Lancaster Village Court is without a prosecutor after Michael T. Dwan resigned the post five months after his appointment.
Dwan never was granted the required formal designation from Erie County District Attorney Frank A. Sedita III to serve as a municipal prosecutor.
The Village Board appointed him for a year, with an annual salary of $8,000, running through April 4, 2016. He succeeded Yvonne S. Tripi, who served under the previous village administration.
Sedita said Dwan never should have begun serving as the village prosecutor without having received what’s known as “designation of public official” from the district attorney.
“He never was designated by me. It’s required legally that I give my designation for him to act in my stead,” Sedita said. “There was never a need for him to resign because he was never designated.”
Dwan was critical of Sedita in his resignation letter to Mayor Paul M. Maute.
Sedita expressed additional concerns that Dwan was advertising his law practice to represent people accused of traffic offenses – the very types of cases he would be prosecuting in Village Court.
The district attorney said that about three weeks ago, as he was driving to work, he heard Dwan in a radio ad pitching to represent defendants on the “very type of cases” he would typically represent as a public prosecutor at the village level, including traffic offenses and lower-level violations such as disorderly conduct and harassment.
“It’s an ethical issue” and a conflict of interest, Sedita said.
“A lightbulb went off in my head, and I looked into it and called the police chief and village justice,” Sedita said.
The district attorney also contacted Dwan and sent the mayor a letter dated Aug. 19. Dwan’s resignation followed the next day.
“Mr. Dwan may not appear on my behalf or on behalf of the Erie County District Attorney’s Office in any capacity, including that of a village prosecutor,” Sedita wrote to Maute. “In other words, Mr. Dwan does not have the authority to hold himself out as a public prosecutor."
In his resignation letter to the mayor, Dwan wrote that Sedita called him Aug. 18 to inform him that it was “against his policy” to allow town and village prosecutors to advertise as criminal defense attorneys.
Dwan said Sedita told him that unless he ended his advertising as an attorney, he would not allow him to continue as village prosecutor.
“Mr. Sedita’s request came as a surprise to me because many town and village prosecutors advertise as criminal defense attorneys in much the same way that I do,” Dwan wrote. “When I brought this point up with Mr. Sedita, he told me that the other prosecutors were ‘grandfathered in’ and his ‘policy’ was exclusively his prerogative to enforce as he wished.”
Sedita did not respond to Dwan’s statements. In the absence of a prosecutor, Village Court has been rescheduling cases for court sessions Sept. 15 and Oct. 6. Longtime Village Justice Paul T. Bumbalo, who pushed for Dwan’s appointment as prosecutor, said he hopes the village appoints a new prosecutor Sept. 14.