Washington County spent $75,185 on legal fees defending ballot-curing lawsuit
Mike Jones
Washington County paid more than $75,000 in legal expenses to its special counsel hired to defend the county’s Board of Elections in the recent lawsuit filed by seven voters concerned about the lack of ballot curing options available for mail-in voting.
David Berardinelli of the Pittsburgh-based law firm DeForest, Koscelnik and Berardinelli submitted his invoice Aug. 9, billing the county $96,520 for more than 203 hours of work, along with an additional $2,795 in fees for two deposition transcripts.
According to the invoice, Berardinelli reduced his initial agreed upon rate of $475 per hour by 25% “as a matter of professional courtesy and in recognition of the fact that the Board is part of a government entity,” bringing the bill down to $72,390. With the addition of the depositions transcript fees, the final invoice to the county came to $75,185.
The county processed the invoice Tuesday, nearly a month after Berardinelli submitted it for payment. It’s not known if the $5,000 retainer paid to Berardinelli in early July is included in his invoice.
The invoice and itemized list of billed hours was released Wednesday following an open records request by the Observer-Reporter.
The elections board hired Berardinelli during a special meeting on July 5 less than a week after seven Washington County voters sued the county over claims they were misled that their mail-in ballots were received by the elections office, but were never told that they wouldn’t be counted due to fatal errors, such as missing signatures or dates on the outer envelope. The lawsuit challenged the lack of ballot curing options afforded to mail-in votes that contained mistakes after nearly 300 such ballots were not counted during the April 23 primary and voters were not informed of the issues. The ACLU of Pennsylvania and Philadelphia-based Public Interest Law Center represented the seven voters, along with the Center for Coalfield Justice and the NAACP’s Washington Branch.
The lawsuit was filed July 1 in Washington County Court of Common Pleas. On Aug. 23, Judge Brandon Neuman ruled that while the county is not required to offer specific ballot curing options, it must notify voters of mistakes and permit them to cast a provisional ballot at their precinct on election day if they made a fatal error with their mail-in vote. It’s unclear if either side plans to appeal his decision, but the parties have up to 30 days after his order to do so.
As the majority members on the elections board, Republican Commissioners Nick Sherman and Electra Janis voted against allowing ballot-curing options and then authorized the hiring of Berardinelli as special counsel after the lawsuit was filed. Sherman, who blasted Neuman’s ruling last week, defended the decision to hire the special counsel, but was non-committal on whether the county plans to appeal the judge’s decision.
“Any time you get sued, you know there are going to be legal fees involved,” Sherman said in an interview. “I still firmly stand behind our decision with what we’re doing with the elections office (and) I’m still standing by my statement that (Neuman) is legislating from the bench. Right now, we’re still going to go over our options on whether we’re going to appeal.”
Janis issued a statement Wednesday focusing on Neuman’s ruling, but did not comment on the cost of the legal bills.
“I was shocked by Judge Neuman’s opinion. Washington County’s policy that was in effect was in full compliance with Act 77,” Janis said. “We are conducting a faithful following of the Pennsylvania Code. Conversely, the Judge chose to rewrite key provisions of the election code. He’s given a cure with his opinion and elected to legislate from the bench. Currently, we are examining our options in regard to an appeal.”
Democratic Commissioner Larry Maggi, who favored ballot curing and suggested they settle the lawsuit rather than pay money to hire an attorney, called the situation “wasteful spending of taxpayer dollars” in an interview Wednesday.
“We’re fighting a national issue that other entities will fight. We were funding their fight,” Maggi said of the state and national Republican Party. “I just thought it was unfair for Washington County’s taxpayers to be burdened with that.”
The Pennsylvania GOP joined as an intervener with Washington County, and Kathleen Gallagher, who is an attorney representing the Republican National Committee, participated in legal briefs, depositions and oral arguments. Of the 31 separate times Berardinelli billed Washington County for the hours he worked between July 1 and Aug. 5, he listed 13 occasions in which he coordinated with Gallagher either through phone calls or emails.
Berardinelli’s worksheet revealed that he began working for the county on July 1 by reviewing the lawsuit and started formulating a legal defense on July 3, despite not being formally hired by the elections board until July 5.
He worked nearly 15 hours on July 23 when he traveled to Harrisburg for the deposition of Deputy Secretary for Elections Jonathan Marks. Berardinelli spent more than 12 hours working on July 18 for the deposition of county Elections Director Melanie Ostrander in Pittsburgh.