by an authorized representative. {ORC §4141.07(A) and OAC 4146-19-01} Attorneys are not required, and appearance at Commission hearings or preceedings does not constitute the unauthorized practice of law. Henize v. Giles (1986), 22 Ohio St.3d 213
     
  4. Unless approved by the Review Commission in writing, no person representing an interested party in a Review Commission hearing shall charge fees in excess of twenty-five percent of the amount of benefits involved in the case. {OAC 4146-19-03}
     
 

C.  Dismissals

  1. If a non-appealing party does not appear for the hearing, the hearing will proceed and a decision will be issued based upon the information in the record. {ORC §4141.281(D)(6)} The absence of a non-appealing party does not automatically result in a decision in favor of the appealing party. A decision can still be entered in the non-appealing party's favor if the record demonstrates that the non-appealing party is entitled to a favorable decision.
     
  2. If the appealing party does not appear for the hearing, then the appeal will be dismissed. {ORC §4141.281(D)(5)}
     
    1. The Review Commission shall vacate the dismissal or the decision, and order another hearing, IF:
       
      1. the notice of the hearing was NOT mailed to the party's last known address; OR
         
      2. within fourteen (14) days, the party shows good cause for the failure to appear for the hearing.
         
       
    2. Good cause is not defined in the statute, but good cause for failing to appear at a hearing would include those last-minute incidents or emergencies which would prevent an ordinary, reasonable person from attending a hearing.
       
      1. Working at the time of the hearing is not good cause to fail to appear, because a party has the opportunity to ask for a postponement, or an evening telephone hearing, to accommodate a work schedule. See Jackway v. Lance, Inc . (June 29, 1987), Ashtabula CP No. 84073, unreported.
         
      2. Failure to receive a response to a request for an "in-person" hearing is not good cause to fail to appear for a telephone hearing. See Jackway v. Lance, Inc. (June 29, 1987), Ashtabula CP No. 84073, unreported.
         
      3. Failure to receive a response to a request for a postponement is not good cause to fail to appear for a hearing. See Russell v. Board ofReview , 1987 Ohio App. LEXIS 9784.
         
      4. A party who fails to appear for a hearing because a Department employee advised that appearance at the hearing was not required does not have good cause to fail to appear for a hearing. See Altizer v. Board of Review, 1996 Ohio App. LEXIS 951.
         
       
    3. If the Review Commission initially decides not to vacate the dismissal, the appellant has ten (10) days to request a hearing.
       
      1. If the Hearing Officer determines that the notice of the initial hearing was NOT mailed to the appealing party's last known address OR that the appealing party had good cause for the failure to appear for the initial hearing, the Hearing Officer shall vacate the dismissal, and order another hearing.
         
      2. Otherwise, the appeal remains dismissed. There is no further right of appeal to the Commission from a dismissal. {ORC §4141.281(D)(5)}
       
     
 

D.  Recusal of Commission Members or Hearing Officers

  1. No Hearing Officer shall participate in proceedings in any case in which the Hearing Officer has an interest which might prevent him or her from conducting a fair hearing or reaching an impartial decision. {OAC 4146-11-01}
     
    1. A Hearing Officer who might be subject to disqualification may be challenged:
       
      1. by any interested party;
         
      2. at any time prior to the disposition of the appeal;
         

      3. orally at a scheduled hearing and made a part of the record OR in writing to the Review Commission. {OAC 4146-11-02}
         

       
    2. Such challenges to a Hearing Officer shall be decided by the Review Commission. {OAC 4146-11-02}

  2. No Review Commission member shall participate in proceedings in any case in which the member has an interest which might prevent the member from conducting a fair hearing or reaching an impartial decision. {OAC 4146-11-01} Also, Ohio Revised Code Section 4141.06 states that "no commission member shall participate in the disposition of any appeal in which the member has an interest in the controversy."
     
    1. A Commission member who might be subject to disqualification may be challenged:
       
      1. by any interested party;
         
      2. at any time prior to the disposition of the appeal;
         
      3. such challenges shall set forth the grounds on which the challenge is based;
         
      4. such challenges shall be mailed to the secretary of the Advisory Council. {OAC 4146-11-02}
         
       
    2. Challenges to a Commission member shall be decided by the Chairperson of the Advisory Council. If the challenge is well taken, the Governor shall appoint a member of the Advisory Council to act in place of the Commission member. {ORC §4141.06 and OAC 4146-11-02}