Davis pleads guilty to criminal charges
Facing the prospect of a grand jury investigation into his financial dealings, Ellicott Common Council Member Brian C. Davis pleaded guilty at 11:15 this morning to criminal charges that he used campaign contributions for personal use.
Despite the plea before Chief City Court Judge Thomas P. Amodeo, Davis does not intend to step down from office, his lawyer said after the court session.
"He has accepted responsibility for his conduct," defense attorney Rodney Personius said, adding that it would be voters' decision on whether Davis should remain as council member.
Nevertheless, the district attorney said the guilty plea could lead to his removal, a prospect that would have major implications for Mayor Byron W. Brown, a political ally.
Davis appears to have lived beyond his means and used campaign funds to help cover his personal expenses here and in Florida, said Erie County District Attorney Frank A. Sedita III.
"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 fund-raisers 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 and used it to pay for "personal expenses," according to the district attorney.
"They were clearly non-campaign expenses," he 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.
Davis today pleaded to two misdemeanor charges that each carry a maximum penalty of one year in prison and a $1,000. 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 plea was negotiated with Davis's attorney, Personius, who accompanied Davis during his court appearance today.
"I made him plead guilty to exactly what he did. This is not a lesser slap on the wrist," Sedita said.
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 today to plead guilty or be subject to a grand jury investigation.
"Subpoenas were going to go out Monday for witnesses," Sedita said.
The district attorney noted this is the second election law case he has successfully prosecuted during his 11 months in office. He noted that both the Davis investigation, and that of former Cattaraugus County Democratic Chairman Daniel McCandless, were initiated months before former Assistant District Attorney Mark Sacha accused Sedita and former District Attorney Frank Clark of failing to prosecute political operative Steve Pigeon for what he contends are campaign finance law violations.
Sedita has countered that the decision to not prosecute Pigeon was made before he took office and that he had no say in that decision because he headed up the DA's homicide unit at the time.
"I've never said I won't prosecute these cases. Just the opposite, I will prosecute these cases when the investigation provides me credible evidence that crimes were committed," Sedita said.
McCandless in September pleaded guilty to three counts of election law violations, admitting he forged signatures on designating petitions he circulated for candidates.
Sedita acted as a special prosecutor in the McCandless case after Cattaraugus County District Attorney Edward M. Sharkey recused himself. Sedita emphasized at the time that he accepted the case because the State Police conducted the investigation and presented him with all the necessary evidence.
He said in September he would not prosecute most election law cases because he lacked the staff or resources to conduct such probes.
"We will do investigations, but we have to decide what we can do because of our limitations," he said then.
Davis' plea to Class A misdemeanors, meanwhile, does not end his legal troubles.
The FBI is 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.
Although Davis said that will not resign, he still could lose his Council post as a result of today's plea.
Sedita said that under state law, as interpreted two years ago by the State Appellate Court in a case involving Erie County Legislator George "Butch" Holt, Davis would seem to face removal from office.
The law requires the removal of an elected official convicted of a felony, or lesser charges involving "willful decit or a calculated disregard for honest dealings," Sedita said.
"My opinion is, yes, the crimes he's pleading guilty to meet the definition set forth by the court," the district attorney said.
Holt pleaded guilty to misdemeanor violations of state tax laws for underreporting sales tax receipts at a restaurant he operates with his wife. The courts said the failure to turn over sales tax receipts represented "willful deceit."
The County Legislature removed Holt after a request from County Attorney Lawrence Rubin.
Sedita said he is unsure whether the corporation counsel would have to forward such a request to the Common Council or whether members could act unilaterally.
The situation puts Brown, who appoints the corporation counsel, in a bind because Davis is one of four members on the Council who are aligned with the mayor and both officials hail from the Grassroots political organization.
Despite Davis's problems since April, the mayor has refused to criticize him, and the Council member appeared on stage during Brown's victory party following his victory in the mayoral primary two months ago.
A removal of Davis could put Brown's political power in jeopardy if the Council member's successor comes from outside the mayor's political camp. That's because the anti-Brown block on the Council would grow to 6 to 3, giving opponents a veto-proof majority.
In the event Davis resigns, or is removed, the Council would name a replacement. Democratic party committeemen from the Ellicott District would recommend a replacement, but the Council is free to consider other candidates, provided they hail from the same political party as the departed member. The Council in the past, however, has almost always appointed the candidate recommended by district committeemen.
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