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
VIA HAND DELIVERYHon. 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.
Potentially related posts (automatically generated):
But is Mr. Rodriguez as much of an independent professional as Mr. Rubin?
Comment by Chester — November 14, 2009 @ 10:38 pm
This latest development will put further pressure on the Mayor. Will he ‘do the right thing”?
COPY: http://www.buffalonews.com/home/story/863606.html
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.”
bmeyer@buffnews.com
Comment by Richard Kern — November 16, 2009 @ 2:18 pm
The next shoe has dropped: http://www.buffalonews.com/home/story/863606.html
Comment by RaChaCha — November 16, 2009 @ 3:14 pm