What weight should the ALJ give to a declaration when the witness refuses to testify under oath? Is this a hearsay evidence?
In an administrative hearing involving a public employee discipline, the agency who had the burden of proof, prepared a declaration under the penalty of perjury for a witness in lieu of a direct testimony. The declaration is basically nothing but an attempt to authenticate an investigation report that the witness had no role in its preparation (the witness was the complaining party in this investigation report). While this witness did not testify, the employee subject of the discipline took the stand and refuted the allegations made by this witness and provided evidentiary documents to show that the allegations were not true. The rule of the forum is that a hearsay is admissible but insufficient to establish a fact and the employee vigorously objected to the admission of the declaration.
Administrative hearsay cannot be the basis for which an ALJ premises a finding. However, if it is not objected to, an ALJ may let the evidence in and premise a finding upon it. If it was indeed "vigorously objected to" and the evidence was admitted nonetheless, if the ALJ makes findings that would have been made even without this particular evidence, chances are good that you will not be able to overcome. Please seek experienced counsel to assess on the microscopic level.