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Professional Licensees Have Very Limited Right to Remain Silent When Being Investigated by Their Licensing Board Per Ohio Supreme Court

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What happens when a doctor is approached by an Ohio State Medical Board investigator concerning a criminal investigation? Does the doctor have a right to remain silent? Does he have a duty to cooperate regardless of his 5th Amendment right to remain silent?

Here is the winding logic behind this scenario from the Ohio Supreme Court on December 31, 2020 in State v. Gideon.

The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” Article I, Section 10 of the Ohio Constitution provides the same protection: “No person shall be compelled, in any criminal case, to be a witness against himself * * *.”

“The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70.

However, the citizen must assert this right. In other words, the privilege against self-incrimination is not self-executing. The witness seeking the privilege must “claim it.” United States v. Monia, 317 U.S. 424, 427.

Dr. Gideon did not assert this privilege when the Ohio State Medical Board investigator showed up to interview him. This was a fatal mistake.

However, Dr. Gideon did argue that his assertion of the privilege against self-incrimination was not required because he was coerced. Coercion also includes when there is a penalty for asserting the right.

These are called Garrity interviews. In Garrity, the attorney general investigated police officers for fixing traffic tickets. Although advised of their right to remain silent, the officers also were told that refusing to answer questions would lead to the termination of their employment. The officers answered questions and the state used some of their answers against them in a subsequent criminal case. The U.S. Supreme Court observed that “[t]he option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” Garrity, 385 U.S. at 497. The court thus held that the confessions were not voluntary but coerced and that the Fourteenth Amendment prohibited the use of the statements in subsequent criminal proceedings.

However, unlike the police officers in Garrity, Dr. Gideon was not a public employee. He was a medical doctor in private practice. As a practicing physician, he was subject to licensure by the state medical board. See R.C. 4731.17(B) (state medical board shall issue licenses to practice medicine). Gideon’s medical license constitutes a liberty and property interest subject to due-process protections.

The question then becomes, since the medical board has disciplinary authority over medical doctors and may “limit, revoke, or suspend a license or certificate to practice or certificate to recommend, refuse to issue a license or certificate, refuse to renew a license or certificate, refuse to reinstate a license or certificate, or reprimand or place on probation the holder of a license or certificate * * *” R.C. 4731.22(B). Among the reasons listed for exercising the authority to impose such sanctions is the “[f]ailure to cooperate in an investigation” and the “failure to answer truthfully a question presented by the board in an investigative interview * * *.” R.C. 4731.22(B)(34).

The issue now becomes – “is this a form of coercion requiring Garrity protection”? The Ohio Supreme Court on December 31, 2020 concluded that “the state’s threat to impose a legal penalty for the failure to give truthful responses in a state-medical-board investigation is coercive. This threat puts a medical doctor in the position of having to choose between two rights: the property right in the medical license or the privilege against self-incrimination.”

However, the next twist is very subtle. What about when the doctor under investigation has not been “expressly confronted * * * with the inescapable choice of either making an incriminatory statement or being fired,” State v. Graham, 136 Ohio St.3d 125, 2013-Ohio-2114, 991 N.E.2d 1116, ¶ 23.

When incriminating statements are not coerced by the direct threat of job termination in Ohio, the Ohio Supreme Court will apply an “objectively reasonable” “subjective belief” test. Id. Under that test, statements are compelled by threat of discharge if (1) a person subjectively believed that asserting the privilege would lead to discharge and (2) that belief was objectively reasonable under the circumstances.

Dr. Gideon did not do enough to convince the Court that he believed he would lose his medical license if he failed to cooperate with the interview. While Dr. Gideon testified that he subjectively believed that he would “be penalized” with the loss of his medical license if he did not answer questions posed by the medical-board investigator, his belief was not objectively reasonable. Doctors (and other licensees) must show “some demonstrable coercive action by the state beyond ‘[t]he general directive to cooperate.’ ”

Dr. Gideon did not establish through evidence that coercive action by the medical-board investigator had occurred. The trial court found no evidence that the medical-board investigator informed Gideon that “he must waive his rights against self-incrimination or subject himself to discharge or revocation of his license.”

And neither Gideon nor the investigator mentioned during the interview anything that suggested Gideon could lose his medical license if he refused to comply with the investigator’s questioning. Besides the lack of evidence showing that Gideon had an objectively reasonable basis for believing that he could lose his medical license, the trial court correctly found that R.C. 4731.22(B), which requires a doctor’s cooperation in an investigation, does not subject that doctor “to an automatic suspension or revocation” of a license should the doctor exercise the right to remain silent.

The discipline is not automatic. It requires the affirmative vote of “not fewer than six” medical-board members to impose discipline for one of the reasons listed in R.C. 4731.22(B). And even when the medical board determines that a doctor has committed a violation, revocation of a medical license is not a required sanction—it is one of several sanctions available to the board. See R.C. 4731.22(B). In Gideon’s case, there was no direct threat of discipline for failure to cooperate; he faced only the possibility of discipline.

Under this case, it is now unequivocal that a doctor, nurse, lawyer or other state licensee must retain legal counsel before speaking to any government investigator.