Ohio Supreme Court suppresses public employee statements taken in violation of the Fifth Amendment

In 2009, an informant advised the Office of the Ohio Inspector General (OIG) that Brown County Division of Wildlife (DOW) officer Allan Wright had, in 2006, assisted an out-of-state wildlife officer in receiving an Ohio hunting license by using Wright’s Ohio address as his own. This enabled the out-of-state officer to avoid payment of a higher fee for a nonresident license.

The OIG was subsequently informed that the DOW had conducted an investigation of the allegation in 2008 that resulted in a verbal reprimand for Wright. The OIG was not satisfied with the DOW investigation and initiated its own inquiry.

OIG Deputy Inspector Nichols interviewed five upper-level DOW managers who were involved in the DOW investigation of Wright. The five included Division Chief Graham, Assistant Chief Miller and three others (hereinafter defendants).

All the defendants informed Nichols that rather than report Wright’s misconduct to their director as a possible criminal violation, they collectively decided to handle the situation as an administrative matter. They determined that Wright should be disciplined for a “failure of good behavior” and sanctioned him with a verbal reprimand.

In 2008, two years after Wright’s misconduct occurred, DOW Division Chief Graham issued a directive to DOW officers that prohibited them from permitting non-resident friends to obtain discounted hunting licenses in Ohio. During Nichols’ questioning of the defendants, he asked how Wright could be disciplined for conduct that happened in 2006 before it was prohibited in 2008 and suggested that they decided to handle the situation administratively because Wright “could not file a grievance over it and no one would ever know about it.” The OIG subsequently issued a report that concluded that the defendants improperly failed to report Wright’s criminal conduct to their superiors as required by policies of the Governor and internal regulations. The OIG sent a copy of its report to the Brown County prosecuting attorney.

In April 2010, a Brown County grand jury indicted the defendants for obstructing justice and complicity in obstructing justice, both fifth-degree felonies. The defendants filed suppression motions and argued that their statements to the OIG were coerced by threat of job loss and therefore not admissible because of a violation of the Fifth Amendment as previously held by the U.S. Supreme Court in Garrity v. New Jersey, 385 U.S. 493, (1967). The prosecution countered that the OIG investigator never threatened the defendants with job loss during the interviews and that the OIG had no authority to make such a threat.

During the suppression hearing, testimony was received from Benack, an agency Labor Relations Administrator, that agency guidelines required DOW employees to cooperate in an internal investigation and that refusal to do so would trigger discipline including the possibility of termination. Benack further testified that prior to the interviews, the defendants each received a “Notice of Investigatory Interview “, i.e., the (“ Notice”). The “Notice” contained a written warning that “failure to answer questions, completely and accurately, may lead to disciplinary action up to and including termination.”

Benack could not remember exactly when the defendants were given the “Notice.” The trial court judge suppressed the defendants’ statements for a Fifth Amendment violation pursuant to Garrity, but the Ohio Court of Appeals reversed. The defendants petitioned the Supreme Court of Ohio for review.

The decision of the Ohio Supreme Court [1]

The Ohio Supreme Court reversed and suppressed the statements given to OIG investigator Nichols. The Court explained that “in Garrity, the United States Supreme Court held that the constitutional protection ‘against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.’” [2]

The Ohio Supreme Court explained further that “a State may compel a public employee’s cooperation in a job-related investigation, so long as the employee is not asked to surrender the privilege against self-incrimination.” However, “when the state compels the testimony in violation of the Fifth Amendment … it may not use that testimony against the witness in a subsequent criminal prosecution.”

In deciding the instant matter, the Ohio Supreme Court adopted the approach taken by the D.C. Federal Circuit Court of Appeals in United States v. Friedrick [3] regarding whether a public employee’s statement was coerced. In Friedrick, the D.C. Circuit ruled that a successful coerced statement claim requires a public employee to (1) “’have in fact believed his statements to be compelled on threat of loss of job and (2) this belief must have been objectively reasonable.’” [4]

The Ohio Supreme Court ruled that notwithstanding Benack’s inability to recall exactly when the defendants were furnished the “Notice” compelling their cooperation on threat of job loss, he never wavered in his recall that the defendants did receive the “Notice.” Further, the “Notice” itself implied that it was to be furnished to involved employees “prior to an investigatory interview.” This was sufficient to convince the court that the statements of the defendants were compelled, and that suppression was required.

Recommendations for handling police officer misconduct interviews

The Graham case highlights that a statement of a public employee taken during an internal misconduct inquiry upon threat of job loss cannot be used in a subsequent criminal proceeding. The recommendations set forth below are relevant to the constitutional issues discussed in Graham:

• In Graham, a wildlife officer was suspected of potential criminal conduct. Before deciding how to handle the situation, his superiors should have presented the known facts to the local prosecutor for a written opinion as to whether criminal charges will be pursued.
• Likewise, if the OIG had reason to suspect a cover-up, the OIG should have presented the matter to the county prosecutor before conducting its interviews. Here the OIG did not account for agency guidelines and the “Notice of Investigatory Interview” that compelled the defendants to speak upon threat of job termination. The result was contamination of employee statements and prevention of their use in the criminal proceeding that followed.
• When investigations are potentially criminal in nature, interviews with subject officers/officials must be entirely voluntary. Suspects should be told that the interview is criminal in nature; there is no departmental compulsion involved (i.e., threat of discipline or job loss); they have a right to remain silent; and anything said can be used in criminal proceedings.
• If the prosecutor does not intend to bring criminal charges, the appropriate decision-maker (agency director, police chief, etc.) should proceed with internal discipline procedures.
• At the time of an internal discipline interview, suspect officers should be told that the interview is for internal discipline and fitness-for-duty purposes; that they are ordered to speak or be subject to job dismissal; and that anything said or derived therefrom cannot be used in any criminal proceedings against them unless the answers provided are not truthful. [5]