CHARLESTON, WV (LOOTPRESS) – State Attorney General Patrick Morrisey has issued an opinion on the Mingo County Commission vacancy issue. He did so at the request of Mingo Prosecutor Duke Jewell.
The sitting commissioners — Democrat Diann Hannah and Republican Thomas Taylor — have set a special meeting at 4 p.m., Wednesday to consider the matter. That date is apparently the deadline for the commissioners to fill the spot. If they are unsuccessful, the appointment likely falls to the Governor.
The issue at hand involves the appointment of a third commissioner, replacing the late Gavin Smith, who suddenly passed away in May. The two commissioners were unable to agree on a replacement within 30 days of Smith’s passing. Hannah nominated businessman Ernest Sammons but Taylor would not second it. Taylor offered no nominee of his own.
Taylor did, however, float the name of Gavin Smith’s widow, Audrey. It was determined that Audrey Smith was a registered independent voter when her husband passed.
In light of West Virginia Code 3-10, most observers including Mingo Prosecutor Jonathan “Duke” Jewell, concluded that Audrey Smith was ineligible. That section of code says the person appointed to fill a vacancy must be of the same party as the person creating the opening.
Gavin Smith was elected and was serving as a Republican at the time of his death.
The law further requires that the replacement shall have been of the same party as the vacancy for at least 60 days prior to the vacancy occurring. Obviously, Audrey Smith cannot meet that requirement.
But Taylor and state Republican officials think they found a way to sidestep the party requirement. When the two remaining commissioners can’t agree on a replacement after 30 days, the county executive committee of the departed member can recommend three replacements to the commission.
Taylor, County GOP Chair Bo Copley and state Republican Executive Director John Findlay assured a quickly appointed Mingo GOP Committee that they were not required to pick only Republicans. So, under the leadership of Copley and Findlay, the committee included Audrey Smith as one of their recommendations.
Their other two choices, from nine who applied, were Martin Fortner and Chadwick Hatfield. Both are Republicans who have been so registered for more than 60 days.
In his three-page letter to Jewell, the Attorney General apparently concluded that the committee was not bound by the party rule and could suggest anyone they wished.
That seemingly does not get around the requirement that the Commission can only select a qualified-at-least-60- day, Republican.
A call to Jewell seeking his interpretation of the letter was not returned by press time. Morrisey said the letter “speaks for itself.”
Morrisey issued his letter under the authority of Code § 5-3-2, which provides that the Attorney General “may consult with and advise the several prosecuting attorneys in matters relating to the
official duties of their office.”
The AG goes on to explain, “To the extent this opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.”
The letter then enters into a discussion of “legally qualified,” concluding that the 60-day requirement does not apply to the executive committee’s recommendations.
Apparently, the AG believes the law requires the commission to adhere to the 60-day rule but does not demand that from the executive committee.
“Further, the Supreme Court of Appeals of West Virginia has not addressed whether these requirements apply outside the election context, so it is possible that they might not apply to the type of appointment at issue here,” Morrisey wrote.
“Your letter does not include information about the potential appointee specific to these or any other generally applicable requirements and thus this opinion cannot answer whether she satisfies them. As long as she meets the Code’s general requirements, however, she is likely “legally qualified” for nomination by the Executive Committee as a candidate for the vacancy on the Mingo County Commission,” he continues.
“Subsection 7(a)’s requirement that the potential replacement be registered as a member of that party ‘for at least 60 days prior to the occurrence of the vacancy’ stands in contrast to …more general qualifications. There is no indication that the Legislature intended the 60-day time period to apply outside this one method of filling a vacancy,” Morrisey declares.
Mingo Commission meetings are open to the public. Seating space in limited in the commission courtroom at the county courthouse.
This story will be updated as events merit.