991 N.E.2d 1116 (Ohio 2013), 2012-0338, State v. Graham

Docket Nº:2012-0338.
Citation:991 N.E.2d 1116, 136 Ohio St.3d 125, 2013-Ohio-2114
Opinion Judge:FRENCH, J.
Party Name:The STATE of Ohio, Appellee, v. GRAHAM et al., Appellants.
Attorney:Jessica A. Little, Brown County Prosecuting Attorney, for appellee. Gary Rosenhoffer, Batavia, for appellant David Graham. John Woliver, for appellant Randy Miller. Michael P. Kelly, Mount Orab, for appellant Michelle Ward-Tackett. Michael E. Cassity, Mount Orab, for appellant James Lehman. J. Mi...
Case Date:May 29, 2013
Court:Supreme Court of Ohio

Page 1116

991 N.E.2d 1116 (Ohio 2013)

136 Ohio St.3d 125, 2013-Ohio-2114

The STATE of Ohio, Appellee,


GRAHAM et al., Appellants.

No. 2012-0338.

Supreme Court of Ohio.

May 29, 2013

Submitted Jan. 22, 2013.

Page 1117

Jessica A. Little, Brown County Prosecuting Attorney, for appellee.

Gary Rosenhoffer, Batavia, for appellant David Graham.

John Woliver, for appellant Randy Miller.

Michael P. Kelly, Mount Orab, for appellant Michelle Ward-Tackett.

Michael E. Cassity, Mount Orab, for appellant James Lehman.

J. Michael Dobyns, Wilmington, for appellant Todd Haines.

Paul L. Cox, Columbus, and Mike Piotrowski, urging reversal on behalf of amicus curiae, Fraternal Order of Police of Ohio, Inc.


{¶ 1} This appeal asks whether the United States Supreme Court's holding in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)— that statements obtained from a public employee under threat of job loss are unconstitutionally coerced and inadmissible in subsequent criminal proceedings— required the trial court to suppress statements by employees of the Ohio Department of Natural Resources (" ODNR" ) during an investigation

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conducted by the Ohio inspector general (" OIG" ). We hold that it did.

Facts and Procedural History

{¶ 2} At all relevant times, appellants were five upper-level employees of ODNR's Division of Wildlife (" DOW" ): Division Chief David Graham, Assistant Chief Randy Miller, Human Resource Manager Michele Ward-Tackett, Law Enforcement Executive Administrator James Lehman, and District Manager Todd Haines.

{¶ 3} In September 2009, a confidential informant contacted the OIG to allege that Brown County DOW wildlife officer Allan Wright had engaged in misconduct that DOW officials had not investigated properly. According to the informant, Wright assisted his nonresident friend, a South Carolina wildlife officer, in obtaining an Ohio-resident hunting license by allowing him to list Wright's home address as his own. This allowed Wright's friend to pay a resident license fee of $19 instead of the nonresident license fee of $125.

{¶ 4} The OIG asked ODNR Director Sean Logan to investigate the alleged 2006 misconduct involving Wright and to prepare a report. The following month, Logan responded that the DOW had already completed an investigation in August 2008. Dissatisfied with the DOW investigation, the OIG assigned Deputy Inspector Ron Nichols to investigate. Nichols interviewed appellants— the DOW [136 Ohio St.3d 126] personnel involved in the Wright investigation— at different times between December 22, 2009, and February 1, 2010. Prior to the questioning, each appellant signed an oath that included the following statement: " I understand that by affirming my truthfulness under oath, I am subject to criminal sanctions if I provide false information." Nichols did not advise appellants of any right to counsel before each interview.

{¶ 5} During the interviews, appellants revealed that consistent with reciprocal practices in other states, prior practice within the DOW allowed wildlife officers from other states to obtain Ohio-resident hunting licenses as a way to encourage interstate networking and cooperation, although there are some discrepancies between the appellants' statements as to when the practice began and when it ended. In March and October 2008, appellant Graham issued memoranda reminding division employees about the need to purchase out-of-state licenses; the October memorandum expressly prohibited DOW employees from accepting free or discounted licenses in other states (even if those other states allowed it) and from permitting nonresident friends to obtain free or discounted licenses in Ohio.

{¶ 6} Appellants told Nichols that after learning that Wright had allowed an out-of-state wildlife officer to use Wright's home address, they had decided to handle Wright's misconduct administratively rather than report it to the ODNR director as a possible criminal violation. Collectively, appellants determined that Wright's misconduct fell into the ODNR disciplinary-guidelines category of " failure of good behavior" and decided that a verbal reprimand was the proper sanction.

{¶ 7} During his questioning, Nichols asked each appellant whether Wright's falsification of the license was a crime and why they, collectively, had decided not to pursue a criminal investigation. He asked several of the appellants how they could have disciplined Wright administratively for a 2006 violation of an internal prohibition that did not exist until Graham's 2008 memo. And he suggested to appellants Haines and Graham that perhaps appellants had decided to issue a verbal reprimand for this nonexistent violation under the catchall category of " failure of good behavior" because then Wright could not file a grievance over it and no one would

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ever know about it. Each appellant testified at length, however, about the various factors that went into his or her decision-making, including the DOW's past practice of allowing nonresident wildlife officers to obtain resident licenses, Wright's history and tenure at the ODNR, and Wright's use of his own home address, which indicated that he was not trying to hide anything.

{¶ 8} In March 2010, the OIG issued an investigative report. The report concluded that Wright had committed wrongdoing by allowing an out-of-state [136 Ohio St.3d 127] wildlife officer to obtain an Ohio-resident hunting license using Wright's home address. Wright's excuse for doing so, according to the report, was that it was common practice in southwest Ohio to allow out-of-state wildlife officers to obtain resident licenses.

{¶ 9} The report also concluded that appellants had improperly failed to report Wright's criminal conduct to the ODNR director or chief legal counsel, as required by the policies of the governor and the ODNR. The report stated that appellants had not verified whether Wright had been adhering to a common practice that his supervisors were aware of, as Wright claimed, and that appellants used the alleged practice as an " excuse to disregard the criminal violation." The OIG forwarded the report to the Brown County prosecuting attorney.

{¶ 10} In April 2010, a Brown County grand jury indicted each appellant on one count of obstructing justice and one count of complicity in obstructing justice, each a fifth-degree felony. Appellants filed motions to suppress or, alternatively, dismiss, on the ground that their statements to Nichols were coerced by threat of job loss and were therefore inadmissible under Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. The state countered that Gar...

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