Residents applauded Jan. 11 when Dewey Beach Town Council voted 3-0-1 to indemnify Commissioner Paul Bauer for costs related to a lawsuit regarding his candidacy.
Indemnification comes with conditions, however, as most commissioners said the town shouldn’t pay for certain fees.
Bauer recused himself from the hour-long discussion leading to the vote; he was seeking indemnification for the costs of defending himself from a suit filed by candidate Phil Rowe. Mayor TJ Redefer said he received several letters supporting indemnification. Redefer said Bauer should receive full indemnification because he acted in good faith when he filed to run.
“I do believe if he had his day in court, he would have been able to show he was a qualified resident able to run for office, but that’s not what we’re here to discuss,” Redefer said.
Commissioner Gary Persinger said the issue was whether to indemnify Bauer for costs incurred by the lawsuit.
“Our task is not to make any judgment about the legitimacy of that action,” Persinger said. “It’s not to make any presumptions about what the outcome would have been had that litigation been pursued.”
Persinger said town code details two scenarios that allow for indemnification. One involves litigation arising because someone is or was a commissioner; the second for actions taken while performing official duties.
“Running for re-election is not an official duty,” Persinger said. “It is in my mind clear - there is no lack of clarity - that the situations we’re faced with here do not fit either of the two scenarios under which we must provide indemnification for Commissioner Bauer.”
However, Persinger said, town code does not say indemnification is allowed only in those circumstances. Persinger said Bauer’s residency was inconsistently portrayed on absentee and in-person ballots, a mistake he attributed to the town. Persinger proposed indemnifying Bauer from the date the lawsuit was filed, pending an accounting and reasoning of expenses.
Persinger opposed paying for attorney’s fees that arose when Bauer asked his attorney to observe the hours-long vote recount.
Town Counsel Fred Townsend said commissioners can determine what fees to cover after a vote in favor of indemnification.
Dale Cooke said running for office is not an official duty, but that Bauer wouldn’t have been sued had he lost. He said the town made an error on the ballots that staff and commissioners should have caught.
“The commissioner in question should not have to suffer for that,” Cooke said.
Eight people spoke in favor of indemnification, stating the town made the mistake on the ballots and has the responsibility to protect volunteer commissioners and committee members. Rowe spoke against indemnification.
“I note that he has still never once explained to voters what to make of his form,” Rowe said.
Rowe said he completed his candidacy filing form correctly and that candidates should be held accountable for campaign irregularities.
“As a citizen, I did that, but I fell victim to a town where those in power don't seem to have to follow the rules and now attempt to get bailed out by political cronies,” he said.
Commissioner David Moskowitz, who Mandalas said should recuse himself from voting because of personal bias, proposed offering a settlement, not indemnification, to Bauer.
“I’m as independent as the mayor, if not more so, in this matter,” said Moskowitz, who motioned to provide Bauer a settlement for expenses, excluding Mandalas’ time writing a letter to commissioners, observing the recount and any public relations activities, from the date the lawsuit was filed to its dismissal.
When the motion failed, Persinger motioned to indemnify Bauer for legal expenses pending commissioner approval of expenses they deem reasonable. Redefer, Cooke and Persinger voted for the motion; Moskowitz abstained. Moskowitz later said he didn’t have enough information on costs to make a decision.
After the meeting, Bauer said he was glad the issue was put to rest. He said allegations made against him were false, and the suit was a personal attack on his family and the town.
“This has been an unfortunate example of dirty politics at its very worst,” he said. “From hiring a private investigator to following my family, going to both our home and employers, researching our kids and interviewing neighbors.”
Bauer said the vote will help the town more forward.
“Make no mistake, this frivolous lawsuit was dropped because there are no winners,” he said. “People do not drop lawsuits because they think they would win.”
After the meeting, Rowe said Bauer and Redefer strong-armed an expansive view of indemnification to pay Bauer’s personal legal expenses. He said he ran for office because of concerns about the town’s financial management.
“I still have them,” he said. “Mayor Redefer is presiding over a string of lawsuits involving serious malfeasance with six- to seven-figure costs. Even Bauer had concerns at the November meeting about the cost of recording police department lines.”
Rowe said he will not participate as a candidate or volunteer in the future, as he has launched a new business.
“However, I will be keeping a close eye on issues pertinent to truth in our elections and will support honest candidates in every way I can,” he said.