August 25, Re: Investigation and Findings Related to the March 12, 2018 Candidate Filings

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1 OFFICE OF THE COMMONWEALTH S ATTORNEY FOR THE CITY OF LYNCHBURG MONUMENT TERRACE BUILDING 901 CHURCH STREET LYNCHBURG, VIRGINIA (434) FAX (434) BETHANY A. S. HARRISON Commonwealth s Attorney DIRECT PHONE NUMBER (434) ADDRESS BHARRISON@OCALYNCHBURG.COM August 25, 2018 Sergio Coppola 6567 Rawley Pike Hinton, VA Re: Investigation and Findings Related to the March 12, 2018 Candidate Filings Dear Mr. Coppola, On April 3, 2018, you sent an requesting that I investigate the events of March 12, 2018 as they related to candidate Peter Volosin and his filing for the Democratic nomination for the 6 th district congressional election. The complaint also implicated then 6 th District Chairwoman Maria Childress. The complaint alleged violations of election laws related to filing of campaign paperwork, corrupt conduct, and violations of criminal statutes of false publication and forging public records. I write to inform you that the investigation failed to reveal evidence establishing that either Peter Volosin or Maria Childress committed a criminal offense. Therefore, I decline to initiate any prosecution with regards to these matters. During the course of this investigation I reviewed the statements made by Ms. Childress and Mr. Volosin to the Richmond Times-Dispatch included in the article entitled 2 Dems Question Party Officials dated March 26, 2018, and conducted interviews with you, Kurt Schlegal, a campaign worker for Jennifer Lewis (the current Democratic nominee for the 6 th district congressional election), Maria Childress, Peter Volosin, and Katie Cyphert (the Chair of the Lynchburg Democratic Committee). Allegation of Violations in the Filing of Declarations of Candidacy, Petitions, and Receipts Your complaint alleges that on March 12, 2018, Volosin s campaign filings (declaration of candidacy, petitions, and receipts) were accepted and processed prior to 12 p.m. in violation of of the Code of Virginia. That code section states in relevant part: 1

2 A. Declarations of candidacy, petitions, and receipts indicating the payment of filing fees shall be filed not earlier than noon of the ninety-second day and not later than 5:00 p.m. of the seventy-fifth day before the primary. B. Except as provided in subsection C, candidates for nomination shall file their declarations, petitions, and receipts with the chairman or chairmen of the several committees of the respective parties. Virginia Code provides that a violation of the above code section is a Class 1 Misdemeanor. It is uncontested that the 6 th District Democratic Committee decided that candidates for the Democratic nomination for the 6 th district congressional election were to file their petitions at the Lynchburg Democratic Committee Office located at 915 Main St. Ste. 301 Lynchburg, VA on Monday, March 12, 2018 beginning at 12:00 p.m. Maria Childress, who was at that time the 6 th District Democratic Chairwoman, was to accept the filings. The candidate who filed first would have his or her name at the top of the ballot for the primary election. If candidates filed at the same time, their filings were considered simultaneous and a drawing would determine the ballot order amongst the simultaneous filings. Mr. Schlegal arrived at the Democratic office first on the morning March 12, 2018 before 9 a.m. and sat outside the locked office. Ms. Childress arrived around 10 a.m., entered the office, then left the office after a few minutes. You arrived around 11:30 a.m. and waited with Mr. Schlegal outside the office. By 12 p.m., Ms. Childress was not at the Democratic office. You sent Ms. Childress a text message at 12:03 p.m. and received no response. Ms. Childress arrived at the Democratic office several minutes after 12 p.m. Neither you nor Mr. Schlegal know the exact time she arrived at the office. Ms. Childress was described as having arrived a few minutes after the text message you sent. You and Mr. Schlegal turned in candidate filings (Mr. Schlegal turned in the paperwork for Jennifer Lewis and you turned in your own paperwork). Both campaign s filings were time-stamped as filed at 12:13 p.m. then processed. You asked Ms. Childress if she had seen candidate Volosin that morning. Ms. Childress stated she had not. The next day the candidates received an from Ms. Childress that stated Ms. Lewis, Mr. Volosin, and you had filed simultaneously. Your campaign and the Lewis campaign made it known to the Democratic Party of Virginia that you did not see Mr. Volosin when you submitted your filings on March 12, Ms. Childress and Mr. Volosin confirmed that the Democratic Party of Virginia addressed the situation by having Mr. Volosin re-file on March 16, 2018 thus removing Mr. Volosin s name from the lottery with Ms. Lewis and you to possibly have his name at the top of the primary ballot. In our interview with Maria Childress, she confirmed she came to the Democratic office around 10 a.m. and saw Mr. Schlegal there waiting. She made copies of paperwork then left to have breakfast with her daughter who was out of school due to snow. After breakfast, Ms. Childress drove her daughter home. Ms. Childress stated she parked on Main Street near the Galleria (the building in which the Democratic office is located). She did not recall exactly where she parked but believed it was between 9 th and 10 th Street on Main Street. 2

3 According to Ms. Childress, she attempted to cross Main Street when she was approached by Mr. Volosin. Mr. Volosin wanted to submit his filings as soon as possible because he had an event in northern Virginia and the weather forecast called for more snow. According to weather reports, the City of Lynchburg had a total accumulation of 4.5 inches of snow on March 12, Ms. Childress noticed that there were 3-4 minutes before noon and told Mr. Volosin they could wait at her car until noon when she could accept his filings. At noon she sat in her car and filled out a receipt for the paperwork that Mr. Volosin gave her. She marked Mr. Volosin s submission as filed at 12:00 p.m. She quickly looked over his paperwork and counted his petition pages. Ms. Childress filled out the rest of the receipt and gave it to Mr. Volosin. Ms. Childress took a photo of the receipt with her cell phone. Once Ms. Childress gave Mr. Volosin his receipt, he left and Ms. Childress went inside the Galleria to the Democratic office. In the Galleria, she encountered you and Mr. Schlegal. You asked her if she saw Mr. Volosin and she told you she had not. Ms. Childress stated she did not make Mr. Volosin go inside the Galleria to file because his filing would be considered simultaneous with your campaign and the Lewis campaign. Our investigation has not revealed sufficient evidence which would refute Ms. Childress version of events. Mr. Volosin stated the morning of March 12, 2018 he went to the White Hart Café on Main Street and worked on s for the campaign until close to the noon filing time. Mr. Volosin parked on the side of the road on Main Street. It had snowed outside. He did not remember exactly where he parked. He saw Ms. Childress ahead of him walking toward the Galleria. He contacted Ms. Childress, and they waited at her car until noon to file. He wanted to leave the area as soon as possible because of the forecasted snow storm. After his paperwork was processed and he received a receipt, he left Lynchburg. Our investigation has not revealed sufficient evidence which would refute Mr. Volosin s version of events. In order for the Commonwealth to show a violation of , the Commonwealth is required to prove beyond a reasonable doubt that Mr. Volosin s campaign filings were filed before noon on March 12, We cannot determine the exact time Childress arrived at the Democratic office. We know that your campaign and the Lewis campaign had your receipts time-stamped by Childress at 12:13 p.m. This gap in time from 12 p.m. to 12:13 p.m. is a sufficient period of time for the events as described by Ms. Childress and Mr. Volosin to have taken place. Therefore, there is insufficient evidence to support the allegation that Mr. Volosin s filings were received prior to 12:00 p.m. Allegation of Corrupt Conduct Virginia Code states: A. If any officer of election, member of an electoral board, or other person on whom any duty is enjoined by law relative to any election, is guilty of willful neglect of his duty, he shall be guilty of a Class 1 misdemeanor. B. If any person listed in subsection A is guilty of any corrupt conduct in the execution of his duty, he shall be guilty of a Class 5 felony. 3

4 The term willful has been defined in Virginia caselaw as an act done with a bad purpose, without justifiable excuse, or without ground for believing it is lawful or an act which is intentional or knowing, or voluntary, as distinguished from accidental. Ellis v. Commonwealth, 29 Va. App. 548 (1999). The terms "bad purpose" or "without justifiable excuse," necessarily imply knowledge that particular conduct will likely result in injury or illegality. Id. To put this plainly, the conduct must have a bad intent and not just arise from happenstance or accident. Corrupt conduct is not specifically defined in Title 24.2 of the Code of Virginia. Merriam-Webster s Dictionary defines corruption as dishonest or illegal behavior especially by those in a position of power or authority. The alleged corrupt conduct is premised on the meeting between Ms. Childress and Mr. Volosin wherein Mr. Volosin filed his candidacy paperwork at noon on March 12, The Commonwealth has insufficient evidence to show that Ms. Childress willfully neglected her duty or that Ms. Childress exhibited corrupt or illegal behavior in accepting Mr. Volosin s campaign paperwork. There is no requirement in the Virginia Code as to the location of the filing. Ms. Childress stated she accepted Mr. Volosin s filings on Main Street as Mr. Volosin would be considered to have filed simultaneously with the other candidates whether or not he walked to the Democratic office. The conduct put Mr. Volosin in the same standing with the other candidates had he walked into the building and filed at the office. Our investigation has revealed insufficient evidence which would serve to contradict Ms. Childress s version of events and thus we have insufficient evidence to support a criminal charge under this code section. Allegation of False Publication Virginia Code states: Any person who knowingly and willfully states, delivers or transmits by any means whatever to any publisher, or employee of a publisher, of any newspaper, magazine, or other publication or to any owner, or employee of an owner, of any radio station, television station, news service or cable service, any false and untrue statement, knowing the same to be false or untrue, concerning any person or corporation, with intent that the same shall be published, broadcast or otherwise disseminated, shall be guilty of a Class 3 misdemeanor. You allege that Ms. Childress made false statements to the Richmond Times-Dispatch in the article 2 Dems Question Party Officials. The law against false publication places responsibility upon the person who disseminated the statement to the publication while knowing the statement to be false. The statements in the Richmond Times-Dispatch article from Ms. Childress are derived from two sources: a recording of a meeting on March 14, 2018 and from an interview by the newspaper reporter with Ms. Childress. Regarding the statements made in the March 14, 2018 meeting, the Commonwealth has no evidence that Ms. Childress provided these statements to the Richmond Times-Dispatch; therefore, we lack proof of criminal agency. The Commonwealth also has insufficient proof that the statements made were false. 4

5 The Commonwealth has insufficient proof that the comments made by Ms. Childress directly to the Richmond Times-Dispatch were false. Statements made by Mr. Volosin to the Richmond Times-Dispatch match the statements Mr. Volosin gave the Commonwealth. The Commonwealth has insufficient proof that his statements were false. Allegation of Forgery of a Public Record Your complaint alleges forgery of the record of Mr. Volosin s filing from March 12, The Commonwealth cannot pursue such a charge as the record in question was destroyed. Ms. Childress indicated that the Democratic Party of Virginia instructed her to shred Mr. Volosin s original declaration of candidacy and required him to refile on Friday, March 16, Even if the document were still in existence, for the reasons stated above, the Commonwealth has insufficient evidence to prove that the time stamp of March 12, 2018 at 12 p.m. was false. Conclusion For the reasons stated herein, the Commonwealth lacks the evidentiary foundation to prove a violation of the criminal statutes alleged. Therefore, we will not pursue criminal charges and consider this investigation closed. Sincerely, Bethany Harrison CC: The Richmond Times-Dispatch Staunton News Leader The News & Advance 5