Brown County Five appeal to State Supremes

With documents filed Monday the five indicted current and retired Ohio Division of Wildlife officials are asking the State Supreme Court to aid in their cause, rebuffing a decision rendered by the Ohio 12th District Court of Appeals.

That decision came about by an appeal made by Jessica A. Little, prosecutor for Brown County, after she had earlier lost a decision rendered by Brown County Common Pleas Court Judge Scott Gusweiler.

At issue is the so-called Garrity Rule, which broadly protects at least some government employees from testifying before an administrative investigation if the individual fears that his or her job is at stake by not answering.

The five plaintiffs - now-retired Wildlife Division chief David Graham, now-retired assistant chief Randy Miller, now-retired agency law enforcement administrator James Lehman, and current Wildlife Division human resource manager Michele Ward-Tackett, and Wildlife District Five (southwest Ohio) manager Todd Haines - claim in the documents prepared by their attorneys that, yes, Garrity applies to them just as it did for former state wildlife officer Allan Wright.

Wright pleaded guilty last week in federal court to four criminal charges related to violations of the Lacey Act. 

In the filed document’s table of contents  the plaintiff’s attorneys argue that:

n “Any public employee compelled by threat of job termination to participate in an investigation by the Ohio Inspector General must be afforded that employee’s constitutional rights against self incrimination establish by Garrity v. New Jersey.”

n “The failure or refusal to provide a public employee Garrity warnings by an agency conducting an administrative investigation does not obviate a public employee’s Fifth Amendment rights established by Garrity, those rights are self-executing.”

n “When considering a motion to suppress, a trial court is in the best position to resolve factual questions and evaluate the credibility of the witnesses.”

It remains Little’s position that Garrity does not apply to higher ups in the chain of command, including those who lead the Ohio Division of Wildlife.

Thus, Little believes, the Garrity Rule is an unique legal signature that while applicable to Wright is not intended to likewise nest the other five current and retired officials.

Little has also long expressed the view that regardless of which party was championed in the appellate court the matter of Garrity’s application ultimately would end up before the state Supreme Court's seven justices.

“I’m not surprised by it,” Little said of the most recent appeal. “I will file a memorandum opposing their jurisdiction.”

Little also said the State Supreme Court has its own docket to deal with so the wheels of decision-making will probably grind slowly. That is true even if the 12th District Court of Appeals does certify a conflict, which then would put the matter squarely in the laps of  the State Supreme Court.

However, if the 12 District Court of Appeals does not certify a conflict then the State Supreme Court will take it only on what is called a “discretionary appeal,” Little said.

“So the State Supreme Court may or may not take i at all,” Little said. “I wouldn’t be surprised to see that it
goes before the State Supreme Court."

Also, a pretrial hearing that was scheduled for March 12 in Brown County Common Pleas Court is still on tap, Little says.

“I really don’t know what will be accomplished, though,” Little said.

Jeffrey L. Frischkorn
JFrischkorn@News-Herald.com
Twitter: @Fieldkorn