Evidence

In general 

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 57-11A (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 57-11A (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 57-11A (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 60-11A, 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 03-11A, 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 03-11A, 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 03-11A, 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 03-11A, 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, CSA 63-09, 5 (CSB 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 12/8/2010), 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 12/8/2010).

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, CSA 63-09, 5 (CSB 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, CSA 87-09, 2 (CSB 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 CSA 87-09, 2 (CSB 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 and Pettway, CSA 73-09, 10 (3/11/2010), citing In re Luna, 42-07, 4 (CSB 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 hearingsIn re Kemp, CSB 19-13, 4 (7/29/2014). 

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 (7/29/2014), 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 (4/4/2013)

Hearsay may be admitted for purposes other than to prove the truth of the statement.  In re Carter, CSA 87-09 (CSB 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, CSA 87-09, 2 (CSB 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 28-07and 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 28-07and 50-08, 3 (9/3/09).

[C.R.E. 408 Offers of settlement not admissible]:
 
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 and 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 28-07and 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 and 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 and 50-08, 3 (9/3/09).

 Credibility

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 03-11A (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, CSA 63-09, 5 (CSB 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, CSA 63-09, 5 (CSB 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, CSA 63-09, 5 (CSB 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, CSA 63-09, 5 (CSB 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, CSA 87-09, 2 (CSB 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). 

Hearsay 

Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement.  In re Carter, CSA 87-09, 1 (CSB 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, CSA 87-09, 1 (CSB 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, CSA 87-09, 2 (CSB 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, CSA 87-09, 2 (CSB 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, CSA 87-09, 3 (CSB 7/1/10), citingIndustrial 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, CSA 87-09, 2 (CSB 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, CSA 87-09, 2 (CSB 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, CSA 87-09, 3 (CSB 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, CSA 87-09, 3 (CSB 7/1/10); CSR § 19-45.

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).

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.) 

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