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Judge delays decision in mayoral case

Rochester’s acting mayor, Carlos Carballada, speaks to the media at the Hall of Justice on Wednesday after state Supreme Court Justice John Ark postponed judgment on a lawsuit challenging the city’s mayoral succession. Vasiliy Baziuk

A decision is expected Monday in a civil suit over the mayor’s post and the legality of a special election to fill the vacant mayoral seat.

Monroe County Supreme Court Justice John J. Ark, who was expected to render a decision Wednesday, postponed the matter until Monday to give the city’s attorneys time to respond to an amended complaint filed by East Aurora attorney Arthur J. Giacalone, who represents plaintiff Harry Davis.

Davis is challenging the authority of R. Carlos Carballada to act as mayor and the Rochester City Council’s decision to have a special election to fill the mayoral post. Judge Ark heard arguments Feb. 16, made suggestions to City Council and adjourned the matter one week to make his decision, the day after the council’s latest meeting.

Giacalone is objecting to action taken by City Council on Tuesday, as well as a telephone conference call between himself, Judge Ark, and attorneys Christopher D. Thomas of Nixon Peabody LLP and Jeffrey Eichner, who represents the city. The conference call, which Giacalone said was requested by Thomas, was conducted Tuesday afternoon — hours before City Council met.

By having the call, Giacalone said the court was being asked by the city’s attorneys to pre-approve a resolution that — if adopted later that day — he would challenge.

The resolution was adopted by City Council on Tuesday night in an 8-1 vote, with Council member Adam McFadden opposed.

Art Giacalone, who represents plaintiff Harry Davis, speaks to the media Wednesday at the Hall of Justice after state Supreme Court Justice John Ark postponed judgment until Monday on a lawsuit challenging the city’s mayoral succession. Vasiliy Baziuk

The resolution was drafted based on suggestions Judge Ark made Feb. 16 when he recommended City Council begin the process of putting together a more defined succession process and that it appoint Carballada as acting mayor pursuant to the city charter, “which they didn’t do,” Judge Ark said in court Wednesday.

He had also suggested a rewording of a clause in the resolution adopted Jan. 25 that sets a special election March 29. Judge Ark suggested it should more accurately reflect the actual wording of the city charter.

The resolution outlines what happened since Mayor Robert J. Duffy resigned Dec. 31, 2010, to become lieutenant governor. It notes that Deputy Mayor Thomas S. Richards assumed the duty to act as mayor until he resigned Jan. 20.

Richards, who is running for mayor, left amidst questions about whether his candidacy would be a violation of the federal Hatch Act.

The Hatch Act “restricts the political activity of individuals principally employed by state or local executive agencies and who work in connection with programs financed in whole or in part by federal loans or grants,” according to the U.S. Office of Special Counsel. Generally, it prohibits covered state and local employees from running for public office in a partisan election.

Before leaving office, Richards had 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 Carballada was appointed under the city’s comprehensive emergency preparedness plan, and has been acting mayor since.

The new resolution “confirms” City Council did not agree by majority vote on a person to appoint as mayor and confirms Carballada’s designation by Richards as successor to the powers and duties of mayor until the vacancy is filled by the March special election. The resolution also notes City Council’s intention to thoroughly review the provisions of law relating to vacancy in the office of mayor and propose appropriate revisions to the city charter to clarify the procedures to be followed.

Giacalone argued in court Wednesday that by adopting the resolution, City Council again failed to appoint a mayor as required by the city charter and exceeded its jurisdiction by modifying the mechanism set forth in the city charter with less than an equivalent legislative act.

He cited Gallagher v. Regan 42 NY2d (1977) and Noghrey v. Town of Brookhaven 214 AD2d (1994), the latter of which says that “The doctrine of legislative equivalency requires that existing legislation may only be amended or repealed by the same means as was used to enact it.”

Giacalone said the city charter had been approved by City Council, as well as voters. He also argued the resolution has a number of legal errors, one being that the “order of succession” mentioned doesn’t reference that it is only triggered by an emergency, as stated in the city code “in the event of an attack or a public disaster,” and that Carballada’s appointment violates both the emergency plan and the city charter.

Giacalone accused City Council of acting in an “arbitrary and capricious” manner and that its use of certain terminology — such as “did not agree by majority vote” — attempts to mislead the court and the public that City Council had decided not to appoint a mayor two days before there even was a vacancy.

Giacalone further argued the last section about intending to review the successor process “gives the false impression that the current predicament” faced by the city and its residents  “is the result of confusing and/or ambiguous provisions” in the city charter, when it is because of the council’s “willful refusal to comply with its obligation to appoint a person to fill the vacancy.”

He is asking Judge Ark, among many things, to stop Carballada from exercising mayoral duties, to have City Council attempt in good faith to appoint a mayor and to annul the new resolution, as well as the Jan. 25 one setting the date for the special election.

Giacalone said that having a special election instead of a general election in November, as he said the charter intends, only gives candidates two weeks to get signatures, campaign and become known to the public, as opposed to six weeks with a fall election. In addition, there is no primary with a special election. His client, Davis, is also running for mayor.

Giacalone said not only did City Council decide not to have a special election before there was a vacancy, but that it was advised by Richards, then corporation counsel, who would be happy to be mayor.

“Couldn’t the governor proclaim a special election since the vacancy hasn’t been filled?” Judge Ark asked, pointing out that he finds it interesting the word neglect is used in  Public Officers Law, which reads: “Whenever the authority to fill any vacancy is vested in a board and such board is unable to fill such vacancy in an elective office by reason of a tie vote, or such board neglects to fill such vacancy for any other reason, the governor may, in his discretion, make proclamation of a special election to fill the vacancy.”

Giacalone said the governor’s discretionary authority reflects an acknowledgement by City Council that they have the authority to make the appointment, but never started the process.

Eichner said City Council voted Jan. 25 and Feb. 22, both times indicating they were unable to appoint a mayor by majority vote and therefore were scheduling a special election.

Judge Ark pointed out that it was known last May that Duffy was running for higher officer and if successful, would be leaving.

“Clearly your client wasn’t surprised when he resigned to be lieutenant governor,” Judge Ark said to Giacalone. “Everyone was aware of the likelihood that Mayor Duffy would be resigning.”

Judge Ark said potential candidates could have been lining up for sixth months, but Giacalone said they would have waited because they would have thought there would have been a general election.

Judge Ark gave Eichner and Erik A. Goergen, an associate of Thomas’ at Nixon Peabody LLP, until Friday to respond to Giacalone’s amended complaint, saying he planned to issue a decision Monday.

Outside the courtroom, Giacalone called City Council’s action Tuesday a joke while Carballada said he thought what the council did in the first place was sufficient and that nothing has changed.

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