COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72233 TERRY SHANE METZENBAUM : ACCELERATEDCASE : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION UNEMPLOYMENT COMPENSATION BD. : OF REV. : : Defendant-Appellee: PER CURIAM DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-314147 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: TERRY METZENBAUM, PRO SE (#P00072233A) 3382 Bushnell Road University Hts, OH 44118=3142 For Defendant-Appellee: BETTY D. MONTGOMERY Attorney General of Ohio CHERYI L. WESTERBURG (#0040382) (Counsel of Record) Assistant Attorney General Employment Services Section 78 East Chestnut St., P.O. Box 1618 Columbus, OH 43216-1618 PER CURIAM: Plaintiff-appellant Terry Shane Metzenbaum ( appellant ) appeals from the order of the court of common pleas upholding the decision of the Board of Review denying appellant unemployment 2 compensation. Appellant assigns the following assignments of error for review: . THE COURT BELOW ERRED BY FAILING TO FIND THAT THE APPELLEE IMPROPERLY EXCLUDED ADMISSIBLE AND RELEVANT EVIDENCE PROFFERED BY APPELLANT AT THE HEARING IN THIS MATTER, AND THAT THIS PREJUDICED APPELLANT'S ABILITY TO PROPERLY PRESENT AND PROVE HIS CASE. . THE COURT BELOW ERRED BY FAILING TO FIND THAT THE APPELLEE IMPROPERLY EXCLUDED ADMISSIBLE AND RELEVANT EVIDENCE PROFFERED BY APPELLANT AT THE HEARING IN THIS MATTER, AND THAT THIS PREJUDICED APPELLANT'S ABILITY TO PROPERLY PRESENT AND PROVE HIS CASE. Finding the assignments of error to lack merit, the judgment of the trial court is affirmed. I. On April 6, 1995, appellant was discharged from his position as a security guard/police officer with John Carroll University. The reason for the termination was given as appellant's insubordination for refusing to comply with repeated requests from John Carroll University to supply information regarding any medical or psychiatric treatment appellant was receiving, including any medications appellant was taking. John Carroll University requested the medical information and records after it became aware appellant was under the care of one or more physicians and taking medications. The university desired the information based upon its concern for the safety and security of the campus and appellant's abilities to perform his duties as a security guard. Appellant had 3 been discovered sleeping on duty on four or five occasions and his speech was at times slurred, perhaps due to the use of medication. Appellant refused to comply with the repeated directive that he release his medical information to John Carroll University. The Staff Handbook provided that an employee may be released if he refused to carry out orders of his department head or supervisor or was insubordinate. Appellant's employment with John Carroll University was terminated because of this insubordination on April 6, 1995. On April 11, 1995, appellant filed an application for determinationof benefit rights with the Ohio Bureau of Employment Services ( OBES ). Appellant's application was denied as the OBES Administrator found that appellant was discharged by John Carroll University for just cause. Appellant filed a request for reconsideration of that determination. The Administrator affirmed the initial determination and appellant appealed that decision to the Ohio Unemployment Compensation Board of Review. Appellant's appeal was removed by the Board of Review to be heard by a hearing officer for and on behalf of the Board of Review. Appellant requested that the Board of Review issue subpoenas for twenty individuals and requested numerous documents from those people. The Board of Review refused to issue the subpoenas as its policy was to issue up to three subpoenas automatically. When more subpoenas were requested, a claimant needed to show why the additional subpoenas were necessary. Appellant then filed an action in federal court over the matter of the subpoenas and for 4 unlimited time in which to hold the hearing. A settlement was entered into by the parties whereby the Board of Review agreed to issue five subpoenas and hold a hearing for a half-day session. Subpoenas were issued for five people. John Carroll University filed a motion to quash the subpoenas for three of the individuals and to quash in part the subpoenas for the remaining two people. On May 24, 1996, a hearing was held by the hearing officer designated by the Board of Review. Three of those individuals subpoenaed by appellant did not appear. The hearing officer withheld ruling on the motion to quash. The vice-president of Student Affairs, Father Richard Salmi, testified that appellant was discharged because of his refusal to release medical records. The university was concerned appellant's medical condition might impede his ability to continue as a police officer at the institution. Appellant attempted to introduce a tape recording he secretly had made of a conversation between himself and the Director of Security. Appellant wished to question Father Salmi about why the Director of Security was unaware of a matter. The hearing officer refused to admit the tape recording into evidence because the witness would be unable to answer questions as to why something would not be within another individual's knowledge. Appellant withdrew the question until the Chief of Security would testify. The Director of Security, J. Francis McCaffrey, testified appellant had started to have difficulty getting along with his fellow workers and was falling asleep on the job. Appellant told McCaffrey he was drowsy because of some medication he was taking. 5 According to McCaffrey, appellant was terminated for cause due to his insubordination and not for any other reasons. Appellant never asked McCaffrey any questions in regard to the tape recording or sought to introduce it into evidence again. Appellant proffered the testimony he had expected from the three witnesses who did not attend the hearing. The hearing officer then determined the witnesses would not be re-subpoenaed. Their testimony was not needed for a determination to be made on the matter. The hearing officer determined appellant's continued refusal to comply with the directive that he release his medical information constituted an act of insubordination which justified his discharge from employment. The Administrator's reconsideration decision was affirmed. Appellant appealed to the Court of Common Pleas which found competent, credible evidence to support the decision of the Board of Review that appellant was discharged for just cause. The Board of Review's finding was upheld and appellant has appealed to this court. II. In his first assignment of error, appellant contends the Board of Review effectively prevented appellant from presenting his case by refusing to issue subpoenas for the witnesses appellant thought were necessary. Appellant admits that, pursuant to the settlement agreement reached in federal court by appellant and the Board of Review, it was agreed that the Board of Review would issue up to five subpoenas for the individuals of appellant's choosing and that 6 those subpoenas in fact were issued by the Board of Review. Appellant argues that this settlement agreement effectively was circumvented when the Board of Review quashed enforcement of three of the subpoenas. R.C. 4141.28(J) provides that the Board of Review need not be bound by the rules of evidence or by technical or formal rules of procedure when conducting a hearing under R.C. 4141.28(O). Rather, all steps should be taken which are consistent with the impartial discharge of the board's duties which appear reasonable and necessary to ascertain the facts and determine whether the claimant is entitled to benefits under the law. The aim of this portion of R.C. 4141.28(J) is to avoid the rigid formality imposed by technical rules of evidence, while constructing an efficient method for ascertaining a claimant's entitlement to unemployment compensation benefits. Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 43. The hearing officer has the discretion of accepting or rejecting any evidence. When the evidence offered would provide some insight into the very subject of dispute, this discretion is tempered by the need for a conscious effort on the part of the hearing officer to allow each side to present that evidence which is available and which would aid in the determination. The parties must be afforded the right to a fair trial and a reasonable opportunity to be heard. Nordonia Hills Bd. Of Edn. v. Unemp. Comp. Bd. Of Review (1983), 11 Ohio App.3d 189. A finding that an employee was or was not terminated for just cause is lawful as long as such evidence is given its proper weight. Binger v. Whirlpool Corp. (1996), 110 7 Ohio App.3d 583. Although appellant apparently is arguing that the Board of Review quashed the subpoenas of the witnesses, the record shows it was John Carroll University that filed a motion to quash. The hearing officer gave appellant an opportunity to proffer what evidence he expected to introduce by way of the witnesses. After appellant made his proffer, the hearing officer determined that the subpoenas would not be reissued as the evidence was not necessary to make a determination of whether or not appellant was eligible for unemployment benefits. The evidence appellant sought from these witnesses was in regard to incidents which were unrelated to the medical information issue. Therefore, the evidence would not provide any insight into the issue in dispute. The hearing officer did not abuse his discretion by refusing to reissue the subpoenas. Appellant's first assignment of error is overruled. III. In his second assignment of error, appellant argues that the hearing officer erred by refusing to permit appellant to introduce the tape recording into evidence. The hearing officer did not permit appellant to question Father Salmi about the contents of the conversation which appellant recorded. Although McCaffrey testified, appellant never attempted to introduce the tape recording into evidence during his testimony although McCaffrey was a party to the recorded conversation. A hearing officer has the discretion not only of accepting or rejecting evidence, but also in choosing to apply or not to apply the technical rules of procedure. 8 NordoniaHills, supra. Appellant wanted to use the tape recording to question Father Salmi about what was within McCaffrey's knowledge. There was no error in excluding the evidence at that point in the proceedings. Appellant never tried to reintroduce the tape recording into evidence during McCaffrey's testimony. If there was any error in the exclusion of this evidence, it was waived. Appellant has not argued that the Board of Review's determination that just cause existed was unlawful, unreasonable or against the manifest weight of the evidence. See Tzangas, Plakas & Mannos v. Ohio Bur. Of Emp. Serv. (1995), 73 Ohio St.3d 694, paragraph one of the syllabus. Appellant restricted his argument to evidentiary issues. However, a review of the record reveals ample evidence to support the finding of the Board of Review that appellant was removed from his employment with John Carroll University for just cause. Appellant's second assignment of error lacks merit. Judgment affirmed. It is ordered that appellee recover of appellant its costs 9 erein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court irecting the Common Pleas Court to carry this judgment into xecution. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J. DAVID T. MATIA, JUDGE LEO M. SPELLACY, JUDGE .B. This is an announcement of the court's decision. See App.R. 2(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be ournalized and will become the judgment and order of the court ursuant to App.R. 22(B) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .