Updated Tue, Mar 4, 2014 5:42 pm
We will attempt to breakdown, into easy understandable steps, the applicable state statute being used to review whether Athens County Sheriff Pat Kelly should remain in office while his criminal cases are pending in the local courts.
The amended state law, that outlines the procedure to temporarily remove someone from public office while a criminal case is pending, is rather new and often not played out to its conclusion. Therefore, to the average Ohioan and Athens County resident, the process can be extremely confusing and might even appear to be a bit cumbersome.
We will take you through the process step-by-step:
STEP ONE: Before the statute, Ohio Revised Code Sec. 3.16, even kicks in, a public office holder must be first indicted for a felony. That happened in Sheriff Kelly’s case. On Jan. 31, he was indicted by a special grand jury in a 25-count indictment, 22 of which are felonies.
STEP TWO: If there is a felony indictment against a public official and the prosecuting authority (in this case the Attorney General’s office) determines that the felonies relate to the public official’s “administration of , or conduct in the performance of the duties of, the office” of the sheriff, then the Attorney General is obligated to send a copy of the indictment to the Chief Justice of the Ohio Supreme Court with a request that the Chief Justice appoint a special commission to review the case. That was done shortly after the indictment of Sheriff Kelly by Attorney General Mike DeWine.
Simultaneously, the Attorney General needed to forward a copy of that notice to Sheriff Kelly and Athens County Prosecutor Keller Blackburn. That was done.
STEP THREE: The Attorney General was required to notify Sheriff Kelly that the sheriff would have 14 days, after the date of the notice, to file with the Attorney General a written statement either voluntarily authorizing the Attorney General to prepare a judgment removing him from office while the cases are pending (voluntarily stepping down temporarily) or setting forth the reasons why the sheriff should not be suspended from office. Sheriff Kelly did the latter and filed a 15-page written document outlining why he should not be removed from office. See WOUB’s story of Feb. 20.
STEP FOUR: The Attorney General must send a copy of the sheriff’s response to the Chief Justice. That was done. The Chief Justice then had before her the indictment, the request and reasoning of the Attorney General why the felonies affected the sheriff’s ability to operate his office, the request for the appointment of a commission, and the sheriff’s 15-page response.
STEP FIVE: The Chief Justice then had 14 days to appoint a special commission which is the equivalent of an administrative agency. The law says it is comprised of either “three retired justices or judges of a court of record.” It also says that at least one member of the commission must be of the same party as the accused official holder. It also notes that the budget of the commission is supplied from the Attorney General’s budget. On Feb. 19, the Chief Justice appointed the commission. See WOUB's story from Feb. 19
STEP SIX: Once the commission was appointed, it had 14 days to review the indictment, the statement from the Attorney General and the statement from the sheriff, the facts and circumstances related to the charges and all other documents pertaining to the matter that were given to the Chief Justice.
Within that 14-day period, which expires Wednesday, March 5, the commission must make a “preliminary determination.” It must make a preliminary determination “as to whether the public official’s administration of, or conduct in the performance of the duties of, the official’s offices, as covered by the charges, adversely affects the functions of that office or adversely affects the rights and interest of the public and, as a result whether the public official should be suspended from office.”
Upon making that decision, the commission must “immediately” give notice to the sheriff of its preliminary determination. That notice, according to the statute, may be in writing, by phone or “another manner of communication.”
If the commission’s preliminary determination finds in favor of the sheriff, then the preliminary determination automatically becomes the special commission’s “final determination” and the sheriff would remain on-the-job until the criminal cases terminate.
If the commission, however, finds in its preliminary determination that the sheriff should be removed while the criminal cases are pending, then the sheriff must be notified that he may contest the preliminary determination by filing a notice with the commission within 14 days of the commission’s notice.
STEP SEVEN: If the sheriff would timely request a hearing, he would be able to review the reasons and evidence for the commission’s preliminary determination and he could appear at a meeting of the commission to contest the determination and present his position on the matter. He could be accompanied by his lawyer but the attorney could not act as counsel or an advocate before the commission. He also could not present evidence or examine or cross-examine any witnesses.
This special meeting of the commission must take place within 14 days of the sheriff’s notice to contest the preliminary determination against him.
If the sheriff would not request a hearing to contest the preliminary determination within the 14 days specified, then the preliminary determination would become final and act as the final order mandating a temporary suspension while the criminal cases are processed against the sheriff.
STEP EIGHT: The meetings of the commission are not open meetings under Ohio’s Open Meetings Law. They are private by law. Also, the documents reviewed by the commission or issued by the commission re not public record until the commission issues its final report. Once it issues the final report, then the records are public.
STEP NINE: If the sheriff appears before the commission at a special meeting to present his case, the law says the commission shall make a final determination on the suspension “at the conclusion of the meeting.” However, there is no time period specified for the commission to make that decision and put it in writing.
The written report shall set forth the commission’s findings and final determination. It is then a public record. The written report is sent by certified mail to the sheriff, the Attorney General and any other person who the commission finds appropriate.
If the commission finds that the sheriff should not be removed from office then any preliminary decision to suspend him is terminated.
If the commission, after the hearing, determines that the sheriff should be removed from office then the suspension is effective immediately upon the issuance of the commission’s final determination. It would have the same effect as a court order.
The suspension would last until the public official is either: 1) reinstated, 2) all criminal charges are disposed of by a dismissal or findings of not guilty, or 3) a successor is elected and qualified to serve the next succeeding term.
STEP 10: If the commission finds that the sheriff should be suspended pending the outcomes of his criminal cases, the sheriff can appeal the commission’s ruling to the Ohio Supreme Court within 30 days of the order. The commission would then have an additional 30 days to file with the Supreme Court, a certified transcript of the proceedings and the evidence considered by the commission.
If upon a hearing, the Supreme Court finds the commission’s determinations and findings to be reasonable and lawful, the Court shall affirm the commission’s report. If the Court would find the commission’s report to be unreasonable or unlawful, then the order of suspension would be vacated and the sheriff would be reinstated.
The suspension order of the commission remains in place during an appeal to the Supreme Court. In short, the sheriff is still suspended while the court considers the matter.
STEP 11: If suspended the sheriff could not exercise any of the rights, powers, or responsibilities of his office. The sheriff, however, would officially retain his title as sheriff and be compensated his salary and benefits. Any replacement, appointed by law, would also receive full salary and benefits and have the full powers of the office.
If a suspended office holder is found guilty or pleads guilty to any felony with which he is charged, the office holder is responsible to pay back his salary and benefits from the time of the original suspension.
Tom Hodson is a licensed attorney in Ohio and a former Ohio trial judge.