According to the Court’s opinion, the OIG received a report
in September 2009 that a local office of the Ohio Department of Natural
Resources had failed to properly investigate, report and discipline an employee
for a 2006 incident of misconduct. ODNR responded that it had investigated and
handled the incident in 2008.
Dissatisfied, OIG conducted its own investigation between December 2009
and February 2010 that largely focused on the 2008 investigation. Employee witnesses signed a statement acknowledging
that they could be criminally prosecuted for making false statements. They had also received an unsigned and
undated statement from ODNR that they could be disciplined or terminated for
failing to cooperate with the investigation.
[E]ach received an ODNR “Notice of Investigatory Interview,”
which informed them that their refusal to cooperate could subject them to
discipline. The notice contained the following warning: “This interview is part
of an official investigation and failure to answer questions, completely and
accurately, may lead to disciplinary action up to and including termination.”
The defendant employees admitted the incident occurred as
reported, but decided to verbally reprimand the employee instead of reporting
him to the ODNR Director for a possible criminal violation. They claimed they had done so because of
inconsistent past practice, the employee’s tenure and the fact that it was
clear that the employee had not tried to disguise his conduct, but the
inspector suspected it was to avoid the matter becoming public through a
grievance of any greater disciplinary action.
The OIG report was sent to the local prosecuting attorney, which
convened a grand jury. The defendant
employees were indicted for obstruction of justice. The trial court suppressed the incriminating statements
made during the OIG investigation, but was reversed on appeal on the grounds
that the OIG never threatened them with job loss and the ambiguous testimony
about when they received the ODNR warning should have been excluded. This appeal followed.
As previously discussed here, public employees cannot be compelled to cooperate with an internal investigation in violation of their Fifth Amendment right against self-incrimination by being told to choose between maintaining their employment and incriminating themselves. Consequently, they are often given a “Garrity” warning: nothing said during the internal investigation can be used against them in a criminal prosecution, but failing to respond completely and truthfully to the questions could lead to disciplinary action. In this case, none of the defendant employees were given a Garrity warning prior to the OIG investigation and their statements were used before the grand jury and in the subsequent criminal prosecution.
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. Id. at 84. For example, the
state may compel incriminating answers from its employee if neither those
answers nor the fruits thereof are available for use against the employee in
criminal proceedings. Id.; Jones v. Franklin Cty. Sheriff, 52
Ohio St.3d 40, 44, 555 N.E.2d 940 (1990) (a grant of immunity preserves the
privilege because no statement made in that context is incriminatory). But
when the state compels testimony by threatening potent sanctions unless the
witness surrenders the constitutional privilege, the state obtains the
testimony in violation of the Fifth Amendment, and it may not use that
testimony against the witness in a subsequent criminal prosecution. Cunningham
at 805; State v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621, 927 N.E.2d
574, ¶ 14 (plurality opinion) (a prosecutor cannot make “direct or derivative
use” of statements that were compelled under threat of termination). This
balance “provid[es] for effectuation of the important public interest in securing
from public employees an accounting of their public trust.” Cunningham at
806.
Some lawyers have argued
that Garrity only applies to police
officers, but the U.S. and Ohio Supreme Court disagrees:
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.” Id., 385 U.S. at 500, 87 S.Ct. 616, 17
L.Ed.2d 562.
In this case, the employees were never explicitly threatened
by the OIG with the loss of their job if they refused to cooperate with the OIG
investigation, but they were warned by their employer, the ODNR, about possible
disciplinary action (which could include termination). Therefore, the Court explained the
circumstances when an implicit threat rises to the level of coercion:
[F]or a statement to be suppressed under Garrity, the
employee claiming coercion must have believed that his or her statement was
compelled on threat of job loss and this belief must have been objectively
reasonable. In examining whether an employee’s belief was objectively
reasonable under the circumstances, evidence of an express threat of termination
or a statute, rule, or policy demanding termination will almost always be
sufficient to show coercion.
In this case, there had been some ambiguity about when each
of the defendants received the written ODNR warning in connection with the
investigation. But the HR employee had
been clear that each defendant received such a warning.
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 [from OIG].
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, 385 U.S. 493, 87 S.Ct. 616, 17
L.Ed.2d 562, as interpreted by Friedrick, 842 F.2d 382.
The Court also rejected the argument that OIG cannot as a
matter of law coerce employees under the Fifth Amendment because it lacks the
authority to arrest, criminally prosecute or discipline witnesses. The Ohio Revised Code invests the OIG with
broad investigatory powers.
Although the OIG cannot directly discipline employees of
other state agencies, it is statutorily required to “report the wrongful acts
or omissions, as appropriate under the circumstances, to * * * the person’s
public or private employer for possible disciplinary action.” R.C. 121.42(C).
In this respect, the purpose of the OIG’s investigation is similar to the scope
of the investigation conducted by the state attorney general in Garrity,
who was ordered by the state supreme court to make a report.
Nonetheless, the Court also rejected the argument that every
OIG investigation is necessarily coercive.
Other than the express threat contained in the ODNR notice,
there is scant evidence establishing that appellants subjectively believed that
they were compelled to cooperate with the OIG investigation. . . . Unlike the
officers in Garrity, appellants were neither threatened by their
interrogator nor confronted with a statute mandating removal from office. . . . R.C. 121.45 does not, as appellants suggest,
threaten any form of employment-related discipline. Nevertheless, the express
threat in the ODNR notice was sufficiently coercive so as to trigger the
protections of Garrity.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
