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 DELIVERY
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.
I’m told the Common Council President Dave Franczyk has asked city attorneys for a ruling on whether the guilty plea offered in court today by Ellicott District Councilmember Brian Davis vacates his office.
As you may recall, former Erie County Legislator Butch Holt lost his seat upon pleading guilty to misdemeanor tax evasion charges in 2006, because his offense violated his oath of office. That interpretation of New York State Public Officers Law was made by Erie County Attorney Lawrence Rubin and upheld by the State Appellate Court.
So how will the Mayor Byron Brown’s Corporation Council respond? Do they tell the Common Council that Davis should be removed according to state law? Or do they disagree with the state courts on interpretation of state law and say Davis can hold on to his office, or somehow duck the question entirely, risking the appearance that they are substituting political obedience to Brown, who is Davis’s sponsor, for legal integrity?
The decision is made trickier by the fact that inquiries continue into the One Sunset affair and the city’s use of anti-poverty funds; there is overlap between those two matters, and Davis plays a part in both. Giving Davis a pass now could look even worse a few months down the road.
No wonder Alisa Lukasiewicz resigned as Brown’s Corporation Counsel. Who’d want that job? Too many shoes waiting to drop.
According to a source in City Hall, the push for red light cameras has lost momentum since the home-rule measure was passed in Albany and approved by the Common Council this past spring.
Since then, one traffic surveillance company, Redflex, has met on more than one occasion with council members to voice their displeasure at this foot-dragging. They’d stand to make a lot of money on a deal with the city, but the city has yet to issue an RFP.
Meanwhile, in other parts of the country where such cameras are already in use, humans are revolting against the machines. Several municipalities are moving to do away with them, while vandalism of the cameras is on the rise around the globe. Tragically, the robots are even managing to turn humans against one another. According to this Washington Post report, “a technician was servicing a speed camera on Loop 101 in Phoenix back in April. An irate motorist shot him to death”
Sources on Buffalo’s Common Council tell Eyewitness News that Ellicott District member Brian Davis could lose two weeks of salary on payday if he fails to show for Tuesday’s regularly scheduled meeting.This after Davis failed to show for a committee meeting on Wednesday.
“Avoiding state police investigators is not a valid excuse for missing a council meeting,” one source said.
A majority vote is required for any council member who wishes to miss a meeting. A request must be submitted by 2 p.m. on Thursday, said Common Council President David Franczyk.
Franczyk said Davis’ attendance has been better since the councilman missed several meetings at the beginning of the year.
Eyewitness News has learned that investigators from the New York State Police and the Erie County District Attorney’s office were at city hall Wednesday afternoon asking to interview Councilman Brian Davis.
Frank Sedita, the Erie County D.A., confirmed the investigators were present at a committee meeting that Davis was scheduled to attend.
Sources who were at the meeting said the investigators simply wanted to talk with the embattled councilman.
Eyewitness News confirmed months ago that state police were looking into Davis and his alleged role in the One Sunset scandal.
The restaurant, which is now closed, was failing when it received more than $100,000 in city funds, some of which came from Davis in the form of a grant, a city audit revealed.
Does it strike anyone odd that Ellicott District Councilman Brian Davis—who must represent more same-sex couples than any other Buffalo legislator—is the only member of Council to vote against a resolution asking the city’s Law Department to write up a bill that would extend domestic partner benefits to all city employees.
He represents Allentown, the epicenter of the city’s LGBT culture. The increase in personnel costs to the city is expected to be less than one percent. It’s a resolution asking the Law Department to write a bill, it’s not even the law itself. Davis voted against even considering domestic partner benefits.
Masten District Councilman Demone Smith voted for the resolution, even though he expressed concern about the actual cost of extending the benefits, and even though his constituency is far less likely to approve of the measure than Davis’s.
Looks like Mayor Byron Brown and Steve Pigeon are together again, again. Their on again, off again political relationship appeared to be down for the count just two months prior to the September 15 Democratic primary, in the fallout of the NYS Senate coup that stalled Albany this summer. At the time, the Buffalo News described Pigeon as “radioactive,” explaining why Brown’s campaign declined a June 25 fundraiser Pigeon was to host. The event might have raised $100,000 for the mayor’s campaign.
Now, Pigeon is on the State payroll for $150,000 as counsel to Pedro Espada (the off again, on again Democratic senator who left and rejoined the party along with Hiram Monserrate this summer), and he is also serving as Mayor Brown’s lawyer, according to this petition filed last Friday. Four people signed the affidavits reporting lines at polling places: Cindy Cooper, Omar Price, Mary Scarpine, and Cavette Chambers. Scarpine notarized Chambers’s affidavit, Chambers notarized Scarpine’s, Cooper’s, and Price’s. They all work for corporation counsel in city hall.
The petition is a follow-up to this order issued by judge John M. Curran late Tuesday night which sought to keep voters at certain polling places from being disenfranchised.
I am listening to Carl Paladino on WBEN as I type this, and recalling that the last time Carl visited AV’s offices, he nearly came to blows with Bruce Jackson. Time does not, in fact, heal all wounds but it does create strange bedfellows. On Friday, Jackson—who has endorsed Mickey Kearns for mayor of Buffalo—sent out an email urging the recipients to vote for Kearns in tomorrow’s primary. Rather than explain why, he attached Paladino’s letter to the Buffalo News in support of Kearns:
Next Tuesday’s Democratic primary will decide who will be mayor of Buffalo for the next four years. The two candidates are incumbent Mayor Byron Brown and South District Councilman Michael Kearns. I am writing to urge you to vote for Mickey Kearns.
I am not writing as a UB faculty member for more than four decades, or as the editor of Buffalo Report for the past seven years, or as the author of more than one hundred articles on civic issues for Artvoice and the Buffalo News. I am writing as a long-time Buffalo resident who loves this city, whose children grew up and went to school here, who hates what has happened in and to the mayor’s office in recent years, and who believes Mickey Kearns can and will make a difference.
I’m asking you not only to go out and vote for Mickey yourself, but to do what you can to take everyone in your household with you. And to pass this letter along to at least 10 friends, asking them to do the same. Byron Brown has amassed a huge warchest; perhaps we can use email and our own networking to restore some of the balance.
I could offer many reasons why you should vote for Mickey Kearns, but Carl Paladino—a man I’ve had strong disagreements with over civic issues in the past—has made the case as well as anyone might. This time, Carl and I are in complete agreement. I will attach his Another Voice essay, “Kearns offers alternative to city’s poor government,” which appears in today’s Buffalo News.
Byron Brown has jumped ahead a few point on Mickey Kearns, according to a new poll conducted by SurveyUSA. The new poll has Brown ahead 51 percent to 44 percent, with five percent undecided and a margin of error of four percent.
This poll is no more reliable than last week’s poll, which showed the race in a dead heat, 48 percent for Brown and 47 percent for Kearns, with the same margin of error and five percent undecided. SurveyUSA acknowledges that polling loses some significance when so few voters are likely to come to the polls:
Only a fraction of Buffalo’s 112,000 registered Democrats are expected to vote in the primary. In a low-turnout municipal election, a small mis-measurement can result in a surprise on Primary Day. The winner’s margin will ultimately be decided by which city of Buffalo voters actually show up on Tuesday.
I think it’s interesting that the percentage of undecided was the same in each of the two sample groups.
November 05, 2009
How could you?