Commissioner Says Law Governing Sheriff’s Possible Suspension Needs Changed

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An Athens County commissioner says he will pursue changes in the state law under which the suspension of Sheriff Patrick Kelly is being considered.

Commissioner Lenny Eliason said he has already spoken with the County Commissioners Association of Ohio regarding his concerns with that law, and he will be drafting revised language for the association to consider. The association would decide whether it wants to pursue changes with the Legislature.

After Kelly was indicted on 25 charges (he has pleaded not guilty), the Ohio Attorney General’s Office followed a process under Ohio Revised Code Section 3.16 and filed the indictment with the chief justice of the Ohio Supreme Court, asking that Kelly be suspended from office while the criminal case is pending. Chief Justice Maureen O’Connor appointed a special commission to consider the matter.

Eliason said Section 3.16 needs to be clarified, in part to give local officials a better handle on the timing of when a suspension will occur, so that appointment of an interim official can take place in an orderly manner.

For example, a public official being considered for suspension can request a meeting with the special commission, and the law says that at “the conclusion of the meeting” the commission will make a final determination on the suspension. Eliason said it is unclear whether that means the same day, within several days or in weeks.

“We have no idea,” Eliason said.

Also, the meeting between a public official and the special commission is secret and unannounced.

Because a suspension can occur without any advance knowledge of when it might actually happen, that can make it difficult for county commissioners to plan for making an interim appointment, Eliason said. If, for example, the suspension happened late on a Friday afternoon, the county commissioners would have to call a meeting — giving required public notice — and open up the Courthouse on a weekend to have the meeting.

Athens County Prosecutor Keller Blackburn recently gave the Athens County Commissioners a legal opinion saying that if Kelly is suspended, the commissioners have authority to appoint an interim sheriff until the Athens County Democratic Central Committee makes an appointment.

Eliason said that needs to be specifically stated in the suspension code, in order to avoid a potential situation where prosecutors in different counties give different opinions.

“You may get different interpretations in different counties,” Eliason said.

A section of Ohio law dealing with filling vacant county offices says the central committee must meet to make the appointment “not less than five nor more than 45 days after a vacancy occurs.” Eliason said it needs to be specifically stated whether that same time frame applies in the case of a suspension.

“I definitely think it needs clarity,” Eliason said of the suspension law.

He said he will draft proposed language changes and submit them to the County Commissioners Association of Ohio. He said the process calls for it to be assigned to a subcommittee. Eliason said it could take months for the matter to go through the association’s process. However, Eliason said he anticipates the association will be agreeable to seeking a change in the law.

“It’s not a real dramatic change, we just have to clarify a few things,” Eliason said.

Under the Section 3.16, the special commission makes a preliminary determination on whether a suspension is warranted, and must “immediately” notify the public official involved. By law, the preliminary determination is not announced, and what subsequently occurs is secret until a final report is issued.

In the case of Kelly, last Wednesday was the last day the commission could make a preliminary determination. If the preliminary decision was to suspend, Kelly has 14 days to contest it and request a meeting with the commission. Kelly won’t say what happened, citing a gag order in his criminal case.

“My assumption is that there was a preliminary determination to suspend him,” Eliason said.

Adkins, who started by saying he was not referring specifically about the Kelly situation, said he has a problem with secrecy provisions of the suspension law.

“I think (with) public employees, who are paid with tax dollars, that that information should be made public,” Adkins said. “I don’t have a clue of why it should be secret. … It serves no purpose, other than to make people wonder.”

Adkins said that if the commissioners disciplined an employee, it would become public immediately — sometimes even before the employee was notified.

“I don’t put elected public officials on any higher pedestal than I do the working man or woman …,” Adkins said.

Eliason said the rewording he will propose will make the timeline of the suspension process more transparent. If the County Commissioners Association of Ohio decides to pursue changes in the law, there would likely be discussions with legislators about their reasoning behind wanting the preliminary determination to not be made public. Eliason said any discussion with legislators would likely involve some give and take.