Upshur sheriff race heading to court
Lawrence Smith Aug. 2, 2012, 3:48am
BUCKHANNON – Who becomes the next Upshur County sheriff will likely not be decided at the ballot box, but in a courtroom.
The Upshur County Commission on July 26 rejected a petition filed by David Taylor to disqualify former Chief Deputy Sheriff Michael R. Kelley from the May 8 Republican primary, and declare him as the winner. In his petition, Taylor, who was the runner-up in the race for sheriff, alleged Kelley's candidacy was illegal under the Hatch Act which prohibits not only federal employees, but also state and municipal employees whose programs are financed though federal funds, from seeking elected office.
In a letter dated June 21, the U.S. Office of Special Counsel informed Kelley that his candidacy did indeed violate the Hatch Act. It gave him the ultimatum to either resign from the Sheriff's Department or withdraw his candidacy for sheriff.
Though he gave impressions he would resign, and work with the Commission on finding another county job until he was formally elected sheriff in November's general election, Kelley on July 12 announced he was withdrawing his candidacy. No Democrat filed to run for sheriff.
The Commission's decision came following a July 18 public hearing on Taylor's petition. In rendering its decision, the Commission said since Hatch Act complaints were the exclusive jurisdiction of the federal government, and since state law prohibiting deputy sheriffs from running for office does not apply to chief deputies, their decision certifying Kelley as the winner stands.
Also, they were treating his decision to withdraw as a vacancy they would fill following further instructions by the state Elections Commission.
"The issues presented by this petition are: (1) Whether West Virginia law prohibits [Kelley] as a candidate for the Republican Party nomination for Sheriff of Upshur County?; and, if yes, (2) Whether his disqualification requires further action by the Commission in appointing another candidate for that office?" the Commission said.
"For the reasons discussed below, the Upshur County Commission finds that West Virginia law does not disqualify [Kelley] as a candidate for the Republican Party nomination for Sheriff of Upshur County. Finding [Kelly] qualified, we find moot the question of this Commission's further action pursuant to a disqualification."
"I'm certainly not shy in telling you they got it wrong," said Charles Crooks, Taylor's attorney, following the ruling. Due in large part to the Commission's interpretation of an outdated version of state law dealing with civil service for deputy sheriffs, Crooks says he intends to appeal their decision to Upshur Circuit Court.
When asked when he intended to file the appeal, Crooks said "sooner rather than later" since the general election is only three months away.
The case could likely make its way to the state Supreme Court this Fall as the Commission in its decision said any of the code sections it relied upon failed to provide a "specific description of the political restrictions upon a Chief Deputy Sheriff" because "there is no Supreme Court precedent that settles this question."