Filing issue addressed; decision is made to allow fee correction

Rachel Dove rbaldwin@civitasmedia.com

January 31, 2014

By Rachel Baldwin


WILLIAMSON - An application to file for the office of Magistrate received in the mail accompanied by the incorrect filing fee validated Thursday, with the candidate paying the additional money owed to the state.

On Monday, the County Clerk’s office received a petition from Grady Colin Kelley II, who was filing for the unexpired term (four years) of former Magistrate Dallas Toler. The paperwork was postmarked before the Saturday deadline, but contained two money orders that equaled $570, which was $5 less than the required filing fee.

“As soon as I looked at the amount of the money orders and realized it wasn’t correct, I spoke with an employee in the West Virginia Secretary of State’s Office by the name of Lisa, who instructed me to not accept it, saying that it was illegal and was against the state code.” said Marlena Cisco, a deputy clerk who handled the political filings.

“Myself, as well as another clerk, made 15-20 attempts to reach Mr. Kelley at the number he had provided on his paperwork, but were not successful,” Cisco said. “We kept getting a recording telling us the party could not be reached at this time and that the line was busy, and we were not offered the option to leave a message.”

Cisco said that the Secretary of State’s office advised them to mail Kelley a letter, informing him of the discrepancy and that he would not be a candidate for office. On Tuesday at approximately 10:30 a.m., Kelley reportedly contacted the clerk’s office and spoke with Cisco, telling her the amount of $570 was the amount of the fee he been given by the Secretary State’s office, which is also the source of the paperwork he printed, then mailed from Huntington.

“Until the phone call he placed to this office on Tuesday, none of us had spoken with Mr. Kelley,” Cisco said. “If someone is saying that we gave him the wrong amount, I can assure you that is incorrect. He told us the amount to file was provided to him by the Secretary of State’s office.”

Kelley arrived at the office to pay the difference, and after conferring with yet another employee in the Secretary of State’s office by the name of Andrew, the deputy clerk was again advised that, according to state Code 3-5-8, which states that “Every person who becomes a candidate for nomination for or election to office in any primary election shall, at the time of filing the certificate of announcement as required in this article, pay a filing fee.”

State Code 3-5-7 provides that the certificate of announcement must be filed no later than the last Saturday in January and, if mailed, must be postmarked no later than midnight of that date. Since, per 3-5-8, the filing fee must be paid “at the time of the filing,” then the filing fee must have been received, or postmarked, no later than midnight on Saturday.

The letter addressed to County Clerk “Big Jim” Hatfield, who personally contacted the Secretary of State for guidance in this matter, also contained information that says the state code provides that the filing fee cannot be waived “in part,” and stated that the office is not aware of any decision by the state Supreme Court that has ever addressed the matter of a partial payment of the fee.

“I just want to do what is right,” Hatfield said. “There’s been enough laws broken in this county in the past, we don’t need anymore to add to it.”

Hatfield addressed a letter to Teresa Maynard, the Mingo County Prosecuting Attorney, who provides legal advice and direction for county officials, which reads as follows:

“Thank you for your letter dated Jan. 30, 2014, wherein you reiterated the conversation you and I had with Mr. Leach, assistant counsel for the Secretary of State, on Jan 29. You are my statutory attorney and I have asked you for a legal opinion regarding Mr. Kelley’s Certificate of Announcement. What your letter failed to do is state your legal opinion regarding the application of the law to the facts and circumstances of his filing. Once again, I ask you to give me a legal opinion as to whether the law, applied to the facts, permits me to put Mr. Kelley on the ballot. I would like you to make this decision as soon as possible so your immediate attention to this matter is greatly appreciated.”

The reply Hatfield received from Maynard is as follows:

“In response to your correspondence of today’s date, I reiterate my position noting that I would err in favor of Mr. Kelley and provide him a short period of time in which to correct the problem as I have been unable to find any law that would prevent you from doing so. However, I cannot make any representations to you that this action would prevent any litigation with regards to this issue. “

Maynard advises that time was of the essence in this matter, and that a decision needed to be made as soon as possible.”

Hatfield took Maynard’s legal advice into consideration and made the decision to allow Kelley to pay the additional filing fee and become a candidate for magistrate on the 2014 Primary Ballot.

“I asked the prosecutor for advice and did as she recommended,” Hatfield said. “The prosecuting attorney is responsible for directing us in matters such as these, and after the Secretary of State’s office told me in writing that the decision was mine to make, I refused to do that without legal advice. I waited until Teresa issued her recommendation in writing to me before allowing Mr. Kelley to pay the remainder of his fee.”

“I want to do what is right,” Hatfield said. “It doesn’t matter to me if one candidate files or 10 file, I just want to make sure we follow the laws that govern these elections.”

Kelley will now join fellow candidates Jim Harvey, Michelle Webb, Thomas Varney and Floyd Scott Smith on the primary ballot.