The Ohio Supreme Court has held that the statements by state employees, who answered questions by the Ohio Inspector General after receiving a warning that they could be fired for failing to do so, could not be prosecuted on the basis of those statements.

The case is State v. Graham, Slip Opinion No. 2013-Ohio-2114.]

The case involved five employees of the Ohio Department of Natural Resources (“ODNR”).  A Brown County DOW wildlife officer had a South Carolina wildlife officer, in obtaining an Ohio-resident hunting license, saving the out of state officer $106 on the license fee.  The ODNR employees conducted an administrative investigation and issued the officer a reprimand.

The Ohio Inspector General (“OIG”) began an investigation.  The OIG investigator interviewed the ODNR employees.  The OIG investigators did not tell the ODNR employees that they had the right to counsel.   The OIG investigator focused on whether the wildlife officer had committed a criminal act that should have been reported to law enforcement.

The OIG concluded that the ODNR employees had improperly failed to report criminal conduct to the appropriate authorities.  The Brown County Prosecutor, relying on the OIG investigation, indicted the ODNR employees on felony obstructing justice charges.

The ODNR employees sought to dismiss the charges on the grounds that the statements to the OIG were coerced by threat of job loss and were therefore inadmissible under Garrity.

The Ohio Supreme Court agreed.

Ohio law requires state employees to cooperate with an OIG investigation.  In addition, the ODNR employees received an “ODNR Notice of Investigatory

Interview” warning that  provided that their failure to answer the OIG questions truthfully “may lead to disciplinary action up to and including termination.”

State employees retain their rights under the Fifth Amendment. 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.” 385 U.S. at 500.  The Ohio Supreme Court observed that Garrity rests on “reconciling the recognized policies behind the privilege against self-incrimination and the government’s need to obtain information.”

The general rule is that that the state may compel a public employee’s cooperation in a job-related investigation, however, any incriminating answers from the employee obtained during the investigation cannot be used against the employee in criminal proceedings.

In this case, Garrity  would be applicable if  (1) the ODNR employees believed that their statements were compelled on threat of job loss and (2) this belief  was objectively reasonable.   The Supreme Court concluded tat Garrity was applicable because

the threat of discharge contained in the notice was sufficient proof that they subjectively believed they could be fired for refusing to cooperate with [the OIG] 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 [the ODNR employees] spoke to [the OIG] 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. 

The state attempted to escape the conclusion by suggesting that the OIG is “a toothless agency with little or no coercive powers.”  The Ohio Supreme Court rejected this argument.  The court concluded that the OIG has substantial powers to obtain information and report alleged wrongdoing.