Mary Somerville, at right, reads a prepared statement during a hearing before the State Board of Elections Tuesday morning. Pictured in the background, from left to right, are Alexander Peters, special deputy attorney general; Don Wright, legal counsel for the State Board; Gary Bartlett, State Board director; and Johnnie McLean, State Board deputy director. PHOTO: JENNIFER BOLLINGER/The Warren Record
Elections board chairman removed; State Board to name new member today
By Jennifer Bollinger, The Warren Record
The State Board of Elections (SBOE), meeting in Warrenton Tuesday morning, unanimously voted to remove Mary Somerville from the Warren County Board of Elections and announced an emergency meeting for this afternoon (Wednesday) to appoint her replacement.
Last month, Somerville was suspended from all duties with the local board. At that time, she held the position of board chairman and interim director, which is prohibited by state election law. Somerville resigned as interim director last week, but sought to retain her board seat.
Tuesday's meeting was held in the Superior Courtroom of the Warren County Courthouse. Around 40 members of the public attended.
Three state Highway Patrol officers were on hand to ensure the meeting was controlled, according to SBOE attorney Don Wright, "in view of what happened Tuesday." Wright was referring to a local elections board meeting called for last week to approve absentee ballots. During the meeting, a county commissioner and several citizens challenged its legality because it had not been properly noticed to the public as required by the state's open meetings law. Citizens, who suspected the State Board's motives for having its deputy director at the meeting, packed the local board meeting room that night.
All five members of the SBOE attended yesterday's hearing, which was scheduled to consider a recommendation from SBOE Director Gary Bartlett that Somerville be removed from the local board. SBOE Chairman Larry Leake began the proceeding by confirming that Somerville had resigned as interim director. She acknowledged that she had resigned and said she did not have legal representation for the hearing.
Alexander Peters, special deputy attorney general for the state, represented the State Board.
Peters called SBOE Deputy Director Johnny McLean to testify under oath. She was the state's only witness.
McLean said that Somerville had attended several training sessions and had received counsel from the State Board on a number of occasions.
She specifically noted a meeting with Somerville that took place last fall after the local board of elections attempted to rehire former director Shirley Ball-Brown over the state's objections. McLean also explained her understanding of how the local board would conduct business after its last director resigned this spring.
"The Warren County board determined they would act as a team to perform the duties of director through the first primary," McLean said.
However, at its June meeting, the local board of elections unanimously approved Somerville as interim director, with the understanding she would not vote as board chairman in matters that would constitute a conflict of interest and that a director would be hired at a later date.
McLean testified that she had visited the local BOE office on several occasions over the last several months and had conducted precinct official training prior to the primary election, saying she "observed problems."
Examples McLean gave of those problems included sample ballots bearing Somerville's signature as chairman in error, which she said was corrected, and inaccuracies in voter registration records due partly to incorrect house addresses.
When Peters asked McLean about last Tuesday's local board meeting, the deputy director responded that the meeting wasn't actually held because members of the public raised questions about whether or not the meeting had been properly posted in accordance with the state's open meetings law.
"Were you able to determine if it had been," Peters asked.
"Not that evening, but I did learn the next day that the meeting had not been posted," McLean responded.
During last week's meeting, Warren County BOE member Anne Harris said in McLean's presence that the meeting had not been properly posted, and The Warren Record stated it had not been properly notified in accordance with state law.
McLean responded in error that meetings requiring public notification were only those where votes were to be taken.
Also during that meeting, McLean failed on more than one occasion to answer questions from citizens about whether or not public notice was required for the meeting. Instead, she referred to an election law that dictates when absentee ballot meetings are to be held prior to an election.
McLean, who has served on the SBOE for more than 19 years, testified Tuesday that it was her opinion that Somerville's removal from the Warren County board was "necessary."
"There appears to be on her (Somerville's) part a reluctance to read the law and either an inability or reluctance to comply with the provisions even when they have been pointed out to her," McLean said. "It's almost like it shouldn't apply to Warren County."
A number of audience members mumbled comments to the latter statement, requiring Chairman Leake to reestablish order.
McLean continued her testimony, giving an example of non-compliance by Somerville, who McLean said failed didn't want to follow established instructions for counting provisional ballots.
"Mary Somerville told me this (the local) board had considered it and thought (their way) was the best way to do it," McLean said.
McLean also testified that after training was given on provisional ballots, Somerville asked for instructions on determining which provision ballots counted and which did not.
"I stated to her they (the local board) didn't need to decide; the law already clarified that," McLean said.
McLean also stated that Daria Holcomb's volunteer service at the local BOE had caused concern and testified about how Somerville and the local board handled a situation before the primary election regarding county commissioner candidate Phyllis Gilbert's ineligibility as a candidate.
When Peters asked if McLean thought Somerville should be removed from the local board prior to the November election, she replied that she did.
"It would be in the best interest of the county and the election process of the entire state," McLean said. "Any indication that a board of elections is less than forthcoming with administration of the elections process is not good for the voters or the state as a whole."
When the chairman called on Somerville, she responded that she reserved the right to cross-examine McLean after consulting with an attorney.
"This will be your only chance," Leake responded. He then proceeded to tell Somerville she could give testimony under oath, call witnesses or make a statement.
Somerville read from a prepared statement and said that her Constitutional and legal rights had been violated because she was not served proper and timely notice of the hearing.
"I hereby object to this process and request a continuance so that I may prepare my defense and secure witnesses on my behalf," Somerville said.
She said that she had received a phone call from someone who identified himself as Don Wright and told her that "under no circumstances was I to inform anyone of this hearing" until she had received proper notice.
"The voice was intimidating, and truly it was," Somerville said, and again requested a continuance.
Peters said that Somerville was timely notified of the proceedings as she had received a copy of Bartlett's recommendation "a few weeks ago" giving her "ample time" to arrange for witnesses and prepare her defense.
"I think it's important to note that ... this is not a criminal proceeding. The statute clearly gives this (state) board the authority to appoint members to a county board and the power to remove them," Peters said. "Ms. Somerville was notified through the recommendation that she received a few weeks ago and she has been given the opportunity to be heard."
He added that in her written response to Bartlett's recommendation, Somerville admitted she violated state law by serving as director and a board member at the same time.
"That's enough to remove her as a member," Peters said. "Her removal is more than warranted."
Somerville again requested time to consult with an attorney, which Leake denied.
After hearing no motion from his board members, Leake moved that Somerville be removed as a member of the Warren County Board of Elections.
SBOE member Robert Cordle, a Democrat, seconded the motion.
Republican SBOE member Charles Winfree, who formerly served on the Hertford County Board of Elections, said he wasn't "overly distressed" by much of the testimony he had heard.
"They've done the best they can in some circumstances," Caudle said.
But Caudle said he was concerned that a volunteer had access to "very sensitive voting records" and because Somerville was serving as a board member and director in violation of state law.
"I will reluctantly support the motion," Caudle said.
After Somerville's removal became official and the board called for a recess, Wright denied to the newspaper that he had told Somerville to keep the hearing a secret. Wright said he phoned Somerville to inform her of the hearing on Friday, after he had informed the two local board members either by telephone or written correspondence.
"I did extend Mary the courtesy of not having a reporter call her out of the blue," Wright said.
County Commissioner Luke Lucas, who was the main challenger to last week's local board meeting, said that it appeared that Somerville was not given proper notice for Tuesday's hearing.
"The chairman allowed leading questions and hearsay evidence then made a motion himself," Lucas, who is an attorney, said. "I thought it was the most unfair hearing I've seen in a long time."
Many of the audience members waited for the State Board's 15-minute recess to end and became suspicious, when the break lasted nearly an hour, that the State Board didn't want anyone to remain for the second part of the meeting.
After reconvening the board to discuss a state election issue, Leake requested that the State Board hold a conference call today (Wednesday) to discuss naming Somerville's replacement on the local board.
When the State Board removes a local elections board member from office, state law allows the SBOE to name a replacement without input from the affected local party.
The conference call is scheduled for 4 p.m. Members of the public who wish to hear the call may do so via speaker phone at the Warren County Board of Elections office.