Evidentiary Matters in Administrative Proceedings Before the Office of Administrative Proceedings (Oah)

• Jurisdiction: Maryland

VII. EVIDENTIARY MATTERS IN ADMINISTRATIVE PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATIVE PROCEEDINGS (OAH)

In employment discrimination cases, a complaining party has the option of filing a private civil action in state court under Md. Code Ann., State Government II § 20-1013 (2014 & Supp. 2020) (hereinafter State Gov't I or II § ___ ), and thus be subjected to state evidentiary rules. However, there is the additional option of an administrative hearing available to all parties in matters before the Maryland Commission on Civil Rights (the Commission). Any of the parties, including the Commission, may elect to have the claims decided in a civil action brought by the Commission. However, if there is no election by the parties, the claim by default will be heard in an administrative hearing before OAH.³⁴

Administrative hearings before an administrative law judge (ALJ) at OAH are directed by both the Commission's procedural regulations, COMAR 14.03.01.11, and OAH's regulations, COMAR 28.02.01. It is recommended that you consult both sets of regulations.

The statutory authority for evidence in an administrative hearing is STATE Gov't II §§ 10-213 to 10-214. In general a party may offer into the record all evidence it wishes to be considered. The ALJ may admit probative evidence and give probative effect to that evidence.

A. Admission of Hearsay Evidence

The technical common law rules of evidence are not applicable to administrative hearings. However, the ALJs should observe basic rules of fairness to all parties presenting evidence into the record before them. In keeping with this very broad parameter of evidentiary admissions, hearsay evidence is not excluded solely on the basis...