Jones v. Franklin County Sheriff

Douglas, J.,

dissenting. Because the majority opinion contains a number of rather remarkable statements that, I believe, cannot withstand scrutiny, I respectfully, but vigorously, dissent. In addition, I write because it is hard for me to believe that the court of last resort in this state — a court whose sworn obligation it is to protect the constitutional rights of citizens — can fail so miserably when put to the test. I comment on only a few of the most troubling comments and conclusions of the majority.

I begin with the majority’s statement that “* * * public employees can be required to answer potentially incriminating questions, so long as they are not asked to surrender their constitutional privilege against self-incrimination. * * *” That statement, in and of itself, is internally contradictory. Giving the majority the best of it, *49apparently what is meant is that public employees, after being properly immunized, can be required to answer questions that might incriminate them and lead to criminal prosecution, absent proper immunization. If that is what the majority really means, then the majority should say so because that is the law for all citizens — not just public employees.

But I fear that is not what the majority means, given the facts of this case. As will be discussed infra, Officer Jones was not “immunized,” because the proper procedure for granting immunity was not followed. Thus, the majority opinion leaves the law in the state that all public employees can be required to incriminate themselves — or lose their jobs — a likely result in any event if they do in fact incriminate themselves.

I recognize that public-employee bashing is fashionable. What some members of the majority have against public employees in general — and police officers and fire fighters in particular (see Rocky River v. State Emp. Relations Bd. [1988], 39 Ohio St. 3d 196, 530 N.E. 2d 1, vacated on reconsideration [1989], 43 Ohio St. 3d 1, 539 N.E. 2d 103; see, also, State, ex rel. Clark, v. Greater Cleveland Regional Transit Auih. [1990], 48 Ohio St. 3d 19, 548 N.E. 2d 940; Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio [1989], 46 Ohio St. 3d 147, 545 N.E. 2d 1260; Lorain City Bd. of Edn. v. State Emp. Relations Bd. [1988], 40 Ohio St. 3d 257, 533 N.E. 2d 264; South Community, Inc. v. State Emp. Relations Bd. [1988], 38 Ohio St. 3d 224, 527 N.E. 2d 864; Central Ohio Transit Auth. v. Transport Workers Union of America, Local 208 [1988], 37 Ohio St. 3d 56, 524 N.E. 2d 151) — is difficult to understand, but to now take away such persons’ Fifth Amendment rights is impossible to comprehend. While public employees should not be accorded “favored status,” neither should they be made second-class citizens. Yet, today, the majority does just that by according to public employees less constitutional protection than other citizens enjoy. x

In answer to the Fifth Amendment argument, the majority contends that “[t]he privilege against self-incrimination is preserved because a statement by investigators that nothing said at the hearing can be used at a subsequent criminal proceeding effectively immunizes that testimony from later use by a prosecutor. * * *” If that statement of law was not so serious, yea astounding, it would be laughable.

Broken down to its simplest terms, this statement says that police investigators, investigating another police officer for suspected criminal activity, can in effect accord the suspected officer (a public employee) absolution for whatever criminal activity has occurred and has been admitted to investigators. Further, the majority then binds prosecutors from ever using such information in any criminal proceeding. In short, we are placing in the hands of those who are charged with the responsibility of enforcing the law the right to forgive those who may have broken the law. This cozy little deal may seem to make sense to the majority but I submit that the price the majority is paying to achieve its predetermined result (to fire Officer Jones) is just too high.

The majority’s result sanctions official lawlessness — lawlessness of the worst sort since the very people engaging in it are those whom we depend upon to enforce the law. If we permit this, who will watch the watchman?

Further, to support its position, the majority says that “Jones was informed that any evidence or information obtained from the interview could *50not be used against her in a subsequent criminal proceeding * * Later in the opinion, the majority equates this to an FBI agent being required to answer questions truthfully “* * * in an internal affairs investigation after being granted immunity. * * *” (Emphasis added.)

The majority states the law right — “after being granted immunity.” The problem here is, however, that Officer Jones was not given immunity despite what the majority says or believes. Immunity from prosecution cannot be given i by police officers or even prosecutors. In the criminal justice system, immunity can be granted only by judges after certain mandated procedures are followed. Any good lawyer accompanying a targeted person to an internal affairs investigation hearing would know that immunity could not be lawfully given by investigators. Even if such a course of action were lawful, only a naive person would accept that the information revealed would not be used to provoke an independent investigation of the suspected officer while, all the time, it would be maintained that the officer’s actual statements were not being used against the officer.

Can any of us, with a straight face, really argue that if an officer, in an internal affairs investigation, after being given “immunity” by an investigating officer, admits to having committed a crime and that information comes into the hands of the county prosecutor or a judge of the county, that the prosecutor or judge would not see to it that the officer is prosecuted? To accept that proposition would be to accept that such officials would breach their sworn duty. L am not prepared to accept such a proposition.

Just as grievous as the foregoing is the citation of authority by the majority. The majority cites several cases to support its conclusion that Officer Jones could properly be discharged for exercising her Fifth Amendment privilege against self-incrimination. Specifically, the majority cites Garrity v. New Jersey (1967), 385 U.S. 493; Gardner v. Broderick (1968), 392 U.S. 273; Uniformed Sanitation Men Assn., Inc. v. Commr. of Sanitation (1968), 392 U.S. 280; Lefkowitz v. Turley (1973), 414 U.S. 70; and Lefkowitz v. Cunningham (1977), 431 U.S. 801. My concern is that these cases not only do not support the majority’s position but, rather, support the conclusion that dismissing Officer Jones for her failure to answer potentially incriminating questions clearly violated her Fifth Amendment privilege against self-incrimination. Therefore, Officer Jones could not be dismissed on that basis. A thorough review of these cases illustrates how today’s majority opinion runs afoul of the United States Supreme Court’s pronouncement on the issue presented by this appeal.

In Garrity, supra, the Supreme Court of New Jersey ordered the attorney general to investigate alleged irregularities occurring in the municipal courts. During the investigation, police officers were questioned regarding the alleged irregularities. Before questioning, each .officer was warned that anything the officer said could be used against him or her, that the officer had the privilege to refuse to answer questions, but that if the officer refused to answer questions, the officer would be subject to removal from office. (A New Jersey statute provided for the removal of a public employee if the employee refused to answer the inquiry.)

The police officers answered the questions although the officers received no grant of immunity because no immunity statute was applicable under the circumstances. Answers of some of the officers were subsequently *51used against them in securing their criminal convictions.

Based upon these facts, the United States Supreme Court concluded that the statements obtained from the officers were coerced under threat of removal from office. Therefore, the statements could not be used against the officers in a subsequent criminal prosecution. Id. at 500.

Thus, Garrity stands for the proposition that if a public employee is forced to choose between answering questions when the answers may incriminate him on the one hand, and forfeiting his job for failure to answer on the other hand, any statements by the employee are not voluntary and cannot be used against him or her in a subsequent criminal prosecution.

In Gardner, supra, a police officer was called to appear before a New York County grand jury investigating alleged bribery and corruption of police officers. The officer was advised of his privilege against self-incrimination. At the time in question, the Charter of the City of New York provided for the termination of a public employee if the employee failed to waive immunity from prosecution. Since the officer was called to testify before the grand jury, and a grand jury witness is provided immunity from prosecution under New York law,2 the officer was asked to waive the immunity from prosecution or be terminated for failure to do so. The officer refused to sign the waiver of immunity and was discharged.

In Gardner, the issue before the court was whether a state may discharge an officer for refusing to waive the privilege against self-incrimination. Id. at 277. In addressing this issue, the court stated that:

“* * * If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself * * * the privilege against self-incrimination would not have been a bar to his dismissal.

“The facts of this case, however, do not present this issue. Here, petitioner was summoned to testify before a grand jury in an investigation of alleged criminal conduct. He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination. * * *” (Emphasis added; footnote omitted.) Id. at 278.

The court reached the conclusion that the officer could not constitutionally be dismissed for failing to waive the statutory grant of immunity. Id. at 279. In doing so, the Supreme Court recognized that a public employee could properly be dismissed for failing to answer certain questions if the employee was not required to waive immunity from use of his answers, i.e., if the employee had immunity during questioning.

Therefore, Gardner stands for the proposition that dismissing a public *52employee because the employee asserts the privilege against self-incrimination is constitutionally impermissible unless the employee is granted immunity (without being required to waive it once granted) so that any statements cannot be used against the employee for purposes of securing a criminal conviction.

Sanitation Men, supra, and Gardner were companion cases involving the same substantial question. In Sanitation Men, public employees were summoned to testify before a properly authorized investigating officer. Each employee was advised that in accordance with the Charter of the City of New York (the same charter referred to in Gardner), he could be dismissed for failing to testify. Some of the employees asserted their Fifth Amendment privilege and were dismissed for failing to answer the questions. Some other employees answered the questions but refused to sign waivers of immunity when summoned before the grand jury. (As in Gardner, immunity was granted by statute.)3 These employees were dismissed for failure to waive immunity.

Relying on Gardner, the United States Supreme Court clearly and unambiguously held that the employees were faced with a choice between surrendering their constitutional rights or their jobs and that is constitutionally impermissible. However, if the employees were compelled to answer certain questions without surrendering their constitutional rights, dismissal would be appropriate. Id. at 284-285.

Therefore, Sanitation Men and Gardner clearly hold that in the absence of an effective grant of immunity, or when an employee is required to waive immunity which was once properly granted, public employees cannot be dismissed for invoking their Fifth Amendment privileges. If immunity is properly granted, employees can be required to answer certain questions, or be terminated for failing to do so, because the danger of self-incrimination is not present if the statements obtained are immunized.

In Turley, supra, two architects licensed by the state of New York were summoned before a grand jury. Grand jury witnesses were granted immunity under New York law.4 New York law also required public contracts to provide that if a contractor refused to waive immunity or answer questions in some situations, his existing contracts could be cancelled and the contractor disqualified from further transactions with the state for a specified period of time. The architects refused to waive immunity and then alleged that their present and future contracting privileges were threatened as a result of their having exercised their Fifth Amendment privilege.

Relying on Garrity, Gardner and Sanitation Men, the United States Supreme Court stated:

“We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from its employees and contractors that may be used against them in criminal proceedings, the Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such vise. * * * Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the *53power of the courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. * * * Also, given adequate immunity, the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of employment. By like token, the State may insist that the architects involved in this case either respond to relevant inquiries about the performance of their contracts or suffer cancellation of current relationships and disqualification from contracting with public agencies for an appropriate time in the future. But the State may not insist that appellees waive their Fifth Amendment privilege against self-incrimination and consent to the use of the fruits of the interrogation in any later proceedings brought against them. Rather, the State must recognize what our cases hold: that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence. Hence, if answers are to be required in such circumstances States must offer to the witness whatever immunity is required to supplant the privilege and may not insist that the employee or contractor waive such immunity.” (Emphasis added.) Turley, supra, at 84-85.

The preceding paragraph could not be more clear! Likewise, Cunningham, supra, also explicitly states that the “* * * government cannot penalize assertion of the constitutional privilege against compelled self-incrimination by imposing sanctions to compel testimony which has not been immunized.” Id. at 806.

Today’s majority has misinterpreted Garrity and its progeny and thus condones compelled incriminating answers to be given by all public employees without the grant of adequate immunity, or any immunity at all.

The Ohio Revised Code provides that immunity may be granted in certain limited circumstances and only upon compliance with the proper procedures (none of which is applicable in the case at bar). For example, R.C. 2945.44 provides in relevant part:

“(A) In any criminal proceeding in this state or in any criminal or civil proceeding brought pursuant to sections 2923.31 to 2923.36 of the Revised Code, if a witness refuses to answer or produce information on the basis of his privilege against self-incrimination, the court of common pleas of the county in which the proceeding is being held, unless it finds that to do so would not further the administration of justice, shall compel the witness to answer or produce the information, if both of the following apply:

“(1) The prosecuting attorney of the county in which the proceedings are being held makes a written request to the court of common pleas to order the witness to answer or produce the information, notwithstanding his claim of privilege;

“(2) The court of common pleas informs the witness that by answering, or producing the information he will receive immunity under division (B) of this section.

“(B) If, but for this section, the witness would have been privileged to withhold an answer or any information given in any criminal proceeding, and he complies with an order under division (A) of this section compelling him to give an answer or produce any information, he shall not be prosecuted or subjected to any criminal penalty in the courts of this state for or on account of any transaction or matter concerning which, in compliance with the order, he gave an answer or produced any information.” (Emphasis added.)

Pursuant to R.C. 2945.44, a court of common pleas is empowered to *54grant immunity to witnesses. Sheriffs sergeants are not!

Further,5 R.C. 2939.17 provides that a judge of the court of common pleas must grant immunity to a witness in a special grand jury proceeding upon proper written request of the Attorney General when the Attorney General has been directed to conduct an investigation or prosecution. Nowhere in R.C. 2939.17 are sheriff’s sergeants mentioned!

In the case at bar, the majority properly states that a police officer must answer questions that relate specifically and narrowly to the performance of her official duties when questions are asked in an internal affairs investigation if the officer is guaranteed that the answers cannot be used against her in a subsequent criminal prosecution. This statement is obviously supported by the decisions of the United States Supreme Court that I have just reviewed. However, the majority errs in concluding that Jones was guaranteed that her answers could not be used against her. No guarantee in the form of immunity from prosecution could be given under the circumstances absent compliance with an immunity statute. As such, Jones’s dismissal premised upon the exercise of her Fifth Amendment privilege against self-incrimination is constitutionally repugnant.

The majority also relies upon United States v. Friedrick (C.A.D.C. 1988), 842 F. 2d 382, to support its position. However, Friedrick does not deal with the issue before us concerning whether an employee may be discharged for invoking her Fifth Amendment privilege. Additionally, the majority fails to state that the employee in Friedrick was granted immunity as a potential grand jury witness.

Further, the majority relies on Donohoe v. Franhlin Cty. Sheriff (June 7, 1988), Franklin App. No. 87AP-648, unreported. In Donohoe, an employee refused to answer questions which could not incriminate the employee. The majority also cites Erwin v. Price (C.A. 11, 1985), 778 F. 2d 668, and Hobbie v. Medina (1985), 29 Ohio App. 3d 306, 29 OBR 405, 505 N.E. 2d 276. Erwin and Hobbie rely upon Garrity and its progeny and reach an erroneous result as does today’s majority. In any event, I fail to understand why the majority of this court relies upon federal and state appellate court opinions when the United States Supreme Court has decided the issue in question.

The majority apparently concludes that under Garrity, Jones was “guaranteed” that her statements could not be used against her because, of course, using the coerced statements in a criminal prosecution is unconstitutional. In doing so, the majority ignores the Supreme Court authority requiring that adequate immunity be granted before an employee can be discharged for refusing to answer questions. No immunity was granted and, hence, Jones’s dismissal was improper.

Assuming that we are willing to accept the majority’s rationale, however indefensible its position may be, I am still compelled to dissent from the majority’s opinion for several additional reasons. If public employees are to answer questions or lose their jobs for *55failure to do so, any statement made by an employee cannot be used against him or her in a subsequent criminal prosecution. Garrity, supra. Accepting this, should public officers be permitted in effect to absolve other public officers from any misdeed so as to deprive the state of Ohio from enforcing its laws? For example, if a public officer requires a public employee to answer questions regarding an alleged murder (or be fired for failing to answer), and the murder is admitted, the admitted murderer could go free. He could in practice be absolved of a crime with no criminal accountability to follow for this public employee’s lawlessness. While the majority may be able to accept this, I cannot!

Not only does the majority opinion sanction the violation of Jones’s rights, but today’s decision sanctions the violation of every public employee’s rights, including teachers, fire fighters and transportation workers, to name only a few. The majority also apparently stands ready to sanction the violation of attorneys’ constitutional rights. Where in the Fifth Amendment is there any provision that exempts from its protections public employees and members of the bar? In Garrity, the United States Supreme Court held that “* * * policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Id. at 500. Accordingly, today’s majority has clearly erred and appears ready to continue to do so.

In Spevack v. Klein (1967), 385 U.S. 511, the United States Supreme Court held that the Self-Incrimination Clause of the Fifth Amendment extends its protections to attorneys and should not be watered down by imposing penalties (such as disbarment) as a price for asserting it. Id. at 514. The court concluded that the attorney could not be disbarred for asserting the privilege. Id. at 518-519. Therefore, even the majority’s analogy between the case at bar and situations involving attorney discipline fails to support its position but, rather, supports the position of this dissent. Spevack is conspicuously absent from the majority opinion.

Finally, as a housekeeping matter I believe that the way the “facts” in the case at bar have been presented warrants some consideration. Normally, preceding the opinion of the court, we set forth a statement of fact supported by the record. In this section, we normally do not supplant facts with conclusions. However, the majority’s opinion in the present case has made several conclusions, representing those conclusions to be factual in nature.

Even worse than injecting conclusions into the statement of “fact” is what the majority has failed to include in the “facts.” Jones was afforded a predisciplinary hearing on February 11, 1986. On February 12, 1986, the sheriff wrote to Jones stating that, “[a]s a result of your pre-disciplinary hearing * * * I have decided to remove you from your position * * *.” (Emphasis added.) The removal order was also filed on February 12, 1986. However, the removal order was signed February 4, 1986, a full week prior to the predisciplinary hearing. As such, the decision to discharge was apparently made before Jones had an opportunity to be heard. Further, the order of removal did not even specify the charge of insubordination for failure to answer questions. As a result, Jones was discharged without her being given adequate notice of all the charges against her. The majority also fails to state that Jones had learned that criminal charges had been filed against her and that she was to be arrested following the internal affairs *56interview. In fact, Jones was arrested the same day that the internal affairs investigation ended. Even more interesting is that, as alleged by appellee and not denied by appellant, Jones was acquitted of all criminal charges by a jury of twelve. In my judgment, this leads to the inescapable conclusion that anything Jones said would have been used against her in trying to secure a criminal conviction of Jones.

Finally, the majority states that Jones was found to have violated Reg. 102.55. However, the ALJ did not specifically find that Jones violated Reg. 102.55 as that regulation is general, as opposed to specific in nature.

Today’s majority opinion is not only unsupported by legal authority, but runs afoul of every major pronouncement on the issue of Fifth Amendment privilege. The majority has taken an indefensible legal position in the issue before us and has attempted to support its position in an unprecedented fashion in order to reach, I fear, a predetermined result.

The sad part of all this is that there is no necessity to violate an officer’s (or any public employee’s) Fifth Amendment right to accommodate a public employer’s need to remove an employee, suspected of criminal activity, from active service. All that need be done is to place the employee on suspension (with or without pay), proceed with an investigation and then prove the allegations as in any other criminal case without the coerced testimony of the accused. To preserve precious constitutional rights, is this asking too much? Hardly — and it makes no difference that there might be a provision in a collective bargaining agreement requiring coerced testimony. An unconstitutional provision is unconstitutional wherever it may be found.

It is not good enough that “the end justifies the means.” When contemplating this, we should be ever mindful of the words of Justice Brandeis found in his dissent in Olmstead v. United States (1928), 277 U.S. 438, 479, where he admonished that: “[I]t is * * * immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

It is my judgment that in a society which prides itself on being based upon law rather than might, the governors, as well as the governed, must obey the law.

For all the foregoing reasons, I am compelled to respectfully dissent.

Between 1953 and 1971, grand juries were authorized by statute to grant immunity under New York law. See former Penal Law Section 2447 (L. 1953, Chapter 891, eff. Sept. 1, 1953); N.Y. Session Laws Section 619-c, Chapter 681 (McKinney 1967). Since 1971, grand jury witnesses have been provided automatic immunity under New York law. N.Y. Consol. Laws Ann., Criminal Procedure, Section 190.40 (L. 1970, Section 190.40, Chapter 996, eff. Sept. 1, 1971).

See fn. 2, supra.

See fn. 2, supra.

Other statutes which provide for the grant of immunity are contained throughout the Revised Code. See, e.g.,R.C. 101.44 (witnesses called before the General Assembly). However, no statute empowers sheriff’s sergeants to confer immunity.