Pocahontas Commission hires lawyer for Sherriff’s Auxiliary advice

Marlinton, W.Va. – The Pocahontas County Commission considered Sheriff’s Auxiliary issues during its Tuesday afternoon meeting.

Following the June 29 wind storm, Sheriff’s Auxiliary members performed duties outside those specified in their contract, including office duties. As a result, Sheriff David Jonese requested commission approval for an Auxiliary contract clause adding “other duties as assigned by the Sheriff.”

During its August 9 meeting, the commission questioned insurance coverage of Auxiliary members and tabled action on the contract modification.

At Tuesday’s meeting, County Risk Pool manager Steve Rawlings explains that contractors are not covered under the county’s general liability policy.

“Those individuals, underneath the contract perspective, as a contractor, would not be covered,” he said. “That means, in the event that there was a suit that was filed against that individual, against the Sheriff and against the county commission, then those individuals would not be considered covered persons and we would not provide a defense nor coverage to that individual who is a contractor. However, we would provide a defense to the Sheriff, as well as to the commission, because you all are considered covered persons.”

Rawlings explains Auxiliary members are covered when operating a county vehicle with permission.

“As long as they are using that vehicle with permission and in a permitted capacity,” he said. “So, let me give you an example. In the process of transporting that person to a regional jail, they cross the center line and cause injury, death or what-not to a third party as well as injure somebody else in the vehicle – they are covered.”

Commissioner Martin Saffer noted that courts have found purported contractors to be employees, where the employer provided direct and detailed supervision.

“Even though you want to put out a piece of paper they’re independent contractors, it seems to me that there could be a defintional issue about whether they’re employees, which then gets us into a whole other problem about Workman’s Compensation, and whether that person would then be covered,” he said.

Saffer expressed concern with Auxiliary use for prisoner transport and mental hygiene escort duties.

“It makes me a little bit nervous that some of these activities, to my mind, should be done by people who are more professional,” he said.

Prosecuting attorney Donna Meadows Price expresses concern with Auxiliaries transporting prisoners.

“As your attorney, as county attorney, that has been one of my biggest concerns with this,” she said. “The concept, I can understand. The financial aspect of it, I can understand. But you’re transferring a person in custody, under arrest, by a lawful law enforcement officer, to someone who has no arrest and/or detention authority to maintain them under arrest until they get to Tygarts Valley. And that’s the part that concerns me is opening up the Sheriff or anybody else to liability.”

The Sheriff explained that deputies place prisoners into a vehicle and that Auxiliaries drive directly from the Sheriff’s Department to Tygarts Valley Regional Jail. The Sheriff said the use of Auxiliaries, who are paid $8 an hour, had saved the county a lot of money and allowed deputies to remain available in the county for more important duties.

On Saffer’s recommendation, the commission voted 2-1 to hire Charleston attorney Joe Leonardo to provide advice on the use of Sheriff’s auxiliaries and to help the commission develop a standard comp time policy for county employees.