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WV Supreme Court: deputy sheriff can serve in original position

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The West Virginia Supreme Court has decided a Mingo County deputy sheriff will serve in his original position until the Civil Service Commission determines whether his resignation was accepted before it was rescinded.

According to court documents, Max Jeremy Mounts resigned as deputy sheriff in November 2010. However, the next day, he visited Mingo County Sheriff Lonnie Hannah's house, withdrawing that resignation.

Court documents say Hannah told him to come in Monday to talk more about his decision, but Mounts said when he did, Hannah told him he already had accepted the resignation.

Mounts filed a motion for reinstatement before the Civil Service Commission, but the commission found the resignation became effective the day he resigned.

The commission did not reinstate Mounts but said his name would be placed at the top of the roster for those applying for the position.  

However, the circuit court found the record was unclear whether his resignation was accepted before it was rescinded. The circuit court said there were only two options available to the commission – to reinstate or not to reinstate Mounts. 

In its Nov. 21 memorandum decision, the state Supreme Court referenced a similar case, West Virginia Department of Environmental Protection v. Falquero.

In this case, the state Supreme Court ruled a public employee can rescind a resignation before an effective date as long as the employer has not yet accepted it.

In addition, justices said the acceptance of a resignation occurs when an employer "clearly indicates acceptance through communication with the employee, or acts in good faith reliance on the tender."

The memorandum decision states it up to the Civil Service Commission to determine if Hannah accepted the resignation before Mounts rescinded it.