A week or so ago an article appeared in the Yahoo finance website entitled “We’re Suffering the Consequences of Too Much Democracy”. Imagine that, “too much Democracy”. This was in reference to the recent vote by the United Kingdom to leave the European Union. So, in other words, if you don’t like the result, all of a sudden Democracy isn’t such a good idea. That’s an interesting take.

Here in America, we put checks and balances on “too much Democracy” with our Republican form of government. As provided for in our Constitution, individuals, and individual rights need protection from mob rule and Democracy itself needs protection from those that seek to co-opt it. Stability and balance are the goals. This holds true on the federal level, the state level and the local level.

According to Thomas Jefferson, for whom our county is named, “The government closest to the people serves the people best.” The theory being that on the local level, elected officials are more accountable. Local control is something that should be promoted. However, as with all levels of government authority must be exercised responsibly.

The County Commission is currently being tested. The Commissioner elected from the Harpers Ferry Magisterial District, Eric Bell, has resigned. The County Commission has solicited applications from anyone interested in being appointed to fill the vacancy. The process, which should be straight forward, unfortunately is not. I’ll try to sort out the complexities for you.

According to the County Commissioners’ Association of West Virginia, every County Commission in our state is made up of three commissioners except two - Berkeley and Jefferson which have five - one to be elected from each of the five magisterial districts. Both counties have a “modified” form of county government. Berkeley calls theirs the County Council.

According to state code, “§7-1-1b. Legislative findings; qualifications for county commissioners, (4) It is essential the citizens know they are voting for a person who is qualified to be a candidate; and…(5)(b) A candidate for the office of county commissioner shall be a resident from the magisterial district for which he or she is seeking election: (1) By the last day to file a certificate of announcement pursuant to section seven, article five, chapter three of this code; or (2) At the time of his or her appointment by the county executive committee or the chairperson of the county executive committee”.

However, also according to state code, first crack at appointing a replacement for the vacancy goes to the County Commission, not the county executive committee. According to §3-10-7, “Vacancies in offices of county commissioner and clerk of county commission. (a) Any vacancy in the office of county commissioner or clerk of county commission shall be filled by the county commission of the county”. If the county commission can’t achieve a quorum the governor steps in to appoint enough replacements to make a quorum. Then, if the county commission can’t come to an agreement on a replacement, the county executive committee of the party of the commissioner being replaced chooses that replacement.

There are a couple of things regarding the replacement process that are clear. Since former Commissioner Bell is a Republican, his replacement must be a Republican. And since the primary has already passed, that person would serve until the next general election in 2018.

However, what is not clear, with regard to state code, is who is qualified to be appointed by the County Commission. Particularly with regard to residency. Back in 2013 Pocahontas County requested an opinion from the West Virginia Attorney General’s office on that very subject. The County Commission wanted to know if in filling a vacancy they were bound to choose someone from the same magisterial district. The answer was not what one might expect.

From Attorney General Patrick Morrisey’s written response, “It is clear from the Constitution that elected county commissioners must be from different magisterial districts. The Constitution expressly states that ‘no two of said commissioners shall be elected from the same magisterial district’ “ [Emphasis his]. The letter goes on to say that “The West Virginia Code similarly emphasizes in several provisions the residency requirement of elected county commissioners”. But the opinion concludes that “By contrast, however, there is no reference to residency in the statutory language that relates to the temporary filling of a vacancy on a county commission”.

According to the AG, the omission of the residency requirement in the statute with regard to the appointment process has to be interpreted from a legal standpoint as being “intentional”. I’m sure that’s the correct legal interpretation, but it confirms for the rest of us that the state code is fraught with inconsistencies that seem to fly in the face of common sense. Be that as it may, the law is the law. Or perhaps the authors of that section of the code intended to rely on the common sense of those making the selections to fill county commission seats. Clearly, the code needs to be amended to reflect the original intent of the residency requirement - and to have it apply across all circumstances. Otherwise, why would it be in the state constitution at all?

In the meantime, I hope that the Jefferson County Commission uses common sense with regard to the appointment process at hand. In a letter addressed to the County Commission president, signed by the Jefferson County Republican Executive Committee chair Mike Ashley the following requests were made: That the replacement be a “bona fide Republican” (defined as someone who registered on or before April 19th, the last day to register and vote in the primary—eliminating candidates that engaged in what the letter termed “registrations of convenience”) and that the replacement be a resident of the Harpers Ferry magisterial district.

These qualifications make sense and I hope that the County Commission acts on them. As a resident of the Harpers Ferry Magisterial District I would hope that the commission would not disregard our right to be represented by someone from our district as provided for in statute and in the state constitution with regard to elections. I also agree with the JCREC in that the person selected should be someone who registered Republican to vote in the Republican primary and not solely to make themselves eligible to be selected to fill the vacancy. We have enough Republicans that act like Democrats already.

That said, the County Commission can ensure that the spirit of the law regarding elections is fulfilled and not make the decision at all. That way they could leave it up to the JCREC - which is a potential outcome already provided for in state code. Controversy solved. And speaking of the state code, in the next legislative session, state legislators need to address the glaring lack of consistency in the state code.

I seem to remember we had similar problems with regard to succession and appointments when Senator Byrd passed away while in office back in 2010. After much controversy and a trip to the State Supreme Court a special election was held. I’m sure the County Commission wouldn’t want to waste money on one of those. Oh wait…….never mind. Besides, there are some that might not want to suffer the consequences of too much Democracy.