BUCKHANNON – A judge has affirmed the Upshur County Commission's decision to certify the county's former chief deputy sheriff the winner of May's primary election despite later withdrawing following a determination his candidacy violated federal law.

Senior Status Berkeley Circuit Judge Thomas W. Steptoe, Jr. on Sept. 7 said the Commission was correct to deny a petition filed by David D. Taylor challenging its certification of the May 8 primary election results for sheriff. In his ruling, Steptoe, who was appointed to hear the case after Upshur Circuit Judge Thomas H. Keadle recused himself, said the Commission did not abuse its discretion to rely upon a nearly 40-year old attorney general opinion to determine former Upshur Chief Deputy Sheriff Michael R. Kelley's candidacy did not violate state law because he is not considered a civil service employee.

"The chief deputy is appointed by the sheriff and serves at the will and pleasure of the sheriff," Steptoe said in his ruling.

"It follows that such a 'will and pleasure' employee is not afforded the civil service protections of the Civil Service for Deputy Sheriff article. In fact, W. Va. Code 7-14-1 specifically excludes a chief deputy from its protection."

"Because the chief deputy is not afforded the protections of this article," Steptoe added, "it can be fairly concluded the chief deputy is not likewise burdened with the prohibitions contained in his article."

In May's Republican primary, Kelley, 53, defeated Taylor, 49, and Larry Fiedler, 61. A week after the Commission certified a canvas of the election, Taylor filed his petition challenging it.

In his petition, Taylor said Kelley's candidacy was invalid since he was a civil service employee. As a result, he asked the Commission to set aside its certification of sheriff's race, and declare him the winner since he was the runner-up.

In addition to his petition, Taylor asked the U.S. Office of Special Counsel for an advisory opinion if Kelley's candidacy violated the Hatch Act, a 1939 law that bars not only federal, but also state and municipal employees whose positions are financed through federal funds, from running for elected office. On June 21, the Office determined Kelley's candidacy did violate the Hatch Act, and gave him the ultimatum of resigning from office or withdrawing his candidacy.

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, citing unspecified family reasons, announced he was withdrawing his candidacy. No Democrat filed to run for sheriff.

Both the Commission in its July 26 decision rejecting Taylor's petition and Steptoe in his order affirming it said they were concerning themselves only with Kelley's candidacy violating state, and not federal law.

In his ruling, Steptoe said despite first appearances a 2007 rewrite of state law dealing with deputy sheriffs supported Taylor's argument Kelley's candidacy was improper the language is unclear because "there is no clear statutory definition of a chief deputy." Therefore, the Commission was correct to rely on a 1975 opinion issued by then Attorney General Chauncey H. Browning, Jr. finding "'... it is clear that a chief deputy sheriff is not covered under the provisions of Article 14...We are, therefore, of the opinion that a chief deputy sheriff is not required to resign his position to run for office of sheriff in the next election.'"

Following Steptoe's decision, Charles Crooks, Taylor's attorney, said he was "surprised and disappointed" by it. In light of the general election being less than two months away, and the "mounting cost of litigation," Crooks said Taylor will soon make a decision on whether to appeal Steptoe's ruling to the state Supreme Court.

Upshur Circuit Court, case number 12-C-94

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