The City of Akron blamed a state law for why they are only considering internal candidates for police chief, but a News 5 analysis found that there are actually multiple ways to hire externally.
We don’t just report the initial story—we follow through to its conclusion. Read and watch our previous reporting on this story below and see more stories that we've followed through on here.
The Akron Police Department has been shrouded in controversy since the death of Jayland Walker in 2022 when eight officers shot the 25-year-old Black man more than 40 times after a brief chase.
CLICK HERE to read News 5's extensive coverage of Jayland Walker.
This led to years of protests, lawsuits against the city and the resignation of former Police Chief Steve Mylett.
But on Monday, Mayor Shammas Malik announced the halt of his external search for a new leader.
"We have decided to move forward with an internal-only search," the mayor shared at a press conference.
News 5 covered the presser and followed up with how the community and police force felt about only being able to hire internal candidates.
RELATED: Akron can only consider internal candidates for new police chief due to state law
But Statehouse reporter Morgan Trau still had questions about the legality.
Malik referenced Ohio Revised Code Section 124.44, which states, “Vacancies in positions above the rank of patrol officer in a police department shall be filled by promotion from among persons holding positions in a rank lower than the position to be filled.“
When the lawmakers were putting together this state statute back in 2007, they were likely referencing collective bargaining unit promotions.
"That is looking at your rank-and-file members, not your upper-level leadership, but that's not what the statute says," Benza explained.
Malik's use of the provision led Fraternal Order of Police of Ohio President Gary Wolske to reach out. Hiring internally was welcome news to him but not necessary.
"I do believe that they should always come from within," Wolske said. "However, the law allows them to do what they're doing and I believe the law allows them to go outside."
Akron has had at least two previous police chiefs— James Nice and Mylett— who came from external sources.
The union leader, his attorneys and Case Western Reserve University law professor Mike Benza argue that there are ways to hire externally.
"There is a provision in the statute that allows them, the city, to declare a special need," Benza explained. "Declare that they need somebody who's got certain experiences."
Ohio is a home rule state, a topic covered extensively by News 5. Municipal home rule allows cities and villages in Ohio to have the constitutional right to certain powers, including establishing laws in accordance with the self-government clause. If something doesn't interfere with laws in the Ohio Revised Code, cities have the right to make their own policies.
Trau went through the Revised Code and Akron's charter and found that Section 106.10 states if a mayor requests an emergency appointment, the office “shall authorize one or more provisional emergency appointment(s) as needed.”
Akron could also hire externally using Section 106.08, which states, “whenever practicable, vacancies shall be filled by promotion.”
Malik doesn’t seem to think that is enough and doesn’t want to push it.
"I am acting on the best legal advice I have today,” the mayor said.
Each legal expert News 5 spoke to says this could be easily argued.
"It's all it is subject to interpretation," Benza said.
Writing statutes gets very difficult and often has unintended consequences because the way one body writes it may not be the way it gets interpreted years down the line, he added. He references the 2007 law as being one of these circumstances.
They could also hold off on the search for right now and put forward an amendment to the charter. Malik seemed interested in doing that but didn't want to wait to find a chief until after the November election.
"The easiest way would be to carve out these exceptions for certain ranks and above that are not subject to this type of provision," Benza added.
Another workaround would be "sketchy," but plausible, Benza said.
"Don't let the chief retire until you already have hired the new chief," the professor said, noting this would mean two different chiefs at one time. "That means you've never had a vacancy."
Trau reached out to the mayor's office through emails, phone calls and texts, asking dozens of questions about the city's interpretation of the law.
"We aren't going to discuss legal opinions," spokesperson Stephanie Marsh said in response.
Marsh later replied to additional questions with, "I can’t go into our law department’s legal analysis of the city charter so I’d refer you back to the Mayor’s remarks from Monday."
How did this start — and why a Supreme Court case actually helps allow for external hiring
This all stems from firefighters.
Under the current pension program, individuals who have worked for a fire department for 33 years must retire or risk losing some of the benefits they have accrued.
It is a common practice for cities to allow senior city staffers to retire and then be re-hired for the same position, often called "double dipping." For example, Attorney General Dave Yost retired briefly in 2023 to collect a pension atop his annual salary.
But this summer, the Ohio Supreme Court ruled against the city of Wickliffe’s fire chief — who retired and was rehired the next day to the same position.
Fire departments and police are governed by the competitive promotional examination process, Justice Melody Stewart wrote.
“Whether an incumbent intends to permanently leave a position or to leave with the expectation of immediately returning to that position is irrelevant to the determination whether the incumbent’s leaving creates a vacancy under R.C. 124.48,” the justice wrote.
However — the justices acknowledged that the city was allowed to adopt a charter provision on city hiring policy that conflicts with state law.
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