Court throws out DNR’s criminal case
Georgetown, Ohio — A Brown County judge has dismissed felony charges against five former and current Ohio DNR employees, including David Graham, the former chief of the Division of Wildlife.
Judge Scott Gusweiler granted the motion to dismiss May 31, which was filed by Brown County Prosecutor Jessica Little a day after the Ohio Supreme Court May 29 unanimously upheld Gusweiler’s ruling the employees’ statements to a state watchdog investigator could not be used in their pending criminal cases.
“Without the statements, there is insufficient (evidence) to obtain a conviction,” Little said of her decision to dismiss the indictments against Graham, former DOW Deputy chief Randy Miller, former DOW Law Enforcement Program Administrator James Lehman, Human Resources Manager Michele Ward-Tackett, and DOW District 5 Manager Todd Haines. All five had pleaded not guilty to charges of obstruction of justice and complicity to obstruct justice.
“We understand, respect, and will abide by the decisions made by the Ohio Supreme Court and the Brown County Prosecutor’s Office,” according to a statement issued by DOW Chief Scott Zody.
Former Deputy Chief Miller was “very happy and tremendously relieved” to have the charges dismissed, said his attorney, John Woliver of Batavia, Ohio. “I believe there were political overtones to the whole investigation. Someone was in search of embarrassing the ODNR.”
Woliver said the five current and former DNR officials had exemplary careers of public service and the IG investigation was “an abuse of power.”
In his ruling to throw out the statements, trial Judge Gusweiler noted “it is clear from the tenor of all the defendants’ interviews that the OIG was investigating who decided to handle defendant (Allan) Wright’s transgressions administratively as opposed to criminally.”
Gusweiler also concluded the defendants were state employees of long standing, “knew they had to cooperate,” and “had to answer fully and truthfully or risk disciplinary action up to and including termination.”
The five employees were indicted on charges related to their roles in an administrative hearing of former Brown County Wildlife Officer Allan Wright. Wright was investigated internally for allowing an out-of-state wildlife officer to purchase a $19 resident hunting license rather than a $125 nonresident license.
Wright was given a verbal reprimand by DOW brass. A Brown County indictment against Wright was dismissed. He was later convicted of federal wildlife violations.
In its 14-page decision, the Supreme Court reversed a ruling by the Court of Appeals for Brown County that found the five employees’ statements did not trigger the so-called “Garrity warning” given in internal investigations in which they are advised such statements cannot be used to criminally prosecute the employee.
The Supreme Court found the five employees answered questions after receiving a warning that they could be fired for failing to do so.
“Statements extracted under these circumstances cannot be considered voluntary within the meaning of Garrity,” the Supreme Court concluded. The court’s opinion reinstated Gusweiler’s ruling to bar statements made in interviews conducted by the OIG.
“It was a correct decision,” attorney Woliver said. “The court understood the constitutional underpinnings of the case.”
In January, Woliver told the Supreme Court that statements made to an IG investigator in 2009-2010 by the employees were compelled under ODNR policies that required the employees to truthfully cooperate with the IG investigation or risk possibly being fired from their jobs.
The five DOW employees were high-level officials, Woliver said.
“They did not get to that position without knowing the consequences of refusal of cooperating with the (IG) investigation,” he said.