Aug 15, 2024 By Mike Jones 4 min read

Washington County is paying its special counsel attorney nearly $500 per hour to defend it in the recent lawsuit over mail-in ballot curing that could take months to litigate and eventually end up at the state Supreme Court.

According to the agreement signed last month with Pittsburgh-based law firm DeForest, Koscelnik & Berardinelli, the county is paying an hourly rate of $475 to attorney David Berardinelli when he performs any legal work while defending the lawsuit.

The agreement was executed by county solicitor Gary Sweat after the elections board met during a special meeting on July 5 and voted 2-1 to hire the special counsel for the lawsuit. Republican Commissioners Nick Sherman and Electra Janis voted to hire Berardinelli while Democratic Commissioner Larry Maggi voted against the motion after asking for the elections board to reverse course on its decision not to allow ballot curing ahead of the November election.

The special counsel was hired after seven Washington County voters sued the county’s elections board for refusing to count their mail-in ballots due to mistakes on the outer envelopes and not giving them an opportunity to correct the errors through ballot-curing options that most other counties offer. The ACLU of Pennsylvania and Philadelphia-based Public Interest Law Center filed the lawsuit July 1 in Washington County Court of Common Pleas, and the matter is now pending before Judge Brandon Neuman.

The same day the lawsuit was filed, Berardinelli sent a letter to the elections board and Sweat to “confirm the engagement” for his firm to serve as special counsel. The elections board approved it four days later and Sweat signed and dated the agreement on July 5.

In addition to the $475 hourly pay for Berardinelli, the agreement also will pay a $5,000 retainer fee along with $325 per hour for work performed by associate attorney Oscar Heanue and $150 per hour for paralegal work. The agreement also requires the county to pay “reasonable travel expenses” and “messenger and other delivery charges” associated with the lawsuit, along with filing expenses.

The county released the agreement Wednesday afternoon as part of an open records request by the Observer-Reporter last week.

Berardinelli attended the nearly eight-hour deposition of Washington County Elections Director Melanie Ostrander in Pittsburgh on July 18, and later traveled to Harrisburg for another lengthy deposition of a Pennsylvania Department of State official.

Berardinelli also spent nearly six hours at the Washington County Courthouse on Aug. 5 for arguments before Neuman regarding the lawsuit. It’s not known how many hours he and his firm have billed the county in the five weeks since being appointed special counsel.

Regardless of Neuman’s decision, which is expected to come relatively quickly, both sides have vowed to appeal with the expectation that it could create a precedent-setting case by the state Supreme Court. That could take weeks to litigate, although both hope a decision will be made before the Nov. 5 election.

A day before the agreement with the special counsel was made public, Washington Mayor Jojo Burgess raised concerns about the cost of the lawsuit during the commissioners’ agenda-setting meeting Tuesday morning.

“Is hundreds of thousands of dollars worth those 300 votes?” Burgess said, predicting the high legal bills that will be incurred by the county.

Burgess was alluding to the nearly 300 mail-in ballots submitted ahead of the April 23 primary not being counted due to various fatal flaws. Of that number, 259 of them had mistakes such as missing signatures or dates on the outer envelope that could have been corrected if county elections workers were permitted to notify voters there was an issue.

“Is that being fiscally responsible for the (number of) votes?” Burgess asked the commissioners.