Prosecutor: County Commissioners Can Appoint Acting Interim Sheriff If It Becomes Necessary

By
Steve Robb-Athens Messenger staff journalist

Dateline
Updated Wed, Mar 5, 2014 1:30 pm

The Athens County Commissioners have been given a legal opinion from the county prosecutor that they would have the authority to appoint an acting interim sheriff until the Athens County Democratic Central Committee decides on an appointee.

A special commission appointed by Ohio Supreme Court Chief Justice Maureen O'Connor has been considering whether Sheriff Patrick Kelly should be suspended while a criminal case is pending against him. Kelly was indicted Jan. 31 on 23 felony charges and two misdemeanor counts, and has pleaded innocent.

The commission has until Wednesday, March 5, to make a preliminary determination, but a preliminary determination that Kelly should be suspended would become effective at this stage only if Kelly agrees to accept the suspension — which appears doubtful based on his past comments. Kelly could contest the preliminary determination, and would remain in office until the matter is resolved.

There was no indication Wednesday morning whether the commission had made its preliminary determination.

County Prosecutor Keller Blackburn said that individually the commissioners raised the question with him over whether their role is to make the initial interim appointment, given a change that was made in Ohio law. The section of state code dealing with the process for possible suspension of a public official was amended last year.

County Commission President Lenny Eliason said he spoke with the Ohio Secretary of State's Office about the matter, and was told that the county prosecutor should be consulted.

Previously, Ohio Revised Code section 3.16 said the appointment was to be made "in the manner provided by law for filling a vacancy in that office."

The section of code dealing with filling a sheriff vacancy, 305.02, says the commissioners can make an appointment until the political party acts.

Kelly is a Democrat, so it would be the Athens County Democratic Central Committee.

Last year, 3.16 was amended to remove the "in the manner provided by law" language, and now it simply says the appointment is to be made by the political party's central committee.

Blackburn, in a letter sent to the commissioners Tuesday, said that 305.02 still applies.

"For the duration of the suspension, and prior to appointment by the county central committee, the county commissioners have specific authority under R.C. 305.02(F) to appoint an acting interim replacement until the time the central committee acts, the official is reinstated or the official resigns," Blackburn wrote.

If the special commission appointed by O'Connor makes a preliminary determination that Kelly should be suspended, it won't be announced publicly by the court, according to Supreme Court spokesman Chris Davey.

He said the results of the commission's work do not become public record until it completes its work and issues a final report.

O'Connor appointed three retired common pleas court judges to the special commission — Neal Bronson of Warren County, Jennifer Sargus of Belmont County and John Bender of Franklin County.

On Monday, The Messenger spoke with Bronson and Bender, who declined comment on whether they had made a preliminary determination on the suspension.

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