Under Ohio law, some state offices have authority to remove elected county officials from office if the official faces felony charges that relate “to the public official’s administration of, or conduct in the performance of the duties of, the office of the public official.”
Foley’s attorney, Jon Paul Rion, did not return a request for comment.
The state filed a request to initiate the suspension process on Aug. 8, according to the Ohio Supreme Court’s announcement of its appointment of retired judges William Klatt, Jerry McBride and Jeffrey Ingraham to the suspension commission.
These three judges will be tasked with determining if Foley’s charges “adversely affects the functioning” of his office and have 14 days to come to a decision, according to Ohio law. This decision could be appealed by Foley, according to Ohio law.
If the special commission were to recommend a suspension of Foley, the Democrat-led Montgomery County commission would be responsible for appointing an interim official to replace Foley, a Republican.
The charges against Foley are being prosecuted by a special prosecutor from the Ohio Auditor of State’s Office. The state auditor’s office declined a request from the Dayton Daily News for records filed with the court requesting Foley be removed, saying the records are confidential law enforcement records under Ohio public records law.
A suspension 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.
Charges filed against Foley and Montgomery County Municipal Judge James Piergies came after a lengthy investigation by the Ohio Auditor of State’s Special Investigations Unit, which included the 2022 raid of Foley’s office.
Piergies was automatically disqualified from serving on the bench when he was charged with felony counts and is suspended with pay, according to the Ohio Supreme Court.
Montgomery County Democrats and Republicans alike have called on Foley to step down from his position. Democrat leaders last week called on state leaders, too, to initiate the process of suspending Foley.
“It’s the more responsible and right thing to do,” Montgomery County Democratic Party Chairman Mohamed Al-Hamdani said this week in regard to the creation of the special commission. “My hope is that they follow through. The community is shocked. We need to restore faith in our court system.”
Montgomery County Republican Party Chairman state Rep. Phil Plummer, R-Butler Twp., said he’s waiting for this legal process to go through its necessary steps.
“Obviously someone is taking this situation seriously, to go to the Ohio Supreme Court for this,” he said.
Plummer said Foley’s name will not appear on the Montgomery County GOP’s slate card, website, or any other party literature this election.
Foley has maintained his innocence, saying he has no intention of backing down from his office or his reelection bid. Foley faces Democratic challenger Lynn Cooper this fall.
“I trust the legal process that is in place. I remain dedicated to working hard earning the respect and votes of our citizens here in Montgomery County,” Cooper said.
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