Former sheriff candidate sues Upshur Commission

BUCKHANNON – A former candidate for Upshur County sheriff has sued the Upshur County Commission in federal court, claiming current and former members conspired to violate his constitutional rights in events surrounding the May 2012 primary election.

David Taylor – who finished second to Mike Kelley in the May 8, 2012, Republican primary for sheriff – filed a federal civil lawsuit Tuesday in the Elkins office of U.S. District Court for the Northern District of West Virginia.

The suit names as defendants the current Upshur County Commission President Donnie Tenney, former commissioner Creed Pletcher and current Commissioner JC Raffety, along with the current Upshur County Commission as a political subdivision and the commission’s counsel at at the time, Timothy Stranko.

The six-count complaint deals with events beginning in March 2012 that relate to the commission’s handling of the contested sheriff’s primary race, results of which Taylor unsuccessfully challenged in the West Virginia Supreme Court of Appeals in October 2012.

In the Dec. 2 lawsuit, Taylor charges Stranko and the commission with one state law claim – negligence – and five federal claims, including denial of due process by violation of the Fifth and Fourteenth amendments; civil conspiracy to violate rights; conspiracy to interfere with civil rights; neglect to prevent conspiracy against civil rights; and denial of the right to vote and participate in a fairly conducted election in violation of the First and Fourteenth amendments.

The suit alleges that in March 2012, Taylor conveyed “apprehensions” to Pletcher that Kelley “was not legally eligible and not qualified to be a candidate to run for” Upshur County sheriff because of his employment as chief deputy with the Upshur County Sheriff’s Office, as his duties “were connected to federally funded activities in clear and explicit violation of federal law.”

Following his loss in May 2012, Taylor sought to have himself declared the winner of the election after it was determined Kelley was ineligible to seek office because it would be a violation of the federal Hatch Act.

That law restricts the political activity, including seeking office in a partisan election, of federal employees and state and local employees whose salary is supplemented by federal funds or who oversee federally funded projects. Kelley both received federal money in his salary, though it was channeled through the county commission, and supervised employees working in federally funded programs as part of his duties.

In permitting the “illegal and unqualified candidacy” of Kelley, Taylor says the commission denied him “full exercise of his franchise as a voter and candidate, thus negating the opportunity to participate in a fairly conducted election, which is a constitutionally protected feature of United States citizenship.”

After Kelley won the election, Taylor filed a petition with the commission contesting Kelley’s election and asking that he, as the highest vote-getter among the other eligible candidates, be declared the winner – at which point the commission retained Stranko to assist them with the election challenge.

Kelley withdrew from the race on July 16, 2012, after receiving notice from the U.S. Office of Special Counsel that he must either resign from his current post or withdraw his candidacy, according to Taylor’s complaint.

A hearing to resolve the election challenge was set for July 18, 2012, just two days after Kelley’s withdrawal.

Taylor’s suit contends that on July 17, 2012 – one day before the election challenge hearing – a commission employee allegedly emailed a “draft order” prepared by Stranko to Dave Nichols, a legal assistant with the West Virginia Secretary of State’s Office, “announcing the (commission’s) intentions of dismissing” Taylor’s case.

Noting that he uncovered this email through a Freedom of Information Act request submitted to the Secretary of State’s office, Taylor argues that the commission’s “intentional biased and prejudiced pretrial drafting of such an order mortally determined (his) fate previous to the actual commencement of trial, thus negating any chance whatsoever for a trial before a fair and impartial tribunal as Defendants were so thus inclined and predisposed to dismiss (Taylor’s) case before it ever got started.”

Through a meeting with former Upshur County administrator William A. Parker, who resigned from his post in May 2013, Taylor claims he learned more information that led him to believe the commission had predetermined the outcome of the election challenge hearing before it ever occurred.

On June 2, 2013, Taylor met with Parker, who told him that Raffety “was most vocal of the three Defendant Commissioners statutorily empaneled as a tribunal at expressing hostility and exhibiting biased and prejudiced behavior opposing (Taylor’s) state of affairs from the commencement of the filed election challenge,” the complaint states.

Parker allegedly told Taylor the commission had been concerned about its federal liability because of Tenney having signed agreements on the commission’s behalf involving federal grant monies. The terms of such agreements restrict the political activity, including seeking office in a partisan election, of federal employees and state and local employees whose salary is supplemented by federal funds.

“Mr. Parker confessed to Plaintiff (Taylor) that (the commission’s) decision to reject/deny (Taylor’s) Petition to Contest the Election (sic) was in essence determined before trial as Defendant Commissioners discussed (to which he was privy to the conversations) at various times pretrial specific needs to protect themselves from the exposure and attachment to federal liability because of Defendant Tenney’s signature on all of the ‘Standard Conditions and Assurances’ agreements involving federal grant monies, stating, ‘that was some of their thinking,'” the complaint states.

Taylor also alleges that the commission’s “biased and prejudiced behavior” toward him “continues to surge from a preceding reported incident” that took place on April 20, 2011, “and dates subsequent, involving (the commission’s) former employee, deputy sheriff Troy A. Brady III.” Brady was elected to the Upshur County Commission in November 2012 and currently serves as a commissioner.

Taylor says that in exercising his First Amendment right to file an election challenge, he “exposed” Kelley’s and the commission’s “defiance” of federal law – specifically the Hatch Act – throughout the 2012 West Virginia primary election.

The commission retaliated against him for doing so, he claims, writing that “Defendants’ conspiratorial comeback was invoked and in bad faith exercise of their official duties, (commissioners) denied (Taylor) equal protection of the laws, and/or of equal privileges and immunities under the law and as guaranteed by the Constitution.”

Taylor, who is demanding a trial by jury, is asking for damages to compensate him for loss of enjoyment of life, psychological and emotional distress, damage to his reputation, economic damages, any other compensatory damages to be proven at trial, reasonable attorney fees and costs, and prejudgment and post-judgment interest.

In addition, he is requesting “declaratory judgment relief establishing the Defendants above described conduct violated the Plaintiff’s (Taylor’s) clearly established constitutional rights” and “injunctive relief requiring appropriate training, supervision and discipline in order to remedy all constitutional deprivations, which the Plaintiff (Taylor) suffered.”

When contacted for comment, Raffety said he had yet to see a copy of the complaint.

“I will withhold comment at this time until I have an opportunity to review and consult with county’s counsel,” he said.

Tenney did not return messages seeking comment by presstime.

“The complaint speaks clearly for itself,” Taylor said when contacted by The Inter-Mountain Wednesday. He said the commission should not have been in charge of determining the outcome of an election challenge due to a conflict of interest.

“Putting the Upshur County Commission in charge of deciding the election challenge is exactly like putting a bank robber in charge of counting the money to give back to the bank he just robbed – after getting caught red-handed by the police,” he said.

Although Taylor appealed an Upshur County Circuit Court decision against him to the West Virginia Supreme Court of Appeals, the high court upheld the ruling, citing cases as far back as 1898 that declared the runner-up in an election does not automatically become the winner when the top vote-getter drops out.

The county Republican Executive Committee had considered placing Taylor’s name on the November 2012 ballot, but opted to go with Dave Coffman by an 8-4 vote.

Coffman defeated independent candidate and former sheriff Sherman Baxa, 4,519 votes to 2,881 votes, in the November 2012 general election.

Contact Katie Kuba by email at Follow her on Twitter at IMT-Kuba.