Members of the Wellington Village Council agreed this week to get other legal opinions before deciding whether to repay Mayor Bob Margolis and Councilman John Greene for legal fees accrued during the 2012 election debacle.
In a 2-1 vote, council members decided to seek an opinion from the Florida Attorney General’s Office, as well as a private attorney specializing in election law, on whether Wellington can legally reimburse Margolis and Greene. Councilwoman Anne Gerwig cast the dissenting vote, while Margolis and Greene recused themselves from the vote.
“At this point, based on everything we’ve talked about, we need those opinions to continue,” Village Manager Paul Schofield said.
“I’m not saying they didn’t need [attorneys], I’m just saying that taxpayers shouldn’t be obliged to provide them under these circumstances,” Gerwig countered.
The issue stems from the March 2012 election, which saw the wrong voter tallies assigned to the candidates on election night. The votes were certified before an audit of the votes discovered the discrepancy.
After Palm Beach County Supervisor of Elections Susan Bucher said state law would not allow her to perform a hand recount without judicial intervention, lawsuits were filed and several candidates sought legal representation.
The hand recount saw Margolis, Greene and Councilman Matt Willhite victorious, but each had to pay fees after hiring legal representation for the matter. Willhite said he was not seeking to have his fees reimbursed, noting that he continued to accept campaign donations as allowed by state law while the election was contested, which covered his legal fees.
Village Attorney Laurie Cohen explained that state law allows, in some cases, for reimbursement of legal fees, but only to public officials acting in their official capacity.
“There also must be a public purpose in reimbursing them,” she said. “Although I think you can argue fairly successfully that there is a public purpose, I was not able to find any case law where a candidate was entitled to be able to receive public funds for an election dispute.”
Because Greene and Margolis had not taken the oath of office, they may not have been considered elected officials — even if they had been technically elected by voters.
“There are extenuating facts in this case that don’t meet the norm,” Cohen said. “From a moral perspective, you can say that these people were rightfully elected and it’s unfair for them to have to dip into their pockets to have the will of the voters counted. I think we can agree there is an unfairness here. The problem is we have to be able to defend it legally.”
She suggested council members seek the opinion of the attorney general and an attorney with a background in election law.
Councilman Howard Coates, an attorney, agreed on getting an outside opinion.
“I do believe there is arguably a public purpose from the standpoint of achieving a proper result from an election,” he said. “It’s unfortunate that a winning candidate can get sued and have to pay fees. But we’re not up here to decide what’s morally correct when it comes to spending taxpayer dollars. We can only decide what we are legally permitted to.”
Coates said he believed reimbursement was the right thing to do but wanted to be sure it was legal.
Willhite asked whether Wellington would be safe from lawsuits if the Attorney General’s Office said the village could reimburse Greene and Margolis.
Cohen said lawsuits could be filed, but that the opinion would serve to back up the village’s decision. “The opinion would be persuasive to the court,” she said. “But it’s not binding to the court.”
Willhite said he believes there is a public purpose to reimbursing candidates who are successfully elected.
“The public purpose is that we made sure the rightful candidates are in place,” he said. “If you’re a losing candidate and you challenge an election and are unsuccessful, you shouldn’t be reimbursed. But if you challenge an election and… were proven to be the true winner, that’s making sure our residents’ votes are upheld.”
Willhite noted that because the supervisor of elections is a village contractor, Wellington is obligated to cover the legal costs.
“It becomes the burden of this village,” he said. “She works for us. If she makes a mistake — just like any contractor who messes up a road or sidewalk — we own that problem.”
Gerwig noted that all the candidates had the opportunity to continue to raise money to cover legal fees, just as Willhite had. Further, she didn’t believe the candidates required legal representation.
“No one here filed lawsuits,” she said. “None of us asked for this situation, and I don’t think we should bear the burden of those legal fees.”
Gerwig also didn’t want to pay $2,500 to get a legal opinion from an elections attorney. “I don’t think we should spend more taxpayer dollars on this,” she said.
Gerwig was also concerned that although Willhite was not requesting reimbursement, it might be improper for him to vote on the issue. She suggested bringing the issue to the Florida Commission on Ethics.
She made a motion to seek an opinion from both the attorney general and the commission on ethics, but it died for lack of a second.
Willhite then made a motion to have a private election lawyer review the case and give an opinion, as well as to request an opinion from the Florida Attorney General’s Office. Coates seconded the motion, which passed 2-1.
Wellington officials sought an opinion this week from the Palm Beach County Commission on Ethics as to whether Greene and Margolis could weigh in on the matter. The commission ruled that Margolis could speak on Greene’s case and Greene on Margolis’, but Coates disagreed. “I think we’re setting policy here,” he said.
At the beginning of the meeting, Coates made a successful motion to have the items combined into a single discussion, meaning neither Margolis nor Greene could contribute.