Dems cry foul over county lawyer's role
TAGHKANIC--The legal battle continues in Taghkanic over which absentee ballots can be counted, with four offices hanging in the balance. And in a new development, Democrats have filed ethics charges against Robert Fitzsimmons, the attorney who represents both the Board of Elections and the town, charging him with a “serious breach of his fiduciary duty as an attorney and as a county employee.”
Mr. Fitzsimmons, who was a deputy county attorney at the beginning of the week when the charges were filed, was named Wednesday by the Board of Supervisors as the county attorney, the top legal officer for the county in civil matters. Attempts to reach Mr. Fitzsimmons for comment were unsuccessful.
Starting immediately after the November 3 election, the county Republican Committee mounted a series of challenges to absentee ballots in five towns around the county where races were tight, eventually narrowing its focus to only the paper ballots cast in Taghkanic, where the outcome of races for highway superintendent, town justice and two seats on the Town Board are likely to be determined by the decision on how many of the remaining disputed ballots are counted.
At a conference Wednesday, December 30, at the Elks Lodge in Hudson, Judge Jonathan Nichols met with lawyers for the county Republican and Democratic parties, and the sides agreed to count 17 of the remaining 66 ballots challenged by the GOP. The two sides also discussed a ruling issued December 18 by a state appellate court that appeared to undercut the basis for the Republican vote challenges.
County Republicans have argued that people who own second homes should not be allowed to vote here. But an earlier case found that voters could choose where to cast their votes, and that ruling was affirmed last spring in the close race to fill the vacant seat in Congress for the 20th District. The appellate panel last month, while mentioning the earlier decision on voter choice, said that the county Republican Committee should have challenged the decision by the county Board of Elections to issue absentee ballots prior to the election. The court said the GOP could not challenge the ballots once the voters had submitted them.
At the December 30 conference in Hudson Judge Nichols ordered James Walsh, counsel for the county Republican Committee, to submit a brief explaining the specific details of his remaining vote challenges by Wednesday, January 6. The judge gave the Democrats' attorney, Kathleen O'Keefe, until January 11 to respond. After that, the judge is likely to schedule hearings on the remaining disputed ballots.
With the party's ability to challenge voters' choice of where to vote now off the table, Mr. Walsh said at the conference that he continues to challenge the remaining ballots on the basis of “veracity.” He did not define that term when he was asked by Judge Nichols whether it referred to voters' residences.
One indication of why the GOP continues its fight to exclude the remaining ballots emerged from the 17 ballots that both sides agreed last week could be counted. All 17 voters chose Democratic candidates.
As of last Wednesday, Democrat Jeffrey Tallackson trailed his Republican opponent Raymond Dalrymple by 32 votes in the race for town justice; in the race for two seats on the Town Board no more than 43 votes separates Democrats Larry Kadish and Joyce Thompson from Republican candidates Tom Kiely and Erik Tyree. A fifth candidate in that race, James Romaine, had a total of only 17 votes and has no chance of winning. The race for highway superintendent is the closest of all, with Democratic candidate Tom Youhas trailing Republican Edward Waldron by only 13 votes.
Of the remaining ballots being challenged, all were submitted by Democrats or independents, none by Republicans.
In a related development town and county Democrats have filed a complaint against Deputy County Attorney Robert Fitzsimmons, who is also the town attorney for the Town of Taghkanic. The complaint arose after the Town of Taghkanic's year-end meeting last week. Republicans on the Town Board had circulated a draft resolution criticizing the Columbia County Board of Elections and requesting that the county Board of Supervisors investigate the procedures of the elections board. Mr. Fitzsimmons edited the draft resolution in his capacity as town attorney. The Democrats say that created a conflict of interest because in his role as deputy county attorney, Mr. Fitzsimmons has been representing the county Board of Elections.
The Democrats, citing county and state ethics rules, say that Mr. Fitzsimmons should have recused himself and not assisted the town with the draft resolution. They also say that he gave inaccurate legal advice to Virginia Martin, the Democratic county elections commissioner, who was singled out by the Republicans in their vote challenges.
At the Taghkanic meeting, Mr. Fitzsimmons reportedly explained the resolution to those present. He said in a phone conversation last week following the meeting that he did not draft the document, but he did edit it.
At the meeting, after Democrat Town Board member Erin Edwards raised questions about the dual role of Mr. Fitzsimmons and the participation of the town, Republicans on the Town Board abandoned the resolution.
“A lawyer should always act in a manner consistent with the best interests of his client,” says the complaint dated Monday, January 4. It is signed by Chris Nolan, chairman of the Columbia County Democratic Committee, and includes the names of seven other people.
The complaint says that Mr. Fitzsimmons “had a fiduciary duty as an attorney to take proper steps to disclose this conflict and withdraw from representation of the Town of Taghkanic on this matter.”
In support of activities that Democrats said crossed the ethical line, the complaint alleges that “Attorney Fitzsimmons openly and flagrantly aided, fraternized and strategized with attorneys for the Republican Party and Republican candidates, thus placing the [Board of Elections] and particularly Commissioner Virginia Martin at a serious professional and political disadvantage.”
Ms. Martin now has her own lawyer in the court hearings on vote challenges.
The complaint asks for an expedited hearing by the county Board of Ethics and requests that Mr. Fitzsimmons be temporarily replaced as the Board of Elections attorney until a hearing is held on the matter.