by Victoria Andersen
Ed. Note: This piece is counter to Commissioner Randy Ognio’s letter which can be read here.
“As for Judge Boswell’s finding being incorrect. The FCRP did not prove their case because that’s what the verdict says. There are two separate legal cases that are assumed by some to go together but never legally linked. To say because of one the other one should be guilty would require another trial.”
Commissioner Ognio suggests that the Fayette County Republican Party “did not prove their case because that’s what the verdict says.” Upon review, the petition to remove and replace Marilyn Watts as the party’s representative on the Fayette Board of Elections and Voter Registration was predicated on her alleged failure to adhere to the law, and the oath she took, of which required her to impartially and ethically discharge her official duties as she served as a Board of Elections member.
“ . . . never legally linked”? Is Mr. Ognio in the land of denial while desperately trying to manipulate mere technicalities and filing requirements pursuant to the Georgia Civil Practice Act? Is Ognio that desperate to justify the trial court turning its head on the disturbing truth of Lane Watts’ voter fraud and his mother enabling it, of which the State Elections Board concluded to be actual findings of facts and conclusions of law?
The allegations set forth in the “two separate legal cases” were filed in two separate jurisdictions. Civil Action 2013V-0816-J1 was brought before the Fayette County Superior Court rendering an order on January 6, 2017. Civil action known as OSAH-ELE-LV-1652126-56-Walker with Agency Reference No.: 2012-141 was brought before the Georgia State Administrative Hearings by the State Board of Elections rendering an order on February 6, 2017.
Evidence showing Marilyn Watts’ blatant interference, and thus prevention of, her own Board’s efforts to investigate voter fraud charges brought against her son is a real, yet disturbing example, of the many alleged acts of misconduct which the law provides as justifiable cause to seek her removal from the Board of Elections.
These same issues, and evidence, were presented in both actions, and was substantiated, “by a preponderance of the evidence,” as facts by the State.
With that said, if presenting the same evidence in both civil actions, of which both were required by law and procedural rules to be properly commenced in “separate” jurisdictions and courts, consequently as two separate actions, does that mean they are not linked?
How peculiar of an argument, one that should be left behind in an episode of the Twilight Zone. To state on record as fact that the verdict of the trial court is the absolute truth is to say that the State Elections Board is wrong.
Pot meet Kettle.
The argument that a Board of Elections Member can only be replaced if there is a showing of an overturned election could have been rejected by the appellate court.
However, it was impossible to proceed with said appeal because Commissioner Ognio voted to deny the FCRP access to purchase themselves, in full, for the court reporter to produce the trial transcript in written form.
Since the FCRP was willing to absorb all of the costs to have a written transcript produced for the Court of Appeals to review, of which Marilyn Watts, her attorney Sparks, Davenport, and all of the Commissioners would obtain at zero cost, does that not lead one to wonder what’s really going on here?
Does this not make one believe the County Commission did not want the truth to be revealed, particularly when the taxpayers paid for the court reporter to take down the transcript in the first place?
Moreover, Commissioner Ognio’s suggestion that the successful prosecution of Ms. Watts’ son for voter fraud and the petition to remove Ms. Watts do not go hand in hand is a difficult concept to wrap one’s brain around.
The Petition contained a second basis for her removal, a basis showing that her appointment to the Board was void from the start. If Lane Watts, then Chairman of the FCRP, was not a properly registered elector at the time he appointed his mother to the Board of Elections, wouldn’t one agree that such appointment was void from the beginning?
Does the independent investigation conducted by our state’s Attorney General’s Office, coupled with the subsequent conviction of Lane Watts for voter fraud, not bely Commissioner Ognio’s suggestion that another trial is required?
An honest appraisal of the matter shows Lane Watts committing voter fraud under his own mother’s roof, all while she sits on the Board of Elections and Voter Registration. Ms. Watts’ fervent defense of her of son crumbled to ashes when he was convicted in the state court.
“Attacking County Attorney Dennis Davenport is wrong and the statement that MW (Marilyn Watts) position was not shared by the county’s insurance is not true. I have a letter dated January 10, 2014 that says the position was covered by the county’s insurance. The issue here is that the facts are wrong and it goes from there to opinion of the writer based on untrue facts. The writer never called the county attorney to check any facts.”
Commissioner Ognio seems to believe that evaluating County Attorney Dennis Davenport’s actions, and/or inaction, is “ wrong.” Commissioner Ognio appears to feel that public officials, like Ms. Watts, and Mr. Davenport, should be somehow insulated from exposure and criticism.
Was it not Mr. Davenport who refused to argue against the Temporary Restraining Order (TRO), of June 2013, filed by Ms. Watts to enjoin the County Commission from certifying the appointment of the new FCRP representative to the Board of Elections?
The county could have defeated the TRO, but by agreeing to it, wouldn’t one conclude that Davenport appears to have forced the FCRP to file its lawsuit?
To show one of the many inconsistencies with Marilyn Watts statements, she said herself, on February 25, 2016 – “ …upon my appointment by the Republican Party to the Board of Elections” while she has been arguing incessantly that the FCRP only makes “a nomination,” not an appointment. It is the same with Supreme Court. The President appoints, but it still needs Senate approval. If Senate says “no,” the President appoints another candidate. The Senate doesn’t get to pick who they want. Their authority is only to confirm the President’s appointment.
It was unnecessary to contact Mr. Davenport to “check any facts” because a thorough review was made with public records including, but not limited to, hundreds of pages of court documents and minutes of the County Commission Meetings, in which the issue of insurance coverage was discussed.
More importantly, if Commissioner Ognio is correct, that the county’s insurance carrier was willing to defend Ms. Watts, the question then arises why did the county not avail themselves of such a defense instead of paying almost $65,000 of taxpayer funds to Ms. Watts’ private attorney?
Since Marilyn “prevailed” in the trial court, whatever happened to the “Reservation of Rights” Ognio mentioned prior which, according to him and Davenport, would allow the County to seek reimbursement for at least some of the attorney’s fees. Would it not?
Furthermore, according to the meeting minutes of February 11, 2016, Davenport said the Board chose, based on the analysis, to provide the defense of Ms. Watts because, even though the insurance company could not provide the defense, the county chose to do so. Davenport himself said the reason was because the county wanted everyone to understand that so long as someone was operating in their official capacity, the county would stand behind them.
Commissioner Charles Rousseau stated that the Board voted to defend Ms. Watts and he was confused why the county would not do the same in the matter (seeking attorney’s fees). He said he did not take this matter as the county coming back on someone but that that this issue is a part of the ongoing process. Mr. Davenport replied that Commissioner Rousseau had a pretty good handle on the situation.
While considering pursuing attorney’s fees, Davenport publicly reminded the Board that at the last meeting he brought a report to the Board as a follow-up to some litigation regarding the Fayette County Republican Party and Ms. Marilyn Watts. He reminded the Board that he had mentioned that the attorney’s fees for that litigation were approximately $58,000.00 but that the actual number was $57,712.74. He further reminded the Board that at the conclusion of the litigation there is a 45-day window where the prevailing party can seek attorney’s fees. He pointed out that just because the prevailing party seeks the attorney’s fees, it does not mean they will actually get them, but he added that if the attorney’s fees are not sought, they definitely would not be awarded. Mr. Davenport added that if the prevailing party chooses to seek attorney’s fees, it would also have to decide who to go after to get the attorney’s fees. He reminded the Board that the deadline to file any motion for attorney’s fees is Monday, February 15, 2016, and he asked for direction on how to proceed.”
Davenport himself stated, “at the conclusion of the litigation.” Doesn’t “conclusion of litigation” mean there is no “pending litigation” and/or “threat of litigation”? And wouldn’t that mean further discussions regarding the Marilyn Watts’ attorney’s fees are to be done in open meetings, not in closed sessions?
Pursuant to to Sec. 2-49(a) regarding executive sessions rules, “[C]losed meetings. As provided below or in accordance with state law, the board may close a portion of a meeting to the public to discuss certain topics that are exempted from the Open Meetings Law, (O.C.G.A. § 50-14-1 et seq. Such meetings shall be referred to as executive sessions. Any portion of the meeting not subject to any exemptions authorized by law shall be open to the public.”
Subsection (b)(1) continues stating that executive session of the board may be held for the purpose of discussing topics exempted from public access which includes “pending or potential litigation.”
Furthermore, “in order to close a meeting because of potential litigation, there must be a real and tangible threat of legal action indicated by a formal demand letter or other writing presenting a claim or a sincere intention to sue, previous or pre-existing litigation between the county and the other party, or the hiring of an attorney by the threatening party.”
“Yet the Court found that only $30,000 of those bills were reasonable.” There is no such wording in any of the documents I have seen. The writer needs to supply proof of this wording. In the settlement, it says “the Court having found that the amount of attorney’s fees and expenses sought by the Respondent was reasonable both as to the rates charged and amount incurred.” The judge simply marked through the awarding amount of $64,335.32 and wrote in the $30,000. This is no different from someone going before the judge about a ticket, there would be a maximum amount of fine that he could impose but he can make it any amount under that.”
Clearly, Commissioner Ognio doesn’t dispute the “fact” that Mr. Davenport personally reviewed and approved the payment of the $65,000, but he suggests that the court didn’t specifically say that only $30,000 of those bills were reasonable. This does not make sense. Readers of the petition filed by the FCRP can see that if it was frivolous, the county was entitled to recover all of its attorney’s fees that they could prove were reasonably incurred. The motion for attorney’s fees sought reimbursement of more than $64,000 in fees, but the court only awarded $30,000.
If indeed all the fees were reasonable, the question then arises why didn’t the county appeal that order? The suggestion that the court has unbridled discretion like a magistrate judge reducing a traffic fine is farfetched. Talk about two things that are not the same.
Backing up to prior meeting minutes of January 28, 2016, County Attorney Dennis Davenport reported that the Board was recently involved, indirectly, in litigation that recently ended. He stated that the litigation involved a current member of the Election Board, Ms. Marilyn Watts.
In fact, Davenport stated that when that litigation started, the Board voted to provide a defense for her because of her capacity as a member of the Board of Elections. He stated that during the course of the litigation, approximately $58,000 was paid for her defense. He stated that the litigation ended with a favorable ruling for Ms. Watts and she was not removed from the Board of Elections.
Mr. Davenport stated that when a party succeeds in litigation it has the option to determine whether to seek attorney fees from the other side. He stated that, in this case, the other side is the Fayette County Republican Party, Scott Fabricius, and Attorney Richard Hobbs. He stated that he was briefing the Board so it could explore pursuing attorney fees if it so wanted. He explained that the Board can seek attorney fees from all or one of the three parties; however the window of opportunity to do so would close on February 15, 2016. He explained that a motion would have to be filed prior to February 15 and he would need direction if that is the Board’s desire. He informed the Board that he is not looking for an immediate decision tonight, but he pointed out that the next Board of Commissioners meeting would be held on February 11. He asked that the Board provide direction at the February 11 meeting. Chairman Oddo stated that his recommendation is to come back at the February 11 meeting and make a decision. There was no objection to this recommendation.
“My wife did speak in public comment. I did not ask her to do so. As a citizen, she was very upset with the posting of information about executive session. She did not mention Commissioner Brown’s name she simply said a commissioner posted that information. It was posted and it did violate the ethics ordinance section 2-203(a) & (f). It should be noted there are no exceptions in the ethics ordinance to allow such disclosure.”
I do have to agree with Commissioner Ognio’s wife, Denise, that everyone wants to know what was covered in that specific executive session held about a month ago on August 24, 2017.
How could any action related to the collection of the legal fees for the Mariyn Watts case be brought back into executive session since the trial has long been over and the fees were, in fact, discussed in the April 25, 2017 Board of Commissioners meeting in regular session?
If Commissioner Brown’s account of what took place in that executive session is true (and no inconsistencies have been found in what Commissioner Brown posted and what he has told me over the phone), the meeting to discuss the scheme of shifting blame for seeking attorney’s fees against the FCRP was a serious violation of the Georgia Open Meetings Act by the other commissioners.
Where are the minutes reflecting discussion of said nonexempt topics within closed session, pursuant to respective ethics ordinances?
“There is and will be ongoing litigation because of filings that must be done to collect the money. To say that there is no litigation is not true.”
I called Commissioner Brown and asked if any discussion took place in August 24 executive session on moving forward with litigation to collect the legal fees. He responded, “No.” The question then arises, why is litigation required to collect the legal fees?
“There is no way the citizens can know what Commissioner Brown said happened in executive session is what really happened because no one else will violate the ethics ordinance. Commissioner Brown has changed his story of what happened at least once.”
If litigation was not discussed, then what was covered in the executive session? Fayette County citizens would like to know.
“The writer did send me a text asking me “Hi Mr. Ognio. Denise gave me your number. Did you discuss legal fees concerning the Marilyn Watts litigation, that had already been adjudicated, in executive session at the August 24, 2017 Board of Commissioners meeting? Victoria Andersen.” My reply was “You know that is a question I can’t answer.” I could not answer it because I would have violated the ethics ordinance if I answered it. It was not as insinuated in the article “Commissioner Ognio declined to comment when asked to confirm the charges from Brown that the legal fees were improperly discussed in the closed session.”
Commissioner Ognio fails to disclose that he did not respond at all to a separate written request made prior to the text he is referring to in his letter. In fact, said initial written request by Andersen to Ognio reads, “Hi Mr. Ognio, would it be ok if I ask you a few questions regarding attorney’s fees due to the Fayette County Board of Commissioners pursuant to Judge Boswell’s entered January of this year?”
Contrary to Ognio’s response to Andersen’s second written request, the disclosure of the general subject matter discussed in executive session is not a violation of the ethics ordinance. A review of the meeting minutes of several Board of Commissioners meetings reflect a lot of uncertainty around the efficacy of pursuing the legal fees with so many dubious issues surrounding Marilyn and Lane Watts.
Moreover, citizens may be missing the bigger point. If one goes back to the August 24, 2017 meeting minutes and/or video, towards the end, Davenport announces what they have to do in executive session and he had to say what type of cases they are. Davenport stated that there were four items involving pending litigation, three items involving threatening litigation, two items involving real estate acquisition, and the review of the Executive Session minutes for August 10, 2017 (also see meeting video starting at timestamp 3:51:00).
The issue regarding Marilyn Watts’ attorney fees appears to not be “pending or threatening.”
In addition, Dennis allegedly told the commissioners prior to August 24, 2017 that the date for the FCRP to appeal had passed. In fact, the appeal was final on July 27, 2017.
According to Steve Brown, Dennis allegedly considered Fabricius/Watts pending litigation as well. Which, if true, would be interesting because the BOC was not named in the lawsuit – either way, it doesn’t work.
Ironically, it is Commissioner Ognio who is n violation of ethics ordinances and Georgia Code. Pursuant to 2-49(e), “Nonexempt topics. If a commissioner or any other person in an executive session attempts to discuss a non-exempt topic during an executive session, the chair shall immediately rule that commissioner or person out of order and such discussion shall cease. If the commissioner or other person persists in discussing the non-exempt topic, the chair shall either cause the person or commissioner to be removed from the executive session or adjourn the meeting immediately.”
ATLANTA, July 27, 2017 A17D0540. SCOTT FABRICIUS v. MARILYN WATTS . Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: 2013V0816.
Therefore, discussions at August 24, 2017 meeting were non-exempt. It is not disputed that Ognio is the Vice-Chair of the BOC. It is also not disputed that Commissioner Maxwell has recused himself from any discussion regarding Marilyn Watts.
Ordinance Sec. 2-53. Vice-chair reads, “The board shall select a vice-chair from the board members at the beginning of each calendar year. The vice-chair shall fulfill the duties of the chair if the chair is not in attendance. The motion to appoint the vice-chair requires a second prior to a vote.”
Ordinance Sec. 2-29(e) Nonexempt topics reads, “If a commissioner or any other person in an executive session attempts to discuss a non-exempt topic during an executive session, the chair shall immediately rule that commissioner or person out of order and such discussion shall cease. If the commissioner or other person persists in discussing the non-exempt topic, the chair shall either cause the person or commissioner to be removed from the executive session or adjourn the meeting immediately.”
Therefore, it appears that Ognio is in violation of ethics ordinances.
“Was the article fact to opinion I will let you decide.”
The article was, and still is, fact.