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Judge: City abrogated duty to appoint mayor

R. Carlos Carballada

The city charter needs to be reworked, particularly the part about filling a vacancy in the mayor’s office.

That is pretty much agreed by the parties involved in a civil suit challenging the Rochester City Council’s failure to appoint someone to fill the vacant mayor position and questioning whether R. Carlos Carballada has the authority to act as mayor.

Harry Davis, a Rochester businessman planning to run for the mayoral seat, filed suit last week against the Rochester City Council and Carballada — a matter heard Wednesday by Monroe County Supreme Court Justice John J. Ark.

Davis, who is represented by attorney Arthur J. Giacalone of Erie County, claims the city violated its charter by not appointing a mayor within 30 days of the departures of Robert Duffy and Thomas S. Richards.

Davis wants the City Council to meet by Feb. 19 in a good-faith effort to follow the city charter and appoint a mayor to replace Richards and to have it declared that Carballada is not acting mayor and may not perform mayoral duties.

Representing the city is Christopher D. Thomas of Nixon Peabody LLP who appeared with Associate Erik A. Goergen and Municipal Attorney Jeffrey Eichner.

The main arguments focused around a section of the city charter dealing with the vacancy in the office of mayor: Section 3-2.1, which says the council “shall” fill a vacancy by appointing a person registered in the same political party as the person who left.

“They didn’t do their job,” Judge Ark said.

“They did,” Thomas replied, saying the whole statute needs to be looked at, including the last line that says if council fails to appoint a mayor in 30 days, there shall be a special election within 90 days.

The council announced in mid December its plans for a special election to fill out Duffy’s unexpired term, which ends Dec. 31, 2013. The council passed a resolution Jan. 25 to have a special election March 29.

Giacalone said the city has a straightforward mechanism for replacing the mayor and that the clock started ticking again when Richards resigned.

Richards was corporation counsel in December when then-Mayor Duffy appointed him deputy mayor. Duffy resigned Dec. 31 to become lieutenant governor and Richards assumed the role of mayor Jan. 1, but resigned Jan. 20 after questions were raised whether his running for mayor would be a violation of the federal Hatch Act.

In his brief time as mayor, Richards revised the city’s succession to make the next person in line for mayor to be the commissioner of Neighborhood and Business Development, a post held by Carballada, who was named acting mayor by Richards before he left.

Giacalone said City Council was obligated to fill Duffy’s vacancy and later the one left by Richards, but didn’t and a void was created because Richards did not appoint a deputy mayor.

“So what?” Judge Ark said. “That’s their prerogative.”

Giacalone said the council’s failure to appoint a mayor created doubt as to the legitimacy of Carballada acting as mayor and the legality of the special election.

Davis is in favor of having a mayor appointed until a general election in November which would give candidates more time to campaign.

Giacalone said the legitimacy of the acting mayor is in question. He said instead of appointing a mayor, City Council “Scotch-taped” and “bubble-gummed together” a resolution using its emergency preparedness plan, which he said is to be implemented in the event of an attack or natural disaster. He asked Judge Ark to declare the City Council had an obligation to follow its charter to fill a vacancy.

“Isn’t it clear City Council abrogated its responsibility?” Judge Ark said, noting if it had appointed a mayor, “would we all be here?.”

He asked if it wasn’t in the city’s best interest to appoint Carballada as mayor, but Thomas said if Carballada was appointed, he would serve, according to the charter, until Jan. 1 and that it is in the best interests of residents to have a mayor sooner.

Judge Ark said if the appointment is made after the 30 days, the unexpired term would start immediately after the special election, when certified by the state Board of Elections.

After listening to the attorneys for more than an hour, Judge Ark offered his own suggestions, noting there is a serious question whether a court could order City Council to act.

Judge Ark suggested the City Council, when it meets Tuesday, straighten out its resolution to reflect the actual language of the charter, fulfill its obligation under the charter and fill the position until the special election.

He also said the use of the emergency powers could become problematic should anybody challenge the authority of mayoral actions taken by Carballada and that his suggestions would help the city avoid future risk.

Judge Ark’s suggestions also include rewriting the succession process similar to that of the presidency in that if the mayor leaves, the deputy mayor shall become mayor and the mayor would appoint a deputy mayor with the approval of City Council.

Judge Ark reserved decision and adjourned until Feb. 23, the day after the next council meeting.

Council President Lovely A. Warren, who sat next to Carballada in the courtroom, said a special meeting could be called before then.

“I think the judge said we did the best that we could under the circumstances,” Warren said outside the courtroom, noting the council will take Judge Ark’s suggestions under consideration.

Carballada agreed the charter should be changed so the process is clearer. He said he will continue as acting mayor in the meantime and isn’t concerned about future challenges.

“We have to continue the process,” he said. “I don’t worry about things that haven’t happened yet.”
Giacalone and Davis still had questions.

“I’m still trying to sort it out,” Giacalone said. “City Council clearly did not comply with its obligation to appoint a mayor. {Judge Ark’s] suggested remedy still creates doubts about the authority of Carlos Carballada and the validity of the special election.”

Davis said clearly Judge Ark agreed the word “shall” was key. He questioned whether the city charter would be followed if a special election is still held after someone is appointed.

The case is similar to one Judge David M. Barry dismissed last week, which was brought by the president of the Rochester Firefighters Association Local 1071 challenging succession process, as it was followed. Judge Barry ruled the plaintiff failed to establish standing and that the court could only act when the rights of the party requesting relief are affected.