Indiana county sheriffs can ignore local smoking bans inside jail, court rules

In November, the Indiana Court of Appeals affirmed a Lake Superior Court ruling authorizing Sheriff Oscar Martinez Jr. to ink contracts relating to the county jail without obtaining approval from the Lake County Board of Commissioners, so long as money for the purchases was appropriated by the county council.

The courts said the sheriff's statutory obligation to "take care" of the county jail and its prisoners gives the sheriff the power to enter into contracts relating to the jail independent of the county executive.

The commissioners have asked the Indiana Supreme Court to review those decisions. Records show the state's highest court has not yet decided whether to grant transfer in the case.

In the meantime, the Court of Appeals on Thursday relied in part on the Lake County precedent to rule in favor of the Clinton County sheriff and his policy permitting inmates at the central Indiana jail to use electronic cigarettes and consume smokeless tobacco — notwithstanding an order adopted by the county commissioners banning tobacco use in all county buildings.

The unanimous ruling declares county commissioners do not have control over the acts of a sheriff when it comes to the sheriff taking reasonable precautions to protect the life, safety and health of an inmate in the county jail.

"While the commissioners have the power to enact a general ordinance governing the use of e-cigarettes in county buildings under the Home Rule Act, the commissioners do not have the authority to regulate the use of e-cigarettes in the county jail because that power is entrusted in the sheriff's office pursuant to the take care provision," the appeals court said.

Appeals Judge Melissa May, writing for the court, said the fact Clinton County Sheriff Richard Kelly is awaiting trial on felony allegations of conflict of interest and three counts of official misconduct is irrelevant to the sheriff's authority to manage the jail as he sees fit.

According to court records, Kelly and his wife, Ashley, the jail matron, are accused of improperly contracting with their own company to run commissary operations at the jail, including the sale of e-cigarettes and tobacco products to jail inmates.

Martinez also is under indictment on a felony charge of resisting law enforcement and misdemeanor reckless driving after allegedly failing to stop while driving an unmarked, county-owned Jeep TrackHawk at 96 mph in a 45-mph zone in what police described as a "completely reckless" manner in September 2021 as two Crown Point police officers chased him with their lights and sirens activated, records show.

According to the sheriff's office, tobacco use is not permitted at the Lake County Jail.