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The public record: Legal eagles

JOE LORIGO’S DAY IN COURT: Last week Erie County Legislator Joe Lorigo reluctantly resigned two posts, both paid, to which he’d been appointed by the Town of West Seneca, where the Lorigo name has much sway. One, Americans with Disabilities Act compliance officer, paid Lorigo $1,000 per year. The other, town attorney, paid $7,500 per year.

Lorigo only served one day in the latter role, but it is the job that drew the attention of the county attorney’s office, which solicited opinions from two local law firms on the legality of Lorigo serving as both town attorney and county legislator. Both firms—Kavinoky Cook and Hogson Russ—agree that he could not. Central to their argument is that a county legislator holds budgetary authority over the Erie County District Attorney’s office; a town attorney’s appointment is ratified by and therefore subject to the DA. Thus, the firms argue, a conflict that renders the positions incompatible.

Lorigo’s appointment was never formally ratified by the DA’s office, nor, according to a competing opinion solicited by Lorigo from the firm Philips Lytle, did he take the oath of office. Strangely—and perhaps irresponsibly—he spent a day serving as town attorney in West Seneca court anyway. In doing so, Lorigo may be assumed to have accepted the position; if he accepted the position, according to the opinion offered by Kavinoky Cook, he effectively resigned his seat on the Erie County Legislature:

…the rule that has evolved in New York is that where there is either common law or statutory prohibition against the holding of incompatible offices, a person who accepts and qualifies for a second incompatible office is held to vacate, or by implication resign from, the first office upon acceptance of the second office.

If Lorigo did accidentally resign his seat on the Legislature, has all the work he has done as majority leader since his day in court been invalidated? All the work done by the Legislature as a whole?

Let’s assume instead that he retains his job on the Legislature. There is left the question of the work he handled during his day in court as town attorney. Must it all be re-done? What kind of lawyer pretends to occupy a position he does not?

There is no law against electing, or even appointing, an ultramaroon to public office, but perhaps someone ought to review whether this guy is bright enough to practice law.

FLAHERTY AND THE BARRY MOSS CASE: After an Erie County assistant district attorney finished presenting the evidence to a grand jury charged with considering the hit-and-run death of Barry Moss in December 2013, members of the grand jury applauded her. Then they voted to indict Gabriele Ballowe, who Evans police believed hit Moss, a pedestrian, with her car on her way home from a night drinking at South Shore Beach Club, the beachside club she owns.

Not long afterward, the ADA’s boss, Frank Sedita III, sent a senior member of his staff to ask the grand jury to reverse its vote to indict, because, despite what Evans police believed, Sedita felt there was not enough evidence to convict Ballowe. The grand jury duly reversed its vote.

A source tell us that the staff member who delivered Sedita’s instructions to the grand jury was Mike Flaherty, the acting DA who hopes to be elected to the office this fall. 

(Asked by the Buffalo News if this was true, Flaherty declined to comment.)

In his six years as DA, Sedita developed a reputation for avoiding cases he thought difficult to win; the abandonment of the Moss case particularly drew criticism to Sedita because the real-world facts of the case, regardless of how they might translate to a court of law, seemed abundantly clear. Too, Sedita’s office had been excoriated for its failure to win a guilty verdict in another hit-and-run, in which Dr. James Corasanti hit and killed 18-year-old skateboarder Alix Rice after drinking at his country club.

One of the first actions Flaherty took upon being sworn in as acting DA last month was to announce he would reopen the Moss case. Why? Does he believe he took part in an injustice? Or is trying to defuse a bomb before one of his competitors in the race for DA decide to use it?

LAWYERS COME, LAWYERS GO: Last week New York State attorney General Eric Schneiderman declared his intention to prevent Amigone Funeral Home from reopening a Tonawanda crematorium that nearby residents and environmental activists have been trying to shut down for years.

It’s a long, sticky story, but here are a few narrative points, culminating in a curiosity:

In 1991, Amigone was allowed to expand a funeral home into a crematorium when the Erie County Legislature designated the parcel at Sheridan and Parker on which it sits as a cemetery, as required by state zoning law.

In 2012, after years of complaints and after being found by the state to be in violation of environmental regulations, Amigone agreed to shut down the facility temporarily, a move greeted as a victory by the facility’s neighbors and the Clean Air Coalition, which helped organize their fight. 

The operators first sought to move the facility, but found no place that would or could accept it, and then sought to upgrade its equipment to minimize air pollution, which did not satisfy neighbors. In 2014, Erie County Legislator Kevin Hardwick, a Republican who represents the district, joined the Legislature’s four Democrats in revoking the property’s designation as a cemetery, hoping to prevent it from ever reopening. This move was greeted with skepticism by Legislator Joe Lorigo, whose father, Ralph, chair of the county’s Conservative Party, is a friend and neighbor of the Amigone family, along with other Republicans, who questioned the Legislature’s authority to revoke Amigone’s permission to operate.

Amigone sued. Originally represented by the Knoer Group, Amigone switched horses, hiring the firm of Lippes Mathias Wexler Friedman, where former state attorney general Dennis Vacco hangs his hat. Erie County hired out its defense to Jennifer Persico of the firm of Mosey Persico.

In September, Judge John Michalek ruled for Amigone and Vacco and against Erie County and Persico, paving the way for the crematorium to reopen.The county filed a notice of intent to appeal the decision, but never followed through with an actual appeal, effectively shutting down the case.

And finally the curiosity: A week after the decision, Persico left the firm she’d founded to join Vacco, her recent opponent, at Lippes Mathias Wexler Friedman. 

This article was first published by The Public on Feb. 2.

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