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20-022457 Oginsky V MCOLES

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20-022457 Oginsky V MCOLES STATE OF MICHIGAN MICHIGAN OFFICE OF ADMINISTRATIVE HEARINGS AND RULES IN THE MATTER OF: Docket No.: 20-022457 Michael James Oginsky, Case No.: MCO-2020-105 Petitioner Agency: MSP/MCOLES v Michigan Commission on Law Enforcement Case Type: MCOLES Standards, Respondent Filing Type: License Revocation ___________________________________/ Issued and entered this 21st day of January 2021 by: Erick Williams Administrative Law Judge PROPOSAL FOR DECISION BACKGROUND This opinion concludes that the notice of intent to revoke should be affirmed. Mr. Oginsky is barred from licensure under MCL 28.609 (12) (c) and MCL 28.602 (a). On September 15, 2020, and as amended on December 3, 2020, the Michigan Commission on Law Enforcement Standards (MCOLES) filed a notice of intent to revoke Michael Oginsky’s law enforcement officer license under MCL 28.609 (12) (a) and MCL 28.609 (12) (c). On September 15, 2020, MCOLES filed an order summarily suspending Mr. Oginsky’s license. MCOLES alleges that Mr. Oginsky was adjudicated guilty on felony charges and did not disclose his adjudication when he applied for licensure and employment as a police officer. A hearing convened on January 6, 2021. Lauryl Scott, Assistant Attorney General, represented MCOLES. Mr. Oginsky participated without a lawyer. Hearings in these cases are governed by the Administrative Procedures Act, MCL 24.271 et seq. and the Michigan Administrative Hearing System rules, 2015 AACS R 792.10101 et seq. 20-022457 Page 2 APPLICABLE LAW MCL 28.609 (12) (c); 2017 PA 289, reads: (12) The commission shall revoke a license granted under this section for any of the following circumstances and shall promulgate rules governing revocations under this subsection: ... (c) The individual has been subjected to an adjudication of guilt for a violation or attempted violation of a penal law of this state or another jurisdiction that is punishable by imprisonment for more than 1 year. 2006 AACS R 28.14604 reads: (1) If an investigation discloses that a licensed person was convicted of an offense defined in MCL 28.602(f), an order of summary suspension and notice of intent to revoke shall immediately issue. A hearing shall be conducted under the provisions chapters 4 and 5 of the administrative procedures act of 1969, MCL 24.271 to 24.291, and as provided in part 7 of these rules. A certified copy of the order of conviction shall be evidence of a felony conviction. (2) If the hearing held under subrule (1) of this rule substantiates that the licensed person was convicted of an offense defined in MCL 602 (f), the commission shall revoke the license of a law enforcement officer. (3) Upon notification of a final decision of license revocation, the person shall return the license immediately to the commission. (4) A person who has had a license revoked under this rule shall not be eligible to reapply for a license as long as the felony conviction stands. For the purpose of these rules, set aside or expunged records are considered the same as a conviction. This rule, 2006 AACS R 28.14604, promulgated in 2006, refers to a statute, MCL 28.602 (f) as it read in 2006. In 2006, when the rule was promulgated, the statute, 2004 PA 379, read as follows: (f) "Felony" means a violation of a penal law of this state or another state that is either of the following: (i) Punishable by a term of imprisonment greater than 1 year. 20-022457 Page 3 (ii) Expressly designated a felony by statute. The statute under which Mr. Oginsky was convicted in 2005, MCL 750.479a (1) and (2); 2002 PA 270, read as follows: (1) An operator of a motor vehicle or vessel who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the operator to bring his or her motor vehicle or vessel to a stop shall not willfully fail to obey that direction by increasing the speed of the vehicle or vessel, extinguishing the lights of the vehicle or vessel, or otherwise attempting to flee or elude the police or conservation officer. This subsection does not apply unless the police or conservation officer giving the signal is in uniform and the officer's vehicle or vessel is identified as an official police or department of natural resources vehicle or vessel. (2) Except as provided in subsection (3), (4), or (5), an individual who violates subsection (1) is guilty of fourth-degree fleeing and eluding, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. The current licensing statute, at MCL 28.602 (a); 2017 PA 289, reads: As used in this act: (a) "Adjudication of guilt" means any of the following: (i) Entry of a judgment or verdict of guilty, or guilty but mentally ill, following a trial. (ii) Entry of a plea of guilty or nolo contendere. (iii) Entry of any of the adjudications specified in subparagraph (i) or (ii), in conjunction with an order entered under section 1 of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 771.1, or any other order delaying sentence. (iv) Entry of any of the adjudications specified in subparagraph (i) or (ii), in conjunction with an assignment to the status of youthful trainee under the Holmes youthful trainee act, as provided in section 11 of chapter II of the code of criminal procedure, 1927 PA 175, MCL 762.11. 20-022457 Page 4 (v) Entry of any of the adjudications specified in subparagraph (i) or (ii), in conjunction with probation under section 7411 of the public health code, 1978 PA 368, MCL 333.7411. (vi) Entry of any of the adjudications specified in subparagraph (i) or (ii), in conjunction with probation under section 4a of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.4a. MCL 28.609 (12) (a) reads: (12) The commission shall revoke a license granted under this section for any of the following circumstances and shall promulgate rules governing revocations under this subsection: (a) The individual obtained the license by making a materially false oral or written statement or committing fraud in an affidavit, disclosure, or application to a law enforcement training academy, the commission, or a law enforcement agency at any stage of recruitment, selection, appointment, enrollment, training, or licensure application.... 2006 AACS R 28.14605 reads: (1) If an investigation discloses that a licensed person committed fraud or made materially false statements in obtaining a license, the commission shall issue a complaint containing the allegations against the person and a notice of the intent to revoke the person's license. The notice shall state that the licensed person has 30 days from the date of issuance of the notice to request in writing either of the following: (a) an opportunity to show compliance, or (b) a contested case hearing conducted in accordance with chapters 4 and 5 of the administrative procedures act of 1969, being MCL 24.271 to 24.292, and as provided in part 7 of these rules. (2) If the licensed person fails to request an opportunity to show compliance or a contested case hearing within 30 days of the issuance of the complaint and notice, the failure shall be regarded as an admission to the allegations in the complaint and the executive director shall revoke the license. (3) If a contested case hearing is held and the licensed person is found to have committed fraud or made materially false statements during the application 20-022457 Page 5 process for a license, the commission shall revoke the person's license as provided in part 7 of these rules, (4) Upon notification of a final decision of license revocation, the person shall return the license immediately to the commission. (5) A person whose license is revoked under this rule shall not be eligible to reapply for a license for 2 years from the date of revocation. (6) A person whose license is revoked under this rule shall include the information related to the revocation in an application for relicensing. The revocation information shall be considered when determining if the person complies with the law enforcement officer selection and employment standards. EXHIBITS MCOLES Exhibits Exhibit 1 MCOLES Information Tracking Network Individual Identification Report Exhibit 2 Certified Criminal Record Genesee County Circuit Court Exhibit 3 MCL 28.609. Exhibit 4 MCL 28.602. Exhibit 5 MCL 750.479a. Exhibit 6 MCL 762.11. Exhibit 7 2011 Application to Delta College Police Academy which includes: -Applicant Information Sheet and Authorization for Release of Information signed by Michael Oginsky on July 19, 2011; -Orientation attendance verification; -Standards Compliance Verification Affidavit, signed by Michael Oginsky on August 23, 2011; -Affidavit in Support of Application to Enter Into Certification Process signed by Michael Oginsky on August 23, 2011; -Academy Course and Attendance Record. Exhibit 8 2012 Application and Request for Licensing, Genesee County Sheriff’s Office, which includes: -Request for License Activation; -Standards Compliance Verification Affidavit; -Oath and appointment of Deputy Sheriff; -Applicant Information Sheet and Authorization for Release of Information, signed by Michael Oginsky on December 7, 2012; -Affidavit in Support of Application to Enter into Licensing Process, signed by Michael Oginsky on December 10, 2012; 20-022457 Page 6 -Standards Compliance Verification Affidavit, signed by Michael Oginsky on December 14, 2012. Exhibit 9 MCOLES Licensing Standards for Michigan Law Enforcement Officers. Oginsky Exhibits Exhibit A Veach email, June 4, 2020 Exhibit B Kramp email, June 4, 2020 Exhibit C Kramp email, July 14, 2020 FINDINGS OF FACT Background Michael Oginsky, born in July 1985, committed a criminal offense at some date prior to October 2005.
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