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Judge urges Monroe County legislators to vote on elections commissioner


State Supreme Court Justice John Ark. - CREDIT NEW YORK UNIFIED COURT SYSTEM
  • State Supreme Court Justice John Ark.
A state judge on Friday said there was nothing precluding the Monroe County Legislature from installing a new Democratic county elections commissioner now — upending an argument used by legislative leaders to delay the confirmation of Jackie Ortiz earlier in the week.

Legislators, spurred by a small faction of Democrats, on Tuesday put off voting on a long-awaited measure to confirm the appointment of Ortiz, whom members of the county Democratic Committee last month overwhelmingly elected to be the next  elections commissioner.

Minority Leader Ernest Flagler-Mitchell, one of five Democratic legislators who voted with the Republican majority to table the confirmation, reasoned at the time that an order the judge presiding over litigation in the matter had signed prevented the Legislature from making an appointment.

"That's just not correct," the judge, Justice John Ark, said during an update hearing in the litigation. "They absolutely have the authority to vote."

Going further, Ark encouraged the Legislature to act. He noted that the appointment ultimately rested with the Democratic caucus of the Legislature and that a majority of Democratic legislators appeared poised to confirm Ortiz.

"There's no prohibition on them voting and I would encourage them to vote in light of the fact that it looks like the designated candidate is going to be the eventual commissioner," Ark said.

"It seems like it's in everybody's best interest, and it's a real positive message to the entire community that the candidate has the support of the Monroe County Legislature," he continued. "But that's up to (the Legislature). They make their decisions based on other factors than I do."

Notably absent from the proceeding was Josh Ehrlich, the attorney for the Legislature and, by extension, Flagler-Mitchell and other Democratic legislators who negotiated with Republicans to delay the confirmation. Ehrlich was not present due to an emergency health condition. 

Flagler-Mitchell on Friday said he did not attend the proceeding, which was held by video conference and was open to the public. Informed of the judge's remarks, Flagler-Mitchell said he didn't believe the judge was correct and that legislators would have to seek counsel from their lawyer.

"That is not accurate," Flagler-Mitchell said of Ark's take that the Legislature could confirm a commissioner now.  "Until we talk to our lawyer, this is all very premature."

Like most boards of elections in New York, the county's board is overseen by a pair of commissioners, one Republican and one Democrat. The Democratic post has been filled on an interim basis since March, and the process of appointing a permanent commissioner has driven a deep wedge between factions of the party.

Among the outgrowths of the dissension was a lawsuit that sought to force an intra-party election to decide who the Democratic Committee would recommend to the Legislature for confirmation as the next commissioner.

The lawsuit was brought as a faction of Democratic legislators, led by Flagler-Mitchell and Minority Leader Vincent Felder, prepared to appoint a commissioner without a recommendation of the county Democratic Committee.

State law allows for legislators to appoint a commissioner in the absence of a recommendation from the county party, but only after the position has been vacant for a specific time. In ruling that the committee could hold an intra-party election, Ark determined that that time period had not expired.

Flagler-Mitchell on Friday doubled-down on his argument for delaying confirmation earlier in the week, saying that Ark took the matter out of the Legislature's hands by ordering an election.

"He took it out of our hands and he never gave it back," Flagler-Mitchell said.

He went on to cast the petitioners in the case, who are almost all white, and the court-ordered election as "systematically trying to oppress my community." Flagler-Mitchell is Black. He reasoned that the location of the election, held in the open air at Genesee Valley Park, drew few Democratic Committee members of color because it was not close enough to a bus line.

Ark's take on the matter was met with applause by plaintiffs in the case.

Dave Garretson, one of the plaintiffs, urged the Legislature to take action, calling on the Republican majority to call a special meeting to hold a vote.

"No more stalling and no more excuses," Garretson said. "Make the appointment, or don't. But have the vote. Do it right away."

Legislator Rachel Barnhart, who was among a few legislators to support the litigation pushing for an election and who was prepared to install Ortiz this week, said the judge's clarification on Friday suggested legislators were led astray.

"Judge Ark confirmed that at Tuesday's meeting the Legislature was misled at best and lied to at worst," she said. "There is no order stopping the Legislature from confirming Jackie Ortiz."

Barnhart added that nine of the 14 Democrats on the Legislature are prepared to vote for Ortiz, suggesting that Ortiz has enough support to be confirmed.

Under state law, the Legislature has 30 days to confirm a candidate from the time he or she is recommended by the county Democratic Committee. The committee recommended Ortiz on July 27, following the election in which she won 86 percent of the weighted vote.

Ark said the Legislature had until August 26 to act, and scheduled the parties involved in the litigation to update him on August 28.

"I guess what we'll do," Ark said, "is wait."

David Andreatta is CITY's editor. He can be reached at [email protected].