Upshur sheriff candidate appeals denial of election challenge to state Supreme Court

By Lawrence Smith | Oct 18, 2012

CHARLESTON – An Upshur County attorney is taking one last shot at challenging the results of the primary election for sheriff.

CHARLESTON – An Upshur County attorney is taking one last shot at challenging the results of the primary election for sheriff.

David D. Taylor on Oct. 5 appealed to the state Supreme Court Senior Status Berkeley Circuit Judge Thomas W. Steptoe’s decision denying Taylor’s challenge to the certification of the May 8 sheriff’s election. Though he initially expressed reluctance to appeal to the Court following Steptoe’s ruling last month, Taylor said he decided to go forward out of respect for the people who voted for him, and to protect the integrity of the electoral process.

“This entire series of events should’ve never happened had local officials simply followed, and complied with the laws they were sworn to uphold and respect,” Taylor said.

“Unfortunately, engaging in costly litigation is the only way I know how to do my part to ensure that the integrity of the electoral process is not further compromised right here in Upshur County, and that the anti-corruption provisions of the current West Virginia deputy sheriff’s civil service statute is followed.”

The May primary pitted Taylor, 49, director of West Virginia Wesleyan’s office of extended learning, against then-Chief Deputy Sheriff Michael R. Kelley, 53, and Larry Fiedler, 61. The winner faced no Democratic opposition in November’s general election.

Kelley won with 63 percent of votes cast to Taylor’s 31 percent, and Fidler’s 6 percent. A week after the Upshur County Commission certified the results, 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.

Four days before the Commission held its July 16 hearing on Taylor’s petition, Kelley announced his resignation from the Sheriff’s Department citing unspecified family reasons. Ten days later, the Commission affirmed its certification of the sheriff’s race.

In its ruling, the Commission said it concerned itself with Kelley’s alleged violation of state, and not federal law. As a result, it ruled he did not violate the anti-corruption provisions of the state civil service statute because chief deputies are exempt from it, and his resignation created a vacancy that the county Republican executive committee could fill.

In ruling on Taylor’s appeal of the Commission’s decision to Upshur Circuit Court, Steptoe, who was appointed to hear the case after Judge Thomas H. Keadle recused himself, on Sept. 7 said the 2007 revision to the state code Taylor cited was unclear as whether the chief deputy was a civil service employee. In his ruling, Steptoe relied on a 1975 attorney general’s opinion that chief deputies are not considered civil service employees, and therefore did not have to resign to run for sheriff.

In his appeal to the Court, Taylor said both the Commission and Steptoe erred in basing their decisions on the attorney general’s opinion. Chief deputies are considered civil service employees, Taylor argues, not only because a 1992 revision to section 13 of the deputy sheriff’s civil service statute extends all “rights and benefits” to chief deputies, but also the 2007 rewrite of section 15 contains a provision that any deputy subject to the Hatch Act may not run for office.

“The current version of W. Va. Code 7-14-15(a)(4) (2007) leaves no doubt that Chief Deputy Kelley was ineligible – as matter of West Virginia law – to be a candidate in the Republican Primary for the office of Upshur County Sheriff,” Taylor says in this appeal brief.

“Unfortunately, the Upshur County Election Court embraced Michael R. Kelley’s argument that an Attorney General Opinion interpreting a superseded version of the statute, W. Va. Code 7-14-15(a)(4) (1971), should guide the decision below.”

Along with reversal of Steptoe’s decision, Taylor asks the Court to declare him the winner in the sheriff’s race, direct the Commission to place his name on the ballot in next month’s general election and award him court costs, and attorneys fees. As a result of the election being less than a month away and early voting starting on Oct. 22, Taylor made a motion for expedited relief.

As of presstime, the Court had yet to rule on Taylor’s motion or issue a memorandum opinion. The Court is scheduled to hold a session in Buckhannon on Tuesday, Oct. 23.

West Virginia Supreme Court of Appeals case number 12-1153

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