Ohio Inspector General Didn’t Investigate Complaint on Church-State Separation and Other Complaints

Introduction

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

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.