‘Brown County Five’ appeals to High Court

Columbus — Five current and former employees of the DNR Division of Wildlife want the Ohio Supreme Court to review an appeals court’s decision that reinstated statements made by the employees to a state agency investigating possible wrongdoing by a wildlife officer.

Lawyers for former wildlife division Chief David Graham, former deputy chief Randy Miller, former law enforcement program administrator James Lehman, Human Resources Manager Michele Ward-Tackett and District 5 Manager Todd Haines filed an appeal Feb. 27 with the Supreme Court in Columbus.

“This case involves matters of great public and general interest and presents a substantial constitutional question,” wrote attorney John Woliver on the scope of self-incrimination protections for public employees facing investigations by the Ohio Inspector General, a state watchdog agency.

At issue, lawyers argued, is a U.S. Supreme Court decision commonly called the “Garrity warning,” given to public employees in internal investigations in which they are advised such statements cannot be used to criminally prosecute the employee.

Because the OIG investigator did not give such warnings before interviewing the five employees, "the question arises as to what extent can a state agency or law enforcement officials insulate themselves from Garrity by utilizing another agency to conduct the investigation," Woliver wrote in court papers.

The five employees were aware of a duty to cooperate with OIG “or lose their jobs” when they gave statements to the OIG investigator, Woliver claimed in court papers.

In its recent ruling, the appeals court for Brown County concluded the employees’ duty to cooperate truthfully, “whether from a statute, policy, or contract, does not alone create a need to immunize statements from later use in a criminal proceeding.”

As a result, the five employees interviewed by the OIG investigator were indicted by a Brown County grand jury on felony charges involving their roles in an administrative hearing of a former Brown County wildlife officer.

The Supreme Court is being asked to decide whether Garrity protection of public employees exists when they must cooperate with an OIG investigation or face loss of employment by refusing to give complete statements to the OIG investigator.

“Prosecutors, law enforcement officials, and courts need to know whether the bright line prohibiting prosecutors from even seeing Garrity protected material exists in this circumstance,” Woliver wrote on behalf of the five defendants.

A second question asked of the Supreme Court is whether the OIG investigator “by oversight or deliberate action” failed to provide a Garrity warning to an employee compelled to participate in an internal investigation.

A third question posed by lawyers for the Supreme Court is the role of the appeals-court review of  factual findings at a suppression hearing held in Brown County Common Pleas Court.

The appeals court took issue with testimony of a key state witness as “not founded on any personal knowledge or direct contact with any of the defendants and was very general in nature.”

“Establishing the scope and role of appellate review of a trial court’s actual findings in paramount,” Woliver wrote.

A hearing has been set for March 12 in Brown County Common Pleas Court to consider issues raised by the appeals court’s ruling.

The five defendants each face felony charges of obstruction of justice and complicity to obstruct justice.

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