Mike Kelley has decided to remain in his chief deputy's position with the Upshur County Sheriff's Department and will no longer seek to become the next sheriff.
Kelley announced his decision Thursday afternoon during the County Commission meeting. He called it a "family decision" as he thought it would be best for his family to remove the stress of the contested election battle and to maintain his family's health insurance and his retirement benefits.
Sheriff Virgil Miller tried for the past few weeks to move Kelley into another non-Civil Service position as a process server and court security officer, but the county commissioners failed to act on the request. Their legal advisor, attorney Timothy Stranko, had advised against the transfer of duties because of the appearance of it being done solely for election reasons and that there was no vacancy for the job. County Administrator Willie Parker also would not recommend the action, saying the reduction in deputies could result in a reduction in federal grant funds.
"It could be viewed as supplanting local funds with federal funds when there is a reduction in force," Parker said. "That argument could be made by some bean counter in Washington, D.C."
Both Miller and Kelley's attorney, Frank Hartman, argued that the commissioners had allowed previous job transfers when the supervising elected officials approved of the move.
"I'm disappointed because there was precedent," Hartman said on behalf of his client. "It was a reasonable accommodation for Mike under the circumstances."
Hartman argued that Kelley was being unfairly penalized by the election challenge in that his ability to seek other employment within the county was being jeopardized. Commissioner Creed Pletcher, however, said if it were not for the challenge, "we would not be having this conversation at all."
"This is a situation not of the making of the (County Commission)," Parker added. "The employer is trying to deal with the cards they have been dealt."
The commissioners said that the election being contested and the possibility of further litigation make this a different matter, not just one as simple as moving an employee from one job to another.
"This could put us in a situation we don't want to be in," Commissioner Donnie Tenney said.
"We can argue around the issue all we want, but the litigation is the 800-pound gorilla in the room," added Commissioner J.C. Raffety. "This is very difficult, and to a degree, very stressful to all parties concerned. I have to be able to make the best decision for the county ... not for me, not for Mike, not for Mr. (David) Taylor. These issues are so intertwined that you cannot separate one issue from the other as much as you may ideally want to."
Taylor, who lost his bid for the Republican nomination for sheriff to Kelley in the May primary by a 2-1 margin, filed a petition with the county clerk's office immediately after the commissioners certified the May primary election results. Taylor contended that Kelley was ineligible to seek office in a partisan election because he falls under the provisions of the federal Hatch Act. That law restricts the political activity of federal employees, along with prohibiting state and local employees who are paid using federal funds or oversee programs that are federally funded from seeking office in a partisan election.
He sought to have Kelley's name removed from the ballot and to have his name added for the November general election. There is no Democrat challenger for sheriff, and Miller is ineligible to run for re-election under West Virginia term-limits rule.
Taylor said he was happy with the outcome of Thursday's events, adding that he hoped "all of these highly charged emotions will soon be a thing of the past.
"I wish Mike and his family the very best," Taylor said. "I respect the decision he made. It had to be the hardest decision in his career he ever has had to make."
There is still the chance that Taylor's name may not appear on the ballot. Hartman said Kelley's notice to withdraw from the election will be sent to state officials, who after accepting, will send the matter back to the Upshur County Republican Executive Committee. Kelley, under the guidelines set forth by the U.S. Office of Special Counsel, cannot seek to be a write-in candidate nor can he serve as sheriff if he were to be elected despite his decision to step aside. Kelley had been given the option to resign as chief deputy or remove his name from the ballot by July 12.
The commissioners will still hold their 9 a.m. special meeting on Wednesday to determine if there are still issues remaining in this matter.