George A. Holt Jr. is no longer the Erie County legislator from the 3rd District, according to Erie County Attorney Laurence K. Rubin.
Rubin, who detailed his opinion in a letter to Legislature Chairwoman Lynn M. Marinelli late Wednesday afternoon, says Holt automatically lost his elected seat when he admitted earlier this month to two misdemeanors for making fraudulent sales tax reports in connection with his East Side restaurant.
Marinelli said the Legislature will abide by the county attorney's opinion.
But Holt's attorney, Mark J. Mahoney, contends any such move would be "premature" and would be an attempt to circumvent the authority of State Supreme Court Justice Richard C. Kloch Sr. in the criminal case against Holt.
"I don't think they can do this before there's a judgment of conviction," said Mahoney. "They're trying to do a run around the court."
Holt, 58, said he never would have agreed to the plea-bargain if he had known it would mean he would be removed from office.
"That's a major question in my mind at this hour," Holt said. "That would be a deal-breaker."
Holt, whose sentencing is scheduled for March 9, admitted he failed to keep accurate records in 2004 and didn't remit about $20,000 in sales taxes collected at his Fillmore Avenue restaurant. He agreed to repay the state $37,600, including interest and penalties.
Rubin, relying on case law and at least two opinions of the state attorney general's office to bolster his case, says because Holt admitted to a crime involving "intentional dishonesty or corruption of purpose," he violated the oath of office administered to a public officer.
Rubin said he was confident in the opinion, noting that state's Public Officers Law provides that a public office is automatically vacated upon the office holder's "conviction of a felony or a crime involving his oath of office."
Marinelli, citing terms of the county's charter, said Wednesday that Rubin's legal opinion will be followed and Holt's position will be considered vacant. Any legislative action by Holt also will be stricken retroactive to Jan. 8, the day of his guilty plea.
"Under the charter, the county attorney is the legal adviser to the County Legislature and, in his opinion, [Holt's] seat is vacant," Marinelli said.
The Legislature issued a statement saying it intends to "follow the opinion of the county attorney and will faithfully act pursuant to New York State law." Legislature committees have been realigned to compensate for Holt's vacancy, the statement added.
Mahoney, currently in Colorado for a legal convention, not only disputed the timeliness of Rubin's opinion but also the substance of his findings. He wouldn't speculate on what Holt's next legal move would be.
The Legislature's next scheduled session is Feb. 1. Mahoney does not anticipate that Holt will try to rescind his plea arrangement.
In the interim, Holt says he will proceed as if nothing has changed. And, if he is removed, he will run for office again in November.
"Our plan is to continue to represent the 3rd District until I get a legal opinion from my lawyers," Holt said.
News Staff Reporter Matthew Spina contributed to this report.