Panel seeks workaround to Jan. 15 deadline to name Wayne County sheriff

George Hunter
The Detroit News

Detroit — Although state law says a successor to former Wayne County Sheriff Benny Napoleon must be named by Jan. 15, county officials are seeking a workaround to the deadline to buy more time to interview applicants.

Napoleon died Dec. 17 at Henry Ford Hospital about three weeks after he was placed on a respirator while fighting COVID-19. Six weeks earlier in the Nov. 3 election, he was re-elected with 97.8% of the vote, and his new term was to start Jan. 1.

Benny Napoleon

According to Michigan election law, if a county sheriff is elected but dies before the new term starts, "the vacancy shall be filled within 15 days after the beginning of the term for which he was elected."

But the three-member panel of Wayne County officials who are statutorily required to appoint a new sheriff — chief probate judge Freddie Burton, clerk Cathy Garrett and prosecutor Kym Worthy — said the law, which was passed in 1954, is outdated and poses an unreasonable hardship.

"I just don't see how we can do this within 15 days," Worthy said during a half-hour meeting that was livestreamed on Zoom. "I think we we all want the process to be open and fair, and give anyone who's interested in this position a chance to apply.

Wayne County Prosecutor Kym Worthy

"The only way we could've done this would be if we'd have convened the day after (Napoleon) died," Worthy said. "That's just inhumane; no way would I have taken part in that."

Garrett added: "I agree. It's my personal feeling that it’s such an unsensitive and disrespectful statute. There's no way you could do this efficiently in that span of time."

Burton suggested asking chief Wayne County Circuit Judge Timothy Kenny whether there's a legal way around the statute. Burton added: "We can also ask corporation counsel to try to locate some case law outside of the state of Michigan if necessary to allow us to get some clarity."

The panel voted unanimously to ask Kenny to give an expedited legal opinion; Burton said he'd have the pleading on Kenny's desk Friday.

The panel also voted Wednesday to set up two schedules governing the application process — one schedule in case they're unable to get around the deadline, and another if they're allowed more time.

Wayne County Clerk Cathy Garrett

If the deadline is enforced, all applications for the vacancy must be submitted by 4:30 p.m. Friday. The panel would interview candidates on Jan. 14, and, if necessary, Jan. 15, and make an appointment by the deadline.

If the panel is allowed more time, applicants would have until 4:30 p.m. on Jan. 20 to submit their resumes; interviews would begin Feb. 3.

"After the interviews, we could schedule the vote, and proceed to a decision right away," Burton said. "If there are 10 or more applicants, we can (conduct interviews) on a second day."

Worthy called the Jan. 15 deadline "unfair" and asked: "Is there some kind of penalty we'd suffer is we just selected someone past the 15 days? I'd like to know the legal consequences."

Corporation counsel Janet Anderson-Davis said: "If you go beyond the 15 days, the case could go to litigation, and a judge could set aside the appointment, but there's no case law to provide guidance."

Wayne Circuit Judge Freddie G. Burton

Anderson-Davis suggested the panel could move forward and appoint a new sheriff under a 1978 state Attorney General opinion, "which indicates the selection process must happen within a 'reasonable time,'" she said. 

But the panel voted instead to ask Kenny for a ruling.

"If we get a decision from Judge Kenny that says we've got to get this done within 15 days, we're compelled to do so," Burton said. "But I'm not sure how the statute, with how old it is, addresses the ability for this body to get this resolved in such a short period of time."

Garrett was asked if applicants could email their resumes, but she said she wanted them delivered in person.

"Technology is technology, and someone could say they sent it, and that could get murky," she said.

"Even emails?" the judge asked.

Worthy agreed, and said her office has had recent trouble with its email system.

"I agree with the clerk ... even though we're in a pandemic, I believe this can be safely done," she said.

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Twitter: @GeorgeHunter_DN