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October 8, 2006


Party dispute spawns lawsuit
Guilderland Democrat who lost seat as county chairman seeks to overturn vote

By CAROL DeMARE, Staff writer
Hearst Times Union
First published: Friday, October 6, 2006

ALBANY -- The first-ever contest for leader of the Albany County Democratic Committee in its 80-year history -- which pitted the city against the suburbs -- is heading to court.

Guilderland Democratic Chairman David Bosworth, who lost the chairmanship last week, filed a lawsuit Thursday in state Supreme Court seeking to have the election of Frank Commisso, a city ward leader and majority leader of the County Legislature, invalidated on grounds the vote violated state election law.

Bosworth and members of his slate asked the court to order a new election under the supervision of a court-appointed referee.

The Sept. 27 balloting failed to use a weighted vote as required by state election law, according to the lawsuit, which had to be filed within 10 days of the vote.

The challengers, however, are not asking that Commisso's election to a two-year term be put on hold while the case is resolved -- which could take months, if not a year or more. Therefore, Commisso will continue to lead the 684-member party organization.

"It would appear to be a grab for power rather than accepting their loss and joining with myself and others to build a stronger united Democratic Party," said Commisso, 60, the 15th Ward leader and a party loyalist. "They appear to have opted for the sour grapes approach by litigation."

At an organization meeting at the Albany Polish Community Center, Commisso beat the 58-year-old Bosworth by a "rising vote" of 253-216 during which those favoring the Commisso slate stood and were counted and those favoring the Bosworth slate did the same.

It was done that way after a request for a roll-call vote was rejected by nine votes, and that's the crux of the lawsuit. The legal papers refer to a section of the Election Law requiring a weighted -- or proportional -- vote.

Also, because there was no roll-call vote, proxies went uncounted. Each committee member is allowed to carry one proxy to the meeting. Filing the lawsuit on behalf of Bosworth and several petitioners were attorneys L. Michael Mackey, the Democratic vice chairman of the town of New Scotland, and Matthew J. Clyne, longtime Bethlehem chairman.

According to state law, "a vote of the members is how the membership elects its officers, and that vote has to be proportional ... there's a formula, and it is a weighted vote," Mackey said Thursday.

Supreme Court Justice William E. McCarthy, a Republican and formerly on Gov. George Pataki's counsel's staff, signed a show-cause order Thursday, setting arguments for Nov. 9 when Commisso and his supporters must show why the election should not be thrown out and a new one held.

Also, the lawsuit asks the court to invalidate any provisions of the Albany County Democratic Committee rules that are "inconsistent with the requirements of the election law," Mackey said.

"We're asking for a court-appointed referee to oversee (a new) meeting and make sure that it's done correctly this time," he said. "We don't want to have to do this a third time."

Commisso took issue with the challenge of party rules. "They are the same rules that these individuals voted on ... so what's the problem today? Do they want the rules changed? Then amend the rules."

Mackey expressed confidence the lawsuit would succeed because "this section of Election Law has been litigated before and the Court of Appeals has found it's constitutional and county party rules cannot deviate from it."

Commisso's allies pointed to a 2001 decision by the Appellate Division, First Department, in New York City, which found in a similar ruling that the Suffolk County Conservative Party did not violate election law by not holding a roll-call vote and instead relying on party rules in the election of officers.

Dick Barrett, a 35-year committee member who lives in Colonie, was angered by the vote last week. He and others believed it was rigged, contending if it were weighted and the proxies counted, Bosworth would have won.

"I couldn't be more pleased," he said of the lawsuit. "We need an honest and fair election to bring the party together, and it's got to be based on weighted voting, one person, one vote. I think the election of Frank Commisso is illegal, illegitimate and will be nullified by the courts. I would hope that a court-appointed referee would conduct a fair election based on our Constitution and the 14th Amendment."

Phillip G. Steck, Colonie Democratic chairman and one of those bringing the suit, said, "It's a very simple issue. Why should Democrats who are enrolled as Democrats in the town of Colonie have any less say as to who is running the Albany County Democratic Committee than any other municipality? That is the issue, and that's why the (state) Legislature established the proportional vote."

"To assure that each committee person's vote is proportional to the amount of voters he or she represents, the Legislature mandated weighted voting in a county political committee," the lawsuit states.

The meeting was conducted by Betty Barnette, outgoing chairmwoman who held the post for four years and did not seek re-election.

"To file a lawsuit because things did not go their way, that's very disappointing," Barnette said. "That meeting was conducted within the parameters of the rules, and I feel that it is unfortunate that the vote did not turn out the way they would have liked to have seen it, and therefore they are taking it to court."

"Whenever someone from the floor asks for a slow roll-call vote in accordance with our rules, you have to have a one-third majority of the county membership (to agree to the roll call) and that number that they needed to achieve that was not there. It could not have been done any more openly, and it could not have been done any more in the light of day."

Commisso said, "They didn't challenge (the vote that night). That was the time to really object if they thought something was wrong. Betty followed those rules to a T. We knew this thing was going to be close. I worked against an army. They had an army."

DeMare can be reached at 454-5431 or by e-mail at


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