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If Holt Had to Go, So Does Davis

Here’s the letter Erie County Attorney Larry Rubin wrote to Legislature Chair Lynn Marinelli in January 2007 after Legislator Butch Holt plead guilty to tax evasion charges:

January 24, 2007


Hon. Lynn M. Marinelli, Chairperson

Erie County Legislature

92 Franklin Street, 4th Floor

Buffalo, New York 14202

Dear Madame Chairperson:

It is my duty to formally advise you that, in my opinion, the office of Legislator for the Third Legislative District of the Erie County Legislature is vacant as of January 9, 2007 by operation of law. On the previous day Legislator George Holt pleaded guilty to two misdemeanor charges of making fraudulent sales tax reports in violation of § 1817(b)(1) of the New York State Tax Law.

Public Officers Law §30 (1)(e) provides that a public office, which includes that of a County Legislator, is automatically vacant upon the office holder’s “conviction of a felony or a crime involving his oath of office…” A misdemeanor which demonstrates a “lack of moral integrity”, because the elements of the crime involve “intentional dishonest or corruption of pupose”, constitutes a violation of a public officer’s oath of office. The quoted language are the standards established by the New York Court of Appeals in its 1993 ruling in the cast of Matter of Duffy v. Ward (81 NY2d 127).

Several Opinions of the New York State Attorney General have applied Duffy and concluded that such misdemeanors as petit larceny and attempted grand larceny meet the standard enunciated in Duffy. See Op. Atty, Gen. No. 97-F7 and Op. Atty. Gen. 99-03. The determination of whether a crime shows a lack of moral integrity by the convicted public officer is maded based on the penal statute in question and without regard to the individual facts of the particular crime. In 2000 the Appellate Division of the New York State Supreme Court had occasion to review whether a guilty plea to a misdemeanor charge of filing a fraudulent New York State income tax return caused a public office to be vacated automatically pursuant to Public Officer’s Law §30. It was the unanimous decision of the Court that those midemeanors involve “a willful deceit of a calculated disregard for honest dealings”. Bowman v. Kerik 271 A.D. 2d 225 (First Dept., 2000).

We have compared the elements of the crime for which Mr. Holt has been convicted with the elements at issue in Bowman and we have concluded that they are equivalent.

We have also discussed this matter with both the District Attorney and the Attorney General. We have found nothing to dissuade us from our conclusion that Mr. Holt’s plea of guilty caused his office to be vacated pursuant to Public Officer’s Law §930.

Obviously, Mr. Holt should not be counted for a quorum nor his vote recorded subsequent to January 8, 2007. You may file this letter for the next meeting of the Legislature for the purpose of having the records reflect the same and to take the appropriate next steps to fill the vacancy. I understand that the timing of this letter is rather abrupt and it was only yesterday that I briefed you generally on the research my office has been conducting. As County Attorney it is my duty to help ensure that legislative proceedings are conducted with as much regularity as possible.

I am available to answer any questions you may have on this matter.

Very truly yours,

Laurence K. Rubin

Rubin’s opinion was affirmed by the courts. Subsitute “Council President David A. Franczyk,” “Ellicott District Councilman Brian C. Davis,” and “Acting Corporation Counsel David Rodriguez” where appropriate, and let the betting begin on how long before Davis is formally removed from office.

  • Chester

    But is Mr. Rodriguez as much of an independent professional as Mr. Rubin?

  • Richard Kern

    This latest development will put further pressure on the Mayor. Will he ‘do the right thing”?


    Brian Davis ousted from Council committees

    By Brian Meyer, News Staff Reporter, Updated: November 16, 2009, 12:08 PM /

    Brian C. Davis is being ousted from all Common Council committees until the city Law Department issues an opinion on whether he must resign his Ellicott District seat.

    But some members of the Council’s ruling majority continue to maintain that when Davis pleaded guilty Friday to using campaign contributions for personal use and then lying to the Board of Elections about it, his seat became vacant.

    Some Council members said they want the city to begin advertising for candidates to replace Davis.

    “The seat is vacant. There’s no need for any legal ruling from [city attorneys],” said Delaware Council Member Michael J. LoCurto.

    Until late this morning, Davis sat on three committees that are scheduled to meet Tuesday. “We can’t recognize any of [Davis’] votes,” said Michael P. Kearns, the Council’s president pro tempore. “Based on his guilty plea, he has violated state public officers’ law, and he’s no longer a Council member. If we did allow him to vote, those votes could face legal challenges.”

    Council Majority Leader Richard A. Fontana said he and Council President David A. Franczyk met privately today with city attorneys. He said Franczyk decided to remove Davis from all committees, giving the Corporation Counsel more time to issue a legal opinion.

    “But this thing can’t drag on,” said Fontana. “We want an opinion by the end of the week.”

    David A. Rivera of the Niagara District said he believes Davis’ last day on the city payroll was Friday. Even though the two counts he pled guilty to were misdemeanors and not felonies, Rivera said the offenses clearly require his resignation. “The fact that he admitted to being involved in taking money, then being deceitful about it means the seat is vacant,” Rivera said today.

    Aides to Davis told a reporter earlier today that they expected him to be in the office today. But as of 11 a.m., he had not shown up. Davis did not attend this morning’s capital budget work sessions. Some Council officials said they’ve heard rumors that Davis might resign soon. But if he doesn’t, some lawmakers said his votes should not be recognized.

    Masten representative Demone A. Smith said the majority would “overstep its bounds” if it chooses not to recognize Davis. “You can’t just ignore a vote unless you have a legal ruling that backs you up,” Smith insisted.

    Fontana said he still believes Davis’ guilty plea resulted in him vacating his city office. But he said to be on the safe side, the Council will wait for an opinion from the Law Department.

    Some city lawmakers noted that Erie County District Attorney Frank A. Sedita III said Friday that his reading of state law and related court rulings is that Davis vacated his office by making his plea.

    The state Public Officers Law, coupled with several court decisions, indicate that a public office becomes vacant when an elected official pleads to, or is convicted of, a misdemeanor related to his position that involves “willful deceit or calculated disregard for honest dealings.”

  • RaChaCha
  • Tara Taylor

    Do you think you may have wanted to ask any of the people you quoted if they were ok with being in the article? Or should I say did you?

    • Tara Taylor

      This is very dangerous naming people and where they live and then showing them pointing out who drug dealers are. These drug dealers will go after these people. They have done it before. This is very dangerous reporting that you are doing ArtVoice.

  • Josh Robinson

    Why interview people and gather information for a story when you can just screenshot posts from a Facebook thread and quote them without permission? Nice journalism, Artvoice.

  • Donna Marie Paradowski

    I can’t believe how unprofessional you have acted in this! You have put people in grave danger by naming them in this article… basically pointing them out to the dealers to be targeted. You did no interviews. You simply copied FB comments and added them to your article with NO forethought of the consequences to the people mentioned. This is the bottom of the barrel in journalism.

    • Villa09

      It was on the internet!! The persons name is on their profile!! What in the workd was this person thinking.. Putting info out there with their names on their profiles!! Stating where they live on the internet! Lol you out it out on social media it can be used!

      • arm342

        That’s a real good excuse to put people in danger and make them feel unsafe. Is Villa09 a pseudonym for Matt Ricchiazzi?

      • No it was not a pseudonym for Matt Ricchiazzi. Unlike many others who hide behind pseudonyms and grow brave with their comments, Matt is out there, with his real name. You may not like it “Arm342” but he does what they thinks is right and uses his real name in doing so. Would you care to do the same?

      • ljjr2112

        I gave my real name in another post. So what. I’ll ask again. Does this mean parlato’
        s going to show up there to “Interview” the prostitutes like he did in the Falls? And if it is true that the author of this is now living in California,then it should have never been printed.A cowardly act if there was ever one.This is the hudson route,Afraid when local 91 was being released from prison,He ran to rehab in Cali then floated the rumor out that he was staying there until he got the all clear.

      • arm342

        So I can put myself in danger the way that Matt Ricchiazzi put people in danger. Seriously? Just because something is on the internet and someone’s name is on their profile does not make it morally or ethically okay to do what he did. I expected a reply from “Villa09” and receive one from Artvoice. How interesting. Neither I nor anyone I know will be reading your rag again.
        Done. Peace out.

      • ljjr2112

        Typical reply from a hack and a coward. Whats your real name and why’d this get printed after the author went to Cali? Still haven’t answered when is parlato going to go cruising there to “Interview” the prostitutes like he did here in the Falls. You know that “In your face journalism” that he claims to have.

      • ljjr2112

        I gave my real name in another post. So what. I’ll ask again. Does this mean parlato’
        going to show up there to “Interview” the prostitutes like he did in
        the Falls? And if it is true that the author of this is now living in
        California,then it should have never been printed.A cowardly act if
        there was ever one.This is the hudson route,Afraid when local 91 was
        being released from prison,He ran to rehab in Cali then floated the
        rumor out that he was staying there until he got the all clear.

  • No

    I can’t believe its possible to publish an “article” that is just 300 words of paraphrased Facebook comments, hearsay, and Google street views . . . not that I’m mentioned but I find it unbelievable (and dangerous!?) to name specific people whose quotes he stole . . . !? Don’t you have to sign a release after an interview before they can use it? (Not that anyone was “interviewed”). Artvoice as a whole has slid from interesting neighborhood events and thought provoking artistry, to worthless fluff and glowing reviews of all the identical hipster restaurants that open and shut like clams up and down Elmwood. But this article hits a whole new low – written at a 3rd grade level by someone that seems to have personal issues with the FB group he references, members of which he recklessly names!! How is this safe, legal, interesting, or subject matter that should be shared with anyone but the BPD!?

    • Villa09

      If this was taken from the internet.. There is no need for papers needing to be signed.. Its already there for the public to see! Great article.. Bc its whats happening on breckenridge and grant st!!

  • osirisascending

    What kind of “journalistic” fuckery is this? Where the hell does this sociopathic hack get off taking a discussion concerned residents are having about their neighborhood, and using their discussion in an article without their permission?

    This is quite possibly the most irresponsible thing Artvoice has ever done.

    Matt Ricchiazzi, you have absolutely no integrity whatsoever. The fact that you love on the West Coast, and filed a story that consists of cherry-picked quotes from a Facebook conversation has me shaking my head in disbelief. If you wanted to write a story, why didn’t you just ASK someone for an interview.

    The way that you did this, from the shadows, and without actually contacting anyone you quoted places you somewhere below raw sewage in my opinion.

    Stay hidden you little punk.

    • robrobrobislike

      All of these comments were made on an (at that time) open facebook group. It’s extremely unethical journalism to pass this off as original reporting, but no one quoted here had a reasonable expectation of privacy in their comments.

  • Mike S.

    Jamie. Poor Jamie. First his wife tells him to fuck off, then his entire staff tells him to fuck off, now all his readers are telling him to fuck off. I think the common theme here Jamie…is that everyone wants you to fuck off. I don’t know. I could be wrong.

  • Mark Newman

    They shoot the police!!!!!

  • arm342

    I want to throw up after reading this. It’s a horrifying violation of my friends and neighbors that potentially puts them in danger. Ironically, I was quoted word-for-word but not identified. I will NEVER pick up ArtVoice again and will be sharing my distaste with everyone I know.

  • Robert Magill

    there will be no retribution. but stop snitching anyways.