A senior-status judge affirmed Friday the Upshur County Commission's earlier decision declaring that Chief Deputy Mike Kelley was an eligible candidate to run for sheriff.
Judge Thomas Steptoe, who was appointed to hear the appeal of the commission's decision after Upshur County Circuit Court Judge Thomas Keadle recused himself, did not rule on whether Kelley was subject to the federal Hatch Act, a law which prohibits federal employees, along with state and local employees whose salary is supplemented by federal funds or who oversees federally funded programs from seeking office in a partisan election.
An opinion from the U.S. Office of Special Counsel, the federal agency specifically charged with investigating Hatch Act complaints, stated in June that Kelley was subject to that law and ordered him to either withdraw from the election, resign as chief deputy or else face further penalties. Kelley opted to withdraw from the election.
After being defeated in the Republican primary for sheriff by Kelley, David Taylor challenged the legality of Kelley's candidacy through the Hatch Act stipulation and through claims that even though Kelley is a will-and-pleasure appointee of the sheriff, he still received Civil Service protection and benefits. Civil Service employees must step away from those jobs in order to run for partisan political office.
Steptoe called the portion of the Civil Service code unclear in its application to chief deputies, using a 1975 attorney general's opinion that stated Civil Service protections are not afforded to chief deputies.
"We respect the court's efforts, but are surprised and disappointed by this decision," said Charles Crooks, the attorney for Taylor. "My client has the option of appealing to the West Virginia Supreme Court of Appeals. But the general election is fast approaching and the mounting cost of litigation is a factor."
Taylor expressed disappointment in the decision, adding he will be reviewing his options regarding an appeal.
"I will be making that decision fairly soon," he said.
The Upshur County Republican Executive Committee had considered placing Taylor's name on the November ballot after Kelley's withdrawal, but opted instead by an 8-4 vote to choose Dave Coffman as its nominee.
Coffman had earlier filed a petition to seek the sheriff's job as an independent candidate, but withdrew that petition after being chosen by the Republican Party. There was no Democratic candidate in the May primary, but former sheriff and registered Democrat Sherman Baxa has filed a petition to run as an independent candidate in the general election.