Like any other hardworking individual, Joseph Burns of Williamsville simply wants to get paid for the legal services he provided to a Jefferson County official.
And who can blame him? As a lawyer, this is how he makes his living. He performed the duties he was asked to undertake, and now his bill is due.
Republican Board of Elections Commissioner Jude R. Seymour, though, doesn’t want to dip into his own pocket to pay the $8,912.50 he owes to Mr. Burns. He wants the county to handle this fee for him.
Mr. Seymour hired Mr. Burns to represent him in a court proceeding concerning the Watertown mayoral primary. He and Democratic Election Commissioner Babette M. Hall couldn’t reach a consensus on who won this contest.
Mayoral candidate Jeffrey M. Smith received the largest number of votes in the June 25 primary at 837. Allison I. Crossman and City Councilman Cody J. Horbacz tied at 597 apiece received the next largest number of votes. If you take the wording of the 1993 state law pertaining to city elections literally, all three of them should have been certified as mayoral primary winners.
Mr. Seymour said this law allows no more than two mayoral candidates to advance to the general election. While this is not stipulated anywhere in the legislation, he insisted that long-standing tradition established this practice as the law’s obvious intent.
So he refused to certify the results of the mayoral primary. He said someone would need to challenge the Jefferson County Board of Elections in court to move this issue forward.
Watertown resident Samuel S. Thomas, who serves as chairman of the city’s Zoning Board of Appeals, filed an Article 78 proceeding. This is an action that allows a plaintiff to oppose an action taken by a board, municipality or agency.
On Aug. 7, State Supreme Court Judge James P. McClusky handed Mr. Seymour the judicial defeat that so many had expected. He declared that Mrs. Crossman, Mr. Horbacz and Mr. Smith should all be placed on the Nov. 2 ballot for the general election.
Mr. Seymour had previously submitted a request to have the county pay for his legal representation by Mr. Burns. The Defense and Indemnification of Officers and Employees of Public Entities provision of the state’s Public Officers Law declares that such individuals may have their legal expenses of outside counsel covered if a conflict of interest exists with the public body’s legal representative.
County Attorney David J. Paulsen said he could not represent both Ms. Hall and Mr. Seymour due to their differing stances. So Mr. Seymour hired Mr. Burns and asked the county to pick up the tab.
However, Mr. Paulsen told Mr. Seymour in an Aug. 2 letter that his actions went beyond his authority as an election commissioner. Therefore, he would not be entitled to have his legal bills paid by the county.
“In this matter as election commissioner, your scope of employment is to determine the number of votes each candidate receives and certify the election results. Under controlling New York state case law, election commissioners are deemed to be acting with ministerial authority (i.e., a function in which nothing is left to discretion) when determining the outcome of elections, and you have no judicial authority to interpret statutes or decide disputes,” Mr. Paulsen wrote. “Therefore, your decision to advocate for a certain outcome before the court specific to your own opinion, and unsupported by a majority of the election commissioners, is prima facie beyond the scope of your powers and duties.
“You have specifically taken the position that you are entitled to legal representation so that you may advance the position that the city of Watertown Non-Partisan Election Law, Chapter 247 of 1993, requires the result that no more than two candidates may be advanced following a primary election. As stated above, it is not within the purview of your office to decide this issue, nor does the litigation require you to defend such a position. The scope of your duties in this matter extend no further than the proposition that neither you nor Commissioner Hall have any statutory guidance regarding how to proceed in the event of a tie vote among primary candidates. It is incumbent on the candidates to advocate how the court decides to resolve the question, not the commissioner of election.”
Had Mr. Seymour merely stated that he and Ms. Hall couldn’t reach a decision on this matter, he would be eligible to have the county pay for his attorney. But according to Mr. Paulsen’s letter, Mr. Seymour acted outside the scope of his authority. He directed Mr. Burns to advocate a specific outcome in this case.
As an election commissioner, that’s not his job. He exceeded the duties of his position by pushing a flawed argument, lost in court — and now he wants county taxpayers to foot the bill for his folly.
Mr. Seymour said he may file his own Article 78 proceeding to compel the county to pay his legal expenses; this certainly is his prerogative. County officials will need to determine just how far they’re willing to go with this. Unfortunately, succumbing to Mr. Seymour’s request to pay his attorney’s fee of $8,912.50 may wind up being cheaper than defending their position in the long run.
But county authorities are correct in their assessment that this bill should be paid by Mr. Seymour. We’d ask him to do the honorable thing and adhere to the laws that he as a public official has sworn to uphold by taking care of this fee himself. But Mr. Seymour hasn’t displayed much honor in this whole messy episode, so we’re not going to hold our breath that he’ll do the right thing.