City issues order to force Columbus police officers to give evidence in protest probe

Bethany Bruner
The Columbus Dispatch
Black Lives Matter and racial injustice protesters face off with Columbus police on South High Street in front of the Ohio Statehouse during a protest on July 31.  Several protesters were arrested.

The city of Columbus announced Thursday that it is ordering six officers to answer questions about potential criminal misconduct by other officers during summer racial injustice protests Downtown.

But the police union says those officers do not have to comply under the terms of the contract with the city, and that threats of insubordination charges are empty.

More:Complaint alleges investigators hired by Columbus using unconstitutional tactics to force officer interviews in police probe

On Thursday morning, the city Department of Public Safety said independent investigator Richard Wozniak, a retired FBI agent, issued "Garrity notices" to six police officers "compelling the officers to answer questions." 

If officers don't cooperate, the announcement said, they could face departmental charges of insubordination. The announcement said the six officers are "strictly witness officers" and not the focus of criminal investigation.

"Information they can provide is essential to the ability to identify officers who may have committed a crime, and necessary for any prosecution of those who might be charged with crimes," the announcement said. 

More:Cost of probe into possible Columbus police crimes during protests passes $50,000

The city's contract with Fraternal Order of Police Capitol City Lodge No. 9 says that no member officer — regardless of whether they are the focus of the investigation or not — is required to give evidence if the investigation could result in criminal charges. 

"If a member has been advised that the investigation may result in criminal charges, the member's refusal to answer questions or to participate in the investigation shall not be considered insubordination or like offense," the contract says. 

Glenn McEntyre, assistant director of public safety, said the city disagrees "with that interpretation of the contract." 

The independent investigation, which was announced in June by Mayor Andrew J. Ginther, seeks to determine whether Columbus police officers committed any crimes while responding to civil unrest here that began on May 28, three days after the death of George Floyd while in the custody of Minneapolis police. 

More:City seeks public's help in investigation of criminal misconduct during summer protests

Wozniak and former Franklin County assistant prosecutor Kathleen Garber were hired as an independent investigator and special prosecutor, respectively, to conduct the investigation. 

Chapter 1903.01 of the city's ordinances requires police to investigate "whenever any person is physically injured or any property is damaged or destroyed by an employee of the city, or when city property is damaged or destroyed as a result of criminal action or a traffic accident."

Last week, Garber and Wozniak issued investigative subpoenas to five officers using 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 Thursday's announcement, the city said Garber has determined that "there is probable cause to believe that some officers committed misdemeanor crimes" and that other officers witnessed those crimes.

More:Pepper spray used as protests over death of George Floyd spread to Columbus

"Extensive efforts have been made to elicit the cooperation of those witness officers, including assurances of immunity from prosecution or administrative sanctions," the city said. "To date, only five witness officers have agreed to be interviewed, only after receiving a guarantee that they would not be criminally prosecuted. The other identified witness officers have refused to be interviewed or provide information on other officers who appear to have committed illegal acts."

The city said officers also have been provided an internal website to provide information anonymously.

"The only investigative means left to determine if a witness officer has information is by Garrity interview," the city said. 

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.

The protections are named Garrity rights after Edward Garrity, police chief of Bellmawr Township, New Jersey, who along with five other employees was told they must answer questions in a 1961 state attorney general's investigation into whether they were involved in fixing traffic tickets in Bellmawr and Barrington Township or lose their jobs. Their statements were later used to prosecute and convict them. 

The U.S. Supreme Court overturned their convictions in 1967, ruling in Garrity v. New Jersey that the statements of Garrity and the other employees, made under threat of termination, were unconstitutional because they were compelled by the state in violation of the Fifth and Fourteenth Amendments.  The court ruled “the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent.”   

The city said Wozniak has asked 60 officers to be a part of the investigation and 55 have refused, 44 of them through attorneys. 

In a statement, Garber said the focus of the investigation is accountability.

"If laws were broken, we will hold those responsible accountable," Garber said. "It is concerning and disappointing that the people standing in the way of that accountability are fellow officers."

Mark Collins, who represents the officers who have been given the Garrity notices, said they will be pursuing legal options "to prevent the city from violating these officers constitutional and contractual rights."

"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." 

Collins also said Garber's statement would imply the officers who are "strictly witness officers" could face criminal charges. 

"If what she claims she believes is true, and if the officer doesn't respond to a crime they witnessed, it could be dereliction of duty," Collins said. 

Collins also said if Wozniak and Garber have evidence, they could file the charges in Franklin County Municipal Court.

"If they have the probable cause, file the charges," Collins said. "File the charges and we'll see you in court."

Collins added that information provided in a press release from the city including an example of how Garrity works is incorrect, showing a lack of understanding by those leading the investigation.

"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." 

To date, Wozniak and Garber have been paid more than $100,000 combined for the investigation.

The city also hired BakerHostetler, a local law firm whose partners have previously donated to Ginther's campaigns, in a no-bid contract to investigate any administrative wrongdoing. That contract was for $500,000.

The city has not yet provided a dollar amount as to how much that administrative investigation has cost to date, citing the potential for more investigations to take place after Wozniak and Garber have finished their work. 

The BakerHostetler investigation resulted in 49 reports, some of which involved multiple complaints. Of the 49 reports, only eight involved sustained allegations and only one of the eight resulted in discipline. That officer was given documented counseling for not filing the proper paperwork. 

Three allegations were withdrawn, 28 were not sustained, 19 were unfounded and five were exonerated.