Can a West Virginia deputy sheriff who works in one county run for sheriff in a different county where he lives?

Plain-English summary

The Mineral County Clerk asked Mineral County's prosecutor whether a Hardy County deputy sheriff who lived in Mineral County could file pre-candidacy paperwork to run for Mineral County Sheriff. The prosecutor passed the question to the AG.

Attorney General Patrick Morrisey said yes. W. Va. Code § 7-14-15(a)(4), part of the Deputy Sheriff's Civil Service Act, says a deputy sheriff with civil service protection may not "[b]e a candidate for or hold any public office in the county in which he or she is employed." The phrase "in the county in which he or she is employed" was the operative limit. Reading the statute to bar deputy sheriffs from running anywhere would erase that phrase from the statute and conflict with the standard rule that significance must be given to every word (Meadows v. Wal-Mart).

The opinion supported the plain-text reading with three additional moves:

1. The right to run is fundamental. The West Virginia Constitution recognizes a fundamental right to seek public office (Billings v. City of Point Pleasant, Garcelon v. Rutledge). Restrictions need a compelling government interest. Where ambiguity exists, courts construe constitutional and statutory provisions in favor of eligibility (Maloney v. McCartney).

2. Statutory context. Section 7-14-15(a)(1), the donation-solicitation ban, applies to solicitations from people "who is a member or employee of the county sheriff's department by which they are employed." Same place-of-employment limit. Section 7-14-15(b) also says other partisan or nonpartisan political activities not inconsistent with subsection (a) are permissible. Together these confirmed that the Legislature was targeting in-county political activity, not all candidacy by deputies.

3. Statutory history. The pre-2007 version of § 7-14-15 (1971) said deputy sheriffs could not "engage in any political activity of any kind, character or nature whatsoever, except to cast his vote at any election." That all-purpose ban was upheld as constitutional in State ex rel. Sowards v. Lincoln County Commission. When the Legislature amended the statute to its current narrower form, it knew exactly what a complete bar looked like and chose not to keep one.

A separate point: even if a court accepted the broader reading, the remedy under § 7-14-15(d) is to vacate the deputy-sheriff appointment, not to remove the candidate from the ballot. Sowards squarely rejected "any contention that there is some abstract constitutional right of the public to have deputy sheriffs who are otherwise qualified to hold office thrown off the ballot." So the Mineral County Clerk had no basis to refuse to process the candidate's filing or keep him off the ballot.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does § 7-14-15 prohibit?
A: Among other things, subsection (a)(4) bars a covered deputy from being "a candidate for or hold[ing] any public office in the county in which he or she is employed." Subsection (a)(1) bars solicitation of campaign contributions from members and employees of the deputy's own sheriff's department. Subsection (b) preserves "other types of partisan or nonpartisan political activities not inconsistent with the provisions of subsection (a)."

Q: Why did the AG read the statute narrowly?
A: Plain text plus the constitutional backdrop. The statutory phrase "in the county in which he or she is employed" is in the language for a reason. And restrictions on candidacy implicate a fundamental right and require a compelling government interest. Where ambiguity exists, courts read in favor of eligibility (Maloney v. McCartney).

Q: Did Sowards foreclose this answer?
A: No, Sowards upheld the much broader 1971 version of § 7-14-15. The 2007 amendment made the statute much narrower, and Sowards's upholding of a stricter prior version did not lock in the same scope for the post-amendment statute. The Legislature is "presumed to know the language employed in former acts" (Hall v. Baylous), and changing the language signals an intentional change in scope.

Q: What if the deputy sheriff also lived and worked in the same county?
A: Then § 7-14-15(a)(4) would apply head-on. The statute prohibits a deputy from being a candidate "in the county in which he or she is employed." That bars in-county candidacy, even if the deputy is otherwise constitutionally qualified.

Q: If the candidate violated the statute, what's the remedy?
A: Vacatur of the deputy-sheriff appointment under § 7-14-15(d). The deputy loses the deputy-sheriff job, but stays on the ballot. Sowards drew the same line: "It is one thing to disqualify a candidate from being a deputy sheriff, it is quite another to disqualify a nominated deputy sheriff from being a candidate."

Q: Are there other rules about who can run for sheriff?
A: Yes. W. Va. Code § 6-5-4 generally requires local officers (other than prosecuting attorneys) to "reside in the county or district for which [they were] elected." A candidate would still need to satisfy applicable residency rules and any other statutory or constitutional eligibility criteria.

Q: What about non-civil-service deputies?
A: Section 7-14-15 is part of the Deputy Sheriff's Civil Service Act and applies to deputies with civil service protection. Deputies outside that framework may be governed by different rules, which the opinion did not address.

Background and statutory framework

The opinion threads three areas of law:

1. Constitutional fundamental right to run for office. Billings v. City of Point Pleasant (1995) holds that there is a "fundamental right to run for public office" under the West Virginia Constitution. Restrictions "must serve a compelling government interest" (Marra v. Zink). Ambiguity is resolved in favor of eligibility (Maloney v. McCartney).

2. Permissible regulation of public-employee candidacy. Sowards v. Lincoln County Commission (1996) acknowledged that public-employee candidacy can be regulated, even barred outright, when sufficiently compelling interests support it. The Legislature has identified those interests in this area: preventing workplace conflict between employee and supervisor-incumbent during a campaign, preventing tacit coercion of fellow employees, and removing the implication of impropriety from law enforcement. Those interests pointed at the deputy's own department, not at any sheriff's department.

3. Statutory text and history. The 1971 version of § 7-14-15 was a near-total ban on political activity. The 2007 amendment narrowed the rule to in-county candidacy and donation solicitation. Hall v. Baylous's presumption that statutory amendments mean what they change (i.e., that the change is intentional) supported the narrowing reading.

The remedy issue was anchored in § 7-14-15(d) and Sowards's clean separation between deputy-sheriff status and ballot status.

Citations and references

Statutes:
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 6-5-4 (local officer residency)
- W. Va. Code § 7-14-15 (deputy sheriff political activity, current and 1971 versions)

Cases:
- Marra v. Zink, 163 W. Va. 400, 256 S.E.2d 581 (1979)
- Isaacs v. Bd. of Ballot Comm'rs, 122 W. Va. 703, 12 S.E.2d 510 (1940)
- State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 460 S.E.2d 436 (1995)
- Garcelon v. Rutledge, 173 W. Va. 572, 318 S.E.2d 622 (1984)
- State ex rel. Sowards v. Cty. Comm'n of Lincoln Cty., 196 W. Va. 739, 474 S.E.2d 919 (1996)
- Robinson v. City of Bluefield, 234 W. Va. 209, 764 S.E.2d 740 (2014)
- Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999)
- State ex rel. Maloney v. McCartney, 159 W. Va. 513, 223 S.E.2d 607 (1976)
- Deeds v. Lindsey, 179 W. Va. 674, 371 S.E.2d 602 (1988)
- Hall v. Baylous, 109 W. Va. 1, 153 S.E. 293 (1930)

Source

• Landing page: https://ago.wv.gov/media/17736/download?inline
• Original PDF: https://ago.wv.gov/media/17736/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

April 24, 2019

The Honorable F. Cody Pancake, III
Mineral County Prosecuting Attorney
P.O. Drawer 458
Keyser, WV 26726

Dear Prosecutor Pancake:

You have asked for an Opinion of the Attorney General about whether an individual may run for office in one county while still employed as a deputy sheriff in another county. This Opinion is being issued pursuant to W. Va. 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." 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.

In your letter, you explain that a deputy sheriff who works in Hardy County but lives in Mineral County has filed pre-candidacy paperwork to run for the position of Mineral County Sheriff. Mineral County's Clerk has sought your advice as to whether this individual "can or cannot file, run and/or campaign for Sheriff in Mineral County while he is a current Deputy Sheriff under civil service in Hardy County."

Your letter raises the following legal question:

Does West Virginia Code § 7-14-15, which regulates deputy sheriffs' political activities, bar deputy sheriffs from campaigning for public office outside of the county where they are employed?

We conclude that the plain language and history of the statute instruct that a deputy sheriff employed in one county is not restricted from running for public office in a different county.

Discussion

Restrictions on an individual's right to stand for public office are generally disfavored. See, e.g., Marra v. Zink, 163 W. Va. 400, 404, 256 S.E.2d 581, 584 (1979) (holding that limitations on "[t]he right to become a candidate for public office . . . must serve a compelling government interest"); Isaacs v. Bd. of Ballot Comm'rs, 122 W. Va. 703, 12 S.E.2d 510, 512 (1940) ("The right of a citizen to hold office is the general rule; ineligibility the exception."). This rule is hardly surprising, given that there is a "fundamental right to run for public office" under the West Virginia Constitution. Syl. pt. 2, State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 460 S.E.2d 436 (1995); see also, e.g., Garcelon v. Rutledge, 173 W. Va. 572, 574, 318 S.E.2d 622, 625 (1984) ("This Court has frequently recognized that the right to become a candidate for public office is a fundamental right.").

Nevertheless, "the right to candidacy" is not "immune from regulation." State ex rel. Sowards v. Cty. Comm'n of Lincoln Cty., 196 W. Va. 739, 747, 474 S.E.2d 919, 927 (1996). Regulations in this arena can withstand constitutional scrutiny where "necessary to accomplish a legitimate and compelling governmental interest." SER Billings, 194 W. Va. at Syl. pt. 2, 460 S.E.2d at 437. And, as our supreme court held in Sowards, "[t]he State of West Virginia has a valid interest in preserving the integrity and reliability of both the electoral process and its civil service laws." SER Sowards, 196 W. Va. at Syl. pt. 5, 474 S.E.2d at 921. The Legislature may thus "place limits on campaigning by public employees" where its goals are sufficiently compelling, even, in some circumstances, to the point of "bar[ring] a public employee from becoming a candidate for an elected office." Id.

West Virginia Code § 7-14-15, part of the Deputy Sheriff's Civil Service Act, is a ready example of a restriction that passes constitutional muster. Indeed, the Supreme Court of Appeals has expressly affirmed the constitutionality of a previous and more stringent version of this law. See SER Sowards, 196 W. Va. at 748, 474 S.E.2d at 928. There, the Court explained it was "abundantly clear that the Legislature has the power to regulate partisan political activities of deputy sheriffs," that "[t]he necessity for legislation in this area has been amply demonstrated," and that "[t]he State has a greater interest in regulating the political activities of its police officers than it would have in regulating the political activities of its citizenry in general." Id. The Court also found particularly persuasive the Legislature's goals to "prevent potential conflict in the workplace between the employee and the supervisor-incumbent during the campaign" and to "prohibit any tacit coercion of fellow employees and subordinates to assist in a political campaign." Id. Further, the Court credited the Legislature's "interest in removing even the implication of impropriety from law enforcement," because officers' "very effectiveness and success is dependent upon [their] freedom from political influence." Id.

Once confident that Section 7-14-15 rests on sound constitutional footing, the next question is whether it restricts a candidate from running for office in one county while serving as a deputy sheriff in a different county. The law provides, in pertinent part, that a deputy sheriff who enjoys civil service protection may not "[b]e a candidate for or hold any public office in the county in which he or she is employed." W. Va. Code § 7-14-15(a)(4). The meaning of this provision is clear: It restricts the right of a deputy sheriff to become a candidate only "in the county in which he or she is employed." Assuming a candidate meets all other qualifications for office, see, e.g., W. Va. Code § 6-5-4 (requiring local officers other than prosecuting attorneys to "reside in the county or district for which [they were] elected"), a reviewing court would almost certainly conclude that a deputy sheriff employed in one country is not barred from running for office in another. See, e.g., Robinson v. City of Bluefield, 234 W. Va. 209, 212, 764 S.E.2d 740, 743 (2014) ("If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." (citation omitted)). To conclude otherwise, that is, to interpret Section 7-14-15(a)(4) as a bar on deputy sheriffs running for office in any county, would read "the county in which he or she is employed" out of the statute. See Syl. pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999) ("A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of [a] statute."). And if there were any ambiguity about the plain meaning of this phrase, a reviewing court would likely be hesitant to give it an expansive reading in light of the fundamental nature of the right to stand for public office. Cf. Syl. pt. 3, State ex rel. Maloney v. McCartney, 159 W. Va. 513, 223 S.E.2d 607 (1976) ("In the event of ambiguity a constitutional amendment will receive every reasonable construction in favor of eligibility for office.").

This conclusion is reinforced by Section 7-14-15(a)(4)'s context. First, subsection (b) of the same statute specifically provides that "other types of partisan or nonpartisan political activities not inconsistent with the provisions of subsection (a) of this section are permissible political activities for deputy sheriffs." W. Va. Code § 7-14-15(b). Becoming a candidate for office in a county other than the one in which the deputy sheriff is employed is "not inconsistent" with the language in subsection (a)(4), and the Legislature's efforts to make clear that it did not intend to close off all forms of political activity for deputy sheriffs supports taking subsection (a)(4) at face value. Second, another part of subsection (1) repeats the emphasis on place of employment: Deputy sheriffs may not solicit political or campaign contributions "from any person who is a member or employee of the county sheriff's department by which they are employed." W. Va. Code § 7-14-15(a)(1) (emphasis added). Including this qualifier underscores that the Legislature's primary concern in this statute was to constrain political activity of deputy sheriffs in the counties where they serve.

The statute's history also strongly supports this reading. As discussed above, Sowards examined the pre-2007 version of the statute, which provided that deputy sheriffs could not "engage in any political activity of any kind, character or nature whatsoever, except to cast his vote at any election." W. Va. Code § 7-14-15(a) (1971) (emphasis added); see also Deeds v. Lindsey, 179 W. Va. 674, 676, 371 S.E.2d 602, 604 (1988) (reproducing 1971 version of the code). The Legislature is "presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, [a] court must presume that a change in the law was intended." Syl. pt. 2, Hall v. Baylous, 109 W. Va. 1, 153 S.E. 293 (1930). Clearly, the Legislature knew what a regulation completely barring deputy sheriffs from standing for public office would look like, and deliberately chose to narrow that restriction when it amended the statute to Section 7-14-15(a)(4)'s present form. The backdrop of a previous and more restrictive statute thus provides even stronger reason to interpret the current statute's limit on political activity precisely as drafted, and no further.

Finally, we note that even if a court were to conclude that Section 7-14-15(a)(4) bars deputy sheriffs from running for public office in any county, the remedy would not be refusal to process pre-candidacy paperwork or to place the deputy sheriff on the ballot. Like the pre-2007 version of the statute, current Section 7-14-15 provides that "[a]ny deputy sheriff violating the provisions of this section shall have his appointment vacated and he shall be removed, in accordance with the pertinent provisions of this section." W. Va. Code § 7-14-15(d); see also SER Sowards, 196 W. Va. at 749, 474 S.E.2d at 929 (quoting identical language from prior version of the statute). Examining this language in Sowards, the Supreme Court of Appeals rejected "any contention [that] there is some abstract constitutional right of the public to have deputy sheriffs who are otherwise qualified to hold office thrown off the ballot." 196 W. Va. at 749, 474 S.E.2d at 929. Instead, "[t]he Legislature fully and carefully set forth . . . the appropriate sanctions for deputy sheriffs who engage in partisan politics": vacatur of appointment as deputy sheriff and removal from that office. Id. In the Court's words, "[i]t is one thing to disqualify a candidate from being a deputy sheriff, it is quite another to disqualify a nominated deputy sheriff from being a candidate." Thus, to the extent your question turns on what responsibility the Mineral County Clerk bears in situations like these, Section 7-14-15 does not provide grounds to refuse to process a candidate's paperwork, nor is it a barrier to placing an otherwise qualified candidate on the ballot.

For the reasons outlined above, we believe that a court examining the plain text of Section 7-14-15(a)(4) would conclude that a deputy sheriff with civil service protection is permitted to run for public office outside of the county in which he or she is employed.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Zachary A. Viglianco
Assistant Attorney General