Andy Potter has the story for Channel 3. Sam Hemmingway has it for the Free Press.

The Free Press's website isn't great, by the way. It's visually hectic and poorly organized. They make you answer a survey and they only keep their stories up for about a week. Then you have to pay for them. They didn't even have a non-scientific poll disclaimer on their dumb online poll, until I suggested it. On the other hand, they do have Ed Shamy. But I digress.

Getting back to my coverage of the hearing last Wednesday... The ladies at the courthouse couldn't copy the complaint for me because it was upstairs at the hearing. I guess they only had one copy. I couldn't take pictures without asking the judge for permission, so forget that.

I said hello to Paul Decelles and asked him for a quote. He said he was "disappointed" and said O'Sullivan's case was "purely partisan."

*****

All rise for Judge Dennis Pearson. You may be seated.

The Plaintiff: Jean O'Sullivan and attorney Jake Perkinson

The Defendants: Jonathon Leopold, Assistant City Attorney Eugene Bergman, City Attorney Ken Schatz.

Seated in the courtroom: Ben Pacy, Roxanne Leopold, Andy Potter, Sam Hemmingway, Channel 3's videographer, the Free Press's photographer, Paul Decelles, me, Kurt Wright, Barbara Perry, David Berezniak, David Zuckerman, and a few people I didn't recognize.

The first thing Judge Pearson did was take Leopold's name off the case. The case would be against the city in general, not Leopold specifically. Then he denied the city's motion to dismiss the case. Then Ken Schatz asked to have the case continued for further discovery, but he didn't have a decent answer to "what further discovery would you do?" when asked by the judge. The judge said "the complaint as a whole states a viable claim" that there was a 'defect in the election that questions its validity' so the hearing proceeded.

Editor's Note- The following is not word for word quotation, unless it happens to be in quotes. The Q&A may not be in perfect chronological order either, but they are close. These questions and answers are mostly paraphrased, but they give you the gist of what I heard. [My commentary will be bold.]

Perkinson called Leopold to the stand.

Leopold hobbled over with crutches and was sworn in. Leopold explained that he is the city's chief administrative officer (CAO) which means he is the Clerk-Treasurer. As the Treasurer, he is the CAO (yeah right? that's circular logic) and as Clerk, he "has general responsibilities for city functions, including overseeing the elections." He said there are about 35 people working under him in the Clerk-Treasurer's office, eight of whom worked on elections in some way.

Perkinson: Who managed the staff directly?

Leopold: Ben Pacy.

Perkinson: You are not responsible for what Pacy does?

Leopold: Basically no, because I was out of the office. Pacy only asked me a couple of questions leading up to the election of March 4 and I didn't discuss it with him again until two days after.

[This was a very disappointing answer. Leopold said he was not responsible for the actions of his subordinate. That is incorrect and dishonorable.]

Perkinson: Are you aware of the legal requirement to attend an election workshop?

Leopold: No, but Ben Pacy was in contact with the Secretary of State's office.

Perkinson: Do you know anyone in the Clerk's office who has had any election training?

Leopold: We used to have Jo LaMarche, but she quit in December.

[Jo LaMarche was the true City Clerk and she was shafted for years by Clavelle (in favor of Brendan "13K extra for life" Keleher) and now unfortunately by the Kiss administration. To think this Ben Pacy character was above her in the pecking order! That's an outrage! Burlingtonians should be outraged by that. Is it any wonder she quit?]

Perkinson: Do you think it was appropriate for Pacy to break the seals?

Leopold: Assistant city attorney Bergman said it was legal. The Secretary of State's office was unclear on that point.

[Dude... Yes or No please. What do you think? Because if you think it was OK, you're nuts. And he didn't even know Pacy broke the seal until the following Saturday?]

Perkinson: Is it your belief that no party should hold a majority on the city council?

Leopold: Yes. It makes my job easier if no party holds a majority.

[It would be harder to do the bidding of a Progressive mayor if the Progressive's had a majority?]

Perkinson: Did you tell Barbara Perry you were supporting her opponent because you didn't want to see Ed Adrian gain any more influence on the city council?

Leopold: No, I wouldn't have said such a thing.

Perkinson: Did you meet with any sitting city councilors to discuss strategy leading up to this last election?

Leopold: I met with Kurt Wright and Jane Knodell, along with David Zuckerman, Karen Paul and her husband to talk about how to support Karen's campaign.

Perkinson: When was this?

Leopold: I don't remember. I was recovering from my motorcycle accident and out of sorts because of medication. Maybe it was a Saturday. And except for Kurt Wright, we all met again the following Saturday to discuss the election.

[Great. You're whacked out on drugs because you tried to jump 40 barrels on your motorcycle and broke your leg, and you have an amateur with no training running the election. Later Leopold admitted he tried to put Pacy out in front on the recount too, before pressure forced him to do it himself. ]

Perkinson: Did anyone at these meetings question the propriety of the person in charge of counting the ballots working on a campaign?

Leopold: No.

The witness is dismissed. Ben Pacy is called to the stand and sworn in.

Perkinson: Are the votes supposed to be counted at the polling place?

Pacy: "In a perfect world."

[So what about IRV? If the votes have to be counted at the polling place, then IRV is against the city charter because the mayoral votes are now gathered at city hall and counted. And they're counted by Terry Boricious. I can't say I'm all that comfortable with that, either.]

Perkinson: "Is it your understanding that it is the duty of the clerk to ensure ballot boxes aren't tampered with?"

Pacy: We put the boxes in a safe place. In the Clerk's office in City Hall.

Perkinson: What authority allowed you to break the seals?

Pacy: I had a time crunch. I only had 48 hours to certify the election.

[You dummy! A time crunch doesn't give you any authority to break into the ballot box! Did you seriously not understand the question?]

Judge Pearson: What was the discrepancy that made you take action?

Pacy: There were approximately 70 hand counts. The tabulator counted 971-958 but there was all this hand written stuff on the tabulation sheet...36, 20, 3, 4... so the number represented to the folks at the polling station was 1010-982. The guy from LHS thought ward 7 was weird too. That's a high number of handcounts. I called the ward clerk Diane and asked how many handcount ballots there were and she said six or seven. I broke the seal on the box that said B, C, and D ballots. "I was a little nervous about it" so I asked Sue Trainer from the Clerk's office to join me.

[The numbers were all a jumble. I never really have been able to follow what happened since the time Kurt Wright told me about all this weirdness in the grocery store. But for Pacy to say "I was a little nervous about it" shows very clearly that he knew it was wrong to tamper with the ballots. Like it's not obvious. But what may be obvious to most people, might not be obvious to Pacy, if his testimony is any guide. Still this statement is a clear admission of a guilty conscience.]

Perkinson: How was the tabulation sheet transmitted to you from the polling place?

Pacy: Somebody in the Clerk's office handed it to me.

[No, you dope! Was it FAXed, emailed, delivered by currier, or what? "Somebody handed it to me." Give me a break! He didn't even know who!]

Perkinson: Did you ever compare the vote totals to the entrance checklist?

Pacy: No.

Judge Pearson: Do you have anything that shows the total number of votes cast?

Pacy: No.

Perkinson: When you broke the ballot box open, were there other people in the room?

Pacy: There were like fifteen people all over the place.

Perkinson: When did you learn you would take the lead role in running this election?

Pacy: I was appointed in November to oversee the Clerks's office. I didn't know I'd be running the election until Jo LaMarche quit in December.

Perkinson: Did Jonathan Leopold give you any direction or training on how to come up to speed on how to run an election?

Pacy: No, but I was in contact with the Secretary of State's office getting pointers on how to run the election. "I got the impression the Secretary of State's office was a little concerned."

[Did he just say that? That's pretty damning.]

Perkinson: So you were responsible for your own training?

[Has anybody seen Stripes? Where Bill Murry, Harold Ramis and John Candy have to train themselves? "Boom Chuga-Luga-Luga! Boom Chuga-Luga-Luga! Boom Chuga-Luga-Luga! Boom!" It's funny in a Bill Murry movie. Not so much in a Burlington election.]

*****

That's all I could stay for. I only expected the thing to run an hour and I had been there two. Poopsie needed me to run an errand and my parking meter had expired. And yes, I got a $10 parking ticket, but I hope this post is worth more than that to the city. I missed Barbara Perry's testimony and that of whomever else, unfortunately. But since it took almost a week to write up my notes, I guess I should be satisfied with the part of the hearing I witnessed.

A couple of things. One- Bob Kiss: You can't just let this slide. You need to fire Pacy or Leopold, or both. If not fire, then demote, suspend or punish somehow. You have to do something. Somebody on your team tampered with the ballots. Do something about it, or you risk losing the endorsement of this blog. Ben Pacy seems like a nice guy who made a mistake. He wasn't trying to change the election, but he made a serious mistake. He is in a position he is not qualified to handle. Through his entire testimony I never had the feeling that he "got it." Pacy was defiant and annoyed. Never contrite. Leopold was defiant and aloof. Never contrite. The person in charge of running the election needs to understand the sanctity of the ballot box. Pacy doesn't, therefore he isn't qualified. He's got the wrong job. Maybe move him back to Parks.

Two- This whole "Clerk-Treasurer-CAO" thing is baloney. It's a worse idea than merging Police and Fire. The functions are different. Leopold is the Treasurer, just as he was in the 80s. The "CAO-" Chief Administrative Officer is the Mayor, really. We still need a City Clerk, and we will never get one better than Jo LaMarche was, even though she never got the title. To think Ben Pacy was her boss is an outrage. And I am sorry, Mr. Kiss. Even you were not in the courtroom last Wednesday- it's your administration and the buck stops with you.

Labels: Jonathan Leopold