FILED: MONROE COUNTY CLERK 05/27/2020 02:41 PM INDEX NO.

E2020003192
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/27/2020

STATE OF NEW YORK

SUPREME COURT COUNTY OF MONROE

MEMBERS OF THE EXECUTIVE COMMITTEE OF

THE MONROE COUNTY DEMOCRATIC
COMMITTEE NICHOLAS COFFEE, et al.,

Petitioners,

v.

MONROE COUNTY DEMOCRATIC LEGISLATORS

RACHEL BARNHART, et al.,

Respondents.

Index No.: E2020003192

MEMBERS OF THE MONROE COUNTY

SANTIAGO BURGER LLP

LEGISLATURE DEMOCRATIC CAUCUS RACHEL

BARNHART, LINDA HASMAN, and YVERSHA
ROMAN,

Cross-Claimants,

v.

VINCE FELDER, as leader of the Monroe County

Legislature’s Democratic Caucus, and BRITTANY
WELLS as Chairperson of the Monroe County
Democratic Committee,

Cross-Claim Defendants.

VERIFIED ANSWER WITH CROSS-CLAIM

of Concerned Caucus

Respondents Monroe County Legislators and members of its Democratic Caucus,

RACHEL BARNHART, LINDA HASMAN, and YVERSHA ROMAN (“Concerned

Caucus”), by and through their attorneys, NIXON PEABODY LLP and SANTIAGO

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BURGER LLP, as and for their Answer to the PETITION in the above-referenced proceeding,

hereby ADMIT the allegations in the PETITION and its supporting documents under CPLR

section 7804(d), as more fully set forth herein:

1. RACHEL BARNHART, LINDA HASMAN, and YVERSHA ROMAN are

Monroe County Legislators, members of the Monroe County Democratic Committee, and

members of its Democratic Caucus who have consistently recognized the right of the Monroe

County Democratic Party to vote for the next Monroe County Democratic Board of Elections

Commissioner at a free and fair election (“Concerned Caucus”).

2. Each member of the Concerned Caucus has separately and publicly expressed

support for the Monroe County Democratic Committee (MCDC) to hold a special meeting

(also known as a “convention”) to choose the next Democratic Monroe County Board of

Elections (BOE) Commissioner.

3. Members of MCDC are entitled by law to choose the BOE Commissioner, a

position of public trust.

4. A campaign for the election Commissioner office not only enfranchises voting

members of MCDC, but it is vital because of a history of intra-party factionalism at the

Monroe County Board of Elections; factionalism that can exclude rank and file Democrats.

5. A benefit of this convention process was summarized by Legislator Rachel

Barnhart in the Democrat and Chronicle as follows, “While this is an inherently political

position, we need a commissioner who will pledge to stay out of primaries and have

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independence. These values are better served with an open process.”

6. If one faction of the party controls the BOE, they could have power over

petitions, distribution of absentee ballot lists, polling sites, elections inspectors, and other

election-related protocols that could be misused to create an uneven playing field in primary

elections here in Monroe County.

7. The previous Commissioner, Colleen Anderson, pledged that she would not

favor any primary candidates, as part of her successful and open campaign for this office.

8. In early March, the MCDC Executive Committee voted to proceed with a full

committee vote for the next BOE commissioner, as provided by law and history. Legislator

Roman is on the MCDC Executive Committee and voted in the affirmative.

9. Then the pandemic hit, and the process was stalled until we could safely hold a

convention.

10. In mid-April, Minority Leader Vince Felder began to bring up the issue of

needing a permanent BOE Commissioner in our caucus meetings. He claimed the legislature

should circumvent the ordinary democratic process and the New York State Election Law to

appoint Ms. Lashana Boose, the Acting Commissioner, as Commissioner.

11. Leader Felder admitted that Ms. Boose was his preferred candidate. Mr. Felder

and Ms. Boose have close ties to Rochester Mayor Lovely Warren.

12. In late April, MCDC Party Chairwoman, Brittaney Wells (“Wells”), stated that

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she too intended to have the Democratic caucus of the County Legislature, not the full

membership of MCDC, which Ms. Wells leads, choose the next BOE commissioner.

13. Ms. Wells also has close ties to Mayor Warren.

14. Upon information and belief, Mayor Warren, Leader Felder and Chairwoman

Wells chose this course of action because they believed they may be able to control the

outcome in favor of Ms. Boose, something they could not guarantee in the legally required free

and fair vote by the Monroe County Democratic Committee.

15. The pandemic gave them an idea for avoiding the law.

16. On April 25, 2020, both Mayor Warren and Leader Felder, unexpectedly joined

an MCDC Executive Committee Zoom telephone conference to aggressively advocate for Ms.

Boose.

17. Mayor Warren informed the Executive Committee of a letter from Ms. Wells to

legislators about the process she expected us to use to pick a BOE Commissioner. Legislators

had not received this letter.

18. Mayor Warren explained that the MCDC attorney, Respondent Nathan Van

Loon, determined that MCDC’s statutory 45-day time limit to choose a commissioner had run

out, despite the fact that all of New York State was “on pause” during the Coronavirus

pandemic.

19. Mayor Warren added her own legal opinion (she is an attorney) to the mix, as

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she backed Van Loon’s legal claims and stated that the matter was now in the hands of the

legislature.

20. We now realize that Mr. Van Loon had a conflict of interest when he rendered

this self-serving legal advice to his client MCDC: Mr. Van Loon would install Ms. Boose as a

commissioner by not allowing MCDC members to vote.

21. The following week, on a regularly-scheduled call with about 200 elected

officials and local leaders regarding the COVID-19 crisis, Mayor Warren urged the legislature

to act quickly to appoint a BOE Commissioner. She also posted on Facebook that she wanted

the legislature (not the MCDC membership) to decide this issue.

22. Wishing to follow the law, eight Democratic caucus members asked its lawyer,

County Attorney John Bringewatt, to provide an unbiased legal opinion on whether the county

legislature had the authority to make the BOE appointment.

23. Mr. Bringewatt opined that the governor’s executive orders tolled the 45-day

window to make an appointment. Exhibit A.

24. Not satisfied with legal advice that the attorney for the Caucus provided

(because it contradicted his stated objective to install Ms. Boose), Mr. Felder flatly refused to

follow the advice of his own County Attorney. Mr. Felder said Mr. Bringewatt’s opinion was

politically motivated.

25. In our caucus meetings, Mr. Felder dismissed every suggestion from a legislator

that we allow MCDC to play a role in the selection, stating, “They already had their chance.”

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Mr. Felder insisted the 45-day clock had run out, and refused to entertain any discussion of a

full committee vote.

26. On May 6, the Caucus reached a consensus to allow MCDC to make a timely

vote to begin the interview process in case MCDC did not fulfill its obligation to allow

members to vote on the BOE Commissioner position.

29. Assistant Minority Leader Josh Bauroth emailed the caucus his understanding

of the caucus agreement, which aligned with our own. Exhibit B.

30. Of course, at this time, the Monroe County Legislature has no right or power to

compromise the legal authority of the Monroe County Democratic Committee.

31. Without consulting with the caucus, Felder issued a press release on Friday,

May 8, stating that the legislature would make the selection for BOE commissioner and

applications for the position would be due on Monday, May 11. Exhibit C.

32. Felder ignored legal advice from the county attorney and the wishes of the

caucus.

33. We issued a statement to the press expressing surprise with Felder’s actions and

affirming our commitment to a vote of MCDC members. Exhibit D.

34. In an email exchange, Ms. Barnhart told Mr. Felder she felt betrayed by his

actions. He responded, accusing Barnhart of being disrespectful of his authority and ordered

that “discussing anything other than the process moving forward will not be happening.”

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35. In an effort to add transparency and fairness to the “interview” process,

Barnhart indicated that the caucus would be vetting all candidates including Ms. Boose, as

BOE workers approached Ms. Barnhart with concerns about partisan activity and other issues

in the office.

36. In emails dated May 8 and 9, Mr. Felder blocked these efforts too, barring these

types of questions even "whistle-blower complaints". Exhibit E.

37. Ms. Barnhart asked County Attorney Bringewatt for a legal opinion on whether

the caucus had to abide by open meetings laws during the BOE commissioner selection

process.

38. On Monday, May 10, Bringewatt advised us to conduct some parts of our

selection process in accordance with open meetings laws to protect ourselves from legal

liability. Exhibit F.

39. On Thursday, May 14, Chairwoman Wells sent a press release with the names

of the candidates for BOE commissioner and said the interviews would take place the

following week. Exhibit G. Legislators had not discussed Ms. Felder’s actions, nor had we

been made aware of an interview schedule.

40. On Friday, May 15, our legislative aide told us to submit questions for

candidates by 9 a.m. the following day. We objected. Exhibit H.

41. In a caucus meeting on May 16, Mr. Felder said the interviews would be

recorded, but not shared with MCDC members.

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42. Mr. Felder refused to commit to compliance with open meeting laws.

43. Mr. Felder then issued a document titled, “Protocols for Democratic Caucus

Interviews.” Exhibit I. Legislators would not be allowed to ask their own questions, the

proceedings would not be recorded, etc.

44. The “Protocol” for candidate questioning read as follows:

All candidates will be asked three questions: 1] Why do you want to serve
in this capacity? 2] What strengths do you bring to this position? 3] What areas of
personal and professional growth will be your focus as you enter into this
leadership responsibility? All other questions will be at the discretion of the
caucus members. Questions should not be in a “gotcha” format: e.g. “Why did
you do X?” or “Can you confirm or deny?” If a question regarding a sensitive
matter of personal conduct is asked, it should be invitational: “Please talk about
the following issue: I want to understand your understanding of what happened
and your point of view.” Caucus members can draw their own conclusions from
the interviewee's handling of such questions.

45. Legislator Barnhart posted the protocols on her Twitter account to demonstrate

to the public that this process, in her words, was “anti-democratic, corrupt and rigged.”

46. On Monday, May 18, members of the MCDC executive committee filed the

Petition in the above-referenced case, suing the entire Legislative democratic caucus.

47. At our caucus meeting on Wednesday, May 20, Mr. Felder said he was close to

retaining an attorney, but did not identify this individual when asked. Mr. Felder said caucus

members who agree with the petitioners don’t need their own representation, but their

objection would be noted.

48. On May 20, the caucus received a schedule of interviews that would take place

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over the next three days, into the holiday weekend. We received the schedule after 9 p.m.

Exhibit J.

49. Several legislators replied over email that they would not participate, given the

pending litigation.

50. Mr. Felder falsely responded that the lawsuit was dismissed. Exhibit K.

AS AND FOR THE CONCERNED CAUCUS’ CROSS-CLAIM AGAINST VINCE

FELDER AS LEADER OF THE MONROE COUNTY LEGISLATURE’S DEMOCRATIC
CAUCUS AND BRITTANY WELLS AS THE CHAIRPERSON OF THE MONROE
COUNTY DEMOCRATIC COMMITTEE:

DECLARATORY JUDGMENT
UNDER CPLR SECTION 3001

51. Monroe County Legislators and members of the Concerned Caucus Rachel

Barnhart, Linda Hasman, and Yversha Roman, repeat and reallege all the foregoing numbered

paragraphs.

52. The parties disagree as to whether the Monroe County Democratic Committee

still has time to vote on the next Monroe County Board of Elections Democratic

Commissioner, under New York State Election Law 3-204 and the New York State Governor’s

Executive Orders issued in the wake of the coronavirus pandemic.

53. This justiciable legal question is the crux of the instant dispute and it is

impossible for the Monroe County Legislature’s Democratic Caucus to act appropriately and

timely to select a permanent election commissioner without guidance on whether the statutory

45 days prescribed by New York State Election Law 3-204 has run or when it will run.

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WHEREFORE Respondents-Cross-claimants BARNHART, HASMAN, and ROMAN,

respectfully request that the Court grant the relief sought in the PETITION and further grant a

JUDGMENT and DECREE on their CROSS-CLAIM, declaring what amount of time if any

the Monroe County Democratic Committee has left to vote on the Democratic Board of

Elections Commissioner under the Election Law and the pandemic-related Executive Orders

issued by the New York State Governor, and for such other and further relief as the Court may

deem just and proper.

Dated: May 27, 2020

Rochester, New York
s/Christopher D. Thomas
Christopher D. Thomas
NIXON PEABODY LLP
Attorneys for Respondents Concerned Caucus
Barnhart, Hasman, & Roman
1300 Clinton Square
Rochester, NY 14604-1792
Tel.: (585) 263-1000
cdthomas@nixonpeabody.com

________________________
Michael A. Burger
SANTIAGO BURGER LLP
Attorneys for Respondents Concerned Caucus
Barnhart, Hasman, & Roman
2280 East Avenue
Rochester, NY 14610
Tel.: (585) 563-2400
mike@litgrp.com

To: Jamie Romeo

MONROE COUNTY CLERK
Monroe County Office Building
39 W. Main St., Ste. 101
Rochester, NY 14614
Tel.: 585 753-1600

10

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Cathleen A. Koshykar, Esq.

KOSHYKAR LAW, PLLC
Attorneys for Petitioners
42 Hilltop Drive
Pittsford, NY 14534
Tel.: (585) 310-2445
koshykarlaw@gmail.com

Donald M. Thompson, Esq.

EASTON THOMPSON KASPEREK SHIFFRIN LLP
16 W. Main Street
Suite 243
Rochester, NY 14614
Tel.: (585) 423-8290
dmthompson@etksdefense.com

Nathan VanLoon, Esq.

VAN LOON LAW
30 W. Broad Street
Suite 302
Rochester, NY 1464
Tel.: (585) 454-0856
nvl@vanloonlaw.com

A. Joshua Ehrlich, Esq.

PO Box 7273
Capitol Station
Albany, NY 12224
Tel.: (518) 334-1502

11

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I

VERIFICATION
OF RESPONDENT RACHEL BARNHART

NEW YORK STATE }

} ss.
MONROE COUNTY }

RACHEL BARNHART, being duly sworn, deposes and says that deponent is a Respondent

herein; that deponent has read the foregoing VERIFIED ANSWER WITH CROSS-CLAIM and

knows the coñteñts thereof; depenent swears to the facts set forth as true upon information and

belief, and as to which matters depoñênt believes them to be true.

RACHEL BARNHART
Respondent

2761 idtO ar|§Ÿ fUt(€ Ltrder oza

Sworn to before me this day of May 2020,V I

NOTARY PUBLIC

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