Bloomberg Law®, an integrated legal research and business intelligence solution, combines trusted news and analysis with cutting-edge technology to provide legal professionals tools to be...
By Bebe Raupe
CINCINNATI--Public employees' statements made under threat of job loss during an administrative investigation are inadmissible in subsequent criminal proceedings against them, the Ohio Supreme Court ruled May 29 (State v. Graham, Ohio, No. 2012-0338, 5/29/13).
In a 7-0 decision, the court reversed a ruling by the Ohio's Court of Appeals, saying it did not follow the U.S. Supreme Court's decision in Garrity v. New Jersey, 385 U.S. 493 (1967), which says that an employee seeking suppression of comments must have reasonably believed “statements to be compelled on threat of loss of job.”
As a result of the ruling, felony charges against five Ohio Department of Natural Resources officers will be dismissed, according to the county prosecutor handling the case. “Without the statements, there is insufficient evidence to obtain a conviction,” the prosecutor said in a statement.
Following the investigation, the OIG's report was sent to Brown County's prosecuting attorney. The report concluded that the five knew that a subordinate improperly obtained a state-resident hunting license for a South Carolina friend and that they violated their duty by failing to report the illegal conduct for potential criminal prosecution.
The managers filed motions to suppress use of the statements they had made during the OIG investigation, citing Garrity.
The trial court granted their motion to suppress, noting that before the interview the officers had been given a copy of a departmental policy stating “failure to answer [the OIG's] questions, completely and accurately, may lead to disciplinary action up to and including termination.” But the ruling was reversed on appeal.
“Because appellants spoke to [an OIG investigator] 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,” French wrote.
The case hinged on worker protections affirmed by the 1967 ruling that held public employees cannot be compelled to incriminate themselves by their employer, the state supreme court said. In that case, statements made by police officers under the threat of firing in a departmental ticket-fixing probe could not be used during subsequent criminal proceedings against them.
Chief Justice Maureen O'Connor and Justices Paul E. Pfeifer, Terrence O'Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O'Neill joined in the unanimous opinion.
Brown County Prosecuting Attorney Jessica A. Little in Georgetown, Ohio, represented the state. Gary A. Rosenhoffer in Batavia, Ohio, John Woliver in Batavia, Michael P. Kelly in Mount Orab, Ohio, Michael E. Cassity in Mount Orab, and J. Michael Dobyns in Wilmington, Ohio, represented the officers.
Text of the ruling is available at /uploadedfiles/BNA_V2/Images/From_BNA_V1/News/2013-Ohio-2114-1(2).pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)