Commissioner legal fees on Dewey agenda

A possible vote to indemnify a Dewey Beach commissioner’s legal fees for a lawsuit involving his candidacy is set for Saturday, Jan. 11.

The vote to indemnify Commissioner Paul Bauer for legal fees arising from a suit filed by candidate Phil Rowe first appeared on commissioners’ Nov. 9 agenda. Bauer told commissioners he asked for the item to be removed from the agenda the day before, based on advice from his attorney, Glenn Mandalas.

Rowe, who lost to Bauer by six votes in the Sept. 21 municipal election, filed the suit against Bauer and the town Oct. 3, stating the election and seating of Bauer was illegal because Bauer filed to run as a resident, but that he is not a bona fide Dewey Beach resident as defined in town code. On Nov. 21, Rowe said he decided to drop the suit in light of the town’s other legal problems, referring to the indictment of a Dewey police officer. 

In a letter sent to commissioners and Town Manager Scott Koenig Dec. 30, Mandalas stated Bauer is entitled to indemnification under town code; he stated that Bauer was only sued because he was re-elected.

“Be cautious not to require that the action sued over be connected to an official duty - the indemnification provision does not require that,” Mandalas stated.

Mandalas declined to disclose the amount of the legal fees the town would have to pay. In a Jan. 8 email, Koenig said he had not received copies of any specific bills or billing statements. 

Mandalas also wrote that Commissioner David Moskowitz should recuse himself from the indemnification vote because he has a perceived or actual conflict of interest and has stated positions contrary to Bauer’s. Mandalas cites Moskowtiz’s Sept. 20 letter to the editor as evidence of his “biased desire to see Commissioner Bauer unseated by Mr. Rowe - which demonstrates Commissioner Moskowitz’s support for Rowe’s lawsuit.”

Moskowitz did not say whether he would recuse himself from the vote.

“Neither commissioners nor the public have been provided information by town management as of Wednesday morning and the meeting is Saturday,” Moskowitz said. 

For his part, in a Jan. 6 email, Rowe states that Bauer, Redefer and Commissioner Dale Cooke should recuse themselves from the vote.

“Bauer, Redefer and Cooke pooled financial resources for ads and campaign events, making them inextricably linked financially and therefore subject to recusal from any such vote,” Rowe stated. “Their campaign finances will come under strong scrutiny should they attempt to line their own pockets with town funds.”

Rowe said when Bauer filed to run for re-election, it was the act of a citizen, not a commissioner. 

“I filed to run, and I was not a commissioner, so obviously, filing is not such an act,” Rowe stated. “After it became obvious that Bauer had deliberately filed incorrect and misleading information on his candidate’s filing form (not commissioner’s filing form, please note), I filed a suit as a citizen, against a citizen, period. Nothing Bauer was sued for was an act by a commissioner.”

Redefer said he and Bauer pooled their limited resources to run for commissioner.

“Commissioner Bauer and I work well together but we do not always agree, and so for Mr. Rowe to say that because we work together I can not be impartial is simply without merit,” Redefer said. "I do not agree with Mr. Rowe’s assertion or his conclusion as it related to Dale and I at all."

Cooke said he has not yet decided how he will vote.

“I do not yet have a positive or negative stance about the issue,” Cooke wrote in a Jan. 7 email. “I am still conflicted about what can be justifiably related to town commissioners duties/actions/responsibilities, etc., along with where the authority of the town to indemnify begins and ceases.”

Bauer could not be reached for comment.

Commissioner Gary Persinger, who is liaison to the town’s charter and review ad hoc committee, said the words recuse or recusal do not appear in the town charter or code.

“My opinion, not official, is that commissioners should recuse themselves when not doing so would violate the code of conduct or would create the impression that the code may be violated by a commissioner’s action,” Persinger said. 

Persinger said the sections of the code of conduct that discourage an official from taking action on issues for which the official has a personal interest are most relevant regarding the need to recuse. 

“Commissioners can ask the town solicitor for his opinion on the need to recuse in order to avoid potential problems,” Persinger said. “The decision to recuse is the individual’s.”