Morrisey's first opinion says no to special election for Jefferson sheriff

CHARLESTON – State Attorney General Patrick Morrisey says the Jefferson County Commission should appoint a new county sheriff to hold the office until the next general election. Morrisey issued the legal opinion, the first time he has done so in office, on Feb. 4 in response to a letter from Jefferson County Prosecuting Attorney Ralph Lorenzetti, Jr. Lorenzetti raised five specific questions in the wake of the resignation of former Sheriff Robert “Bobby” Shirley. Shirley resigned on Jan. 11, the same day he pleaded guilty to civil rights violations in connection with his treatment of a bank robbery suspect. “After a thorough review of this request, my office has determined that the County Commission must appoint someone to fill the vacancy in the office of Sheriff, and should do so as soon as practicable in order to comply with state law,” Morrisey said. “Moreover, West Virginia Code indicates that the election to fill the remaining term of the Sheriff must be held at the time of the next general election in November 2014.” In June, a federal grand jury indicted Shirley on charges relating to his arrest of Mark Daniel Haines 18 months earlier. According to both the indictment and a related civil suit Haines filed, Shirley recklessly beat and kicked Haines following a high-speed chase on Dec. 27, 2010. Shirley and deputies with the Jefferson County Sheriff’s Department began their chase of Haines after receiving a report he attempted to rob the drive-thru of the City National Bank at the Potomac Marketplace shopping center in Ranson. Eventually, officers with the Charles Town and Ranson police departments joined in and were later followed by the Berkeley County Sheriff’s Department and the West Virginia State Police. After Haines stopped his pick-up truck in a field across from Files Cross Road, he stepped out of the vehicle with his hands in the air. After one or more of the officers pushed him against the bed of truck, Shirley “climbed into the bed… and kicked [him] repeatedly in the head with a deliberate and sadistic intention to inflict injury on [him],” it is alleged. Shirley faces up to 10 years in prison, followed by three years supervised release and a $250,000 fine. Chief Deputy Jesse Jones was named acting sheriff. Morrisey’s opinion says state law does not directly address the exact timeframe within which the county commission must appoint someone to sheriff, though it does provide specific timeframes for other offices, including county commissioners. “Nevertheless, even without controlling precedent, the mandatory nature of the appointment language suggests that the vacancy must be filled by appointment within some reasonable period,” Morrisey wrote. Morrisey also wrote that whoever wins the 2014 election will serve Shirley’s term, which ends in 2016. Lorenzetti also asked if the commission could hold a special election before the 2014 general election. “West Virginia Code require(s) the commission to appoint a person to the office of sheriff, and that appointed person must be of the same political party as the vacating officeholder,” Morrisey wrote. “That duty is mandatory: Regardless of the date of the election to fill the vacancy, the commission is obligated to appoint a person to the office. Moreover, an election to fill the remaining term of the sheriff must be held at the time of the next general election in November 2014. “Therefore, the commission may not hold an election to fill the sheriff’s vacancy before the 2014 general election in lieu of appointing an individual to serve in that position.” From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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