Parties on both sides of the fence presented arguments before Upshur County Commissioners on Wednesday morning during court proceedings that lasted two hours and 40 minutes with no decision rendered on the matter of the contested Upshur County's sheriff's election in May.
Commissioners have been tasked with deciding what direction the fall election will take in regards to filling the ballot after the top vote getter removed himself from the race.
At stake is whether the second runner-up should be placed on the ballot as the winner or if it should be directed back to the Upshur County Republican Party Committee to fill the spot on the ballot, among other possibilities.
The Inter-Mountain photo by John Clise
Chief Deputy Mike Kelley, right, who recently removed his name from the ballot for sheriff after the May Primary was contested, discusses the matter with his attorney Frank Hartman during proceedings before Upshur County Commissioners Wednesday.
David Taylor, runner-up, filed a petition filed to contest the election. He contended that Chief Deputy Mike Kelley, who was the top vote earner, was not eligible to run for sheriff because it would be a violation of the federal Hatch Act, a law which prohibits federal employees and state and local employees whose salary is supplemented by federal funds from seeking office.
After receiving an opinion on the Hatch Act violation from the Office of Special Council, Kelley recently removed himself from the ballot as a candidate in order to preserve his position as chief deputy, as well as his retirement and health insurance benefits. He also cited family concerns for his motivation not to seek election as sheriff.
Charleston attorney Frank Hartman, representing Kelley, said placing Taylor on the fall ballot would be giving him something he is not entitled to. Taylor's Morgantown-based attorney Charles Crooks said that because Kelley has removed himself from the ballot he is no longer entitled to have a say in the election because he is no longer involved in the matter.
Both attorneys cited a number of West Virginia State Code chapters and sections in stating their cases for their respective clients.
Crooks argued that the issue at hand is Kelley's eligibility to run for sheriff, which is why the election challenge was initiated.
Rather, Crooks said, it is not about whether Kelley's position as chief deputy is meted under Civil Service code, but that Kelley violated the federal Hatch Act intended to stop Civil Service employees from participating in partisan politics.
Hartman said there is no question that Kelley does deny the violation of the Hatch Act, though it was not intentional. However, he and his client believe Taylor is not entitled to a spot on the ballot because it would countermand the wishes of the voters.
Crooks said because Kelley was not an eligible candidate for the May election, his client has polled the most votes of any eligible candidate and is therefore the choice to be placed on the fall ballot.
"The evidence will show my client, David Taylor, polled more votes than any other eligible candidate," Crooks said.
"Mr. Taylor has envisioned the outcome he wants and back tracked the law to make it happen," Hartman said.
He added that all options for such a situation are covered in state code and that if commissioners, acting as judges in the matter, ignore those codes, they will be discarding the law.
After hearing arguments from both attorneys, Upshur County commissioners took all information under advisement and said they may render a decision on the matter during today's commission meeting scheduled to begin at 9 a.m.