The 6th District Republican Committee met last night (July 5th) to hear the appeal of Craig Storrs, the Central Regional Vice-Chairman. Mr. Storrs was challenging the vote taken by the committee at its June 23rd meeting to retain the Bopp Law Firm, to appoint an ad-hoc committee to represent the 6th District in communications with this legal team, and to allocate up to $30,000 to pay for these legal services. The committee voted to take these actions in order to defend itself and its members against the FEC complaints filed by supporters of the current 6th District Chairman, Jennifer Brown.
The Anne Fitzgerald Proxy
Mr. Storrs made two objections to the vote in question. His first objection dealt with a proxy representing Anne Fitzgerald. During the June 23rd meeting Matt Fitzgerald was absent for the meeting so his wife, Anne, carried his proxy. Since Anne is also a member of the committee a third person carried her proxy so her vote could be recorded. Because Anne Fitzgerald was physically present at the meeting (even though she was representing her husband), Mr. Storrs argued that she should not be allowed to be represented by a proxy. The proxy committee for the June 23rd meeting reported to the full committee that all proxies were in order and properly filed. It was only after the desire to invalidate a vote of the committee arose that Mr. Storrs suddenly found an issue with Anne’s proxy.
The motion made to retain the Bopp Law Firm passed by a vote of 20-12 so normally the challenge of a single proxy would make no difference, but part of the motion was to appoint an ad-hoc committee “to serve as the Committee’s sole representatives to the Special Counsel.” The by-laws of the 6th District Committee state that “The District Committee may appoint an ad hoc committee for a specific purpose by a three-fifths (3/5ths) vote of the members in attendance at a duly convened meeting.” (Article VII-B-1) The 20-12 vote in favor of the motion meant it passed with 62.5% of the vote. Mr. Storrs believed that by invalidating Anne Fitzgerald’s proxy it would drop the votes in favor of the motion from 20 to 19, leaving only 59% of the vote and therefore the motion would fail, and he stated as much in defense of his appeal.
What Mr. Storrs forgot to take into account was that by invalidating Anne Fitzgerald’s proxy, it would also reduce the number of members present at the meeting from 32 to 31, and that the 3/5th vote is “of the members in attendance.” With 19 votes in favor out of now only 31 possible votes, the ayes still received 61% of the vote, and the motion still passes. With the validity of the proxy now rendered meaningless, a motion was made and passed to uphold Mr. Storrs on this part of the appeal and invalidate the proxy.
Conflicted Counsel
The second portion of Mr. Storrs appeal deals not with retaining counsel per se, but to having that counsel represent both the 6th District Committee and its officers on the same matters. The motion passed at the June 23rd meeting states, “The 6th District Committee shall retain a Special Counsel to defend the 6th District Committee, its current and previous Treasurers and Secretaries and its previous Chairman, from the accusations made in complaints to the Federal Election Commission.” Mr. Storrs objection in his appeal states:
The prima facie wrongdoing/malfeasance of individuals creates a conflict of interest whereby this attorney cannot represent all parties due to the fact that this attorney is conflicted out under the Professional Rules of Conduct. Therefore, the Chairman is not required to enforce what amounts to an illegal motion passed by the Committee.
This objection represents a fundamental misunderstanding of the FEC complaint process by Mr Storrs. When a complaint is filed against a committee like the 6th District Committee, the Treasurer is typically named as a respondent, but the enforcement action is always against the Committee. According to the FEC website
In an enforcement action, the committee’s treasurer will typically be subject to Commission action only in their official capacity. When information indicates that a treasurer has knowingly and willfully violated the Act, recklessly failed to fulfill duties specifically imposed by the Act or intentionally deprived themselves of facts giving rise to the violation, the Commission will consider the treasurer subject to action in a personal capacity.
The bottom line here is that any adverse ruling against the committee arising by any action taken or not taken by the Treasurer will be levied against the committee itself, not the Treasurer, because he is acting in his official capacity on behalf of the committee. At every meeting the Treasurer gives a report to the committee about his activities and the committee’s current financial status. That report is then accepted by the committee, often by a formal vote. That makes the actions of the Treasurer the responsibility of the full committee. It is only through either gross incompetence or willful intent to violate the law that a Treasurer is held personally liable, and this is where the real problem lies.
Mr. Storrs, Jennifer Brown and their allies believe there is somehow a separation between the Committee and it officers. They seek to punish individual members of the committee based on what they perceive to be wrongful acts while believing they can hold the committee itself blameless. Mr. Storrs own words bear this out. The definition of prima facie is “based on the first impression; accepted as correct until proved otherwise.” By claiming there is a prima facie case of wrongdoing, he is prejudging these people to be guilty when no evidence of guilt exists.
Rule 1.7 of the ABA’s Rules of Conduct covering conflicts of interest for lawyers in their representation of clients states that:
A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Craig Storrs and Jennifer Brown believe that the committee and its officers are separate entities, and that an adverse ruling against an individual will not necessarily mean an adverse ruling against the committee. They could not be more wrong. If any action taken by either the committee or the individuals named in these complaints is determined to have violated campaign finance laws, then the committee itself will be held liable. The interests of the committee are NOT in conflict with the interests of the individuals named in these complaints. Quite the contrary, it is in the sincere, direct interest of the committee that the individuals named in these complaints be found to have acted in compliance with the law at all times. Furthermore, had there even been any possible or perceived conflict of interest the individual members of the committee may waive that conflict and consent to be represented by Mr. Bopp anyway.
During the debate of this portion of the appeal, the Committee went into recess to review a legal brief on the issue presented by the Bopp Law Firm concerning the question of any conflicts arising from the dual representation. In this letter it lays out and explains the relevant rules of conduct, and states that they find no conflict. It then points out that the only real way their could be a conflict between the officers and the committee is if the committee voted to take legal action against the officers:
there is no significant risk that BLF’s ability to adequately represent both the Committee and the former officials will be compromised by litigation because the risk of the Committee commencing action against the Officers is virtually nonexistent. The Committee voted to defend the Officers, not to sue them. And on our reading, no individual officer has the enumerated authority, either in the State Party Rules or the District Committee Rules, to commence litigation on behalf of the committee or on behalf of the officer or officers of the Committee.
After reviewing the letter Mr. Storrs, who is not an attorney, stated that he believed Mr. Bopp, an attorney with 40 years of experience (30 of them in election law), was incorrect in his interpretation of the relevant Rules of Conduct. The committee voted 21 to 11 to defeat this portion of Mr. Storrs appeal.
Craig Storrs now has the option of appealing this ruling to the RPV State Central Committee, however with his victory (albeit meaningless) in the issue of the proxy, the only issue that would be considered is whether the committee has the right to retain legal representation, and the non-existent conflict of interest. RPV has a long history of recognizing the right of individual units to hire the representation of their choice when faced with legal issues, and should be extremely cautious in their deliberations, lest they risk upsetting decades of precedent over this issue.
The best result, however, would be for Mr. Storrs to drop his appeal and move forward. This adversarial attitude by Craig Storrs, Jennifer Brown and her supporters is doing nothing but harm the committee and harm the chances of electing Republicans in November. They need to stop treating their fellow committee members as the enemy and start acting in the best interests of the committee they campaigned to be members of.
