Loser says Upshur sheriff-elect violated Hatch Act

Taylor

BUCKHANNON – An Upshur County attorney is contesting the certification of the May 8 primary election for sheriff saying the winner's candidacy violated state and federal law.

David D. Taylor filed a notice of election contest with the Upshur County Commission on May 25. In his petition, Taylor, who was a candidate for sheriff, asks the Commission to set aside its declaration of Michael R. Kelley, the current chief deputy sheriff, as the winner since Kelley's candidacy was prohibited by the Hatch Act.

Kelley, Taylor and Larry Fidler were candidates in the Republican primary for sheriff. Kelley, 53, a Buckhannon resident who has served as outgoing Sheriff Virgil Miller's chief deputy for the last seven years, defeated Taylor, 49, also of Buckhannon, the director of extended learning at West Virginia Wesleyan College, 63 percent to 31.

Fidler, 61, also of Buckhannon, took the remaining five percent.

A canvas conducted May 18 formally declared Kelley the winner. Since there is no Democratic challenger in November, the declaration made Kelley the sheriff-elect.

However, Taylor maintains Kelley, as a result of position as deputy sheriff, whose duties include administering federal grants the Department receives, should've been prohibited from running in the first place.

In his petition, Taylor cites state law that prohibits any deputy sheriff from being a candidate for office if he or she is subject to the Hatch Act, a 1939 law that restricts partisan political activities of federal civil service employees. Provisions of the act extend to state and local government employees whose programs are finance either in whole or in part with federal funds.

"By virtue of the fact that the Upshur County Sheriff's Office receives federal funding and Michael R. Kelley, as Chief Deputy, administers all programs involving such federal funding and his personally paid using federal funding, Michael R. Kelley is subject to the Hatch Act," Taylor says in his petition.

In his petition, Taylor listed multiple grants the Sheriff's Department received during the last five years, particularly from the U.S departments of Justice and Transportation. Among the intended purpose of the grants were to combat domestic violence and underage drinking and to promote highway safety through the Click It or Ticket program.

Also, Taylor attached as an exhibit to his petition records he received from the Commission through a Freedom of Information Act request detailing compensation Kelley received between 2007 and 2011 from grants that were passed through the county from the federal government via the Governor's Highway Safety Program. Records show though Click It or Ticket, Red Light, Underage Drinking, Stop Violence Against Woman and the various highway safety grants, Kelley received $14,776.08.

This, Taylor says, shows that Kelley was in violation of the Hatch Act when he ran for sheriff.

"Because Michael R. Kelley was statutorily ineligible to be a candidate for the Republican Primary for Upshur County Sheriff," Taylor says in his petition.

"(T)he May 18, 2012 certification of Michael R. Kelley as the winner of the Republican Primary for Upshur County Sheriff must, as a matter of law, be set aside, and the candidate with the next highest vote total be declared the winner of the Republican Party primary."

" In other words, Petitioner David Taylor should be declared and certified as the winner of the Republican Primary for Upshur County Sheriff."

Taylor is represented by Charles J. Crooks with Jackson Kelly's Morgantown office.

By law, Kelley has 10 days to answer Taylor's petition. Once Kelley files his answer, the Commission must schedule a hearing within 90 days.

Any appeals of their decision will be made to Upshur Circuit Court.

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