Supreme Court Judge Arthur Diamond directed Village of Old Westbury Clerk Ken Callahan on Monday to certify the results of the June 16 village election in compliance with a report issued by the Board of Elections, which declared write-in candidate Leslie Fastenberg and incumbent Andrew Weinberg tied for trustee with 178 votes apiece.
Following the July 22 hearing in Diamond’s courtroom, Diamond issued a ruling directing the Board of Elections to complete the recanvass of the election, tabulate the results and certify them.
Steve Schlesinger, who serves as Weinberg’s attorney, said counsel for the Board of Elections went to Diamond on Monday following the recanvass and tabulation of results to ask how to move forward, as the Board of Elections does not certify election results.
The Board of Elections report also declared the other two write-in candidates, Cory Baker and Marina Chimerine, who ran on the New Voice of Old Westbury slate with Fastenberg, the winners of two trustee seats for the four-year and one-year term, respectively.
Baker and Chimerine were sworn in as trustees at Village Hall on Tuesday afternoon.
According to village attorney Michael Sahn, Callahan certified the results of the election as per Diamond’s ruling late Tuesday afternoon.
In his decision last Friday, Diamond ruled that he had jurisdiction over the election case, which Schlesinger argued against at the July 15 hearing in state Supreme Court.
Schlesinger argued the court had no jurisdiction to review the election because his client had already taken office after filing his oath of office on July 7.
Diamond ruled that because the election was being reviewed, Callahan should not have accepted Weinberg’s filing. He also determined that the court would not count affidavit ballots or votes cast in the incorrect column on the voting machines, in accordance with election law.
Schlesinger and Fastenberg’s attorneys, Steve Martir and Ken Gray of Bee Ready Fishbein Hatter & Donovan LLP in Mineola, are now deciding to whether or not to file an appeal of Diamond’s decision not to count the votes cast in the wrong column or continue on with a run-off between the two candidates.
Schlesinger said if he chooses to appeal, he would challenge Diamond’s ruling on jurisdiction and his decision to count two votes for Leslie Fastenberg that only included her surname.
“Once a public office is occupied by a person who is elected, the only remedy to remove that person from office is a quo warranto from attorney general,” Schelsinger said in regard to the jurisdiction issue. “I believe he was entitled to file his oath of office, thereby preventing Fastenberg from having the right to bring an action to remove him.”
He said the statutory stay the judge referred to prohibited the clerk from doing any act under the election law until the Board of Elections reviewed the election, but that a filing of oath is under the public officers law.
Schlesinger said on Tuesday that he is leaning toward not appealing.
“I believe that the appeal has merit, but so does allowing the voters to decide,” he said.
Gray said that if his side chooses to appeal, the appeal would focus on getting the votes for Leslie Fastenberg that were incorrectly made in columns 2 and 4 of the ballot counted.
“Although we respect the court, we respectfully disagree on those specific signatures that the judge felt were out of column,” Gray said.
Sahn said the village is going to the Board of Trustees to set a date for a run-off election.
If both parties choose to go forward with the run-off, Schelsinger said, he is unsure as to whether or not Fastenberg’s name should appear on the ballot or if she should be a write-in candidate again.
“This is a one-of-a-kind situation,” he said. “I never found another case where you have a runoff against a write-in. I’m still thinking about what the right rule is, as to whether or not she gets to be on the ballot.”