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Holt dismissal becomes legal challenge Opinions support legislator's ouster, but his lawyer promises an appeal

Fuel for George A. Holt Jr.'s swift expulsion from office can be found in a 1993 court ruling that helps express why some taxpayers felt so angry when the Erie County legislator pleaded guilty to tax violations but then remained on the job.

"The public has a right to rest assured that its officers are individuals of moral integrity in whom they may, without second thought, place their confidence and trust," said New York's highest court, the Court of Appeals, in Duffy v. Ward.

The justices found that a New York City police officer should not have lost his job when he followed a motorist into his home after an off-duty traffic dispute. Criminal trespass was not a charge that displayed a lack of integrity, so he had not violated his oath of office.

But the justices did set a recognized standard that, when breached, could automatically toss public officials from office for violating their oath. They said criminal convictions involving "willful deceit or a calculated disregard for honest dealings" were enough -- felony or not.

County Attorney Laurence K. Rubin said he found too many similarities last week when he compared the text of the Duffy decision to Holt's crimes. To Rubin, it seemed that Holt served his last day as a legislator Jan. 8, the day he pleaded guilty to keeping $20,000 in sales taxes collected at his Buffalo restaurant. He admitted "willfully" filing two false sales tax reports from 2004.

"I thought I had to bring it to the attention of the Legislature because I thought it could impugn the integrity of the actions taken by Mr. Holt," Rubin said. He first told Legislature Chairwoman Lynn M. Marinelli of his suspicions Tuesday, and she alerted Holt to Rubin's research as a courtesy.

Holt's presence at any Legislature or committee meeting was enough to call any action into question if he created a quorum or cast a deciding vote. With a round of committee sessions set for Thursday, Rubin wanted to act quickly.

After 4 p.m. Wednesday, Rubin told Marinelli that indeed his research showed Holt "vacated" his Legislature seat by pleading guilty. Then, with a call from Marinelli, Holt learned that his 13-year career as a legislator had ended, assuming his lawyers cannot win back his job.

The Personnel Department halted Holt's pay -- he earns $42,588 a year -- and his last paycheck is being refigured to reflect no duties beyond Jan. 8, Personnel Commissioner John W. Greenan said.

Holt was a Democrat in Marinelli's 12-member Democratic caucus and had preceded her as Legislature chairman, one of the three most-powerful posts in a government spending $1.4 billion this year. But every legislative action he took after his guilty pleas will be stricken. His name is gone from committee rosters, and a new chairwoman will preside over the Government Affairs Committee, Majority Leader Maria R. Whyte, D-Buffalo.

With Holt's departure, the Legislature, at least temporarily, has no African-American member. Democratic committee members in the 3rd District will be asked to offer a temporary replacement for Holt, as Democrats in the 7th District have been asked to offer a replacement for Demone A. Smith, who this year took a seat on the Common Council.

"No one takes this lightly," Marinelli said Thursday. "It's pretty significant and serious to have an elected officer, a public officer, removed from office."

There was a somber tone to committee sessions Thursday. But no lawmakers were saying that Holt had been railroaded.

"I think this is a common-sense result that the community should be happy with," said Legislator Cynthia Locklear, D-West Seneca. "You finally see that the oath of office we take actually has weight and meaning. This is proof of that higher standard."

Days ago, Republicans had proposed a new county law banning any elected county official from holding office after being convicted of a felony or misdemeanor. The law was meant to prevent a repeat of the Holt episode.

It was unlikely to pass, but the Holt matter loomed as a campaign liability for Democrats in a year when all 15 legislators must stand for re-election.

Holt in 2004 and 2005 had pushed for a sales tax increase when, voters would learn, he had kept sales tax income he should have forwarded to Albany. Plus, it wasn't his first scrape with the state on sales tax matters.

Democrats last week asked Rubin to assess whether the Republicans' proposal made legal sense. He soon found the Duffy v. Ward decision. He also found a state attorney general's opinion from 1997 upholding the removal of a state university trustee on an attempted larceny charge and an attorney general's opinion in 1999 agreeing that a Hudson Valley-area school board member lost her seat when convicted of petit larceny after illegally collecting unemployment insurance.

Rubin also found an Appellate Division case from 2000, Bowman v. Kerik, agreeing some New York City corrections officers did lose their jobs when pleading guilty to filing fraudulent state income tax returns. The bedrock for these cases was the state Public Officers Law and Duffy v. Ward

Before Holt pleaded guilty, his lawyers vetted the question of whether he would have to resign, and they were certain he did not. Also, prosecutors were letting him remain in office, though he had to repay the $20,000 plus almost $18,000 more in interest and penalties. He was expected to do so before sentencing March 9.

So one of his lawyers Thursday vowed a legal challenge to Rubin's opinion and sent a letter to Marinelli telling her Rubin is wrong.

"Mr. Rubin makes critical and obvious errors," wrote Mark J. Mahoney, arguing that Holt's guilty pleas to two misdemeanor charges of filing a false sales tax return do not indicate that he intended to commit fraud.

"Fraud is a very specific kind of offense which involves intentional and purposeful deception in order to unawfully obtain (or keep) property," he wrote. The charge Holt admitted to would apply to any material misstatement on a sales tax form, such as the date it was signed or the name of the taxpayer.

"Intentional fraud," Mahoney wrote later, "is a world apart from a mere misstatement of a material fact, even if 'willfully' made, which may have nothing to do with depriving others of property," he said.

Holt has another legal recourse: withdrawing his guilty pleas to undo his conviction and then standing trial.

"I don't think that's necessary," Mahoney said. "Because they've got it all wrong."


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