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.

Yesterday an anonymous commenter left this note on the long-abandoned blog of  Ellicott District Councilman Brian Davis:

Anonymous said…

November 05, 2009

How could you?

Good question.

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”

The battle, brothers and sisters, has begun.

John Borsa at Channel 7 News reports:

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.

Calls to Councilman Davis were not returned.

Ellicott District Councilman Brian Davis

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.

So who is Davis representing?

It took a while for Mickey Kearns to draw a round of genuine laughter from the crowd at True Bethel Baptist Church last night. He’d come at the invitation of the Buffalo Association of Black Journalists, whose three-person panel peppered him with questions about policy and race and qualifications and expectations. He also fielded questions submitted online and from the audience of about 100, including a couple heavily loaded questions from Masten District Councilmember Demone Smith, who replied to Kearns’s “It good to see you, Demone” with “It’s not always good to see you, Mickey.”

Many of the questions were one-size-fits-all: What managerial experience do you have? How will you fund the quality-of-life centers you propose? Will you reduce or eliminate the garbage fee?

Kearns handled these well enough. It may be too generous call the South District Councilmember “plainspoken,” however. Sometimes, speaking in environments like this, one would guess that his hero was not Jimmy Griffin but Yogi Berra. Still, he made his points, and his points made sesnse.

Many more of the questions were laden with race issues, which is hardly surprising. An Irishman from South Buffalo is taking on the city’s first African-American mayor, citing Griffin—a man widely disliked on the East Side—as his political mentor.

The mayor had been invited, too; the event was supoosed to be a debate. The mayor did not reply to the invitation, according to initial accounts. At the event itself, another story was offered: Someone from the mayor’s office had replied, but after the deadline for a reply had passed. No one seemed to buy that.

Was it true, a young woman asked, that members of his campaign staff taunted fellow South Buffalonians for supporting Byron Brown? Why, asked Demone Smith, had he not voted for any minority representation in the Common Council leadership? Why had he voted against several African-American nominees for various city jobs. (Demone also asked him why the Council majority had not address a complete lack of African Americans working in the City Clerk’s office, but his premise was incorrect: There are in fact several African Americans working in the City Clerk’s office, as well as several Latinos.)

By and large, Kearns handled these questions well, too. The rationale he offered—that he looks not at a person’s skin color but at his or her qualifications—is threadbare, and might have been irritating from someone who seemed to be excusing himself from thinking about why race matters in one of the most racially segregated cities in the country. But Kearns did not seem to be excusing himself. As much as Smith tried to paint Kearns as a typical South Buffalo Irishman who didn’t give a damn about the black East Side, those colors kepts peeling away. Instead, Kearns returned again and again to his themes: poverty and education,  crime and housing.

But the conversation kept returning to race. Finally, Kearns said, “Okay, let’s air this out. You want to talk about this? Let’s look at the current adminsitration.

The fire commissioner, he said, is a Caucasian from South Buffalo. So is one of his deputy commissioners. The commissioner of public works is a Caucasian from South Buffalo. The manager of sewers is a Caucasian from South Buffalo. The director of real estate, the commissioner of assessment and taxation, the deputy commissioner in charge of inspections—all Caucasians from South Buffalo.

“It looks to me like you’ve already got a mayor from South Buffalo,” Kearns said.

The room roared with laughter. Even Demone Smith cracked a smile.

Ellicott District Councilmember Brian Davis!

You know! He’s got problems! Big problems!

But he keeps in touch with his constituents via Facebook!

And he loves! exclamation! points!

Some excerpts from his page:

August 2:
Brian C. Davis Is wishing everyone a great week! Let this week be the week that we all be mindful of our Civic Responsibility!

July 28:
Brian C. Davis did not vote for a new ordinance allowing citizens to have up to 5 chickens as pets in the City of Buffalo! Feeling that this ordinance does not go far enough in addressing some basic concerns that residents in my district has. 6 others on the Common Council approved this ordinance today which only means an increase in rodents, not enough enforcement by the City, and possibly goats, turkeys, pigs, etc. PROBLEMS!

July 24:
Brian C. Davis is wishing you all a very safe, enjoyable weekend! Let today be the day that we stop destroying our own and find a way to encourage and support each other whether we agree or disagree. Most important though, let’s agree that we may disagree but still Love and Support one another!

June 21:
Brian C. Davis is wishing all the Fathers and all men that play a significant role in a child’s life a Super Day! Make the best of this day and if nothing else, say these words to your children no matter how old they may be, “I Love You!”

Mickey Kearns

On Tuesday night, Stonewall Democrats of Western New York endorsed Mickey Kearns for mayor. Stonewall joins the PBA, Assemblyman Sam Hoyt, and Nosotros. Four of his fellow councilmembers support Kearns, as well.

Mayor Byron Brown was not deemed eligible for the Stonewall endorsement, according to Outcome magazine, because his campaign has paid for advertising on Joe Illuzzi’s Web site. Illuzzi is prone to homophobic rants:

Mayor Byron Brown’s campaign finance disclosure reports show that on July 28, 2008 his campaign committee known as “MAYOR BROWN’S LEADERSHIP COUNCIL” paid Joseph Illuzzi owner of politicswny.net $3,000.00.

Mr. Illuzzi is one of the leading anti gay activist in Western New York and often uses his web site to make false claims against candidates that do not pay him for ad placement on his site. In 2008 he used the site in an attempted blackmail scheme against an incumbent state legislator who had publicaly refused to pay Illuzzi and urged other elected officials to do the same.

His handful of endorsements may seem like a thin line of support, especially as these endorsements have not seemed to produce substantial financial support for his campaign, but they reveal some gaps in Brown’s armor, which is is beginning to look a little tarnished anyway, as investigations into the use of anti-poverty funds mount. A source in the Kearns campaign told me on Monday that the real push begins this weekend, when volunteers will fab fan out across the city to deliver literature.

In response to a letter from South District Councilmember Mickey Kearns, US Department of Housing and Urban Development Inspector General Kenneth M. Donohue has pledged to audit Buffalo’s administration of federal anti-poverty funds. The probe will focus on the Buffalo Economic Renaissance Corporation.

In a July 24 letter, Donohue writes, “Based on our review of the HUD Monitoring Report and discussions with the HUD Buffalo Community Planning and Development Director, we have concluded that an audit of the corporation is warranted.”

In March, HUD released a report that recorded 19 “findings”—that is, deficiencies—in the city’s administration of community development block grant funds, based on the federal program’s statutory or regulatory requirements. (We reported about it here.) HUD also recorded two “concerns”—that is, deficiencies based not on any statute or regulation, but sufficiently worrisome to HUD’s monitors to bear mention.

The findings ranged from poor bookkeeping practices to misuse of funds, including $2.6 million used to pay down a $6 million Fannie Mae loan that bankrolled the high-end loft developments in the 800 block of Main Street (the Granite Works) and at 210 Ellicott Street (the Warehouse Lofts). Neither project, according to HUD, benefits the the CDBG program’s target clientele, which comprises low- and moderate-income residents.

The montoring report required the city to respond to its findings and concerns and take corrective ation on a schedule that ranged from 30 to 90 days. The city filed responses, but it’s not clear what, if any, corrective action has been taken.

Kearns held a press conference this morning at 11:15. Donohue anticipates that the audit will begin in early September.