If a West Virginia deputy sheriff resigns to run for sheriff, wins, then loses reelection, can he automatically return to his old deputy job?

Plain-English summary

A deputy sheriff in Marshall County resigned in 2020 to run for sheriff, won, and served a single term. After losing his reelection bid in 2024, he wanted to drop back into his old deputy lieutenant slot. The county prosecutor asked: does civil service let him do that, or does he have to reapply from scratch?

The Attorney General's answer: he is not entitled to automatic return to his old deputy position. West Virginia civil-service law protects deputy sheriffs in the present tense, meaning current deputies, not former ones. When a deputy is elected sheriff, the appointment as deputy ends. Sheriff and deputy are not roles a person can hold simultaneously. Under West Virginia agency-law treatment of the relationship (the deputy is the sheriff's agent), no one can be his own principal.

There is a statutory backstop in W. Va. Code § 7-14-8(d)(2): a former deputy who left within the last two years can be reinstated by appointment. But a sheriff who served a full four-year term is past that window. The Civil Service Commission has no power to bring him back automatically.

The opinion expressly leaves ordinary civil-service selection unresolved: "We express no opinion on whether he could be appropriately rehired through the ordinary civil-service selection procedures."

What this means for you

Deputy sheriffs considering a run for sheriff

Under the opinion, filing for sheriff under § 7-14-15 ends the deputy appointment, and election as sheriff confirms that resignation. The opinion reads § 7-14-17(a) and § 6-3-2 as covering current deputies in the present tense, not former ones. The two-year reinstatement window in § 7-14-8(d)(2) is the only statutory route back without going through the ordinary civil-service hiring process; a full sheriff term exceeds that window.

County sheriff's offices and civil service commissions

The opinion concludes that a former sheriff who served more than two years after resignation as deputy is not eligible for civil-service reinstatement under § 7-14-8(d)(2). The opinion explicitly "express[es] no opinion on whether he could be appropriately rehired through the ordinary civil-service selection procedures."

County prosecutors

The opinion treats the deputy resignation as automatic when the deputy takes office as sheriff, based on the present-tense language of § 7-14-17(a) and § 6-3-2 and on the principal-agent framework that makes simultaneous service impossible (Webster Cnty. Comm'n v. Clayton, 1999; Rowan v. Chenoweth, 1901; Clark v. Blue Cross Blue Shield, 1998). Reinstatement under § 7-14-8(d)(2) is available only within two years of the deputy resignation.

Common questions

Q: Why did running for sheriff end the deputy job? Couldn't he have just taken a leave?

A: West Virginia Code § 7-14-15 requires a deputy who runs for elected office to resign. The legislature decided a long time ago that having law-enforcement officers run political campaigns under their boss's chain of command creates a coercion problem (as the opinion explains). The fix was a clean break: file to run, you resign. The opinion treats this as both statutorily compelled and a natural consequence of the principal-agent relationship, a sheriff cannot be his own deputy.

Q: What is the two-year reinstatement window in § 7-14-8(d)(2)?

A: The statute lets a former deputy who left within the last two years be reinstated by appointment, without going through the normal competitive process. The opinion describes Meadows v. Hopkins, where a deputy resigned to run for sheriff but lost in the primary; only six months had passed, so reinstatement was allowed. Four years is too long.

Q: Could the county simply hire the former sheriff back as a regular new deputy?

A: The AG explicitly did not answer this, saying "We express no opinion on whether he could be appropriately rehired through the ordinary civil-service selection procedures." The opinion rules out automatic return and civil-service reinstatement for this former sheriff.

Q: Does this apply to other elected county positions, or just sheriff to deputy?

A: The opinion is narrowly about sheriff-to-deputy under § 7-14-15 and § 7-14-8(d)(2), which are specific to the sheriff's office. The general principle (resignation-to-run rules and the present-tense protection of current employees) shows up in other West Virginia civil-service contexts, but the specific two-year window and the agency-law analysis here are sheriff-specific. Other public-employment positions have their own resignation-to-run rules.

Q: What if the sheriff had been appointed (not elected) as deputy originally?

A: The civil-service protections at issue protect deputies once hired through the civil-service system. The opinion's analysis turns on the resignation that happens when a deputy files for sheriff, not on how the deputy was originally appointed. Either way, taking office as sheriff ends the deputy job.

Q: The Washington Supreme Court let a sheriff revert to deputy in Boyles. Why is West Virginia different?

A: The opinion distinguishes Boyles by pointing out that Washington's statute had express "plain language" creating a "reversion right." West Virginia's statutes do not. The AG read § 7-14-17(a) and § 6-3-2 as protecting current deputies only, with no reversion right anywhere in the code. Compare State v. Smith on West Virginia courts' approach to plain-language interpretation.

Background and statutory framework

The opinion reads these provisions of West Virginia's civil-service law for deputy sheriffs:

• W. Va. Code § 7-14-17(a) says no deputy sheriff "may be removed, discharged, suspended or reduced in rank or pay except for just cause." This is the basic civil-service protection. Notice it covers "deputy sheriff[s]" in the present tense: the AG reads that as covering current deputies, not former ones.

• W. Va. Code § 6-3-2 is a parallel general public-employee protection. Same present-tense framing.

• W. Va. Code § 7-14-15 requires a deputy who files for partisan elected office to resign. The opinion cites Sowards v. Cnty. Comm'n of Lincoln Cnty. on the political-neutrality reason for the rule.

• W. Va. Code § 7-14-8(d)(2) lets a former deputy be reinstated by appointment if "the applicant who formerly served as a deputy sheriff for more than six months before resignation … seeks reinstatement within two years of resignation as a deputy sheriff." This is the only statutory route back for former deputies that does not require running the full hiring gauntlet.

• W. Va. Const. art. IX, § 3 establishes the sheriff as an elected office. Sheriffs themselves are not civil-service employees.

The AG layers a second argument on top of the present-tense reading: the sheriff-deputy relationship is principal-agent. Webster Cnty. Comm'n v. Clayton calls the sheriff the deputy's "principal." Rowan v. Chenoweth calls a deputy "agent of the sheriff." Under basic agency law (Clark v. Blue Cross Blue Shield), an agent has to be "another" person, not the principal himself. So a sheriff cannot also be his own deputy. The deputy job ends automatically when the deputy takes office as sheriff.

That makes the four-year gap dispositive. Even if you read § 7-14-17(a) as somehow protecting a returning former deputy, the reinstatement window in § 7-14-8(d)(2) closed after two years. Meadows v. Hopkins, where a deputy resigned to run, lost in the primary, and was reinstated six months later, marks the outer edge of automatic return. A full term as sheriff is well outside it.

Citations

• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code §§ 6-3-1 et seq., 6-3-2
• W. Va. Code §§ 7-14-8(d)(2), 7-14-15, 7-14-17(a)
• W. Va. Const. art. IX, § 3
• State v. Smith, 243 W. Va. 470, 844 S.E.2d 711 (2020)
• Boyles v. Wash. State Dep't of Ret. Sys., 716 P.2d 869 (Wash. 1986)
• Meadows v. Hopkins, 211 W. Va. 382, 566 S.E.2d 269 (2002)
• Webster Cnty. Comm'n v. Clayton, 206 W. Va. 107, 522 S.E.2d 201 (1999)
• Rowan v. Chenoweth, 49 W. Va. 287, 38 S.E. 544 (1901)
• Clark v. Blue Cross Blue Shield of W. Va., Inc., 203 W. Va. 690, 510 S.E.2d 764 (1998)
• Sowards v. Cnty. Comm'n of Lincoln Cnty., 196 W. Va. 739, 474 S.E.2d 919 (1996)
• Deeds v. Lindsey, 179 W. Va. 674, 371 S.E.2d 602 (1988)

Source

• Landing page: https://ago.wv.gov/media/17381/download?inline
• Original PDF: https://ago.wv.gov/media/17381/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

November 7, 2024

The Honorable Joseph R. Canestraro
Marshall County Prosecuting Attorney
Marshall County Courthouse
600 7th Street
Moundsville, WV 26041

Dear Prosecutor Canestraro:
You have asked for an Opinion of the Attorney General concerning civil service protections for county sheriffs. This Opinion is being issued under West Virginia Code Section 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." When this Opinion relies on facts, it depends solely on the factual assertions in your correspondence with the Office of the Attorney General. Your letter seeks an opinion about "the rights, if any, of an outgoing elected sheriff with regard to civil service protections." Your letter explains that your sheriff formerly worked as a deputy sheriff and then won election as the Marshall County sheriff in 2020. Having recently lost his bid for reelection, he wishes to return to his former position. Thus, you have asked the following legal question: Can a sheriff go back to his former rank as a lieutenant and begin serving as a deputy sheriff again once his term ends? Or, pursuant to W. Va. Code § 7-14-15, did he give up his civil service deputy sheriff status once he ran for the office of Sheriff in 2020 and won, such that he must now reapply to be a deputy sheriff? We conclude that your sheriff gave up his civil-service status when he left his deputy position, so he may not automatically return to his former position. Civil service protections apply to current deputy sheriffs, not former ones like your sheriff. Further, civil service law allows reinstatement of a deputy sheriff if he resigned from his deputy position not more than two years ago. W. Va. Code § 7-14-8(d)(2). But your sheriff resigned about four years ago, thus precluding reinstatement.

DISCUSSION

West Virginia's civil service laws say that "[n]o deputy sheriff of any county subject to the provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause." W. Va. Code § 7-14-17(a); see also W. Va. Code § 6-3-2. These provisions protect "deputy sheriffs" in the present tense, meaning they apply to current deputies, not past ones. And these provisions do not apply to sheriffs who in West Virginia are elected. See W. Va. Const. art. IX, § 3. Because the individual you are asking about is currently a sheriff, not a deputy, the clear language of these provisions shows that civil-service protections do not apply to him. Compare State v. Smith, 243 W. Va. 470, 479, 844 S.E.2d 711, 720 (2020) (saying courts apply a "statute's plain language"), with Boyles v. Wash. State Dep't of Ret. Sys., 716 P.2d 869, 870 (Wash. 1986) (finding that a sheriff could return to his role as deputy sheriff after losing an election because the "plain language" of the statute there created a "reversion right").

A person serving as sheriff is not protected by Sections 6-3-2 or 7-14-17 because he cannot hold his deputy sheriff role concurrent with his position as the sheriff. The positions are mutually exclusive. Under basic agency-principal concepts, when your sheriff took office his appointment as a deputy sheriff came to an end. Nothing in West Virginia law suggests a person can be both sheriff and deputy sheriff simultaneously. Just the opposite, in fact. The position of deputy sheriff and authority to appoint them "is derived by statute." Meadows v. Hopkins, 211 W. Va. 382, 386, 566 S.E.2d 269, 273 (2002). The West Virginia statutes governing deputy sheriffs cast sheriffs and deputy sheriffs in terms of "principal" and agent. W. Va. Code § 6-3-1, et seq. For over 100 years case law has consistently applied this framework. E.g., syl. pt. 3, Rowan v. Chenoweth, 49 W. Va. 287, 38 S.E. 544 (1901) ("A deputy sheriff is agent of the sheriff"); Webster Cnty. Comm'n v. Clayton, 206 W. Va. 107, 112 n.8, 522 S.E.2d 201, 206 n.8 (1999) (calling the sheriff the deputy's "principal"). Crucially, an agent is one "authorized and directed to act on behalf of another." Clark v. Blue Cross Blue Shield of W. Va., Inc., 203 W. Va. 690, 714, 510 S.E.2d 764, 788 (1998) (emphasis added). Our Supreme Court's case law and the major treatises on agency consistently use that formulation: agency-principal relationships involve "dealings between two parties by and through the medium of another"; "[a]gency is succinctly defined as ... the representation of one called the principal by another called the agent"; "[an agent is] one who acts for or in the place of another." Id. (ticking through several major treatises) (emphasis added) (cleaned up). Because an agent must be "another," "a person cannot be, at the same time," principal and agent. 99 Francis C. Amendola, et al., C.J.S. Workers' Compensation § 191. So, by taking office, your sheriff necessarily resigned his former deputy sheriff position.

The Civil Service Commission has no power to reinstate your sheriff because he resigned more than two years ago. West Virginia Code § 7-14-8(d)(2) says an "applicant who formerly served as a deputy sheriff for more than six months before resignation is eligible for reinstatement by appointment," among other things, if he "seeks reinstatement within two years of resignation as a deputy sheriff." But your sheriff resigned his deputy sheriff role roughly four years ago. This far exceeds the "two years [since] resignation" required by statute. A 2020 resignation date is thus fatal to any claim by your sheriff to civil service reinstatement. See Meadows, 211 W. Va. at 387, 566 S.E.2d at 274 (applying West Virginia Code Section 7-14-8 to hold that someone who resigned his deputy sheriff position to run for sheriff but then lost in the primary could be reinstated because only six months had run between resignation and reappointment).

This result squares with the public policy decisions underlying our civil service laws. For one, the Legislature's prohibition on deputy sheriffs running for and holding public office exists because the "possibility of coercion of employees by superior officers remains a strong factor in state, county, and municipal elections." Sowards v. Cnty. Comm'n of Lincoln Cnty., 196 W. Va. 739, 748, 474 S.E.2d 919, 928 (1996). The Legislature wanted to "remov[e] even the implication of impropriety from law enforcement whose very effectiveness and success is dependent upon its freedom from political influence." Id. Faithful enforcement of our civil service laws is important to "preserving the political neutrality, and avoiding even the appearance of political partisanship, in stocking and maintaining the ranks of those charged with enforcing the law." Id. For another, the law should not encourage deputy sheriffs to routinely take leaves of absence or resign to run for office. Deeds v. Lindsey, 179 W. Va. 674, 680, 371 S.E.2d 602, 608 (1988). Regularly losing members of the force would be "incompatible with the efficient administration of justice", especially "in sparsely populated counties with a small number of deputies; these counties would undoubtedly experience difficulty in replacing a deputy sheriff on a possibly temporary basis." Id. Likewise, departments could struggle if they are compelled to reemploy an outgoing sheriff even if they are already fully staffed.

CONCLUSION

Your present sheriff is not entitled to automatically return to his former position as a deputy sheriff without applying again. He is also not eligible for civil service reinstatement. We express no opinion on whether he could be appropriately rehired through the ordinary civil-service selection procedures.

Sincerely,

Patrick Morrisey
West Virginia Attorney General

Michael R. Williams
Solicitor General

Frankie Dame
Assistant Solicitor General