Washington County is paying its special counsel nearly $500 an hour to defend itself in a recent lawsuit over mail-in ballot tampering, a case that could last months and eventually end up in the state Supreme Court.
Under the agreement signed last month with Pittsburgh-based law firm DeForest, Koscelnik & Berardinelli, the county will pay attorney David Berardinelli an hourly rate of $475 to perform legal work as part of the defense in the lawsuit.
The agreement was signed by County Attorney Gary Sweat after the Board of Elections met in special session on July 5 and voted 2-1 to hire special counsel for the lawsuit. Republican Commissioners Nick Sherman and Electra Janis voted to hire Berardinelli, while Democratic Commissioner Larry Maggi voted against the motion after urging the Board of Elections to reverse its decision not to allow ballot corrections before the November election.
The special counsel was appointed after seven Washington County voters sued the county’s election board for refusing to count their absentee ballots because of errors on the envelopes and not giving them an opportunity to correct the errors through ballot corrections, as is possible in most other counties. The ACLU of Pennsylvania and the Philadelphia-based Public Interest Law Center filed the lawsuit in the Washington County Court of Common Pleas on July 1, and the case is now before Judge Brandon Neuman.
On the same day the lawsuit was filed, Berardinelli sent a letter to the Board of Elections and to Sweat to confirm the “engagement” of his firm as special counsel. The Board of Elections approved it four days later, and Sweat signed and dated the agreement July 5.
In addition to Berardinelli’s hourly wage of $475, the agreement calls for a $5,000 retainer, plus $325 per hour for the work of attorney Oscar Heanue and $150 per hour for the work of a paralegal. The agreement also requires the county to pay “reasonable travel expenses” and “courier and other delivery costs” related to the lawsuit, as well as court costs.
The county released the agreement Wednesday afternoon in response to a public records request from the Observer-Reporter last week.
Berardinelli attended Washington County Elections Supervisor Melanie Ostrander’s nearly eight-hour testimony in Pittsburgh on July 18 and later traveled to Harrisburg to attend another lengthy testimony from a Pennsylvania Department of State official.
Berardinelli also spent nearly six hours at the Washington County Courthouse on August 5 to argue the lawsuit before Neuman. It is not known how many hours he and his firm have billed the county in the five weeks since he was appointed special counsel.
Despite Neuman’s decision, which is expected to come relatively quickly, both sides have said they will appeal, expecting it to set a precedent before the state Supreme Court. Such a process could take several weeks, but both sides hope to have a decision before the Nov. 5 election.
A day before the settlement with the special counsel was made public, Washington Mayor Jojo Burgess raised concerns about the cost of the litigation during the commissioners’ agenda meeting Tuesday morning.
“Are those 300 votes worth hundreds of thousands of dollars?” Burgess asked, predicting the high legal costs the county would face.
Burgess was referring to the nearly 300 absentee ballots submitted before the April 23 primary that were not counted due to a variety of serious deficiencies. Of those, 259 had errors, such as missing signatures or dates on the envelope, that could have been corrected if county poll workers had been allowed to notify voters of the problem.
“Is that a financial responsibility for the (number of) votes?” Burgess asked the commissioners.
