The Times West Virginian

July 23, 2008

County spends nearly $3,000 on lawyer

To see if Tennant can run in district

By Paul Fallon

FAIRMONT — Former Fairmont City Councilman Burley “Butch” Tennant has thrown his hat in the ring, declaring his intentions to run for an open seat on the Marion County Commission.

And the commission has spent almost $3,000 to date to see whether it was legal for his hat to be there. The commission recently employed an attorney to investigate the residency issues of a candidate running against incumbent and Commission President Alan Parks.

Tennant, a Democrat, currently owns a home in the Palatine District. The seat he is seeking is for Middletown — the make-up of the commission requires one commissioner from each of the county’s three magisterial districts, Palatine, Middletown and West Augusta. The open seat represents the Middletown District, which is currently represented by Parks.

Tennant beat out seven other Democrats on the May 14 primary ticket. Parks, one of two Republicans on the commission, is seeking re-election for the seat in the Nov. 4 general election.

Tennant’s home has been purchased by developers for the Volcano Island Resort and Waterpark, and he will soon be moving to a new residence in Middletown.

The commissioners obtained the services of Fairmont attorney Jeffrey W. Lilly of the law firm Rose Padden & Petty to investigate whether or not it was legal for Tennant to run first in the primary election and then in the general election. The county commission was billed on two separate occasions for these services, Feb. 26 and June 30, with the bills totaling $2,595.25 paid for from the county’s general fund. The invoices indicate the charges are for professional services Jan. 29 through Feb. 1 — just after the filing period for the primary election ended — and May 14 through June 23 — after Tennant won the primary election.

The invoices were acquired through a Freedom of Information Act request made by the Times West Virginian on July 8.

Commissioner Wayne Stutler said the outside attorney was obtained in case a candidate challenged Tennant’s residency. If a challenge was issued, the commissioners would be required to sit as judges in the dispute.

“This was not politically motivated,” Stutler, a Republican, said. “We’ve never had to sit in on an (election) contest before, so the lawyer was just to prepare us in case.

“I would have employed an outside attorney if it was a question about a Republican’s residency, too,” Stutler added.

Stutler said he contacted the West Virginia secretary of state’s office with his concerns, only to be told that it was legal for Tennant to run for the seat as long as he was living in Middletown District at the time of the general election in November. But Stutler said he performed some research on his own and that led him to believe Tennant’s residency could become an issue.

“But it’s a moot point now, because no one has challenged the election,” Stutler said.

No vote was taken during an open session concerning the hiring of the outside council. Stutler pointed out that the commissioners were not required to vote on such an issue.

“It was internal commission business,” he said.

Parks agreed with his fellow commissioner about the need to obtain an opinion from an outside attorney. He also said the issue was not politically motivated.

“We were trying to get all our ducks lined up in case there was a challenge,” Parks said.

However, Tennant disagrees. The Democratic candidate says that he believes the issue was pursued because of the upcoming race between him and Parks. Tennant said he obtained an opinion from the secretary of state’s before he even filed for the election.

“I think it was a waste of the taxpayers’ money,” Tennant said. “All they (commissioners) had to do was call the secretary of state’s office to get the answer.”

Sarah Bailey, deputy secretary of state and director of communications, confirmed Tennant’s statement, saying there were no legal issues as long as Tennant is a resident of the Middletown District when he is elected.

Assistant prosecuting attorney Chuck Shields deals with legal issues that arise for the commission on a part-time basis. However, Stutler said that the commissioners decided to obtain an outside opinion on the issue because incumbent Prosecuting Attorney Patrick Wilson is also running for re-election on the ticket.

“The State Code does allow for commissioners to obtain an outside legal opinion,” Stutler said.

The West Virginia State Code 7-4-3 does state that the county commission has the authority to employ, “such legal council as it deems necessary.”

Commissioner Randy Elliott, the lone Democrat on the commission, said he approached Tennant shortly after learning about the residency question and before Lilly’s services were requested. Elliott said Tennant told him about his conversation with officials at the secretary of state’s office.

“And that satisfied me,” Elliott said.

E-mail Paul Fallon at pfallon@timeswv.com.