Lynchburg City Council to hold special meeting Wednesday to discuss lawsuit that seeks to void election result

Two Lynchburg City Council members have called a special meeting to try to prevent the city attorney from assisting the city’s electoral board in a lawsuit that seeks to throw out the results of the June 18 Ward IV Republican primary race.

Vice Mayor Chris Faraldi won that election by 33 votes, defeating opponent Peter Alexander, who filed the suit Friday in an attempt to invalidate the results. The case alleges that 125 absentee ballots were received by the registrar’s office, but that their status in the ballot-tracking process was never updated to show whether they were processed or counted. Arguing that there’s uncertainty over whether those ballots were counted, Alexander’s petition aims to declare the election void. Daniel Pense, the general registrar, and the local electoral board said in a statement Monday that they’re “confident that every lawful vote was counted.”

The council will “address an uncommon and unexpected condition” made in a proposal sent by city attorney Matthew Freedman to council members over the weekend, according to the meeting notice. That email is protected under attorney-client privilege, one that council member Marty Misjuns said he wants the council to waive so it can be open to public view.

“There are concerns that need to be addressed to make sure that we aren’t expending taxpayer resources on partisan political campaigns or nomination contests,” Misjuns told Cardinal News.

When asked whether public funds are actually being used in this way, Misjuns did not answer.

“We need to do everything we can to make sure taxpayers aren’t footing the bill for any litigation support, consultation or legal services from the city attorney’s office for political candidates,” Misjuns said.

The Faraldi for Lynchburg campaign denied those claims, saying the city “has and is not representing Mr. Faraldi in his personal capacity, nor the campaign.” The campaign didn’t say how the vice mayor plans to proceed or vote in the meeting.

Misjuns and fellow council member Jeff Helgeson filed the paperwork to initiate the special meeting. Among the items they ask the council to consider is a resolution that would explicitly prohibit Lynchburg’s city attorney from representing the electoral board or the registrar without a majority vote from the electoral board, “to ensure separation of power in local government.”

A memorandum of understanding between the city, the registrar and the electoral board was updated last month to include the electoral board. That MOU specifies that both the registrar and electoral board should receive legal representation from the statewide division of risk management or the attorney general’s office, not from the city. The updated version was ratified at the electoral board’s June meeting, which occurred before this election.

It also says the city attorney’s office shouldn’t provide the electoral board or the registrar with any legal advice unless there’s a written agreement, which one of the resolutions on the agenda seeks to emphasize.

David Levy, who chairs the electoral board, didn’t confirm whether the board has received legal assistance from the city attorney.

Court records show that the electoral board has been represented by outside attorneys in a lawsuit involving the former registrar.

Other items that Misjuns and Helgeson want considered include a resolution to waive attorney-client privilege on the email sent Saturday afternoon by the city attorney to the city council that involves the unspecified “uncommon and unexpected condition” Misjuns referenced.

Misjuns, who publicly supported Alexander’s campaign and provided an affidavit detailing the claims made in the lawsuit, calls on the city council in the meeting notice to forbid government interference in a lawsuit “between private parties.” Although the allegations center on the registrar’s office and the electoral board, Alexander filed the case against Faraldi. Both are listed as individuals, not their campaigns or Faraldi’s capacity as a city council member.

Alexander’s lawyer, Bill Hurd of Richmond, said that’s because Virginia specifies that election contests should be between two candidates. It’s an alternate way to challenge an election since a recount would require a margin of less than 1% between the candidates’ vote totals — the June 18 primary’s margin was 1.6%.

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