FOR IMMEDIATE RELEASE
From Ken Adams, Chairman of the Waynesboro Republican Committee and
Matt Fitzgerald, Chairman of the Staunton Republican Committee
Mr. Adams and Mr. Fitzgerald are members of the 6th Congressional District Republican Committee.
Mr. Adams may be reached at (540) 942-1880, [email protected]
Mr. Fitzgerald may be reached at (540) 292-0600, [email protected]
July 6, 2018
6th Congressional District Republican Committee
Upholds Decision to Retain Bopp Law Firm
The 6th District Republican Committee upheld its decision to retain the Bopp Law Firm to defend the Committee and its current and former officers.
The Committee and its former Chairman and Treasurers are the subjects of two complaints to the Federal Elections Commission. The first complaint alleges that the Committee and its former Treasurers placed funds in a state elections account, when those funds should properly have been deposited in a federal elections account instead. The second complaint alleges that by allowing the Committee to meet in space owned by his company, the former chairman and his company made an improper corporate contribution to the Committee.
The charges against the Committee and its officers are frivolous. That said, any federal investigation is serious, and the Committee deserves a vigorous defense, both to protect it from legal liability and to protect the reputations of all of its members.
As volunteers, the officers of the Committee are entitled to be defended vigorously by the Committee for their official acts, in particular in a case like this in which the alleged violations did not confer any personal benefit on the officers at the expense of the Committee.
In light of this, the Committee voted at its June 23, 2018 meeting to retain the Bopp Law Firm, a nationally prominent law firm with particular expertise in election law, to defend it and its members. The Committee constituted a sub-committee to manage the litigation on its behalf. Finally, the Committee allocated up to $30,000 for legal fees.
The decision was forced on the Committee by the persons who made these frivolous complaints. Every member of the Committee would prefer to focus the time, attention and money of the Committee on building the Party and supporting its candidates. But the unfortunate reality is that the Committee is a respondent to FEC complaints, and the members of the Committee would commit a breach of their fiduciary duty or care were they to ignore or concede the complaints.
The Committee’s decision to retain the Bopp Law Firm was appealed on two grounds. The first ground was that one of the proxies used to vote at the June 23, 2018 meeting was invalid, and as a result the Committee did not have the votes to approve the creation of the sub-committee by the 3/5 margin required by its Bylaws. The second ground was that the Bopp Law Firm is subject to a conflict of interest based on the American Bar Association’s Professional Rules of Conduct, and therefore may not represent the Committee.
At a meeting held on July 5, 2018, the Committee addressed the appeal. On the first ground, the Committee determined that the proxy in question was invalid. Accordingly, the vote cast by the proxy holder was invalid.
The Bylaws require a 3/5 vote of the members in attendance. After reducing the number in attendance by 1 and reducing the number of affirmative votes for the motion to appoint a Special Counsel by 1, the re-calculated vote was 19-12 which still met the 3/5 requirement.
On the second ground, the Committee considered a legal opinion prepared by the Bopp Law Firm, a copy of which is attached. The document sets forth the legal standard for conflicts of interest and which determined that there is no current or likely future conflict of interest between the Committee and its officers.
Accordingly, the Committee denied the appeal which challenged the motion to appoint a Special Counsel, affirming that the 3/5 vote requirement had been met and that no conflict of interest existed under the Professional Rules of Conduct of attorneys. Thus, the Bopp Law Firm continues to represent the Committee and will be submitting the Committee’s responses to the FEC allegations by July 16th.
There has been much confusion about the Committee’s decision to retain the Bopp Law Firm. The following questions have been posed, in social media and elsewhere, and the answers below should help to dispel any confusion.
It was reported on social media that the Committee was defending Cynthia Dunbar; is that true? That is not true. The motion by which the Committee retained the Bopp Law Firm explicitly states that the Committee is retaining the firm for the purpose of representing itself and its officers and no one else. A copy of the motion is attached. This confusion presumably arose because the Bopp Law Firm also is representing Cynthia Dunbar and former chairman Scott Sayre in their individual capacities. However, that is a different representation, with distinct clients and related to a different complaint.
People are saying on social media that the Committee and its officers are guilty; is that true? That also is not true. As the attached assessment from the General Counsel of the Republican Party of Virginia argues that the allegations against the Committee are dubious. Moreover, the allegations are of a highly technical nature and involve very small sums of money and, as a result, even if the Committee and its officers committed technical violations, they likely do not rise to a level that will lead to any enforcement action by the FEC.
If the charges are so thin, why does the Committee need lawyers? A party named in an FEC complaint is entitled to legal counsel. Moreover, due to the arcane nature of election law, it would be irresponsible – indeed, a breach of their fiduciary duties to the Committee – if the members of the Committee did not retain qualified legal counsel to assess and respond to the allegations. We have an adversarial legal system, which means that all parties are obliged to protect their own interests in a legal proceeding, and the Committee is committed to doing exactly that.
Isn’t it unusual for the Committee to defend its officers? To the contrary, it is the normal course of action for a committee (or other board) to defend its officers for allegations related to their official duties. The FEC itself recognizes this; in its Guidebook for Complainants and Respondents on the FEC Enforcement Process the FEC states that “Where the respondent is a political committee, the designation of counsel also covers the treasurer in his or her official capacity unless the respondent specifies otherwise.” In other words, the FEC itself presumes that counsel for a Committee also serves as counsel for its treasurer, unless the Committee explicitly states otherwise.
If the charges are so thin, why did the Committee allocate money for legal fees? When entering into a legal process, it is necessary to be ready to carry that process all the way to its conclusion. That is only fair to the Committee, the officers, and the Bopp Law Firm, which has a national reputation and is committing itself to this case. That said, we hope and even expect that the Committee and its officers will be vindicated quickly, and without the need for extensive administrative proceedings or litigation. In which case, we expect that some portion of the funds that have been committed to this effort will be re-directed toward the work of the Committee, such as building the Party and supporting its candidates.
Can’t the Republican Party of Virginia defend the Committee? Matt Fitzgerald discussed this possibility with John Findlay, the Executive Director of the Republican Party of Virginia. Specifically, as the attached email shows, he asked about both insurance coverage and the possibility that the RPV would provide resources to defend the Committee. Unfortunately, the RPV has offered neither insurance coverage nor other resources to the Committee, meaning the Committee, must depend on its own resources.
The Chairwoman of the Committee disagrees with the decision to hire the Bopp Law Firm; how can the Committee defy her? This question gets things backwards. A Republican Committee Chair is a Presiding Chair, not an Executive Chair with the power to direct the decisions of the Committee. A Presiding Chair is an officer who convenes meetings and presides over those meetings. It is the Committee that makes decisions, and the Chair is bound by those decisions just as the other members of the Committee.