|
Ohio Inspector General Didn't Investigate Complaint on
Church-State Separation and Other Complaints
Supporters of honest government and church-state separation should be concerned about the Ohio
inspector general's mishandling of a complaint filed by the Freedom From
Religion Foundation (FFRF).
The complaint was about the blatant promotion of
Christianity at the governor's "Service of Healing." This
event was
held on Sept. 12, 2001, in response to the previous day's terrorist attacks.
Although state officials used
the occasion to promote Christianity, the inspector general dismissed the
complaint as baseless. He apparently lacks respect for
church-state separation and the religious diversity of Ohioans.
Moreover, his response to the complaint
is symptomatic of other problems with his office and with Ohio's state
government.
State event illegally endorsed
Christianity
At the state-sponsored event, the
chairman of the Ohio Civil Rights Commission (of all places) told
state employees and the public that God's "basic instructions
before leaving earth" are "written in the Bible." It's
hard to imagine a clearer endorsement of Christianity.
Other acts by state officials also
indicated the state favors Christianity. These included prayer and the
playing of "Amazing Grace." The entire ceremony was videotaped, so the
evidence of what transpired is indisputable.
The U.S. Supreme Court has
held that governmental endorsement of Christianity violates the First
Amendment's requirement of church-state separation. The practice also is
unfair and offensive to minority religions.
As Supreme Court Justice Sandra Day
O'Connor wrote: "[G]overnment endorsement . . . of religion . . .
sends a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to
adherents that they are insiders, favored members of the political
community."
Those harmful and divisive messages have
been recognized since the country's inception and were a reason the Founders separated
government and religion. In the words of James Madison, governmental
promotion of religion "degrades from the equal rank of citizens all
those whose opinions in religion do not bend to those of the Legislative
authority."
Additionally, members of minority religions cannot
expect unbiased treatment from a government favoring the majority
religion. Supreme Court Justice Harry Blackman stated: "A
government cannot be premised on the belief that all persons are created
equal when it asserts that God prefers some."
Civil rights attorney Morris Dees likewise said that if government takes sides on religious questions, "a cloud is cast
over the very idea of equal justice under law."
State officials know better
But none of this is news to Ohio's state
officials. As shown by their acts in other contexts, they know that governmental favoritism toward
religion is insulting and hurtful to members of minority religions.
Ohio's state government
requires its employees to go
through Equal Employment Opportunity (EEO) training. There they are told
that
the display of religious messages in the state workplace shows a
lack of sensitivity to the religious diversity of customers - whose
taxes pay their salaries - and fellow
employees.
Also in the training, state employees
learn that if a customer or coworker is offended by a religious display
in the work environment, a valid EEO complaint can be brought against
the employees responsible for the display. The lesson is that promoting religion in the state workplace is discourteous,
inappropriate, and punishable.
Yet after sending employees through EEO training, state officials
turn around and violate the very same principles at the highly publicized
"Service of Healing." And they did it in an attempt to gain political
points from the Religious Right and others.
Apparently, state officials believe that politics
trumps the Constitution, the sensitivities of members of minority
religions, the need for respecting the religious diversity of Ohioans,
and the importance of setting a good example for state employees and the
public.
Then the official responsible for
identifying and correcting wrongful acts in state government, the Ohio
inspector general, declares it's perfectly acceptable for state
officials to behave that way. The whole matter is a sickening display of political
hypocrisy, lawlessness, insensitivity, and cowardice.
State officials besmirched
Christianity
Christians should be concerned that their
religion can look bad as a result of state officials using it for
political purposes.
The person responsible for the ceremony -
Republican Gov. Bob
Taft - later incurred the infamy and disgrace of being the only Ohio governor convicted of criminal acts while in office.
He pleaded guilty to four misdemeanor
counts of violating Ohio's ethics laws. But he refused to resign from
office. And he allowed a close associate who was convicted of similar acts to also remain in office.
No wonder the U.S. Supreme Court warned of
history's lesson that religion becomes disrespected or despised by
being associated with government. Corrupt governmental officials often
will, if they can, use an outward display of religiosity to conceal from
the public their venal nature and acts.
As the Rev. Barry Lynn writes in his book
Piety and Politics: The Right-Wing Assault on Religious Freedom:
"Patriotism, it has been said, is the last refuge of a scoundrel. Now it
seems to be religion. Indeed, religion is frequently the first."
When the curtain is eventually
thrown open on such officials, though, the public sees that religion
did not prevent unethical behavior in government. Rather, officials
appear to have misused religion as an
instrument for hiding and furthering corruption.
Religion thereby
becomes one of the casualties of the wrongdoing.
Inspector general mum on his reasons
According to media reports, the inspector
general said attorneys in his office reviewed FFRF's complaint and
found it baseless. He and his lawyers did not, however, provide
the complainant or the public with a legal basis for their finding.
They apparently want to keep their
reasons secret. But as John F. Kennedy said: "The very word secrecy
is repugnant in a free and open society; and we as a people are
inherently and historically opposed to secret societies, to secret
oaths, and to secret proceedings."
In a democratic society based on "the
consent of the governed," the actions and decisions of public officials
generally need to be open to public scrutiny so that "We the People" can
hold those persons accountable for their performance.
Additionally, former Supreme Court Justice Thurgood Marshall wrote
that it is "not burdensome to give reasons when
reasons exist."
The inspector general's office could not provide
valid reasons because the First Amendment violations by state
officials at the "Service of Healing" were flagrant and legally
indefensible. Any attorney can immediately see that.
The inspector general and his legal
counsel also see it. They simply don't have the character and courage to
put the Constitution, the rights of minority religions, and their sworn
legal duties above considerations of political expediency.
Conflict of interest is a problem
In addition to concerns about the First
Amendment, this matter raises questions of whether an Ohio inspector
general who is handpicked by the governor, and virtually serves at the
pleasure of the governor, can be expected to vigorously and
impartially investigate wrongdoing in the governor's administration.
Obviously, a conflict of
interest exists in the current arrangement for investigating corruption
in state government. The governor has too much control over the person
responsible for investigating wrongful acts and omissions in the governor's administration.
Some have described the situation as "the proverbial fox guarding the
henhouse" - with the public in the position of the hens. Others
have dubbed the inspector general as the Ohio state government's version
of Sgt. Schultz, because his response to complaints so often seems to
be, "I see nooothing."
This means the inspector general's
office can be another instrument for concealing and furthering
wrongdoing by state officials. Political pressure and considerations may, at
least in theory, be brought to block or hinder
investigations.
If the Ohio legislature were to change the law to make the inspector general's office
independent of the governor's administration, state
officials might have to obey not only the First Amendment but also other
laws the inspector general is not enforcing.
More failures to investigate and more
corruption
The inspector general's annual reports may indicate
how extensive
the problem of inadequate investigations is, particularly if other
violations referred to his office have been as blatant as this one.
Those
reports show that during the years 1999 through 2006, the inspector general
declined to open investigations on over 1,600 complaints of wrongdoing in
state government. He would have us believe that a
remarkable number of Ohioans mistakenly think they witnessed governmental misconduct.
In response to some of those
complainants, the inspector general probably should have quoted Groucho
Marx: "Who are you going to believe, me or your own eyes?" And
in regard to FFRF's complaint, the choice he left was between believing
him and the videotape of what happened.
The refusal to investigate so many
complaints might be an underlying reason why Ohio gained a reputation of
having one of the most corrupt state governments in the nation. For
example, Paul Krugman analyzed some of Ohio's scandals in a June 17,
2005 article that the New York Times titled "What's the Matter
With Ohio?" Since then, several more major scandals in Ohio's state
government have come to light.
Krugman said Ohio provided "an object
lessen in what happens when you have one-party rule untrammeled by any
quaint notions of independent oversight." He obviously thought inadequate oversight of state officials was at the root of the problem.
The inspector general is the main governmental official responsible for that
oversight.
Krugman also explained that "when a political
machine controls all branches of government, and those officials charged
with oversight are also reliably partisan, politicians feel safe from
investigation. Their inhibitions dissolve, and they take full advantage
of their position, until the scandals become too big to hide."
Possibly
the election of many new state officials, who took office in January
2007, will change the situation in Ohio. But the new Democratic
governor's reappointment of Taft's inspector general was not a good
sign.
That inspector general was the one who dismissed FFRF's complaint
and was in charge of oversight when many scandals occurred - including
the ones Krugman described. Consistent with Krugman's assertions, at least
some corrupt officials in
Taft's administration didn't seem the least bit afraid of him.
Those officials were eventually exposed
by the newspapers - particularly The Toledo Blade - and not the
inspector general.
Conclusion
Independent governmental oversight and
investigations are essential for preventing public officials from acting
illegally, dishonestly, or incompetently.
As for FFRF's complaint, though, no
investigation was conducted. State officials got away with flagrantly
violating the Constitution and the rights of minority religions.
They have also been allowed to casually
and blatantly flout many other laws with impunity. That's practically
been their standard operating procedure for many years.
And it's all been fine with the Ohio
inspector general. For example, in response to a complaint by Common
Cause/Ohio that numerous laws were violated in the appointment of a
state official, his explanation for doing nothing was that such laws are
violated all the time.
In Federalist No. 73, Alexander Hamilton
noted: "A power over a man's support is a power over his
will." Similarly, the novelist and social commentator Upton
Sinclair wrote: "It is difficult to get a man to understand
something when his salary depends upon his not understanding it."
Ohio's
inspector general sometimes acts as if his salary depends on his not
understanding that illegalities and corruption occurred in the
governor's administration.
In "Law Like Love," W. H. Auden wrote in
1939:
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
Today, some of the "others" in the
latter category have had dealings with the Ohio inspector general. And
those persons say the same about justice.
If the inspector general's office were
made an independent agency, it could truly become the people's watchdog
of state government - instead of what many currently consider as a mere lapdog of the governor.
Ohio's citizens and their state's reputation
have paid dearly because of this problem.
Appendix A:
After examining a sample of about 20
complaints that the Ohio inspector general declined to investigate, Common
Cause/Ohio issued the following report in September 2006. CC/OH sent the
report to the candidates running for governor of Ohio that year, along
with a letter requesting their position on ways of improving the
operation of the inspector general's office. CC/OH received no response
to the letter.
Shortly after taking office in 2007,
Democratic governor Ted Strickland reappointed the same inspector
general, who had been appointed by the two previous Republican
governors, to another four-year term. CC/OH publicly objected to the
reappointment.
Problems Found by Common Cause/Ohio in
Examining a Sample of Complaints the Ohio Inspector
General Failed to Investigate
I. Failure to Investigate Alleged Criminal Conduct.
(1)
Complaint No. 1999061. An employee of the Ohio Reformatory for
Women alleged that a supervisor was allowing another employee to run an
Amway business on state time. Under the category of “people we may
contact with knowledge of the wrongful act or omission,” the complaint
listed five of the institution’s employees and their home phone numbers.
The complainant asked that the witnesses be contacted at home, and
explained that they were threatened by their supervisor and were afraid.
OIG’s response:
The OIG stated in a 9/14/99 letter to the complainant: “While we
understand your concern, we regret to inform you that we do not find
sufficient cause to initiate an investigation.” On the same date,
however, the OIG also wrote to the Department of Rehabilitation and
Corrections. This second letter described the complaint and asked the
department to “take whatever action you may deem appropriate.” But the
letter did not ask the department to inform the OIG of future actions or
findings concerning the allegations.
Comment: The OIG
referred this potentially criminal matter back to the department. Often
the reason why state employees contact the OIG’s office, though, is that
they have already tried unsuccessfully to have their department correct
the problem. This complainant said employees had been threatened by a
supervisor and were afraid, thus indicating that unsuccessful attempts
had been made to address the issue internally. If the OIG did not find
sufficient cause to investigate, a call to one of the witnesses might
have provided the additional information needed. Moreover, it seems that
if the OIG thought the allegations were significant enough for the
department to investigate, the allegations should have been sufficient
for his office to investigate. The OIG appears to have closed his eyes
to the alleged criminal and managerial wrongdoing.
(2) Complaint No. 1999092.
The complaint charged that former employees of the Bureau of Motor
Vehicles (BMV) “are now making drivers’ licenses exactly 100% like the
BMV makes, complete with Holograms and Magnetic Strips.” The complaint
also said they sell other types of false IDs and related items,
including birth certificates, Social Security numbers, passports, credit
cards, and diplomas. The items allegedly can be purchased by sending
money to a street address listed on the complaint.
OIG’s response: He
said in a letter to the complainant that his office found insufficient
cause to investigate. But he also stated that a copy of the complaint
would be referred to BMV “for their information.”
Comment: This is a
serious matter that should have been investigated. As indicated in a
Common Cause/Ohio email a couple of years ago, federal agents have
complained that Ohio is a top source of fake IDs, which can be used by
terrorists. But the OIG declined to investigate, didn’t ask BMV to
investigate, and didn’t request any information from BMV as to what, if
anything, the agency would do about the matter. Once again, the OIG
appears to have ignored alleged criminal wrongdoing.
(3) Complaint No. 2002180.
The wife of an inmate at a state correctional institution said the
institution had a contract with a private company to allow inmates to
purchase merchandise from the company. She said her husband sent money
to the company to purchase a Walkman, but never received it. She related
that the company wanted the institution to provide a statement that the
item had not been received. But the institution claimed that the company
had already been notified. She asserted: “Meanwhile, my husband is
without his Walkman or his money and both parties (company and
institution) [are] saying they are not responsible. There is a cause of
concern about this since it has been happening with not only my husband,
but other inmates also.”
OIG’s response:
“While we understand your concern, we regret to inform you that we do
not find sufficient cause to initiate an investigation.”
Comment: The
allegations involved possible fraud by a company that had contracted
with the state to sell merchandise to inmates. Or possibly the company
had delivered the items, which were then stolen by employees of the
institution. Either way, criminal acts may have repeatedly occurred. If
the inmates were victims of fraud or theft, they have limited ability to
seek a remedy. The OIG should have investigated.
II.
Failure to Aid Whistleblowers Who Claim They Are Being Retaliated
Against for Filing a Complaint with the OIG
(1) Complaint No. 2001229.
An optician who works for the Ohio Department
of Rehabilitation and Corrections, Ohio Penal Industries (ODRC/OPI) said
he was being “harassed, defamed, and retaliated against for refusing to
participate in the illegal use of inmate labor . . . and also for filing
a complaint with the Inspector General.” The complainant reported that
within 10 days of filing the complaint, he was put on administrative
leave and investigated for more than six months. And he described being
treated very differently after he was allowed back to work. He wasn’t
permitted to do his job. He was told the department would no longer pay
for his continuing education and membership fees, even though it still
provided other opticians with those benefits. He was denied use of his
office, telephone, voicemail, fax, and computer. He was refused training
the other employees received. He said vendors were told not to talk or
associate with him. The performance evaluation he received before the
complaint was filed described him as “doing an excellent job.” But after
filing the complaint, he was given a performance evaluation depicting
him as a terrible employee. He accused ODRC/OPI of trying to assassinate
his character and destroy his credibility because of his “choice of
obeying the laws and being honest.”
OIG’s response: “The
information you provided . . . has been thoroughly reviewed by our
Intake Screening Committee. While we understand your concern, we regret
to inform you that we will not be able to open an investigation.”
Comment:
The complainant provided compelling evidence of severe retaliation for
filing a complaint with the OIG’s office. But the OIG declined to
investigate or help the employee, who is a Vietnam veteran and partially
disabled. In the federal government and private sector, the failure to
assist employees who were being harassed in the workplace has driven a
few of them to “going postal.” If the proper channels fail to provide
remedies and justice for complainants, the chances increase that they
will take justice into their own hands, with possible tragic results to
innocent parties. Nevertheless, in communications with Common
Cause/Ohio, the OIG’s office indicated it has never found valid
an employee’s complaint alleging retaliation by a state agency.
(2) Complaint No. 2000055.
A dentist complained that he was retaliated against for filing a
complaint with the OIG about the Ohio State Dental Board. He said the
retaliation took place at the board’s public meeting on 2/16/00. This
meeting occurred a week after the OIG issued a mildly critical report on
the board. The report was based partly on information provided by the
dentist.
At the meeting, the board was
to consider a charge that the dentist had abused a patient. The charge
had been filed by disgruntled former employees of the dentist. The
patient was a child whose parents were going to testify in support of
the dentist at the meeting. The parents wanted to tell the board that
they were with the child at all times in the dentist’s office, and no
abuse had occurred. But the board did not allow the dentist’s attorney
to speak or any witnesses to testify. A highway patrol officer was at
the meeting (for the first time anyone could remember). When the
dentist’s attorney insisted on speaking, the board had him arrested for
disturbing a public meeting. The attorney was handcuffed and removed
from the room. The board then imposed a six-month suspension on the
dentist for abusing the child.
Articles about the board’s meeting were carried in the Columbus
Dispatch and the Cleveland Plain Dealer. The Dispatch
quoted the dentist as saying the board was aware that his attorney
“would expose them and they wanted to stop him before he uttered a
word.” The Plain Dealer said the dentist was distraught after the
meeting. And it quoted the child’s father as saying, “You ever see such
a railroad in your life?” In addition to documentation in the form of
newspaper articles, the complaint listed three witnesses who could be
contacted.
The board’s actions were eventually invalidated. In regard to the arrest
of the attorney, the government agreed to drop the charge in exchange
for the attorney’s promise not to sue for false arrest. As for the
suspension of the dentist, the attorney appealed to court. The Attorney
General’s Office missed a filing deadline, resulting in dismissal of the
charges against the dentist. The attorney thinks the AG’s office
intentionally missed the deadline in order to avoid having to defend the
board’s acts. He also believes that the AG’s office wanted the matter to
go away quietly.
OIG’s response:
In a 3/13/00 letter, the OIG declined to conduct another investigation
of the board. He told the dentist: “Please understand that this office
does not have jurisdiction to resolve individual complaints before the
state boards.”
Comment: As
documented in the two newspaper articles, the board surely retaliated
against the dentist for filing a complaint with the OIG’s office. His
rights were blatantly and severely violated at the meeting, resulting in
a denial of his ability to pursue his livelihood. His attorney also was
abused and denied basic rights. The violations were so egregious that
the criminal charge against the attorney was dropped, and the AG’s
office declined to defend the board’s acts. Because the OIG did nothing
about the retaliation, the board got away with it and probably feels
free to do the same to others, who now may be intimidated from
contacting the OIG.
III. No Action
Taken on Complaints Where the State Agency Admitted Wrongdoing but
Claimed the Problem Had Been Corrected
(1) Complaint No. 2003154.
A doctor complained that investigators for the Bureau of Workers’
Compensation (BWC) had “publicly displayed my personal information,
including my social security number, in violation of Ohio Revised Code
1347.05(G) and 1347.07.”
OIG’s response: After the OIG forwarded the complaint to BWC, the agency responded in
a letter from its chief legal officer. (Incidentally, that person is no
longer with the agency and has been accused of covering up wrongdoing in
connection with the recent BWC scandals.) The OIG sent a copy of BWC’s
letter to the complainant and informed him in an accompanying letter:
“As you will note, your Social Security number was inadvertently
displayed during an investigation they were conducting. You will also
note it was corrected as soon as it was pointed out.”
Comment:
Because the complainant was right that a statutory violation had
occurred, the OIG should have issued a finding of a wrongful act or
omission. And under R.C. 121.42(J), the OIG was required to ensure that
BWC has adequate policies and procedures to protect citizens against
similar violations. Those duties were not performed. One has to wonder
if the OIG would have treated complaints about BWC’s investment
practices in a similar manner.
(2) Complaint No. 2003133.
In a letter dated 5/15/03, a
person complained that although his criminal record had been expunged
more than a year earlier, the Ohio Department of Rehabilitation and
Corrections (ODRC) had not taken his picture and record off its website.
He said ODRC’s inaction cost him jobs and caused him to be fired. He
claimed he contacted ODRC twice and was told that it takes four to six
weeks to remove the record. But after waiting over a year, his record
was still on the website.
OIG’s Response: In a 6/17/03 letter, the OIG told the complainant that an
investigation would not be opened but that a copy of the complaint was
being forwarded to ODRC’s chief inspector. ODRC informed the OIG in a
letter dated 6/30/03 that the information had been removed from the
website as of 6/20/03.
Comment:
This complainant had waited over a year for the information to be
removed. ODRC did not remove it until contacted by the OIG. Contrary to
the requirements of R.C. 121.42, the OIG made no inquiry as to why the
problem occurred or what policies and procedures exist to protect others
from experiencing similar problems. The handling of this complaint
indicates the OIG saw no problem with state employees failing to perform
their duties until a citizen complained to his office. And he apparently
did not want to hold anyone accountable for the nonfeasance that had
caused serious harm to the complainant.
IV. Failure to
Conduct an Adequate Investigation
Complaint No 2001229.
This is the same complaint concerning ODRC/OPI discussed above. In the
public-records request made by Common Cause/Ohio, files relating only to
uninvestigated complaints were sought. No information regarding
investigated complaints was requested. The file for this complaint,
however, contained not only information about alleged retaliation
against the complainant (which the OIG declined to investigate), but
also information about the OIG’s investigation of the original
complaint. Common Cause/Ohio did not examine any other files concerning
investigated complaints.
The original complaint was that ODRC/OPI was violating federal laws
governing the sale of prison-made goods in interstate commerce. The
OIG’s office conducted an investigation and issued a report. A headline
in the 1/20/01 issue of the Columbus Dispatch summarized the
OIG’s conclusions: “State cleared of wrongdoing in prison program."
Included in the file was a letter, dated 6/13/01, sent to the OIG from
Robert T. Watkins, program manager for the Prison Industries Enhancement
Certification Program (PIECP) in the U.S. Department of Justice. Watkins
stated: “Upon evaluating your report, I find that it reflects a
mis-focused inquiry as well as a lack of knowledge about the structure
of the Department of Justice and the functions of the Department’s
component offices, and in particular the Department’s Bureau of Justice
Administration (BJA).”
An issue in the OIG’s investigation involved misrepresentations made by
ODRC/OPI to BJA. The misrepresentations concerned the state’s ability to
comply with federal laws in operating prison industries. Regarding this
issue, Watkins wrote: “It is uncertain whether ODRC/OPI staff
intentionally misrepresented or were negligent in claiming that they had
the ability to comply with . . . requirements.” Watkins went on to
observe that the OIG’s report contained a “general allusion . . . to
possible violations of Federal law.” Then Watkins said: “Based upon my
review of the files, it appears that a complete response to BJA was
never provided, so this potentially serious matter remains an open
issue.” And the matter apparently still does.
Another issue was whether ODRC/OPI had been illegally involved in
prison-industry activities that were not certified by PIECP. Watkins
also addressed that subject: “I believe your office should have either
directly investigated this matter or made an appropriate referral to the
U.S. attorney or Federal Bureau of Investigation for possible violations
of criminal statutes.” But the OIG took none of those steps.
Watkins clearly was dissatisfied with the OIG’s investigation and
report. He believed that state officials might have gotten away with
criminal acts. And he seemed incredulous that the matter could have been
handled so poorly by a governmental investigative agency.
OIG’s response: The file contains no indication that the OIG responded to Watkins’
letter or took any action about the concerns expressed in it.
Comment:
According to Watkins’ letter, the OIG’s investigation and report were
extremely deficient. Watkins believed that the OIG had failed to
competently investigate possible criminal violations of federal law, and
failed to refer such matters to the appropriate federal agencies.
Instead, the OIG’s report cleared state officials of wrongdoing. And the
OIG refused to investigate the complainant’s reports of being severely
retaliated against by the state agency – despite receiving substantial
evidence of retaliation. Perhaps the most appropriate comment about the
OIG’s performance was made in an e-mail the complainant sent to the OIG
after receiving a copy of Watkins’ letter. Along with an expletive, the
message said, “A watchdog?????”
Like Watkins, he seemed incredulous.
Appendix B:
For an additional example of the inspector
general refusing to investigate blatant lawbreaking in state government, see the article
titled "Ohio Officials Allow
Injustice at Industrial Commission" and Appendix A to that article.
Appendix C:
For an example of an inspector
general's report covering up and ignoring an immense amount of lawbreaking,
unfairness, and
other wrongdoing by state officials, see the letter sent by the group
We've Had Enough.Net at:
http://www.wevehadenough.net/OverrideReportbyIG-1.pdf
Gov. Strickland rebuffed the group's
request for an independent investigation of the corruption exposed in
the letter. The inspector general declined to comment on the letter.
|