Lynchburg’s city attorney publicly clashed with two members of the city council on Tuesday, calling their recent actions and public statements in response to his communications about an election-related lawsuit “unfortunate” and “shameful.”
City attorney Matt Freedman’s comments about Marty Misjuns and Jeff Helgeson came during a special meeting that the two had called to discuss their concerns over whether Freedman is assisting fellow council member Chris Faraldi in a lawsuit contesting the results of the June 18 Republican primary; Helgeson and Misjuns say that would be an improper use of city resources.
Faraldi won the primary against Peter Alexander with 1,042 votes to Alexander’s 1,009, a margin of 33 votes, or 1.6%, outside the margin for recount. Alexander is suing Faraldi in Lynchburg Circuit Court to have the primary declared invalid, arguing that the results do not take into account 125 absentee ballots. Faraldi’s attorney has said the claim has “no basis.”
On June 29, the day after the lawsuit was filed, Freedman called multiple council members and, according to Helgeson, asked whether the city should get involved; Helgeson said he advised against it. Helgeson said Freedman later sent the city council an email “marked attorney-client privilege with action items.”
Because state law frames Alexander’s legal challenge as between him and Faraldi individually, Helgeson and Misjuns, who supported Alexander in the primary, have argued that Freedman’s calls and email amount to public funds spent on personal litigation. Faraldi has maintained that neither the city attorney nor public funds are being used for legal services for himself or his campaign.
Freedman pushed back at Helgeson’s and Misjuns’ characterization during Tuesday’s meeting with comments that were atypically vehement for his position; the city attorney, who sits next to the city council members during their meetings, generally provides legal advice and guidance on points of order.
“First, the city is not representing Vice Mayor Faraldi in the pending Alexander v. Faraldi lawsuit,” Freedman said. “Second, council members Helgeson and Misjuns are not attorneys, not qualified to speak on matters of law and not in charge of the law business of the city. I am.”
Freedman said the city has an interest in the outcome of Alexander’s suit because the result “could potentially affect thousands of city voters, the city paid for the election and the lawsuit makes very serious allegations against the city’s registrar and electoral board, who are deemed employees of the city under Virginia law” — but, he said, the city is not currently involved in the suit.
Finally, he said Misjuns and Helgeson could have called him or asked for a closed session meeting to discuss their concerns. Closed session meetings, which are held out of the public eye, are often used when a governing body needs to discuss potential litigation.
“Instead, they chose to hold a press conference and hold a special meeting in hopes of creating a public spectacle to attack me and other council members,” Freedman said. “This is unfortunate and it’s shameful.”
Helgeson and Misjuns held a press conference in council chambers last week to air their concerns after a special called meeting with the same agenda as Tuesday’s failed to proceed due to a lack of quorum. Freedman was on vacation that day.
As he closed his prepared remarks on Tuesday, Freedman said he didn’t think the agenda items Helgeson and Misjuns brought “are worthy of consideration of this dais” and noted that the council could choose to block further consideration of them.
The council followed suit, voting 4-2 in favor, with Helgeson and Misjuns opposed. Faraldi was absent; council clerk Alicia Finney earlier had read a letter from him saying he was recusing himself because the meeting was “clearly related to an active court proceeding in which I am a named participant in and closely involved with.”
Helgeson and Misjuns have objected to Freedman’s June 29 phone calls to five of seven council members — all except Faraldi, the lawsuit’s defendant, and Misjuns, who filed an affidavit supporting Alexander with the suit — and to his follow-up email about the case sent to the council, the council’s clerk and the city manager. The two say the city’s potential involvement in Alexander’s suit should instead have been discussed at a special called meeting in the name of government transparency.
Misjuns and Helgeson say that they would like to release the full contents of Freedman’s email but can’t because Freedman marked it as confidential due to attorney-client privilege, which only a majority of council can waive.
Nonetheless, before Tuesday’s meeting, the two council members provided reporters with a printed copy of the email in which the body text was redacted except for a portion of a sentence that reads “and, where necessary, defend Vice Mayor Faraldi.” With the rest of the email’s body text blacked out, the context of that phrase was unclear, and council members did not discuss it during the meeting.
“The questions that are posed here now, I think, are going even further than the questions that I initially had,” Misjuns said after the vote to block discussion of the agenda, which included five resolutions for consideration; one, for example, would “prohibit city staff from bypassing the deliberative process by the selective solicitation of votes, outside of meetings, away from the public eye.”
“Is attorney-client privilege being used to shield potential improprieties and possible conflicts of interest?” he asked.
Misjuns said Freedman has a responsibility to provide “impartial representation” to city leadership.
“Is Mr. Freedman able to do that after displaying such hostility to myself and other council members? It’s just a question that I have,” he said.
Helgeson said the meeting wasn’t about Alexander’s lawsuit specifically but about what rules and procedures the city should follow when it could potentially be involved in litigation.
“Do we want to just jump in to say, ‘Hey, we’re not being sued but we want to jump in to litigation?’ Or do we try to do everything we can to stay away from it? Do we try to say, ‘Let’s not entangle ourselves in someone else’s litigation?’” he asked.
Helgeson and Misjuns attempted to appeal the blocking motion to have at least some of the five agenda items voted on, but their effort failed due to a lack of support from a majority of the council.
“I think that there are several things that we can do here,” Helgeson said in making his case, “or we can just say, ‘Hey, let’s make this go away and not have openness and transparency,’ and vote to say, ‘Let’s not talk about this,’ when I think the public got to see firsthand who is trying to see and wanting openness and transparency and what side is trying to shut things down.”
Helgeson then referenced last week’s press conference, during which Mayor Stephanie Reed interrupted multiple times and unsuccessfully ordered news media to leave the council chambers, saying that Helgeson and Misjuns had not properly reserved the room for such a purpose.
Reed said Tuesday that she did that because she takes “this room and what it represents very seriously” and that press conferences in council chambers are reserved for emergencies.
“If this space becomes misused and we start using it for things that are not emergencies … then our citizens will become numb to when there is one,” she said. “That would be a shame.”
Meanwhile, Alexander’s suit is set to be heard by a three-judge panel in Lynchburg Circuit Court. Some depositions were scheduled for Wednesday, but future hearing dates have not yet been scheduled.
At the beginning of Tuesday’s meeting, Lynchburg electoral board chair David Levy addressed the city council and said Alexander’s lawsuit is based on an “erroneous and mistaken understanding” of a state-managed system that stores voter registration information.
The lawsuit centers on the notion that the 125 ballots in question did not “progress” from one status to another in that state system, called VERIS. But votes do not move through the system in the way that the lawsuit claims, Levy said, and voting logs and tabulations show that the ballots were counted.
“My fellow board members and I have properly carried out the duties of our positions. The voters voted. We certified the results of that vote. We stand by that certification,” Levy said.
The three-member electoral board consists of Levy, who is a Democrat, and two Republicans; Virginia law says two of the three members of an electoral board always share the same political party as the governor. Levy noted that the board is not asking the city attorney to represent it or asking the city council to take a position on the election results.
“This is a very unusual situation because no one in recent memory has even seen such a suit,” said Levy, who has been practicing law for more than 50 years.
During a preliminary hearing on Monday, Lynchburg Circuit Judge J. Frederick Watson said he would like to have the lawsuit concluded by mid-August because ballots for November’s general election will be printed in September. Democrat April Watson also seeks the Ward IV seat that Faraldi currently occupies.
Alexander and Faraldi appeared in court on Monday; Alexander was represented by attorney Bill Hurd while Faraldi was represented by attorney Zach Werrell. Lynchburg’s general registrar, Daniel Pense, was also in attendance and his attorney, Philip Baker, answered some questions from the judge.
If Alexander’s lawsuit succeeds, Faraldi would no longer be considered the winner of the primary. Selection of the Republican candidate for the Ward IV city council election would fall to the Lynchburg Republican City Committee, whose chair, Veronica Bratton, supported Alexander.
Lynchburg is divided among four wards, and each ward’s city council seat is up for election in November. The city council also has three members who serve at large and were last elected in 2022. Misjuns, Helgeson, Faraldi, Reed and Larry Taylor comprise a Republican majority on the city council, although their bloc has often been divided.
