Supreme Court: Statements Obtained From ODNR Employees Under Threat of Job Loss Properly Suppressed in Criminal Proceedings
The Supreme Court of Ohio ruled today that, consistent with the U.S. Supreme Court’s holding in Garrity v. New Jersey, statements obtained from employees of the Ohio Department of Natural Resources (ODNR) during an Ohio Inspector General's investigation under threat of losing their jobs were inadmissible as evidence against those employees in subsequent criminal proceedings.
The court’s 7-0 decision, authored by Justice Judith L. French, reversed a ruling by the 12th District Court of Appeals.
The case involved a 2009 Ohio Inspector General (OIG) investigation of a complaint from a confidential informant that in 2006 state wildlife officer Allan Wright had improperly obtained an Ohio resident hunting license for a South Carolina wildlife officer by listing Wright’s home address as the other officer’s residence on a license application. The use of Wright’s address on the other officer’s application allowed his friend to obtain a license for the $19 Ohio resident fee rather than the $125 fee for out-of-state residents. The complaint also alleged that five of Wright’s superiors in the ODNR Division of Wildlife (DOW), including the division chief, knew about the falsified application and had violated their duty to report Wright’s illegal conduct to higher authority for potential criminal prosecution.
When the OIG contacted then-ODNR director Sean Logan about the complaint, Logan responded that DOW had completed an investigation of the incident in 2008 and had disciplined Wright internally. Dissatisfied with DOW’s investigation, the OIG assigned Deputy Inspector Ron Nichols to conduct his own investigation.
Nichols arranged to interview the DOW managers involved in the Wright investigation at different times between December 22, 2009 and February 1, 2010. Prior to being questioned by Nichols, each of the DOW subjects signed an oath that stated “I understand that by affirming my truthfulness under oath, I am subject to criminal sanctions if I provide false information.”
During the interviews, the DOW managers revealed that, consistent with reciprocal practices in other states, the DOW had in the past allowed wildlife officers from other states to obtain Ohio resident hunting licenses as a way to encourage interstate networking and cooperation. They indicated that in 2008, DOW Division Chief David Graham had sent memos to wildlife officers advising them that they should not accept free or discounted licenses in other states (even if those states allowed the practice) and should not permit friends from other states to obtain free or discounted licenses in Ohio. They also stated that upon learning in 2008 that Wright had allowed an out-of-state officer to use Wright’s address in 2006, they had decided to handle his misconduct within the division rather than report it to the ODNR director as a possible criminal violation, and had collectively decided that in light of Wright’s service record and the division’s past practice, the appropriate sanction was a verbal reprimand for “failure of good conduct.”
In March 2010, the OIG issued an investigative report. The report concluded that Wright had committed wrongdoing by allowing an out-of-state wildlife officer to obtain an Ohio-resident hunting license using Wright’s home address. The report also concluded that Graham and the other DOW managers had improperly failed to report Wright’s criminal conduct to the ODNR director or chief legal counsel, as required by the policies of the governor and the ODNR, and had used the alleged past practice of allowing similar conduct as an “excuse to disregard the criminal violation.”
The OIG forwarded the report to the Brown County prosecuting attorney. In April 2010, a Brown County grand jury indicted each of the five DOW managers on one count of obstructing justice and one count of complicity in obstructing justice. Each charge was a fifth-degree felony.
The managers filed motions to suppress any use of the statements they had made during their interviews with Nichols as evidence against them in connection with the criminal charges. They cited the U.S. Supreme Court’s 1967 holding in Garrity v. New Jersey that because a group of police officers had been compelled under pain of firing to answer incriminating questions in a departmental investigation, those coerced statements could not later be used against them in a criminal trial.
The trial court granted the motion to suppress, relying on evidence that each of the defendants had been provided with a copy of a departmental policy stating that “failure to answer (the OIG’s) questions, completely and accurately, may lead to disciplinary action up to and including termination.”
The state appealed the suppression order. On review, the Twelfth District Court of Appeals reversed the action of the trial court, holding that the evidence presented at the suppression hearing about the ODNR disciplinary policy was insufficient to invoke Garrity because it did not establish that the managers’ statements to the OGI investigator were made under an express threat of firing if they didn’t answer his questions. The managers sought and were granted Supreme Court review of the Twelfth District’s ruling.
Writing for a unanimous court in today’s decision, Justice French quoted United States v. Friedrick, a 1988 decision in which the U.S. Circuit Court of Appeals for the District of Columbia held that an employee seeking suppression of statements under Garrity “must have in fact believed his ... statements to be compelled on threat of loss of job, and this belief must have been objectively reasonable.”
“In this case,” Justice French wrote, “ the trial court and appellate court disagreed as to whether appellants had received an express threat before Nichols interviewed them. In suppressing appellants’ statements, the trial court relied heavily on its finding of fact that appellants had received the ODNR Notice of Investigatory Interview warning that their failure to answer truthfully ‘may lead to disciplinary action up to and including termination.’ The court of appeals concluded that the record did not support this finding, because the copy of the ODNR notice, introduced as Exhibit 20, was undated and unsigned, and it did not indicate if or when appellants received it.”
“The court of appeals’ concern with the state of the record is understandable, but ultimately insufficient to justify discarding the trial court’s factual finding. Although (ODNR Labor Relations Administrator Bret) Benack could only speculate as to when appellants received the ODNR notice, he never wavered in his testimony that appellants had in fact received the notice. Benack, the senior adviser to the ODNR director on issues relating to human resources, had personal knowledge that ODNR had notified appellants that they were the subject of an investigation and that ‘all of the [appellants] were issued Exhibit 20.’ The language in the notice itself implies that it is to be given to employees prior to an investigatory interview. ... And given Benack’s testimony that ODNR did not conduct its own interrogation of appellants, the trial court was free to conclude that ODNR issued the notice in relation to the OIG’s investigation. This testimony was adequate to support the trial court’s finding; the court of appeals should have accepted it and considered that finding as true in its analysis.”
“Appellants’ receipt of the ODNR notice is dispositive. Although appellants did not testify at the suppression hearing, the threat of discharge contained in the notice was sufficient proof that they subjectively believed they could be fired for refusing to cooperate with Nichols. The threat also establishes that their belief was objectively reasonable, as it represented some demonstrable state coercion above the general directive to cooperate. Because appellants spoke to Nichols after being expressly warned by ODNR that their failure to do so would subject them to disciplinary action up to and including termination, we conclude that their statements were compelled under Garrity.”
“Accordingly, the court of appeals erred by reversing the trial court’s suppression order. We therefore reverse the judgment of the court of appeals and reinstate the judgment of the trial court.”
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2012-0338. State v. Graham, Slip Opinion No. 2013-Ohio-2114.
Brown App. Nos. CA2010-10-016, CA2010-10-017, CA2010-10-018, CA2010-10-019, and CA2010-10-020, 2012-Ohio-138. Judgment reversed.
O’Connor, C.J., and Pfeifer, O’Donnell, Lanzinger, Kennedy, French, and O’Neill, JJ., concur.
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