The legal battle between the city of Columbus and members of the Division of Police continued Friday after the city ordered six officers to give interviews to an independent investigator looking into potential criminal misconduct by police.
Nicole Wannemacher, a labor attorney for Fraternal Order of Police Capitol Valley Lodge No. 9, said a grievance was filed with the city on Friday, as well as a motion for a restraining order in Franklin County Common Pleas Court. The restraining order will be filed to allow the grievance to be dealt with prior to any interviews taking place. The first interview is tentatively scheduled for Monday.
The motion for a restraining order cites violations of six sections of the police union contract by the city, as well as violations of the Ohio Constitution.
“Not only are the City’s actions in violation of the contract and Constitutions, but by ordering supervisors to disclose statements made to them that are protected by (the Garrity decision of the U.S. Supreme Court), the City is forcing them into an impossible situation: disclose statements protected by Garrity and violate subordinates’ constitutional rights, which exposes that supervisor to potentially devastating personal liability, or refuse to violate the Constitution and face termination,” Wannemacher said. “The contract and Constitutions forbid such conduct.”
The grievance and motion come a day after the city Department of Public Safety issued a statement Thursday on behalf of Richard Wozniak, a retired FBI agent hired in July by the city as an independent investigator, and Kathleen Garber, a former Franklin County assistant prosecutor hired by the city as a special prosecutor.
Wozniak issued “Garrity notices” to six officers requiring them to give statements to Wozniak or face departmental charges of insubordination, which could result in termination.
Mark Collins, an attorney for the officers, said the city’s own news release showed a lack of understanding of how Garrity notices work and that requiring officers to give statements is a violation of the union contract, Ohio law and the Ohio Constitution.
Garrity rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. The protection is provided under the Fifth Amendment to the U.S. Constitution, which states employees cannot be compelled by the government (their employer) to be a witness against themselves, and the Fourteenth Amendment’s “equal protection” clause that covers public employees of municipal, county and state governments.
“If an officer is given Garrity, they have to talk,” Collins said. “If they don’t, they can get fired for insubordination. They don’t have Fifth Amendment rights at that point, but the information can’t be used in criminal prosecutions. That’s the whole point of having Garrity.”
Last week, Garber and Wozniak issued investigative subpoenas to five officers under a rarely, if ever, used section of Columbus City Code. Attorneys for the officers filed a complaint and motion for a restraining order, saying the subpoenas violated the union contract, Ohio’s constitution and Ohio’s rules for criminal procedure.
Garber withdrew the subpoenas shortly after the complaint was filed.
“In Ohio, individuals cannot be forced to give interviews on misdemeanor crimes. That’s the law,” Collins said. “The contract requires the city to follow the law, so by ordering them to do something against the law, it not only violates the law but it also violates the contract.”
The city said Thursday that Wozniak had asked 60 officers to be interviewed voluntarily for the investigation, with 55 of those officers declining, 44 through attorneys. Five officers did agree to be interviewed after “receiving a guarantee that they would not be criminally prosecuted.” The six officers given notice requiring them to give statements are, according to the city, only witnesses and not the subject of criminal investigation themselves.
However, Collins said if the officers give statements, they could, foreseeably, implicate themselves in crimes.
Garber said Friday that the six officers are being asked to provide their eyewitness testimony and not provide information that was given to them by other officers.
“Whatever decision is made by the courts will likely apply to any future efforts to interview officers,” she said. “(Wozniak) chose officers that he felt had the most information as far as being at the scenes where he’s trying to get the full picture.”
Without the interviews, Garber said there is a likelihood that charges could not be filed against officers.
“It would mean we wouldn’t be able to hold many officers accountable for their misconduct,” Garber said. “I believe it would mean there’s a double standard. Officers are asking civilians every day in their investigations to provide information so they can complete their investigations, and if the officers aren’t required to give their witness and statements as to what they saw and heard and did, obviously it will impact our investigations.”
Garber said she believes that officers are fighting cooperation with the investigation to prevent charges being filed.
“I believe that what’s driving this challenge to cooperate is that they won’t be required to cooperate and therefore we will have less evidence,” she said.
The investigators have also put video clips online where members of the public or fellow officers could provide information about the officers seen in the videos. The site allows for anonymous information to be provided.
“The City will no doubt continue to engage in the same tired pattern of demonizing its officers because (the officers) refuse to forgo their contractual and constitutional rights and expose themselves to personal liability,” Wannemacher said. “It remains our hope, however, that the City will take accountability and rescind the unlawful orders.”
Also on Friday, Safety Director Ned Pettus denied a grievance filed by a group of commanders who wanted former chief Thomas Quinlan removed from the deputy chief position he was demoted to in January. Cmdr. Alex Behnen had filed the grievance on behalf of a group of commanders, saying the union contract requires deputy chiefs to be appointed from the commander ranks. Quinlan was put in the chief position following his removal from the chief position on Jan. 27.
The decision could be appealed to an arbitrator, where FOP Local 9 has had relative success against the city in contract dispute matters. It was not immediately clear Friday if an appeal would be pursued.