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Evidence

IN GENERAL

A party’s failure to provide proper notice of a witness or the content of such witness’s testimony subjects that witness to exclusion. In re Garegnani & Jones, CSA 29-16 & 30-16, 5 (3/6/17), citing Jordan v. City and County of Denver, 16CV30960, 4 (Denver Dist. Ct. 2/10/16); CSR 19-44C.

Where the only agency witness testified she was not the decision-maker, and was not delegated such authority, her testimony conveying reasons for discipline were inadmissible hearsay. In re Garegnani & Jones, CSA 29-16 & 30-16, 6 (3/6/17).      

Statements made by employee during pre-disciplinary proceedings may be used to justify an aggravated or mitigated penalty. In re Espinoza, CSB 14-16, 2 (3/8/17).

Evidence mistakenly used in Agency’s decision to terminate deputy’s employment does not justify overturning hearing officer’s affirmation of dismissal, where he did not consider the misattributed evidence in de novo hearing. In re Steckman, CSB 30-15, 2 (1/19/17).

Hearing officer is not required to mention every piece of evidence admitted, and is free to consider whatever record evidence is relevant and persuasive. In re Barra, CSB 01-16, 2 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra, CSB 01-16, 2 (8/3/17).

Hearing officer’s failure to mention evidence proffered by appellant was not erroneous in light of appellant’s admissions of misconduct. In re Barra, CSB 01-16, 2 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra, CSB 01-16, 2 (8/3/17).

Hearing officer’s failure to consider evidence that required speculative outcomes in her favor did not render findings clearly erroneous. In re Barra, CSB 01-16, 3 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra, CSB 01-16, 2 (8/3/17).

Statements made by appellant during her pre-disciplinary meeting could be used against her in assessing discipline. In re Leyba, CSB 25-16, 2 (8/3/17).

It is hearing officer’s responsibility to resolve conflicts of evidence and to assess the weight to be afforded any particular piece of evidence. In re Rocha, CSB 19-16, 2 (7/6/17).

It is against sound policy for hearing officer to rely on the interpretation of written orders by two supervisors, where their interpretation was contrary to the actual terms of the orders. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

The Career Service Board may reverse a hearing officer’s decision for insufficient evidence only if the findings are clearly erroneous.
In re Lovingier, CSB 48-13, 2 (11/7/14).

A factual finding is clearly erroneous when it is unsupported by substantial evidence in the record considered as a whole, meaning the factual finding has no support in the record.
In re Lovingier, CSB 48-13, 2 (11/7/14), citing In re the Estate of Perry, 33 P.3d 1235, 1237 (Colo. App. 2001); Phoenix Capital, Inc. v. Dowell, 176 P.3d 835, 841 (Colo. App. 2007). 

Hearing officer’s finding misconduct and unreasonableness of appellant’s perceptions were overwhelmingly supported by evidence showing audio and video support for findings along with testimony from a judge who was present during the incident.
In re Lovingier, CSB 48-13, 2 (11/7/14).

In excessive force case, it was not error for hearing officer to find the video record and testimony from 2 non-law enforcement witnesses was more persuasive than testimony of five law enforcement officers who said the appellant-deputy did nothing wrong.
In re Lovingier, CSB 48-13, 2 (11/7/14).

It is the hearing officer’s responsibility, not that of the CSB, to weigh evidence and assess credibility.
In re Lovingier, CSB 48-13, 2 (11/7/14).

A hearing officer is free to accept or reject opinions offered by witnesses. 
In re Lovingier, CSB 48-13, 2 (11/7/14).

Whether to adopt an expert’s opinion is a matter within the discretion of the hearing officer. 
In re Lovingier, CSB 48-13, 2 (11/7/14).

Finding an expert not credible is a matter within the discretion of the hearing officer.
In re Lovingier, CSB 48-13, 2 (11/7/14).

Potential evidence of a rule violation strewn throughout the case must be assembled into a coherent claim by the agency, not the hearing officer.
In re Lovingier, CSB 48-13, 2 (11/7/14).

Hearing officer’s comments about the shortcomings in appellant’s defense does not shift the burden of proof to the appellant.
In re Lovingier, CSB 48-13, 3 (11/7/14).

A use of force analysis must be based upon the perceptions of a reasonable officer, not a reasonable person.
In re Lovingier, CSB 48-13, 3-4 (11/7/14).

Hearing officer properly analyzed use of force evidence where he weighed totality of the circumstances known to the officer at the time.
In re Lovingier, CSB 48-13, 3 (11/7/14).

Deputy Manager of Safety [now “Deputy Executive Director of Safety], analyzed evidence in excessive force case from proper perspective where he found video and testimony of some witnesses more persuasive than the testimony of others.
In re Lovingier, CSB 48-13, 4 (11/7/14).

Even if decision-maker’s analysis of conduct underlying discipline was false and unproven, that would not be grounds for overturning hearing officer’s decision, since hearing officer is free to accept or reject that opinion testimony.
In re Lovingier, CSB 48-13, 4 (11/7/14).

Absent a claim that the pre-disciplinary notice is so defective as to deprive the employee of due process, it is immaterial whether decision-maker’s analysis is factually and legally correct. 
In re Lovingier, CSB 48-13, 4 (11/7/14).

Hearing officers’ job is to hear evidence, weigh evidence, assess credibility and make findings. In re Lovingier, CSB 48-13, 4 (11/7/14).

Where  the City Charter vests authority in the Executive Director of the Department of Safety to provide oversight of the Sheriff’s Department, appellant was incorrect in alleging the civilian decision maker was in no position to pass judgment on a law enforcement officer’s opinions. In re Lovingier, CSB 48-13, 4 (11/7/14).

Appellant’s claim – that the civilian Manager of Safety [now the Executive Director of the Department of Safety]  may not judge the opinions of trained law enforcement officers – would wrongfully strip the Manager of the ability to perform his Charter-imposed duty to exercise control over the Sheriff’s Department. 
In re Lovingier, CSB 48-13, 4 (11/7/14).

Appellant’s claim – that the civilian Manager of Safety [now the Executive Director of the Department of Safety]  may not judge the opinions of trained law enforcement officers – would set unlawful policy and precedent. 
In re Lovingier, CSB 48-13, 4 (11/7/14).

It is not error for hearing officer to admit evidence of subsequent remedial measures in the form of new policies and equipment designed to prevent erroneous release, since the rules of evidence do not apply strictly to our hearings. 
In re Mitchell, CSB 57-13, 4 (11/7/14). 

Evidence of subsequent remedial measures is admissible if not offered to prove negligence or culpable conduct. 
In re Mitchell, CSB 57-13, 4 (11/7/14), citing C.R.E. 407. 

Appellant failed to establish error in hearing officer’s finding of dishonesty where the video relied upon by hearing officer constituted substantial evidence to support the conclusion that appellant lied, even though the video is subject to interpretation. 
In re Kemp, CSB 19-13, 2 (7/28/14).

Hearing office hearings are administrative hearings which do not need to apply strictly the rules of evidence.
In re Kemp, CSB 19-13, 4 (7/28/14).

Written statements by inmates were properly admitted to show decision-maker’s state of mind in determining whether deputy violated department orders.
In re Kemp, CSB 19-13, 4-5 (7/28/14), citing Zamora v. Bd. of Education for Las Cruces Public Schools, 2014 WL 260293 (10th Cir. 2004).

Consideration of documents not formally admitted into evidence does not warrant reversal for insufficient evidence. 
In re Koonce, CSB 36-13, 2 (10/16/14).      

Consideration of documents not formally admitted into evidence does not warrant reversal given all the other evidence properly admitted and considered by the hearing officer.
In re Koonce, CSB 36-13, 2 (10/16/14).        

The preferred practice for taking administrative notice is for hearing officer to advise parties at hearing that he is taking administrative notice under CRE 201(e), rather than declaring such in his decision.
In re Redacted, CSB 57-11 (12/20/12).

The CSB will not re-weigh the credibility of witnesses where there is evidence in the record to support hearing officer’s determination, and the determination is not clearly erroneous.
In re Redacted, CSB 57-11 (12/20/12).

Hearing Officer’s determination, that petitioner was not credible, was not clearly erroneous where petitioner  claimed no intent to steal, but left a store without paying for over $600 in merchandise in her cart.
In re Redacted, CSB 57-11  (12/20/12).

Alone, petitioner’s belief in her own credibility provides no basis to reverse contrary finding of hearing officer.
In re Roybal, CSB 60-11, 2 (8/2/12). 

Decision was not clearly erroneous where witnesses who appellant claimed were not made available by the agency, were known to appellant and appellant failed to subpoena them.
In re Webster, CSB 03-11, 4 (4/14/12).

Where video evidence was clear and unambiguous, what non-appearing witnesses may have seen is insufficient basis to reverse hearing officer’s conclusions.
In re Webster, CSB 03-11, 4 (4/14/12).

Appellant’s claim that agency had a duty to produce inmate-witnesses at hearing and to preserve their testimony, impermissibly intermingles agency rules with constitutional criminal law which has no applicability to Career Service hearings,  Appellant could have subpoenaed those witnesses.
In re Webster, CSB 03-11, 4 (4/14/12).

Where video recording of the incident was clear and unambiguous, what another witness may have observed is insufficient ground to disturb hearing officer’s findings.
In re Webster, CSB 03-11, 4 (4/14/12).

The fact that appellant does not agree with the hearing officer's findings does not make them clearly erroneous when those findings are supported by the evidence in the record.
In re Gallo, CSB 63-09, 5 (3/17/11).

It is not the Board’s responsibility to sift through the record looking for evidence that may support or refute an argument made on petition for review.
In re Carothers, CSB 13-11 (7/16/12).

Where agency’s notice of discipline referred to appellant’s conducting non-agency business while on duty, but  was vague as to whether the conduct violated any particular Career Service Rule, the hearing office will not make such a connection on behalf of the agency.
In re Gutierrez, CSA 65-11, 6 (8/28/12).

Administrative hearings are not subject to strict compliance with the civil rules of evidence in order to promote the fact finding process.
In re Burke, 60-10, 1-2 (Order 12/8/10), citing Fish v. Charnes, 652 P.2d 598, 602 (Colo. 1982).

Appellant’s pre-hearing motion to exclude police reports containing ex-spouse’s adverse statements denied where: a subpoena had issued for her presence, but he failed to request a continuance until service was perfected, he failed to request discovery or deposition, and he had the opportunity to review the police report and witness statements before hearing.
In re Burke, 60-10, 1-2 (Order 12/8/10).

The fact that appellant does not agree with the hearing officer's findings does not make them clearly erroneous when those findings are supported by the evidence in the record. 
In re Gallo, CSB 63-09, 5 (3/17/11).

A hearing officer may not infer proof which is neither explicit nor clearly implicit from the evidence. 
In re Abbey, CSA 99-09, 10 (8/9/10).

Strict rules of evidence shall not apply in career service hearings. 
In re Carter, CSB 87-09, 2 (7/1/10), citing § 19-50A.; Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989). 

A career service hearing is a de novo hearing in which the agency has the burden of independently proving alleged misconduct, and the hearing officer is charged with the responsibility of making an independent determination regarding that misconduct based on the evidence presented. 
In re Carter CSB 87-09, 2 (7/1/10).

The raw evidentiary facts upon which an agency bases its decision must be reviewed de novo by the career service hearing officer; that is, all the evidence on the issues presented must be considered as though no previous action had been taken. 
In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 10 (3/11/10), citing In re Luna, CSB 42-07, 4 (1/30/09); Turner v. Rossmiller, 532 P.2d 751 (Colo.App. 1975.) 

Challenge to legality of background check is not properly before hearing officer on appeal when appellant answered the questions without objection, and did not assert a discrimination claim in the appeal. 
In re Mitchell, CSA 05-05, 8 (6/27/05).

ADMISSIBILITY 

The rules of evidence are not strictly applied in administrative hearings. 
In re Kemp, CSB 19-13, 3-4 (7/28/14). 

Inmate witness statements were properly admitted as evidence regarding the decision-maker's state of mind in determining that deputy violated departmental rules on use of force.
In re Kemp, CSB 19-13, 3-4 (7/28/14), citing Zamora v. Board of Education for Las Cruces Public Schools, 553 Fed.Appx. 786, 790 (10th Cir. 2004.) 

Admission of evidence of matters not contained in disciplinary letters did not violate due process where hearing officer did not consider that evidence in determining the issues on appeal.
In re Redacted, CSB 67-11 (4/4/13).

Hearsay may be admitted for purposes other than to prove the truth of the statement. 
In re Carter, CSB 87-09 (7/1/10).

The Administrative Procedure Act permits state administrative hearing officers to receive hearsay evidence ordinarily not admissible under the rules of evidence. 
In re Carter, CSB 87-09, 2 (7/1/10), citing Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989); CSR § 19-50A. 

Strict compliance with the Colorado rules of evidence is not required in career service hearings. 
In re Norman-Curry, CSB 28-07 & 50-08, 2 (9/3/09); See also § 19-50.

Appellant's claim that hearing officer relied on evidence to which there was a sustained objection is without merit where the same evidence had already been admitted prior to the objection. 
In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

CREDIBILITY 

The Career Service Board cannot and does not make credibility determinations, nor does it substitute its judgment for that of the hearing officer.
In re Strauch, CSB 40-13, 4 (7/17/14).

Appellant’s credibility concerning her claim that she didn’t intend to shoplift, despite leaving store without paying for a cart full of merchandise, was questionable where: she admitted leaving the store without paying; due to personal emergency she could not leave cart since personal items were buried, but photo evidence revealed they were not; both alleged options to deal with personal emergency required appellant to make an extra trip back to the store, belying her claim that she needed to save time; appellant stated she was frantic about personal emergency, yet held out hope situation would improve to the point where she could finish shopping. In re Redacted CSA 57-11, 4 (5/31/12).

Hearing officers are charged with judging the credibility of witnesses, and the weight to be given to testimony and other evidence.
In re Webster, CSB 03-11 (4/14/12).

Appellant was less credible than agency witnesses where: testimony by agency witnesses remained credible while appellant’s testimony was ever evolving; his assertions would require implausible conclusions; his explanation of a critical recollection defied common sense; opposing witnesses’ written reports were consistent with each other; appellant failed to produce evidence of his conspiracy theory; he remained silent in circumstances normally demanding a response; his statements to witnesses provided evidence of a motive to lie; his claim that his memory improved over time was implausible; and evidence that he was always honest with his supervisors was not compelling evidence of truthfulness in the present situation.
In re Strauch, CSA 37-11, 3-4 (12/20/11).   

It is within the hearing officer's province to assess the credibility of witnesses and weigh the strengths and weaknesses of the evidence presented in reaching a decision. In re Gallo, CSB 63-09, 5 (3/17/11).

The fact that appellant does not agree with the hearing officer's findings does not make them clearly erroneous when those findings are supported by the evidence in the record. In re Gallo, CSB 63-09, 5 (3/17/11).

When an agency finds the credibility of its principal accuser lacking then, regardless of the veracity of that belief, a hearing officer should  not give the accuser’s statements more weight than the agency gave them. In re Gutierrez, CSA 65-11, 4 (8/28/12).

Factors which raise questions about a witness’ credibility include her prior suspension for dishonesty, misappropriation of non-agency funds, denial of engaging in sexual banter in the workplace which was rebutted by other witnesses, denying friendship with a co-worker with whom she socialized, went out to lunch, and bought him a gift. In re Gutierrez, CSA 65-11, 4-5 (8/28/12).

Appellant’s claim, that she stayed late to make up for arriving late because she was simply mistaken about her schedule, was not credible where she acknowledged 2 emails from her supervisor specifying her work hours, her supervisor specifically ordered her not to stay beyond her scheduled hours, and her schedule was changed at her own request.
In re Rodriguez, CSA 12-10, 20 (10/22/10).

It is within the hearing officer's province to assess the credibility of witnesses and weigh the strengths and weaknesses of the evidence presented in reaching a decision. 
In re Gallo, CSB 63-09, 5 (3/17/11).

The fact that appellant does not agree with the hearing officer's findings does not make them clearly erroneous when those findings are supported by the evidence in the record. 
In re Gallo, CSB 63-09, 5 (3/17/11).

Appellant’s denial of his absence for more than allotted 15 minutes was not credible in light of video surveillance and his badge records which confirmed he was absent 25 minutes. 
In re Abbey, CSA 99-09, 9-10 (8/9/10).

Appellant’s explanation for his unauthorized absence in excess of allotted 15 minutes - that he first did errands within the building so that his absence outside the building was less than 15 minutes - was not credible in light of video surveillance and his badge records which confirmed his absence from the building for 25 minutes. 
In re Abbey, CSA 99-09, 9-10 (8/9/10).

Appellant’s explanation for being away from post – because he was consoling a friend - was not credible where he was found in a sleeping area with his shirt and equipment off, he jumped up suddenly when his supervisor entered, and his friend did not testify to confirm his account. 
In re Norris, CSA 68-09, 5 (7/12/10).

Appellant's claim that his co-workers' testimony was motivated by revenge for their loss of virtually unlimited overtime was rebutted by fact that co-workers initially covered up for his absences, and more credible evidence that another employee caused the change in overtime and that co-workers grew weary of his constant absences. 
In re Norris, CSA 68-09, 5 (7/12/10).

Appellant's claim that he may have been away from his post because of a special assignment was not credible where he presented no evidence that such an order was issued over the radio, as required. 
In re Norris, CSA 68-09, 6 (7/12/10).

It is within the province of the hearing officer to judge the credibility of witnesses and the strengths or weaknesses of the evidence presented.
In re Carter, CSB 87-09, 2 (7/1/10).

Appellant’s credibility was questionable where his testimony that he was late due to snowy weather was contradicted by his own evidence that .01” of snow fell the entire day, and his testimony on many matters was contradicted by other credible evidence. 
In re Redacted, CSA 08-10 (5/24/10).

In determining credibility, the quality of testimony is controlling, not the number of witnesses. 
In re Carter, CSA 87-09, 4 (2/17/10).

Factors to consider in evaluating the credibility of a witness include opportunity to see or hear the events, motive to collude or fabricate testimony, plausibility of the testimony, consistency with other evidence, existence of bias, hostility or other attitude affecting truthfulness, expectation of benefit for testifying, and interest in the outcome of the case. 
In re Carter, CSA 87-09, 4 (2/17/10), citing Kinney v. People, 187 P.3d 548 (Colo. 2008); AMJUR Witnesses §1003-1007 (2009).

An appellant always has an interest in the outcome of his case, although that interest may not affect the truthfulness of his testimony.
In re Carter, CSA 87-09, n. 1 (2/17/10).

Testimony of co-workers was more credible than appellant’s where they had a good relationship with appellant and their testimony was plausible and consistent with one another, whereas appellant’s testimony was inconsistent over time, and he had an interest in the outcome of the appeal: preservation of his job. 
In re Carter, CSA 87-09, 4 (2/17/10). 

EXPERTS  

Whether to adopt an expert’s opinion is a matter within the discretion of the hearing officer. In re Lovingier, CSB 48-13,  2 (11/7/14).

Finding an expert not credible is a matter within the discretion of the hearing officer. In re Lovingier, CSB 48-13, 2 (11/7/14).

Expert witness testimony properly rejected where it was based upon unreliable evidence. In re Strauch, CSB 40-13, 4-5 (7/17/14).

Hearing offers are empowered to reject testimony they find not persuasive or not credible. In re Strauch, CSB 40-13, 4 (7/17/14).

Opinion of appellant’s expert property rejected where expert’s conclusions, that appellant-deputy’s palm-heel strike to the face of a motorist and firing 8 rounds at the driver was unreasonable and inconsistent with agency policy. In re Strauch, CSB 40-13, 5 (7/17/14).

HEARING OFFICERS 

Hearing officer’s dicta in suggesting training for officers is an inappropriate intrusion into the operational province of the Agency. In re Shelley & Martinez, CSB 30-13 & 32-13 (12/9/14).

Hearing officers do not have the authority to dictate to an agency the nature and amount of training for its employees. n re Shelley & Martinez, CSB 30-13 & 32-13, 1-2 (12/9/14).

Whether to conduct training and in what amount and type is an agency management decision outside the province of a hearing officer. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

It is error to rely on interpretation of orders by supervisors when those interpretations is inconsistent with the actual terms of the orders. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

Appellant’s claim is untenable policy in advocating hearing officers, as civilians, are not in a position to dispute any belief expressed by law enforcement officers concerning the use of force.  In re Lovingier, CSB 48-13, 4 (11/7/14).

Hearing officers job is to hear evidence, weigh evidence, assess credibility and make findings. In re Lovingier, CSB 48-13, 4 (11/7/14).

Where it is the main function of hearing officer to hear evidence, assess credibility and make findings, Appellant was incorrect in claiming hearing officer must defer to trained law enforcement officers’ opinions. In re Lovingier, CSB 48-13, 4 (11/7/14).

Appellant’s argument – that in excessive force cases, hearing officers should defer to testimony of trained law enforcement officers – fails because it would wrongfully strip hearing officers of their ability to hear and decide cases. In re Lovingier, CSB 48-13, 4 (11/7/14).

Hearing offers are empowered to reject testimony they find not persuasive or not credible. In re Strauch, CSB 40-13, 4 (7/17/14).

HEARSAY 

Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement. 
In re Carter, CSB 87-09, 1 (7/1/10).

An out of court statement may be admitted into evidence if offered for a purpose other than to prove the truth of the matter asserted. In re Carter, CSB 87-09, 1 (7/1/10).

Information from internal affairs report was not hearsay where it was admitted to explain the reasons for director's disciplinary decision. 
In re Carter, CSB 87-09, 2 (7/1/10).

In disciplinary actions, the decision-maker is rarely if ever the person who actually investigates allegations of misconduct and therefore must rely on information provided from others. 
In re Carter, CSB 87-09, 2 (7/1/10).

The use of hearsay evidence alone does not violate due process as long as the hearsay is sufficiently reliable and trustworthy and the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. 
In re Carter, CSB 87-09, 3 (7/1/10), citing Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989).

Passing reference to internal affairs report in decision that carefully weighed and analyzed witness testimony belies appellant's claim that hearing officer relied on the report in making decision. 
In re Carter, CSB 87-09, 2 (7/1/10). 

Hearing officer was not required to determine reliability or trustworthiness of report as hearsay evidence where decision was based on the testimony of eight fact witnesses and did not rely on the report, unlike Flower Stop case where the only evidence presented was hearsay. 
In re Carter, CSB 87-09, 2 (7/1/10).  

Appellant’s claim - that principles of fairness and due process required the hearing officer to make a determination about the reliability of a hearsay report which was not admitted into evidence - lacked legal support. 
In re Carter, CSB 87-09, 3 (7/1/10).

Appellant had notice of and access to an internal affairs report where it was included as an agency exhibit, and witnesses interviewed also testified at the career service hearing. 
In re Carter, CSB 87-09, 3 (7/1/10); CSR § 19-45.

OFFERS OF SETTLEMENT NOT ADMISSIBLE - C.R.E. 408

Where appellant was not a party to the settlement she claims was impermissibly considered, hearing officer could reasonably determine admission of the fact of settlement would not frustrate purpose of CRE 408, to promote settlement by assuring parties to settlement negotiations that their offers will not be used later against them. In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

The purpose of C.R.E. 408 is to promote settlement by assuring the parties to settlement negations that their offers will not later be used against them. In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

While C.R.E. 408 provides that offers of settlement are not admissible when offered to prove liability, the rule permits the admission of such evidence for other purposes. In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

Where hearing officer admitted city's offer of settlement to non-party witness in order to show harm to the city under CSR 16-60 Z. (conduct prejudicial), and not for the purpose of proving appellant's misconduct, such evidence is properly admitted. In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

PRIVILEGE  

Physician-patient privilege protects information acquired in attending a patient which is necessary to enable a physician to treat the patient. In re Cullen, CSA 127-08, 2 (1/7/09), citing CRS § 13-90-107(d).

Physician-patient privilege may be impliedly waived when a party raises an affirmative defense that makes his physical condition the basis of the affirmative defense. In re Cullen, CSA 127-08, 2 (1/7/09).

Waiver of physician-patient privilege does not amount to a general disclosure of the patient's entire medical history, but rather is limited to the cause and extent of the injuries and damages claimed. In re Cullen, CSA 127-08, 2 (1/7/09), citing Cardenas v. Jerath, 180 P.3d 415, 424 (Colo. 2008.)

PROTECTIVE ORDER  

As a general matter, hearing office records are open to the public unless there is a legitimate reason for non-disclosure. 
In re Norris, CSA 86-09 (Order 1/8/10). 

The decision whether to seal the record may not be based solely on an agreement between the parties.  The hearing officer must balance the public’s presumed right to open access against the potential harm to the privacy of a person in interest. 
In re Norris, CSA 86-09 (Order 1/8/10), citing Anderson v. Home Insurance Co, 924 P.2d 1123 (Colo.App. 1996); C.R.C.P. 121 § 1-5.

A motion to seal the record must provide sufficient information to determine if good cause exists, to wit: whose privacy or confidences are to be protected; the privacy interests to be protected; the nature of the documents which the parties seek to protect; the duration of the requested seal; and a proposal for the least restrictive means which satisfy privacy concerns while respecting the public’s right to access public information. 
In re Norris, CSA 86-09 (Order 1/8/10).

Where joint motion to seal the record lacks sufficient information from which the hearing officer may balance the interests of privacy and public access, the motion must be denied for lack of good cause. 
In re Norris, CSA 86-09 (Order 1/8/10).

RELEVANCE 

Hearing officer is not required to mention every piece of evidence admitted, and is free to consider whatever record evidence is relevant and persuasive. In re Barra, CSB 01-16, 2 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra, CSB 01-16A, 2 (8/3/17). 

 
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