State agencies that have this power have not voiced any plans to suspend the clerk of courts.
Foley, charged with a dozen counts including theft in office and improper political and other activities involving public resources, entered a not guilty plea during his arraignment this week. He says he has no intention of backing down from his office or his reelection bid amidst calls from both political parties for the man to resign.
“From day one, Mike Foley has only wanted to serve the community with integrity,” said Jon Paul Rion, his attorney. “He feels he has done that and continues to do that. And he will fight to the end to show he is true to his mission.”
A section of the Ohio Revised Code, Section 3.16, allows either the Ohio Attorney General’s Office or prosecutors appointed to oversee the felony case to suspend an official from their office following felony charges if “the felony relates to the public official’s administration of, or conduct in the performance of the duties of, the office of the public official.”
Charges filed against Foley “clearly have to do with the functioning of a public office,” said Tom Hagel, a professor emeritus at the University of Dayton’s School of Law.
Hagel said public corruption charges against elected officials impact a community’s overall perception of government.
“Of all elected offices in the county, I can’t think of any offices that need to have the faith and the integrity of that office to be at a higher level than a judge and a clerk of court, right?” Hagel said.
Montgomery County Municipal Judge James Piergies was also indicted along with Foley. The Ohio Supreme Court removed Piergies from the bench upon his indictment, as rules that exist for Ohio judges state felony charges disqualify a person from serving as a judge.
State law on suspensions
If a county clerk of courts were suspended under Section 3.16 of the Ohio Revised Code, the county commission would be charged with appointing an interim official to serve in the seat.
In Montgomery County, the commission is led by three Democrats. Foley is a Republican who is fending off a Democrat challenger in November.
A suspension, per Ohio law, would bar an official from performing any duties of his or her office. But the Ohio Revised Code states it does not bar them from receiving payment.
The charged official will “continue to receive the compensation that the official is entitled to receive for holding that office during the period of the suspension, until the public official pleads guilty to or is found guilty of any felony with which the public official is charged,” according to Ohio Revised Code.
Suspensions also do not negate election law; a suspended official can still appear on the ballot.
The Republican-led Ohio Auditor of State’s Office’s special investigations unit is the special prosecutor in Foley’s case. That office declined to comment on the suspension provision, stating the investigation is ongoing.
Ohio Attorney General’s Office spokesperson Steve Irwin said the attorney general’s office in recent years has suspended public officials under 3.16 in several cases, including suspensions in Cincinnati, Cleveland, Toledo and Wapakoneta leadership. Ohio’s attorney general is also a Republican.
“We would anticipate that the Auditor of State’s Office special prosecutor would do this if they feel the charges apply to their conduct in office,” Irwin said.
Al-Hamdani said the call for his suspension is about sending a message to Montgomery County residents.
“Politics are being put ahead of what is good for our community,” he said. “A suspension would show that this is being taken seriously.”
Credit: Jim Noelker
Credit: Jim Noelker
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