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 Enforcement Case Type: MCOLES Standards, Respondent Filing Type: License Revocation

______/

Issued and entered this 21st day of January 2021 by: Erick Williams

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 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 when he applied for licensure and employment as a officer.

A hearing convened on January 6, 2021. Lauryl Scott, Assistant Attorney General, represented MCOLES. Mr. Oginsky participated without a .

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 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 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 , 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 or of guilty, or guilty but mentally ill, following a .

(ii) Entry of a plea of guilty or nolo contendere.

(iii) Entry of any of the specified in subparagraph (i) or (ii), in conjunction with an order entered under section 1 of chapter XI of the code of , 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 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 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. He was charged with a violation of MCL 750.479a (2), a felony. In October 2005, Oginsky plead guilty to the charge.

Instead of convicting him, the Genesee County Circuit court assigned Mr. Oginsky to youthful trainee status under the youthful trainee act, MCL 762.11, et seq. The court placed him on probation for two years.

Mr. Oginsky successfully completed probation and was discharged from probation in October 2007, whereupon the criminal charge was dismissed.

Mr. Oginsky subsequently became a firefighter. In 2011 he applied to become a police officer.

Mr. Oginsky graduated from the Delta College police academy in December 2011 and was licensed by MCOLES. In November 2012, Mr. Oginsky began working in the Office of Genesee County Sheriff as a police officer.

After working for the Genesee County Sheriff, Mr. Oginsky subsequently worked as a police officer in the Mt. Morris Township Police Department.

Mr. Oginsky was terminated from the Mt. Morris Township Police department but subsequently reinstated pursuant to a May 2020 arbitration award.

On September 15, 2020, MCOLES filed the notice of intent to revoke Mr. Oginsky’s police officer license that led to this hearing.

20-022457 Page 7

MCOLES Complaint

MCOLES’s amended complaint alleges the following facts:

You were 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, as described in section 9(12)(c) 1965 PA 203, as amended. Specifically, you plead guilty in 2005 to fourth-degree fleeing and eluding, a felony under MCL 750.479a(2), in conjunction with assignment to the status of youthful trainee under the Holmes youthful trainee act, MCL 762.11. This is a disqualifying and revocable adjudication of guilt under MCL 28.602 (a) (iv).

In applications for entry into law enforcement training and employment in Michigan, you failed to disclose that you plead guilty in 2005 to fourth-degree fleeing and eluding, a felony under MCL 750.479a(2), in conjunction with assignment to the status of youthful trainee under the Holmes youthful trainee act, MCL 762.11. This is a disqualifying and revocable adjudication of guilt under MCL 28.602 (a) (iv) and was a mandated disclosure on your applications.

In failing to disclose this adjudication of guilt, you obtained your law enforcement officer license by committing fraud or making materially false statements as described in MCL 28.609 (12)(a).

Michael Oginsky’s

Mr. Oginsky testified, in summary, as follows:

In 2011 he was in the process of going through the Flint academy. But the Flint academy kept shutting down. The Flint trainer called Delta, and Mr. Smith at Delta agreed to take Mr. Oginsky on. It was a last-minute arrangement. Mr. Oginsky met with Mr. Smith just prior to starting the Delta academy.

Mr. Oginsky told Mr. Smith about the fleeing and eluding conviction. Smith already knew about the conviction from his colleagues in Flint. Smith said he would contact MCOLES. He wanted an MCOLES representative to speak with me before the academy started.

August 23, 2011 was the first day of the Delta College academy. Mr. Oginsky was called out of class to meet with Darnell Blackburn of MCOLES. Oginsky told Blackburn about the situation. Blackburn said he had reviewed the information. Blackburn told Oginsky that Oginsky would be licensed if he passed the academy. Blackburn wanted

20-022457 Page 8 copies of the court documents (the same documents that are in Exhibit 2) before he issued the license.

Mr. Oginsky recalls that Mike Wilty, the academy coordinator at Delta, said Oginsky would be licensed.

Oginsky points out that Exhibit 7, page 3, the application to Delta, has Blackburn’s name and is dated August 23, 2011.

Mr. Oginsky graduated from the academy in December 2011.

In November 2012, Mr. Oginsky was hired by the Genesee County Sheriff Department. Terrance Green of the Sheriff’s Department did a background investigation and was aware of the conviction. Captain Green spoke to one of the troopers involved in the situation.

Mr. Oginsky testified that he never tried to hide anything. He was open about it with everyone. Genesee County knew about it. Whenever he filled out forms requiring a criminal history, he placed the fleeing and eluding conviction, the involvement in HYTA, and the expungement on the form.

Mr. Oginsky testified that he was hired by Mt Morris Township. They did a background check. They personally spoke with one of the troopers involved in the incident, and they reviewed the police report.

Mr. Oginsky argues that he has not defrauded anyone. He has been open about his conviction in each of the three background investigations he has undergone. He has not been arrested since he became a police officer. He has been a police officer for nine years; it is unfair to bring this up after he has built a career in the profession.

Mr. Oginsky testified that, while working at Mt Morris Township, he had a disagreement with the police chief. He filed a grievance. The police chief terminated him. He took the matter to arbitration twice, and he was reinstated both times – the most recent reinstatement was May 18, 2020. He came back to work on May 31 and worked on June 1 and 2. On June 4, Oginsky was contacted by Michael Veatch who told him not to come back to work until his license was reviewed by MCOLES.

According to Mr. Oginsky’s Exhibit A, an email exchange, Michael Veach, a Lieutenant in the Mt Morris Police Department, sent an email to MCOLES on June 4, 2020, that reads:

20-022457 Page 9

Attached are Internals and Arbitrator rulings from Officer Oginsky’s personnel file, as well as a letter from the Genesee County office. As you can see Officer Oginsky has a history in the short time he has been employed with our department. His lack of character and deceitfulness are serious concerns for myself and Chief Terence Green going forward and fear a possibility of a or worse stemming from his dishonesty. Both Arbitrators believed that Oginsky was lying during the arbitration hearings, however he was awarded his job back on a technicality. Mr. Frankland states in his ruling “Accordingly, while I am loathe to do so, I feel constrained to find the termination was not reasonable and Grievant should be reinstated”, which tells me that he also believes that Oginsky was being untruthful during this entire process. [Exhibit A]

Mr. Oginsky argues that Lt. Veach’s email message to MCOLES was an unfair act of retribution.

Oginsky’s Delta College Police Academy Application

On pages 7 and 8 of Exhibit 7, Mr. Oginsky’s application to the Delta College Police Academy, Oginsky disclosed some information about his criminal offense. On page 7, applicants were asked to make the following affirmation:

I have never resigned, been asked to resign in lieu of termination, nor have I been terminated/released from any previous employment or volunteer (e.g. cadet, explorer, internship) status with a public safety agency, nor have I been discharged/released from the , for reasons that would render me ineligible for certification as a law enforcement officer pursuant to MCL 28.609b. Nor have I ever been asked to resign in lieu of expulsion or been dismissed from any law enforcement training facility in this State or any other state. (If yes, attach documentation of explanation.)

In response, Oginsky wrote:

“Fleeing and eluding 4th degree 2005 reduced to MIS”

On page 8, applicants were asked to make the following affirmation:

I have never been interviewed by a police agency as a suspect in, questioned about, or been arrested, charged, or convicted of any criminal offense, including expungements, conviction set asides, Holmes Youthful Offender Act dispositions, conservation law violations, appearance tickets, or traffic violations except as follows:

20-022457 Page 10

In response, Oginsky wrote,

Fleeing and eluding 4th degree reduced to expungement HYTA – 2005 – [illegible] -- served 3 years probation – State Police Flint post

Oginsky’s Job Application to Genesee County

On page 6 of Exhibit 8, his application to the Office of Genesee County Sheriff, Mr. Oginsky disclosed facts about his criminal offense. Applicants were asked to make the following affirmation:

I have never been interviewed by a police agency as a suspect In, questioned about, or been arrested, charged, or convicted of any criminal offense, including expungements, conviction set asides, Holmes Youthful Offender Act dispositions, conservation law violations, appearance tickets, or traffic violations except as follows:

In response, Mr. Oginsky wrote,

Fleeing and eluding – 2005 – HYTA and expungement – MSP

Lauryl Scott Statement

Ms. Scott explained the MCOLES procedure. She said that when a licensed police officer is fired from a job, the officer’s state license automatically becomes inactive. The officer cannot work in law enforcement again until MCOLES reactivates the license. Before MCOLES reactivates a license, MCOLES does a review. When MCOLES does a review, it looks at the officer’s whole history. In this case, that review led to MCOLES’ decision to revoke Oginsky’s license on two grounds – disqualifying criminal history and fraud.

Darnell Blackburn

As Mr. Oginsky pointed out in his testimony, Mr. Blackburn’s name appears in the Delta College application materials. Evidently, Blackburn was the MCOLES representative who presented the opening orientation on August 23, 2011, at the Delta police academy. Blackburn, who still works at MCOLES, did not testify in the January 6, 2021, hearing; neither side called him.

20-022457 Page 11

CONCLUSIONS OF LAW

MCOLES alleges that Mr. Oginsky has a prior adjudication for a felony and is barred from licensure under MCL 28.609 (12) (c). That allegation is substantiated.

MCL 28.609 (12) (c) 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.

An MCOLES rule, in effect since 2006, 2006 AACS R 28.14604, reads in part:

(1) If an investigation discloses that a licensed person was convicted of [a felony] an order of summary suspension and notice of intent to revoke shall immediately issue. A hearing shall be conducted ...

(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....

Mr. Oginsky’s criminal offense, MCL 750.479a (2), was a felony. He plead guilty. But he was not convicted. Following the procedure under the youthful offender statute, Mr. Oginsky was treated as a youthful offender, placed on probation, and after successfully completing probation, discharged without a conviction.

The current MCOLES statute, 2017 PA 289, includes youthful offender adjudications within the definition of disqualifying adjudications. MCL 28.602 (a) reads:

(a) "Adjudication of guilt" means ...

(ii) Entry of a plea of guilty ...

(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 12

Under the current statute, MCOLES is required to revoke Mr. Oginsky’s license because he has a youthful offender adjudication of guilt for a felony offense.

The current law is unambiguous. MCL 28.609 (12) (c) says that the commission must revoke a license if the license holder has been subjected to an adjudication of guilt for a felony. MCL 28.602 (a) defines adjudication of guilt to include pleas of guilty followed by assignment to the status of youthful offender. The operate retrospectively and give MCOLES no room to consider mitigating circumstances or to exercise discretion.

The allegation that Mr. Oginsky is barred from licensure under MCL 28.609 (12) (c) and MCL 28.602 (a) is substantiated.

Fraud

MCOLES alleges that Mr. Oginsky committed fraud when he obtained his license in 2011 and thus violated MCL 28.609 (12) (a) which warrants revocation of his license. That allegation is not substantiated. Mr. Oginsky did not commit fraud.

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 in part:

(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....

(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 process for a license, the commission shall revoke the person's license as provided in part 7 of these rules ...

20-022457 Page 13

In Candler v Heigho, 208 Mich 115; 175 NW 141 (1919), the Supreme Court defined the elements of fraud as follows:

The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the **568 intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.

In Fidelity v Black, 412 Mich 99, 313 NW2d 77 (1981), the Supreme noted the elements of “silent fraud”: When there is a legal or equitable duty of disclosure, suppression of the truth amounts to fraud.

In this case, there is no evidence that Mr. Oginsky made an actionable false statement. If Oginsky committed fraud of any kind, it would have been “silent fraud.” Oginsky had a duty to disclose his criminal history. In their application processes, both Delta College and Genesee County asked applicants to disclose their criminal histories.

Mr. Oginsky testified that officials at the Flint academy, the Delta College academy, MCOLES, Genesee County Sheriff and Mt Morris Police Department knew about his criminal history. At the hearing, MCOLES offered no evidence to rebut Oginsky’s testimony on those points; his testimony is deemed true. Indeed, Exhibits 7 and 8 support Oginsky’s testimony. He made written disclosures of his 2005 youthful offender adjudication on the applications he submitted to Delta College and Genesee County.

There is not enough evidence to conclude that Oginsky committed silent fraud because Oginsky disclosed his criminal history. He disclosed enough information about his adjudication for an investigator to retrieve the original documents. Having disclosed as much information as he did about his criminal history, Oginsky probably did not intend to defraud Delta College or Genesee County about his background. The fraud allegation is not substantiated.

Fairness

Finally, Mr. Oginsky makes a plea for fair treatment. He argues that his criminal record is clean in the years since the original offense. He disclosed his criminal history at the start of his law enforcement career. He has invested nine years in the profession. Oginsky argues that it is unfair to use his criminal history against him at this late date. I agree that Oginsky may have constitutional arguments that he can raise in a court of

20-022457 Page 14 general jurisdiction. But at this level, I am bound by the strict language of MCL 28.609 (12) (c) and MCL 28.602 (a) which requires revocation.

PROPOSED DECISION

Mr. Oginsky did not commit fraud or violate MCL 28.609 (12) (a). However, the notice of intent to revoke should be affirmed because Oginsky’s adjudication of guilt for a felony offense bars him from licensure under MCL 28.609 (12) (c) and MCL 28.602 (a).

EXCEPTIONS

Pursuant to MCL 24.281 and 2015 AACS R 792.10132, a party may file exceptions to this opinion within 21 days after it is issued. An opposing party may file a response to the exceptions within 14 days after exceptions are filed. File exceptions and responses with the Michigan Office of Administrative Hearings and Rules, P.O. Box 30695, Lansing, Michigan, 48909-8195, and send copies to the other parties at the addresses below.

______Erick Williams Administrative Law Judge

20-022457 Page 15

PROOF OF SERVICE

I certify that I served a copy of the foregoing document upon all parties and/or attorneys to their last-known address in the manner specified below, this 21st day of January, 2021.

______D. Hagar Michigan Office of Administrative Hearings and Rules

Via Electronic Mail: Hermina Kramp Michigan Commission on Law Enforcement Standards 927 Centennial Way Lansing, MI 48909 ([email protected])

Lauryl Scott Michigan Department of Attorney General MCOLES PO Box 30633 Lansing, MI 48909 ([email protected])

Michael James Oginsky 2351 Morrish Rd Flushing, MI 48433 ([email protected])