Defense attorney challenges enviro-officer’s right to act as ‘deputy’

The involvement of the Athens County sheriff’s environmental officer in an illegal-dumping case has raised questions about whether the deputy, who does not hold a certification from the Ohio Peace Officer Training Academy, may be overstepping his legal authority.

Sheriff Pat Kelly insisted Wednesday that complaints by an Ohio Public Defender attorney, suggesting Jay Barrett has improperly acted as a police officer, are a defense lawyer’s dodge.

“It was just a ploy by the Public Defender’s office, to waste more taxpayers’ money,” Kelly claimed, in reference to a motion to suppress evidence in a criminal case, which raised the issue of Barrett’s status.

The head of the Ohio Public Defender’s office, however, said Wednesday that if Barrett is actually representing himself to members of the public as a sheriff’s deputy, he’s breaking Ohio law. A state statute specifically bars someone with a felony conviction – which Barrett has – from being hired as a deputy sheriff.

“It’s against the law,” said Tim Young. “How is something being against the law a technicality? Our state Legislature thought it was important enough that it’s a crime.”

Barrett, formerly a sergeant under previous county Sheriff Vern Castle, was hired last January as the department’s environmental officer. He had left in 2004 after he pled guilty in Athens County Common Pleas Court to evidence tampering, admitting he had altered a doctor’s note that was to be used as evidence in a criminal case.

Barrett was ordered to serve 18 months probation and perform 500 hours of community service, but has since had his criminal record expunged. As part of a plea agreement, Barrett agreed to give up his Ohio Peace Officer Training Academy (OPOTA) certification as a police officer.

When Kelly hired him a year ago, the sheriff said Barrett’s job as environmental officer, a full-time reserve officer position, does not require an OPOTA certificate. Now, however, a defense attorney has suggested that Barrett may have acted a bit too much like a commissioned officer in a recent criminal case.

Defendant Frank Christman, Sr., of Glouster was indicted in June on a felony charge for open dumping and storage of scrap tires at his Bethel Hill Road residence. A bill of particulars alleges that on April 23 Christman burned tires and mattresses on his property. (He is also facing an apparently unrelated drug charge, filed later.)

Glouster volunteer firefighters responded to the report of a brush fire at the residence, and called the 911 dispatcher to send a sheriff’s deputy to the scene.

Three days after the fire, Barrett went to Christman’s home with a sanitarian from the City/County Health Department. The sanitarian, Mike Cooper, reportedly took photographs of the scene.

On Nov. 12, Public Defender attorney Glenn Jones filed a motion in Christman’s case, seeking to suppress “any and all evidence obtained from (Christman) and his property,” apparently on the basis of Barrett’s involvement in the case.

“Mr. Jay Barrett did not have the authority to conduct an investigation in this matter or enter onto the defendant’s property to collect evidence,” Jones wrote in his two-sentence memorandum supporting the motion. “Mr. Barrett does not have an OPOTA certificate.”

After a hearing, Athens County Common Pleas Judge Michael Ward on Dec. 20 dismissed the suppression motion, claiming in a judgment entry that Jones “did not specifically identify the evidence which he wants suppressed.”

In the entry, Ward noted that during the hearing, Cooper testified that Barrett, while on the Christman property, wore a shirt with the title “Detective Jay Barrett” on the front. The judge also acknowledged that Barrett “has referred to himself as a deputy sheriff.”

Ward wrote that Cooper and Barrett did not have a search warrant to enter Christman’s land three days after the fire – an issue Jones had raised in a separate suppression motion. “However,” the judge added, “neither party presented evidence that agents of the state seized any evidence that will be presented by the state at the trial.”

Kelly readily acknowleged that Barrett’s previous conviction – though expunged – bars him from getting an OPOTA certification. However, he said, Barrett has never acted as a certified police officer while working for Kelly.

He said Barrett can legally do “investigation” of an environmental offense, as could any citizen. Kelly argued that the only minor things Barrett apparently did wrong was to sign a criminal complaint as a police officer, and refer to himself as a deputy.

“It was never about the investigation,” he said. “It was about his signing the (criminal) charge as ‘Deputy Jay Barrett.’… Calling him a deputy is the only problem (the Public Defender’s office) had. And if that’s the biggest problem the Public Defender has, they should concentrate a little harder on their work, instead of trying to get people off on technicalities.”

Jones would not comment in detail on the case, or on Kelly’s assessment of his motives. He did direct The Athens NEWS to an officer’s commission for Barrett, filed with the Athens County Clerk of Courts on Jan. 11, and signed by both Kelly and Common Pleas Judge L. Alan Goldsberry. The commission was later apparently rescinded.

“Court records show that (Barrett) was appointed as a deputy sheriff,” Jones said. “My client’s argument is that the representative of the state was not acting in the proper capacity when the investigation and photographing of the tires took place. As such, it is a 4^th Amendment violation, and all evidence flowing from the search should be suppressed and ruled inadmissible at trial.”

Kelly called the filing of the commission for Barrett an “oversight” which has been corrected, and said its recording in the county office makes no real difference.

The sheriff noted that OPOTA keeps records in Columbus of commissioned officers. “Those are the records that matter,” he said.

Young, however, said he believes Kelly should be more concerned about his own office’s “oversight” in filing a commission for Barrett, than with Jones’ properly pointing it out.

“It’s interesting that they’re attacking the Public Defenders for doing their job right,” he said.