Tarrant County Judge Edged Out by Improper Ballots / By Jim Lewis

In a dramatic , last -second turnaround, Tarrant County Judge Glen Whitley’s campaign for the leadership of the National Association of Counties was derailed July 17 when a delegate from the State of New York ignored a written proxy and incorrectly cast the state’s entire 218 ballot total for Whitley’s opponent, Supervisor Teresa Altemus of Gloucester County, Virginia.

In the immediate aftermath of the vote, half the audience stood in confusion while the other half celebrated victoriously. Because no New York delegate challenged the ill-cast vote at the time, Altemus was declared the victor – and NACo Second Vice President – by 21 votes out of more than 6,400 votes cast, 3,220 to 3,199.

Later that evening, the New York State Association of Counties (NY SAC) emailed a written protest of the election but a parliamentarian’s ruling – and a later legal investigation by an independent attorney – found that the NACo Board of Directors had no authority to reconsider the New York ballots or overturn the election.

The only recourse available to overturn the election, the attorney concluded, would be through a lawsuit in state court and a finding of fraud by a judge. As of early September, Judge Whitley had declined to take that option; he was urging NACo to take steps to correct flaws in its election process as well as publicize the events surrounding the election mishap.

Long campaigns

The election’s crazy ending followed a long, hard-fought campaign between Altemus, who lost a similar campaign last year and immediately declared her intention to run again, and Whitley, a 10-year NACo veteran who declared his candidacy last January. The candidates spent 2007 talking one-on-one with county officials from throughout the country at both NACo and state association conferences. The contest came to a head during the second week of July at the NACo Annual Conference in Richmond, Virginia, where the various state delegations heard from the candidates themselves and then decided how they wished to cast their votes. Many state delegations, including Texas, decide to cast their votes as a block to maximize their state’s influence with the winning candidate. NACo bylaws, however, provide that even if the majority of officials within a state decide to vote together, any county that wishes to vote for another candidate may do so.

That appeared to be the situation with the New York state vote, according to interviews conducted by NACo investigating attorney Deborah Baum.

Baum said that both NY SAC President Lucy McKnight and NY SAC Executive Director Steven Acquario recounted the same story: with the exception of two delegates from Westchester County, the New York delegation wanted to vote their ballots for Whitley. Both McKnight and Acquario, however, planned to leave Richmond for home prior to the scheduled 2 p.m. Tuesday voting session, so they met the night before with Westchester County Legislator Martin Rogowsky to ask him to cast the state’s 218 votes in their absence and in accordance with the agreed allotment: 179 for Whitley and 39 for Altemus.

“Both Ms. McKnight and Mr. Acquario reported that the NY voter (Rogowsky) appeared to understand unequivocally what his instructions were,” Baum’s report stated. Just to make sure, McKnight wrote out a written proxy statement on hotel stationery and gave it to Rogowsky, the report stated.

When the delegates assembled at the Richmond Convention Center the following afternoon, it was clear that the vote would be close. By Whitley’s calculations based on what state delegations had reported how they intended to vote, it appeared the judge from Fort Worth would win by about 300 votes. Had the votes been cast faithfully, his calculations would have been correct.

The order of voting for NACo campaigns is determined by lottery – balls with state names are pulled from a wire barrel at random.

The scene resembles an old fashion national party convention, with spokesmen from each state proudly announcing their vote – “The great state of so-and-so proudly casts all its votes for….” As it turned out, the running count was Whitley with 3,199 votes to Altemus’ 3,002 when it came down to the last state to be drawn: New York.

At that point, Whitley, who had been told by New Yorkers that he would receive the majority of their votes, buttoned his suit coat in preparation for rushing up to the stage to celebrate his anticipated victory.

Instead, Rogowsky announced that all 218 votes were cast for Altemus. With such a dramatic, come-from-behind ending, the convention erupted with emotion. Within seconds, sitting NACo President Colleen Landkamer of Blue Earth County, Minnesota, declared Altemus the winner.

To add insult to injury, attorney Baum reported that later that night several delegates from Tennessee overheard Rogowski “speaking loudly on a cell phone” in the lobby of a local hotel.

“They claim that they distinctly heard him talking about the election, about his not having been authorized to do what he did and having done it anyway, and one witness said that he appeared to be laughing about it,” Baum’s report stated. Baum reported NY SAC President McKnight also received a call from Rogowski, “who apologized, indicated (or words to the effect) that he knew he ‘screwed up’ but ‘got caught up in the heat of the moment’ and said that he thought what he had done was ‘best for the state.’”

Late that evening, NY SAC executive Acquario sent an email to NACo Executive Director Larry Naake asking that “the votes be reallocated as authorized.”

The next morning, NACo’s executive committee was informed by its parliamentarian that the organization had no authority to change the votes that had been cast.

Further investigation

To be sure of its legal standing, the executive committee instructed the NACo Audit Committee to hire an independent counsel – Baum – to investigate the circumstances and consider the appropriate legal course.

In addition to laying out the facts cited above, the Baum report confirmed the parliamentarian’s position. In essence, the report noted that NACo, which was organized as a corporation in Delaware, must follow longstanding Delaware court precedents that state that the body conducting a corporate election (such as among stockholders) does not have the discretion of verifying whether ballots are cast correctly. Those who conduct elections for corporations “are powerless to consider … breach of duty or the undisputed intent of” stockholders or members.

“A Delaware corporation is not authorized to take action based on evidence beyond the actual votes cast,” Baum concluded. On the other hand, Baum pointed out that a Delaware state court may well order the votes to be cast as the state delegation intended, if the matter were pursued in court by a NACo member. “In the event that a court did consider this extrinsic evidence, it is indeed possible that the court would order that” the New York votes for Altemus and Whitley be changed, effectively overturning the election. “In the event a lawsuit was filed, however, it is possible that a court … could consider evidence of the members’ true intent, and order a different result, but only if the court concluded that the inequities warranted such a result because the vote was undertaken in breach of a duty to the members whose votes were being cast, or effected a fraud on the organization or its members.”

At press time, the attorney’s report had been presented to the NACo Executive Committee as well as its Board of Directors but it was unknown what action would follow. Texas Association of Counties Executive Director Karen Ann Norris expressed her appreciation of the timely response by the New York association in filing the protest.

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