Davis pleads guilty, won't resign
Brian C. Davis has a criminal record as of Friday; the question is whether he still has a seat on the Buffalo Common Council.
Davis walked out of City Court unbowed after pleading guilty to using campaign contributions for personal use and lying to the Board of Elections about it. The Ellicott District Council member declared through his attorney that he has no intentions of resigning his office.
But Erie County District Attorney Frank A. Sedita III said his reading of state law and related court rulings is that Davis vacated his office by making his plea.
Felony counts would have automatically cost Davis his job but misdemeanors do not automatically disqualify an elected official from holding office.
Davis pleaded guilty to two Class A misdemeanors … converting about $1,900 in campaign contributions to personal use and filing a false financial disclosure report with the state Board of Elections that failed to report the donations he had deposited in his personal bank account.
But, the Public Officers Law, coupled with several court decisions, has concluded 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."
Sedita cited a 2007 case involving Erie County Legislator George "Butch" Holt, who pleaded guilty to misdemeanor charges of not turning into the state sales tax receipts collected at his restaurant. County Attorney Laurence K. Rubin then issued a legal opinion that Holt vacated the office in making the plea.
Holt sued, lost and was replaced on the Legislature.
Sedita maintains that the particulars of the Davis case meet the standards for removal from office established in the Holt case and state law.
"That is certainly my opinion," the district attorney said at a press news conference Friday afternoon. "It's really clear."
Sedita quickly added that it's up to the city's corporation counsel, not him, to make that determination.
David Rodriguez, acting corporation counsel, did not return telephone calls seeking his comment, and the mayor's office was largely mum on Davis' plea and future. Mayor Byron W. Brown and Davis are political allies.
"We consider this to be a legal issue and that the legal process will play itself out," said mayoral spokesman Peter Cutler.
Council leaders were more forthcoming.
Council President David Franczyk said Davis' actions were "a disgraceful situation, a betrayal of public trust. He should resign and move on. At the very least, he should say "I'm sorry.' I didn't hear any contrition."
Indeed, Davis declined to speak after a 12-minute appearance Friday morning in front of Chief City Court Judge Thomas P. Amodeo.
Instead, his attorney, Rodney Personius, gave a brief statement after the court appearance, commending his client for accepting responsibility by pleading guilty and declaring Davis' intention to remain in office. He said voters should determine who represents the Ellicott District.
With that, Personius and Davis headed to the elevators, refusing to answer questions posed by a posse of reporters that followed them.
Franczyk said he has a call into Rodriguez asking for a legal opinion.
Majority Leader Richard Fontana said that while he wants to know what the city's top attorney has to say, he gives a lot of weight to what Sedita thinks.
"If the DA says it reaches the level of removal, that's what has to happen," he said.
Sedita, in an interview, said Davis appears to have lived beyond his means and used campaign funds to help cover his personal expenses here and in Florida.
"Over the course of a year and a half, we estimated he skimmed about $2,000 from his political campaign account," Sedita said.
Davis held several political fundraisers between April 2007 and October 2008 and deposited only a portion of the proceeds in his campaign account, Sedita said. Davis deposited some $1,900 in a personal account, in varying amounts over time, and used it to pay for "clearly noncampaign expenses," Sedita said.
The plea is the culmination of a five-month investigation by Sedita's office and the state police that was triggered by a Buffalo News investigation published April 12 that found Davis had a long history of financial improprieties that ranged from unpaid bills and taxes to chronic election law violations to repeated suspensions of his driver's license for failure to pay his insurance.
The News subsequently reported that Davis falsified his credentials to claim a college degree he did not earn.
The two charges Davis pleaded guilty to each carry maximum penalties of one year in prison and a $1,000 fine. Amodeo scheduled sentencing for Feb. 24.
One plea involves a violation of state election law, converting campaign funds to personal use. The second charge, of filing a false instrument, relates to his filing a financial disclosure report with the state Board of Elections in February 2008 that failed to disclose all the money contributed to his campaign.
"He didn't report all the money he took in," Sedita said.
The district attorney initiated the investigation through a May 26 request to the state police. Bank records were subpoenaed and analyzed and campaign contributors were interviewed. Investigators attempted to interview Davis several times, without success.
The investigation was headed by John Doscher, chief of the special investigations and prosecutions bureau; Assistant District Attorney Candice Vogel; and State Police Investigators Theresa Schroeder, Christopher Mesi and Eldred Green.
Sedita said Davis had been given a deadline of Friday to plead guilty or be subject to a grand jury investigation.
"Subpoenas were going to go out Monday for witnesses," Sedita said.
Davis' plea does not end his legal troubles.
The FBI, state police and DA are investigating the One Sunset restaurant deal in which city and county economic development agencies lost $160,000 in loans and grants. Davis provided $30,000 in block grant funds allocated to his district to help the restaurant, and later wrote a check to cover the rent that bounced.
Davis also is the subject of an inquiry by the city's Ethics Board.
A continued insistence by Davis to retain his seat through the end of his term that concludes Dec. 31, 2011, would trigger a legal fight. Personius, in a message left for a News reporter Friday afternoon, said that a decision as to whether Davis retains his seat is "something better left for a court to decide."
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