PARKERSBURG - Wood County commissioners have scheduled a special session at 9:30 a.m. today to discuss the opinion from Attorney General Patrick Morrisey's office denying Bob Tebay's withdrawal as a candidate.
Tebay is one of four Republican candidates for the county commission seat in District C. The primary election is May 13.
Deadline to withdraw as a candidate was Feb. 11. Tebay submitted his withdrawal letter in mid-April, citing a recent illness as his reason for withdrawing from the race.
County Clerk Mark Rhodes said by virtue of the attorney general's opinion received on Wednesday, the county will not include a notice of Tebay's withdrawal on sample ballots that will be published in the newspaper as was earlier discussed.
"There will not be any notice on the sample ballots and we couldn't provide the notice at the precincts, that was decided earlier. I had also previously discussed it with a couple of other clerks who agreed we could do nothing at the precincts," Rhodes said.
If Tebay wins the primary, the attorney general's opinion notes he cannot just be replaced; he would have to withdraw again.
"I have read the opinion," Rhodes said, noting if Tebay wins the primary and does not resign again, he would go into the general election as the Republican Party's candidate.
"If he is ultimately elected there could be some sort of legal challenge," the clerk noted.
The deadline to withdraw for the general election is Aug. 12.
"If he does win the primary and then withdraws prior to the general, the Republican Executive Committee has until Aug. 18 to nominate a candidate for the general election," Rhodes said.
If Tebay doesn't win, the issue is moot anyway, the clerk said.
"The ruling wasn't unexpected," Rhodes said.
However, Rhodes said the Legislature should still clarify state code in situations where a candidate's withdrawal comes after the deadline.
No election law exists covering late withdrawal of a candidate. The death of a candidate is addressed, but no other circumstance.
Officials earlier agreed Tebay's name could not be taken off the primary election ballot. Absentee ballots have gone out and early voting begins April 30.
Unsure how to handle votes cast for Tebay in light of his withdrawal, the commissioners last week sought an attorney general's opinion. Prosecutor Jason Wharton advised commissioners they could seek an AG opinion or declaratory judgment from circuit court.
According to the attorney general's opinion, because Tebay's withdrawal came after the deadline, it could not be allowed. The opinion cited West Virginia Supreme Court decisions from 1992 and 2000 as well as case law from Ohio and U.S. District Court. The opinion notes while the death of a candidate is addressed, the Legislature otherwise made no provision for a candidate's withdrawal after the deadline.
"This absence reinforces the conclusion that an untimely withdrawal must simply be disallowed," according to the attorney general. Votes cast for Tebay must be counted. If Tebay wins the race, he must be certified the nominee.
The opinion states if Tebay wins the primary, he should not just automatically be replaced, but should be required to file his intent to withdraw again if he wishes to continue to do so.
If Tebay wins and reaffirms a desire to withdraw, the code outlines the procedure for filling the vacancy. In Tebay's case, Morrisey said, he should not be replaced, but should be required to take the nominal post-election step of reasserting the intent to withdraw.
"If and when the candidate does so, the vacancy in the nomination could then be filled pursuant to the procedures in state code," according to the opinion. That procedure would be for the Republican Executive Committee to name someone to be the nominee and continue on as the candidate in the general election.
The other Republican candidates are Sam Baker, Raymond Jones and Roger Brown. Incumbent commissioner Wayne Dunn is running unopposed in the primary.