Back in March, during the height of the so-called “Tobacco-gate” hysteria, the Ohio Inspector General announced indictments in Brown County of several Franklin County ODNR employees alleging that those employees decision to handle a personnel administratively, but without a criminal referral, constituted felony obstructing of justice and complicity to felony tampering of records.

The indictments were announced with much fanfare and were viewed as a veiled threat and “shot across the bow” to the Ohio Department of Public Safety which was embroiled in a very public fight over the Superintendant of the Highway Patrol’s decision of what the overwhelming evidence suggested was nothing more than a plot to smuggle tobacco into an Ohio prison by dropping it off for an inmate work crew working at the Governor’s Residence.

At the time, the Inspector General alleged that Ohio Department of Public Safety leaders had committed “perjury” and “obstructed official business” by—for example, stamping numbers on documents it produced to catalogue what was and was not produced.

Today, a Republican common pleas judge in Brown County ruled that the Ohio Inspector General violated the rights of those ODNR employees when they were compelled to give testimony to the Inspector General under penalty of termination if they refused, without being advised that they could have counsel present and that any testimony they provided could potentially be used against them in a criminal proceeding.  A full copy of the judge’s decision today is embedded below.

Brown Cnty ODNR Ruling

The Ohio Inspector General’s Office, claimed (under oath) that they did not know there was a statutory requirement that a person being investigated by an agency be informed of their right to have legal counsel present and advising them during questioning.

The judge didn’t buy that:

“Mr. Nichols repeatedly testified that at the time of the interviews of each of the defendant he did not believe the defendants had committed a crime.  As incredulous as this seems to the Court, Mr. Nichols testified only after all the interviews were concluded did he believe that the defendants committed crimes…”

“Despite Mr. Nichols’ testimony, it is clear from the tenor of all of the defendants’ interviews that OIG was investigating who decided to handle Defendant Wrights’ transgressions administratively as opposed to criminally.  It seems equally clear that Mr. Nichols did not give “Garrity” because he feared that would interfere with subsequent criminal charges as he noted in one of the interviews.” (emphasis added.)

The Brown County Prosecutor’s Office argued that despite the Ohio Inspector General’s violation of the Defendants’ federal and state constitutional and statutory rights, the “public policy” at stake in the criminal prosecution outweighed the Defendant’s individual rights.  The judge was not amused with this line of argument:

“The constitutional rights of these defendants and all citizens of the United States trump public policy 100% of the time.”

I would disagree and merely point out that the public policy is the rights of the Defendants from being compelled to give testimony that can criminally used against them or risk losing their jobs if they assert their constitutional rights not to testify and no such countervening public policy has ever been recognized.

The Court ruled that the State must produce transcripts of grand jury proceedings—usually kept secret—to determine what evidence and testimony by Mr. Nichols was based on the Defendants’ statements taken in violation of their civil rights and any other evidence derived in his investigation from such testimony.  If it turns out that the Defendants were indicted based on any such information, then the Court indicated it must dismiss the criminal case.

In other words, assuming for a second that the mere failure of a supervisor to punish an employee administratively without involving criminal prosecution did constitute a felony, the Court found that Tom Charles’ office’s blatant, and in the Court’s opinion, intentional disregard for civil rights was so pervasive that it compromised the investigation so severely that it has rendered any such case unprosecutable.

I reached out to recently terminated Ohio Department of Public Safety lawyer Josh Engel for his reaction.  He indicated to me over the telephone that this was, in part, why he had the agency’s IT department set up that any e-mail to/from the Inspector General’s office from an agency employee also went to him.  He was concerned that the IG’s loose practices and procedures could create a similar Garrity violation that could compromise criminal investigations being undertaken by Public Safety agencies such as the Ohio Highway Patrol.  It should be noted that months after the IG’s report and countless other media stories, there have been no criminal charges filed against anyone as a result of the IG’s investigation into “Tobaccogate.”

Who watches the Watchman?  The Inspector General has such unchecked power and authority in handling his investigatory duties that when evidence of widespread and intentional disregard of the civil rights of others is uncovered there is only one remedy.  He is in a position where there is no room for error, especially when it comes to the civil rights of those subjected to his office’s otherwise unchecked investigatory powers.  Mr. Nichols needs to be terminated, and someone must investigate whether this has been a common practice by the IG’s office, and if so, Tom Charles must resign or be terminated.

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