CASE PROCESSING PROCEDURES; EVIDENCE – Hearsay

Single Topic for Decision 2385E

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The ALJ properly admitted into evidence the School Board Action Item which described the bargaining unit positions at the school site to be eliminated due to “Lack of Work/Funds School Closure.” Under the official record exception, three conditions must be met: (1) the writing was made by and within the scope of duty of a public employee; (2) the writing was made at or near the time of the act, condition, or event; and (3) the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code, § 1280.) The District raised no objection to the authenticity of the document or to foundation. We conclude that the School Board Action Item was made by and within the scope of duty of a District employee; was made on or about May 6, 2010; and is a source of information which can be relied on to demonstrate the action taken by the School Board regarding the classified positions at the school site described therein. Thus, the School Board Action Item was admissible for all purposes under the official records exception to the hearsay rule. Under the party admission exception to the hearsay rule, evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity. (Evid. Code, § 1220.) The District was provided the opportunity but did not present its own witnesses. The District therefore never availed itself of the opportunity to contradict or explain the information contained in the School Board Action Item. We conclude that the ALJ properly admitted the School Board Action Item for all purposes under the party admission exception to the hearsay rule. We are reticent to conclude that the official record exception can be applied in the absence of a writing. In the absence of a writing the record was not sufficient to support a finding that the layoff notices seen by union officials qualify as official records of the District. In the absence of the actual document, the ALJ could consider evidence of layoff notices seen by union officials as a party admission over objection by the District that it was hearsay. The District had the opportunity to present testimony or documentary evidence to explain or contradict union’s evidence of the layoff notices, because the person alleged to have authored the notices was the District’s representative in attendance at the hearing.