Appeal filed with state on Dewey commissioner eligibility

Davis states Dewey election board decision fails to address complaint
September 18, 2020


A state appeal has been filed over the Dewey Beach Board of Election decision to deny a challenge to Commissioner David Moskowitz’s candidate eligibility in the Sept. 26 municipal election, stating the decision failed to address the actual complaint.

Dewey property owner Dave Davis filed the appeal with State Election Commissioner Anthony Albence via attorney Michael McDermott Sept. 14, stating the Dewey Board of Election decision incorrectly focused on town charter Section 5c, rather than Section 5b, when it voted 3-0 to deny Davis’ challenge Sept. 11.

“The Davis complaint (and this appeal) does challenge that Mr. Moskowitz failed to satisfy the second qualification prong of Section 5b, i.e., that at the time of his Aug. 18 candidate application filing he was not a record owner of real estate within the town, or a settlor/trustee of a recorded trust involving real estate within the town, or a leaseholder who had included a copy of a valid lease with his candidate filing,” the appeal states. 

The week before the hearing, Moskowitz said he qualified under Section 5b because he remained a co-owner of property that was transferred to and owned exclusively by a Delaware limited liability company. The appeal states that Delaware law concerning ownership of LLC assets does not support his claim.

A day before the hearing, the appeal states, Moskowitz told the Cape Gazette he qualified under Section 5b because he had created a trust.

“But a qualifying trust under Section 5b required that it be ‘recorded’ and no such qualifying trust has been proffered by Mr. Moskowitz to support his statements,” the appeal states. “On Sept. 11 – hours before the BOE hearing – Mr. Moskowitz changed course and produced a lease drafted between himself on the one hand, and himself on the other hand, as a member of a limited liability company.”

While Moskowitz was required to include a copy of the lease with his candidate filing, all parties agreed at the board of elections hearing that he did not include a copy of the lease when he filed to run as a resident commissioner, the appeal states, and adds that Dewey Town Attorney Fred Townsend confirmed that by transferring his property to an LLC, Moskowitz was no longer a property owner as defined in Section 5b.

The appeal states the election board denied Davis’ challenge because disqualifying Moskowitz for failing to provide a copy of the lease would be unconstitutional, and cites case law in which the state elections commissioner has no power to decide issues relating to constitutionality of election conduct and may not decide questions involving interpretation of a municipal charter.

“The BOE decision does not reference – even once – Section 5b of the town’s charter as the basis of the complaint,” the appeal states. “And the BOE decision does not address – at all – the established fact that Mr. Moskowitz did not comply with the requirement to include a copy of the lease with his candidate filing.”

The appeal argues that the board of election decision suggests that complying with required provisions in Section 5b “are mere technicalities – as if non-compliance with such requirements is inconsequential and does no harm.”

In a Sept. 15 email blast, Moskowitz said he is a full-time resident eligible to hold office and that the appeal is a continuing effort by candidate Bill Stevens’ supporters to take away votes.

“My opponent’s supporters don’t trust you to make up your own mind, so they are trying to cancel the election and have their candidate seated,” Moskowitz stated. “This does not represent American values and is undemocratic.”

By email Sept. 15, Stevens said Moskowitz continues to mislead voters.

“I am disappointed that Mr. Moskowitz’s negative emails continue to drag me into the conversation,” he said. “Mr. Moskowitz must think that Mr. Persinger has no supporters since I am the only one he names. I have publicly stated that I am glad the election board voted the way they did so that voters could focus on who would be the best person to work on their behalf, with the other commissioners, and in support of our future town manager.” 

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