He filed a petition with the state Supreme Court, arguing that Strauss - a Republican - cannot be a commissioner because he filed for office from a magisterial district already occupied by Commissioner D. Wayne Dunham.
The Supreme Court has ordered the seat to remain vacant until it reaches a decision.
In the meantime, both Strauss and Burkhart attend commission meetings. But neither of them can vote and neither is receiving a salary as commissioner.
Commission President Jim Smith laments the upheaval. Smith said a commissioner's first 100 days in office is a critical time because that is when an official establishes himself or herself as a policy maker.
"In this case, we've missed out on that," said Smith.
County officials say they have never witnessed such a case.
Burkhart and Strauss don't agree on how the petition has affected Berkeley County's democratic process.
Burkhart, the former circuit clerk, said a commissioner can make strong impact at any time during his tenure - and not just the first few months of a new term.
"To me, the county commission is not that difficult if you work at it," said Burkhart.
Strauss, owner of Apache Mobile Homes in Martinsburg, doesn't like the vacancy or the controversy. "I personally feel it's been destructive for the county," he said.
Besides establishing yourself as a commissioner, the first few months in office are filled with other important duties like formulating the budget and making committee appointments, said Strauss.
"I believe I'm being held hostage from serving," said Strauss.
Strauss has filed his own appeal, arguing that the will of the voters should prevail.
So far, Strauss said, he has racked up more than $10,000 in legal fees to protect a seat that pays $27,500 a year. He says the spending does not bother him.
"It's never been the money,'' Strauss said. "I wanted to run to serve."
Burkhart said he does not know how much his legal fees will cost.
Smith said he and Dunham have been able to keep the county running smoothly, but spreading the workload among two commissioners has begun to get grueling.
"Luckily, we haven't had any serious illness,'' said County Administrator Deborah E. Sheetenhelm. "Because if we had, we would have been in real serious trouble."
Some Berkeley officials suggest expanding the commission beyond the three seats used in all of West Virginia's 55 counties. They say the current trio of commissioners may not be able to run the growing county.
A proposal to add two more commission seats would require approval from the Legislature and the voters, Sheetenhelm said.