Malawista Out As Potential Sheriff Appointee

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One fewer person is available for possible appointment as sheriff if Athens County Sheriff Patrick Kelly is suspended during his criminal case.

David Malawista, who had indicated to the Athens County Democratic Party that he would be interested in the appointment, said Wednesday he has learned he is not legally eligible due to a 2013 Ohio Supreme Court decision.

Malawista said he'd heard some people were questioning his eligibility, so he asked Athens attorney Sky Pettey to research the matter and Pettey informed him of his ineligibility.

According to Malawista, it has been determined that his work as an auxiliary Athens police officer does not meet the requirements to be appointed. He said he has worked the required hours, but the Ohio Supreme Court has said that the position must be considered full-time by the employer, which in not the case with his auxiliary position.

Malawista said he'd consulted with two attorneys prior to the Supreme Court decision and had been told there was no problem.

Malawista said he has informed the county commissioners that he is not eligible, but had not yet had an opportunity to speak with Athens County Democratic Party Chairwoman Kathy Hecht.

Two other people have confirmed they are interested in the potential appointment — Sheriff's Lt. Detective Jack Taylor and recently retired Sheriff's Lt. Rodney Smith.

Meanwhile, a question has arisen over whether the Athens County Commissioners would play a role in the appointment process. The section of state code dealing with appointment of a replacement during a sheriff's suspension was amended last year.

Previously, Ohio Revised Code section 3.16 said the appointment was to made "in the manner provided by law for filling a vacancy in that office." The section of code dealing with filling a sheriff's vacancy, 311.01, says the commissioners can make an appointment until the political party acts.

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

Kelly was indicted Jan. 31 on 23 felony charges and two misdemeanor counts and has pleaded innocent in Athens County Common Pleas Court. The Ohio Attorney General's Office, which is acting as special prosecutor in the case, has asked the Chief Justice of the Ohio Supreme Court to initiate the process to suspend Kelly while the criminal case is pending. Last week, Chief Justice Maureen O'Connor appointed a three-judge commission to consider the matter. The process calls for the commission to make a preliminary determination, which could ultimately lead to a final decision to suspend.

Kelly told The Messenger on Wednesday afternoon that he had not been notified of any action by the commission.