A vote to use town funds to pay for a Dewey commissioner’s legal fees for actions taken as a candidate was stricken from council’s agenda the day before the vote was to occur.
Originally posted Nov. 1, the agenda called for discussion and a possible vote to indemnify Commissioner Paul Bauer for legal fees. Bauer is being sued by candidate Phil Rowe, who lost to Bauer by six votes in the Sept. 21 municipal election.
The voting item was removed from the agenda at 11 a.m., Nov. 8. If approved, town funds would have been used to pay Bauer’s legal fees that are not covered by insurance because he is a commissioner and did not believe actions he took in connection with his official duties were unlawful, according to town code.
Bauer said the item was removed at his request based on advice from his attorney, Glenn Mandalas.
Mandalas said elected officials should be able to serve their towns without concern that they will have to pay legal bills out of pocket every time they or the town is sued.
“If that basic assurance is not firmly established, some good people who otherwise would have run for office will choose to stay on the sidelines rather than be subjected to the uncertainty of legal expenses associated with elected office,” Mandalas said. “That should be a very basic and fundamental principle of elected service. Others apparently do not see it that way, and would rather introduce doubt into the indemnification process.”
Mandalas said he hopes commissioners realize any one of them could be in Bauer's position and will vote to indemnify Commissioner Bauer, but said he realized they needed time to consider the issue before deciding to indemnify him.
“We disagree with Mr. Rowe's view that the indemnification provision is not broad enough to cover this situation,” he said. “Even if it wasn't, the indemnification provision is not a limiting provision. The indemnification provision identifies who the town must indemnify, but it does not prohibit commissioners from going further. In the interest of promoting elected service and rejecting those that wish to create barriers, commissioners always have the option to indemnify individuals even if they were not entitled to indemnification under the indemnification provision.”
Rowe disagreed; he said per charter, only official acts are covered by statute, not violations committed by a candidate. He said the proposed vote was an attempt by Mayor TJ Redefer and Bauer to use their power to have Dewey Beach pay for Bauer’s personal legal expenses.
“The charter is crystal clear, and one read is all you need to know the rules,” Rowe said. “Still, they sought to abuse their power at the expense of our town for their own personal political purposes. This is why I continue to fight for political change in Dewey Beach.”
Redefer said Rowe is trying to hurt the town with another legal battle.
“In my opinion, Mr. Rowe wants to hurt Commissioner Bauer financially, and he is suing the town of Dewey Beach, too,” Redefer said. “The unintended consequence here is that Mr. Rowe is telling all the people that wish to volunteer in our town that you better have deep pockets, or right or wrong, someone like Mr. Rowe will try to destroy you financially. As to Mr. Rowe’s attack against me as mayor, I do not have any power at all without the votes of three or more commissioners, and so once again, Mr. Rowe is just plain wrong.”
Bauer could not be reached for comment.
Rowe filed a Delaware Superior Court lawsuit Oct. 3, stating the election and seating of Bauer was illegal because Bauer filed to run as a resident, but that he is not a bona fide resident and domiciliary of Dewey Beach as stated in town code.
Bauer is being sued as a candidate, while Rowe is suing the town for seating him as a resident commissioner.
Court records show the New Castle County sheriff served Bauer with the lawsuit via his spouse Nov. 4, and the Sussex County sheriff served the town via Town Manager Scott Koenig Oct. 30.
No court dates have yet been set.