The United States Office of Special Counsel has informed the Upshur County Sheriff's chief deputy that he has until Thursday to resign or remove his name from the November ballot.
Chief Deputy Mike Kelley, who won the Republican nomination for sheriff in the May primary, sought an opinion from the federal agency to see if he was in violation of the federal Hatch Act, which David Taylor claimed in a petition filed with the Upshur County Clerk following the election. Taylor lost to Kelley by a 2-1 margin in the sheriff's race.
Kelley's attorney, Frank Hartman of Charleston, said Kelley is looking at other positions within the county government that would not have him in violation of the Hatch Act. The U.S. Office of Special Counsel reported that if Kelley would choose to keep his position as chief deputy, he must remove his name from the ballot.
The Hatch Act prohibits federal employees, along with state and local government employees who receive pay from federal funds or oversee programs that are federally funded, from seeking political office in a partisan election.
Taylor argued that Kelley's name should be removed from the November ballot, and Taylor's name instead be placed on it. There is no Democrat challenging the Republican nominee for sheriff in the fall. Taylor contended in the petition that Kelley, as chief deputy, supervises employees paid by federal grants and also administers how grant funds are spent by the sheriff's department. Taylor also contended that a portion of Kelley's salary over the last several years was paid using federal grant money.
"As Chief Deputy for Upshur County, Michael R. Kelley is the direct subordinate of Sheriff Virgil D. Miller and has supervisory authority over all 12 subordinate employees within the Upshur County Sheriff's Office," the filing stated. "Among Chief Deputy Sheriff Kelley's responsibilities (are) supervising employees being paid in whole or in part with federal grant moneys either directly from the federal government or as pass-throughs of federal money from the State of West Virginia."
In addition to Kelley's supervisory duties, Taylor alleged that Kelley's salary has been supplemented by the federally funded Governor's Highway Safety Program, Click It or Ticket program, and an Underage Drinking Prevention grant, among others which date back as far as 2007.
A footnote in the petition stated that in addition to being ineligible to be a candidate in the Republican primary election because of the Hatch Act violation and West Virginia Code 17-14-15 which spells out a candidate's eligibility requirements, Kelley should be removed from his current office and the payroll of the county. The filing cited West Virginia Code 7-14-18 which states that the "unlawful candidacy" could be deemed to be a misdemeanor.
The Upshur County Commission has retained an attorney to help it sort through this matter, and a hearing on it is slated for July 18. The Thursday deadline reportedly given to Kelley is the date of the next Upshur County Commission meeting.
County Administrator Willie Parker, along with Miller and Kelley, met privately during Thursday's County Commission meeting. Parker said the commissioners were not invited to the closed-door discussions in an effort to keep them in an objective state when the hearing is held.