‘The secrecy thing’: Did ‘done deal’ appointment skirt law?

Wednesday, Jan. 23, 2008, 2:28 p.m. Waynesboro voter registrar Mary Alice Downs hits Send on an e-mail to Nelson County voter registrar Lisa Wooten.
“I thought I would just touch base with you and see if you still have an interest in a move to Waynesboro? My Board is trying to plan for the upcoming year and I need to give them as clear as possible ‘a picture’ of what might transpire,” Downs wrote.

“I am trying to negotiate with my current board to keep the option open for me to move to a Board position at the end of 08. My current Secretary is the Rep(ublican) and she REALLY wants off…… That would be the spot I would be comfortable with because I could continue to have some little role in keeping elections fair, etc. I could not really feel comfortable calling myself a Democrat….. while I am strongly independent, my past family ties pretty much make me a Republican,” Downs wrote.

“I guess I just need to know if your interest would be strong enough to keep my board from searching high and low for a replacement for me.”

Wooten, it turns out, was interested, as she noted in an e-mail reply sent 12 minutes later.

“You must have ESP!!!! This is incredible,” Wooten wrote back.

“I have been thinking about your position and was wondering what your plans were. Yes, I am very interested in making a move. I was even in Waynesboro Monday sort of looking around at housing possibilities,” Wooten wrote.

“If you will be in Friday,” Wooten concluded the e-mail, “I may give you a call. I don’t want any of this to get out until it’s a sure thing or done deal so to speak!”

“I understand about the secrecy thing….that is the ONLY way things could work,” Downs wrote back at 5:12 p.m.

“I just hope that I can manerver (sic) the current board to future good for both of us,” Downs wrote.

 

***

 

I’ve been mulling this exchange over since the day in July 2008 that a reader tipped me off to the wheeling and dealing that was going on behind the scenes by forwarding me copies of these e-mails. I had no idea at the time who Lisa Wooten was, and it would be five months before I would next hear the name, on the day following the November 2008 election, sitting in the registrar’s office for the vote canvass with Downs and members of the Waynesboro Electoral Board in my capacity representing the Waynesboro Democratic Committee, which elected me to serve as its chairman in May 2008.

A news release announcing the appointment of Lisa Wooten, the Nelson County registrar, to replace Downs would be sent to the local media later that week, I was told during a break in the action.

Wooten took office on Jan. 2, and it was then that I began the process of trying to verify that the e-mails that had been sent to me in July were in fact authentic, which I was able to do after several Freedom of Information Act requests, and to see if there might have been more in the way of communication about the registrar appointment than that one exchange.

More on that a little later. Here seems to be a good place to note two additional timeline facts for consideration as we plow into this investigation. One, it wasn’t public knowledge that Downs was planning to step down until April 2008, when her plans came up as a result of a discussion of the 2008-2009 city budget for the registrar’s office at a City Council work session. Two, the Electoral Board didn’t make a formal move to begin the process of trying to fill the post until an ad was placed in a local newspaper on July 20, almost six months after the e-mails quoted above were sent back and forth from Waynesboro to Lovingston.

The first glance at this, then, is that it appears that there was an active effort involving Downs and, if she was speaking accurately in her e-mails, the Waynesboro Electoral Board as well, to recruit Wooten for the registrar position before the public process to fill the position had even gotten under way. The talk about “the secrecy thing” and the attempt to “mane(u)ver” for Downs to get an appointment to the Electoral Board as the Republican member following her retirement added to that gives off the appearance of some potentially serious impropriety being at play here.

The stakes – the registrar position, as defined in §24.2-114 of the State Code, oversees procedures related to the registration of voters and manages the local election process including dealing with candidates for local public office on statements of candidacy, ballot access and campaign-finance disclosure. Which is to say, it’s a job pretty much at the heart of our democratic system that we’re talking about here.

Let’s dive right into the thicket. With regard to the Downs-Wooten exchange on the registrar job, were any laws broken with all this maneuvering going on behind the scenes? My best answer: I don’t think so. I’m hedging there because the State Code just doesn’t give much guidance as to the question of how these appointments are supposed to be done.

The governing section of the Code on the registrar post, §24.2-109, states simply that “(e)ach electoral board shall appoint the general registrar for its city or county and officers of election for each precinct who shall serve in all elections … .” Outside of that, we have further down in §24.2 explicit prohibitions on electoral boards on appointing a person who holds another elected or appointed public office or high-ranking local or state political-party position or someone who is the spouse or immediate blood relative of an electoral board member.

Not much to go on there, and a read of the applicable state regulations on the process for filling open state-government jobs provides nothing in the way of clarity, either, and even if it did, it would be hard to think that the regs would help explain something treated in the Code not as a job but as an appointment.

The only thing concrete that we have that there might have been anything untoward about the contact between Downs and Wooten is the run of statements from members of the Electoral Board to the effect that they thought the Board was bound by law to conduct an open search for its new appointee.

“We had to advertise. We’re mandated by law to advertise. And so even though we knew that there was a registrar who was interested in relocating, we decided we would keep completely open minds. We were not influenced in any way. We knew there was a registrar that was interested, but we were mandated by law, so we couldn’t have done any promising to anybody,” now-retired Board Secretary Marsha Howard, a Republican, said.

“I’m not aware of any behind-the-scenes maneuvering prior to the vacancy opening,” Board Chairman John Cabell, a Democrat, said. “The registrars do belong to an association and do get together, and of course we’re next door to Nelson County, so I feel confident that she probably knew. But we advertised the job.”

“Mary Alice didn’t do any recruiting. We didn’t have her do any recruiting. We followed the law,” Vice Chairman George Baker, also a Democrat, said.

 

***

 

Downs told me it was no secret to anybody in voter registrar circles in Virginia that she was strongly considering retirement. She turned 65 in 2007 and had given thought to stepping down from her post after the ’07 elections, “but I looked at the calendar and realized, It’s a presidential year, and thinking of all the elections we had in that year, this would not be good for the City of Waynesboro to walk out in a presidential year,” Downs said.

“My heart was telling me, Hang in there for one more year,” Downs said.

A personal financial situation, as she indicated in the e-mail exchange with Wooten, was also a factor in her calculations. Downs had taken over the payments on the Waynesboro home of her son, Scott Coleman, while it was on the market, and as she discussed the registrar appointment with Wooten she also seemed to be trying to make a sale at the same time.

“You are very welcome to look at the house,” Downs wrote to Wooten in a Thursday, Jan. 24, 2008, 11:37 a.m. e-mail. “The market over here is a little slow at the moment. This is a REALLY great location and has much potential. Needs lots of help on outside yard work to make it really beautiful. It could be such a wonderful home.”

Downs played down the salesmanship in a May 12, 2009, interview with me at the registrar’s office. “That was simply a friendly exchange,” Downs said. “Lisa knew that I was really, really worrying about the money side of things, and the strain of trying to pay – because half of my salary was going toward an additional house payment. Basically the e-mails that you’re looking at were just me confirming to Lisa that, Hey, whenever I get this house sold, and I’m worrying about selling this house – and so there was a good bit of friendship kind of thing going on there, that I was talking with any of my friends about the fact that I was going to hang in there for two reasons, one, my heart was in a presidential election year, and two, I had a house to sell that I needed to get rid of,” Downs said.

Wooten, who was also in on the interview, struggled at the outset when I asked her to explain what the two were talking about with regard to the “secrecy thing.” As she searched for the words, Downs interjected, “I don’t think you wanted anybody in Nelson County to know you were thinking about moving.”

“Exactly. I know that sounds bad …” Wooten started to say.

Downs interjected again. “But this was also before the job had been …”

“… posted,” Wooten said.

“… even advertised,” Downs continued.

“I don’t know if bad or hard is the word I’m looking for,” Wooten said. Turning to Downs, she went on, “I think you had mentioned in a meeting two years ago, if not three, that you were contemplating it. And I think I remember saying, I might possibly be interested in making a move …”

“It was after that,” Downs said.
“… that I’d like to keep in touch with that,” Wooten said.

“And, too, once I did interview, and my family didn’t know, I didn’t tell a soul,” Wooten said, “and I interviewed, and I was offered the position, I remember asking, I knew my board was going to meet like four days after that in Nelson, and I said, I feel an obligation to tell them first. And I did, and I told them first, and then I told my family. And my family was like, You’re going to do what? You would have thought I was moving to China.
“That was why. Because I know how things get distorted and just – the rumor mill. And I didn’t want that,” Wooten said.

“I don’t think it would have been wise for people in this city to know that she was thinking about applying for the job and coming here,” Downs said. “It would have made people think that they had no chance of getting this job.”

 

***

 

“This will appear in the Sunday News Virginian….. so don’t do application until next week……MAD,” read an e-mail from Downs to Wooten dated Friday, July 18, 2008, at 9:42 a.m. that included the text of the ad that was being placed in the News Virginian to advertise the open position.

Downs said she sent similar e-mails regarding the newspaper ad to three other people with whom she had been in contact about the position. I am not able to corroborate this statement independently, despite my best efforts. I mentioned earlier my attempts to use the Virginia Freedom of Information Act to determine the authenticity of the two e-mails that had been brought to my attention in July 2008. In the course of fighting this battle, I ended up requesting copies of all e-mails sent to and from the city e-mail account of Mary Alice Downs in calendar year 2008, after starting with a request of Wooten as the registrar and custodian of the registrar office’s records for e-mails between Downs and Wooten in 2008, then at the advice of the Virginia Freedom of Information Advisory Council making the more expansive request of the city government, which maintains the e-mail server used by the registrar’s office.

The requests were only fulfilled in part to include e-mail transmissions between Downs and Wooten and on a few specified dates. The reason more could not be done to fulfill the later, more expansive request, according to a city official, was that a change in software used by the information technology department to run the e-mail server that was done mid-year in 2008, and the IT department was not able to verify with any certainty that some e-mails from the Downs account had not been lost in the transition.

Taking Downs at her word, it would stand to reason, then, that she would have been expected to have given a plug for the other candidates with whom she had been in contact regarding the appointment. “There were two other candidates that I said, if Lisa is not interested in this position, either of these other people would probably be very good,” Downs said.

All told, 21 people applied for the position, and the Electoral Board narrowed the list of finalists from there down to five. “I had nothing to do with their final decision,” Downs said. “Obviously they said, We have an application from Lisa, what do you think about her? And I said, I think she’s excellent, you know, I think that would be wonderful. Basically I had told Lisa, I will convey that to the board, yes, I have faith in the fact that you would be a super person for this. But between the two of us, there was no way that we could decide it. It was a decision totally by the Electoral Board.”
But what about her line in one of the January 2008 e-mails about “mane(u)ver(ing) the Board”? “The Board asked me if I knew anybody,” Downs said. “A couple of times, the Board said, Do you know of anybody that’s going to apply? And I said, I have had three or four people inquire about the position. So at various points in time, they would say, Have you heard of anybody?

“‘Maneuvering the board’ does sound a little strange,” Downs conceded. “Basically, Marsha Howard had worked as secretary of the Electoral Board for a number of years, and she was telling me she was going to bow out. And her time for reappointment came last March. So basically she would have retired the first of March of last year if she was not reappointed.

“So my maneuvering of the Board, I was saying to Lisa I was interested in moving into the secretary position when Marsha moved off. So my comment about maneuvering the Board was to get Marsha to say, Yeah, I’ll hang in there another year, or to get one of the other Board persons to say they would serve as secretary until Marsha’s time was up,” Downs said.

“Definitely I was going to tell the Board that Lisa was going to be excellent in the job situation, and I did tell them that, and there’s nothing – nothing that I see that’s wrong with that,” Downs said.

Downs did end up getting appointed to the Electoral Board as the Republican member of the Board. The chairman of the Waynesboro Republican Committee, Chris Darden, told me that Downs received the endorsement of Howard when Howard let him know that she was planning to retire.

“It’s a tough job. It’s a demanding job. It’s thankless. So I was happy. With her skill set, I don’t know that we would have had anybody more qualified,” Darden said.

 

***

 

Lisa Wooten would make a good candidate for a voter registrar’s job whether she had somebody on the inside going to bat for her or not. At the time she was applying for the post in Waynesboro, she had been the voter registrar in Nelson County for 13 years and had been in the registrar office there dating back to her days as an assistant for 21 years. And she is currently the first vice president of the Voter Registrars’ Association of Virginia, with plans to run for president of the association at some point down the road.

“We had two candidates that could have really done the job, but because Lisa had had such wonderful experience, and had done this job, it seemed really silly to us to have to go through the training process when we had somebody who was ready to step in and willing to relocate,” Howard said.

“I think there were 20-some-odd applications. We narrowed it down from there to four or five, all of whom had good qualifications. But the fact that Lisa had experience as a registrar over in Nelson, to use a common term, it was a no-brainer to hire her,” Cabell said.

“She was the top person of the five people. There was no other choice, really. With her background and her experience, she had to be number one,” Baker said.

Wooten interviewed for the position on Monday, Sept. 22, at 10 a.m. She entered the interview “excited and nervous,” according to an e-mail she sent to Downs the night before. Downs was in the room with the Electoral Board for the interview, as she said she was for all of the finalists’ interviews.

“After we got the – after the Electoral Board got the 21 applications, and they rated them, Marsha brought them to me, and she brought me the top five or six, she asked me, How do you feel about any of these?” Downs said. “And I looked at those, and they did ask me to sit in on the interview process, so I was present when they did the interviews. That was basically so that the person they were interviewing could ask me questions about the job, because it’s such an unusual job situation, that unless somebody has been in the position, they don’t know a lot of things.”

Wooten was offered the job – and accepted – later that day. Later that week, another finalist upon learning that she had not gotten the appointment filed a Freedom of Information Act request apparently to access any and all records on file of the other applicants. Downs indicated in a Sept. 30 e-mail that the FOIA request had been denied.

I have not been able to ascertain the identity of the finalist, though I assume from their comments to me in their interviews that the main players in this story themselves assume that it was this person who tipped me off to the behind-the-scenes goings-on in this story in the first place.

“Whenever you have this kind of deal, particularly a local one, you’re going to have one or two people that might have had hard feelings. That’s just small town for you,” Cabell said.

 

***

 

I said earlier that I don’t believe a crime was committed here, and I’ll stand by that, with the observation that my belief to that effect is only because the State Code is so vague on the process for appointing a new voter registrar.

By all accounts, Wooten wasn’t a bad pick based on her background in the Nelson County registrar office, though it’s not at all a prerequisite that you have to come to the position with experience to succeed at it, as I learned from talking with Randy Wertz, the registrar in Montgomery County in Southwest Virginia and the president of the Voter Registrars’ Association of Virginia, who not only came to the registrar office in Montgomery County without any experience or background in a registrar office, but did so a month before town elections in a presidential election year in 2004 when he pretty much had to learn the job in baptism-by-fire mode.

I got a similar sense from an electoral board member in Northern Virginia whom I consulted for this story on background – that experience in a registrar office would be a natural plus for a candidate for appointment, but a quality candidate with other experiences to bring to the post could certainly do the job and in some cases do a better job by bringing approaches and ideas from other disciplines that could provide new operational efficiencies.

It will nag me for some time into the future that I didn’t begin my investigation into the e-mail exchange between Wooten and Downs sooner. As it happens, I had those e-mails in my possession before the job had even been advertised in the local paper. I’m left to wonder what would have happened if I had begun asking questions last summer. Maybe Wooten applies for the job, maybe she doesn’t. This is just a gut feeling, but after meeting and talking with her for a couple of hours, I’m not so sure that she would have even applied had it gotten out that she had been approached about her interest.

I hate to admit it, but even after all these years of casting myself to myself, if to nobody else, as a grizzled, sufficiently cynical reporter who would question his own mother about the finer points of his early childhood if the accounts didn’t match up to what he remembered, I didn’t want to believe what I’d read in those e-mails between Downs and Wooten, to the point where I questioned their validity right up to the day that the city finally fulfilled my third FOIA request.

Now I’m not sure what to believe, if anything, anymore.

  

– Story by Chris Graham


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