Justices side with Mingo sheriff in flood cleanup case

By Steve Korris | Mar 20, 2008

Albright CHARLESTON – West Virginia sheriffs don't have to sign every check that county commissioners order them to sign, the Supreme Court of Appeals ruled March 14.


CHARLESTON – West Virginia sheriffs don't have to sign every check that county commissioners order them to sign, the Supreme Court of Appeals ruled March 14.

All five Justices agreed that a sheriff may refuse to sign a pay order when the sheriff has good cause to doubt its legitimacy.

The Justices upheld Mingo County Sheriff Lonnie Hannah, who contested payments for two companies that cleaned up after a flood.

Hannah signed the checks under orders from Circuit Judge Michael Thornsbury, but he appealed awards of legal fees and interest adding up to $14,816.19.

The Court erased the awards, which Justice Joseph Albright declared were "premised on the faulty conclusion that a sheriff's duty is nondiscretionary in all circumstances."

The decision counts as a success for the West Virginia Sheriffs Association, which pleaded for Hannah in a brief as friend of the court.

The sheriffs declared they must reject payments they consider illegitimate. The Justices agreed, and they created a process to resolve disputes like the one before them.

From now on, they ruled, a sheriff can ask county commissioners for a hearing to contest a payment. If the commissioners insist on payment, the sheriff can petition a judge for an extraordinary writ.

"We emphasize that only in rare and unusual circumstances will a sheriff feel compelled to raise a challenge to the legitimacy of invoices by refusing to sign pay orders authorized by a county commission," Albright wrote.

"Our decision is certainly not to be viewed as a license for sheriffs to challenge every decision of this nature that county commissions make," he wrote.

The flood that started the dispute struck in the spring of 2004.

The county commission and the office of emergency services contracted with 263 Towing and Marcum Trucking to clean up.

263 Towing submitted an invoice for $175,200, and Marcum Trucking submitted an invoice for $103,275.

Commissioners approved the invoices and forwarded checks to Hannah for signature.

Hannah didn't sign. He knew federal agents were investigating the invoices.

Marcum Trucking and 263 Towing petitioned separately for court orders requiring Hannah's signature.

For Hannah, prosecuting attorney Michael Sparks responded that the companies did not supply sufficient proof of services they rendered.

Hannah fulfilled his obligation to prevent crime, Sparks wrote.

Marcum Trucking and 263 Towing objected to Sparks as counsel to the sheriff, and Sparks withdrew.

Hannah asked county commissioners to hire a lawyer for him. They said no, so he represented himself before Thornsbury.

No one indicted anyone, and in 2006 Thornsbury ordered Hannah to sign the checks.

The companies asked for interest. Thornsbury awarded Marcum Trucking $9,027.19, but he denied interest to 263 Towing.

The companies asked for legal fees. Thornsbury awarded $4,214 to Marcum Trucking and $1,575 to 263 Towing.

On appeal, company attorneys Michael Callaghan and John Tinney Jr. of Charleston, argued that sheriffs sign checks as a ministerial duty.

Hannah's attorney, Letitia Neese Chafin of Williamson, argued that the Prompt Pay Act requires a sheriff's signature on a "legitimate uncontested invoice."

Ministerial duty does not apply to a questioned invoice, she argued, and she won.

Albright wrote, "The enactment of the Prompt Pay Act, with the conditional language of 'legitimate uncontested invoice,' carries forward the premise established in our case law that the duty of sheriffs to sign pay orders authorized by county commissions is nondiscretionary only when they are based on invoices which reflect legitimate and unquestioned costs."

If a prosecutor can't represent a sheriff in a payment dispute, Albright wrote, it will be incumbent on county commissioners to furnish legal counsel.

"The sheriff should have legal representation during the entire review process," he wrote.

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