|From Left to Right: Monica Schwab (cousin); Lucia Velez (mom); Orestes Velez (dad) : Att'y Jeff Fleischaker; Kim Velez: Att'y Bill Platt; supporter and friend Adam Bevan|
(A shorter version of this story was published on 4/10/11, and was updated with more detail on 4/11/11, at 12:10 AM).
It was a victory, not for a political newcomer, but for democracy. After a half-day of testimony, Lehigh County Judge Michele A. Varricchio ordered that Kimberly Velez be placed back on the ballot in the crowded Allentown City Council race. She had withdrawn under improper pressure from an elections attorney, acting under instructions from the Mayor's political consultant, Michael Fleck. Velez will now be one of nine candidates seeking four open seats. Fleck also represents two of those candidates, incumbents Julio Guridy and Cynthia Mota.
Jeffrey Fleischaker and partner Bill Platt, who represented Velez without charge, were able to paint a picture of Velez and the circumstances that led her to withdraw.
Kimbery Velez is, like many Allentown residents, a water lease opponent, but was unhappy with a City Council that she felt was unresponsive to the wishes of residents. After attending a frustrating year's worth of City Council meetings, Velez was encouraged to run herself by incumbent City Council member Jeanette Eichenwald. At a Democratic meeting, Martin Estrada also spent some time advising Velez on how to circulate petitions and raise money. Then, with Eichenwald's help, Velez began going door-to-door with a voters' list. Once she thought she had enough signatures, she filed her nominating petitions. Voter Registrar Tim Benyo told her she was on the ballot unless she received a call.
That's what happened, and Velez was under the impression that election officials wanted her off the ballot.
On St. Patrick's Day, a Sunday, Velez received word that her cousin, Monica Schwab, had just been called, on her cell phone, by Attorney Tim Brennan. Schwab stated that Brennan identified himself as an attorney with the Election Bureau, although Brennan later stated that he had identified himself as an "election attorney." Both Schwab and Brennan agree that he stated he was conducting an investigation.
That same day, Brennan called Velez, and according to her, identified himself as an attorney with the Democratic Party. Brennan believes he told her, "I represent a qualified Democratic voter in the City of Allentown.
But he didn't. He later acknowledged that his client was actually political consultant Michael Fleck, who is currently managing election contests both for Mayor Edwin Pawlowski as well as Council members Julio Guridy and Cynthia Mota. Pawlowski obviously would not want someone on the ballot who challenges him on City issues. Guriday and Mota would just as obviously be concerned that Velez, who is a Latina, would draw votes away from them.
Brennan questioned Velez' residency, as well as the validity of the signatures she listed on her nomination petition. He recommended that she withdraw from the race. "Otherwise, we'll settle this in court, and it will be costly," he advised someone who had no attorney. At no time did he advise her to seek independent legal advice. He instead sent her a prepared withdrawal form, and told her to call him as soon as it was filed.
"I was devastated," Velez stated.
Tim Benyo, Voter Registrar, personally received the withdrawal from Velez. He acknowledged that Velez was upset about having to withdraw.
Later that day, after speaking to supporters and realizing that Brennan had no affiliation with either the Democratic Party or the election bureau, she asked Benyo if she could withdraw the withdrawal. Because she spoke of coercion and intimidation, Benyo recommended that Velez speak to the DA or a Judge.
Velez got nowhere on those fronts.
But she was lucky enough to attract the interest of two Lehigh County attorneys, Jeffrey Fleischaker and partner Bill Platt, who were interested in righting a wrong. She was lucky that Lehigh County Solicitor John Ashcraft was more interested in seeing justice done than in winning. Best of all, the judge who heard this matter was actually willing to listen.
Although she declined to assign any "ill will" to Attorney Tim Brennan, Judge Varricchio did call him "naive" for thinking that a political newcomer would not be intimidated by a Sunday call from an election attorney using words like "investigation," especially when it "wan't clear who he was and who he was doing it for."
She drew particular attention to Brennan's demeanor on the stand, where she had to tell him herself to speak more slowly and take deep breaths.
"I have to find that Ms. Velez based her decision on the potential threat of a lawsuit," she concluded, adding that "she did not have an intelligent and knowing understanding of the consequences of her withdrawal".
Although Judge Varricchio initially called it duress, she later amended her language at the request of Attorney Dan McCarthy, who was representing Brennan and insisted that Brennan had acted innocently.
Judge Varricchio rejected an argument that the Election Code requires that withdrawals must be filed with the state bureau of elections. Attorney Ashcraft told the Court that the law, first drafted in 1937, has been amended many times and is poorly written. But he added that no office has ever required that withdrawals must be filed with the state.
That left one question - ballot position. Tom Benyo and Attorney Ashcraft worried about notice for a new drawing, when Velez voluntarily agreed to take the last spot. "That's certainly fair," said Judge Varricchio. "Thank you Miss Velez," she added noting that they both must be used to being last with surnames that begin with a "V". Attorney Ashcraft thanked Velez, too.
After it was all over, I got these parting comments:
Bill Platt- "Our firm did a public service and we couldn't be more happy with the result."
Orestes Velez (Kim's dad): "We were counting on the truth, and the truth prevailed. When the truth prevails, everyone wins."
Lehigh County Solicitor John Ashcraft: "We're satisfied. We wanted to uphold the statutory interpretation [of the Elections Code]".
Kim Velez thanked her lawyers, adding, "I'm anxious to start speaking to the voters."
|Solicitor John Ashcraft, Registrar Tim Benyo, Deputy Terri Harding|