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Epic fiasco derails Monroe County public defender selection process 

click to enlarge The Monroe County Legislature blocked one measure that would have appointed Julie Cianca, second from the right, as the county's next public defender. It later blocked a different measure that would have appointed Robert Fogg, left, to the position. - FILE PHOTO
  • FILE PHOTO
  • The Monroe County Legislature blocked one measure that would have appointed Julie Cianca, second from the right, as the county's next public defender. It later blocked a different measure that would have appointed Robert Fogg, left, to the position.
The Monroe County Public Defender’s Office has been without a leader for nearly nine months and could be for the foreseeable future, after efforts by two competing factions of county legislators to appoint their preferred candidate backfired on Tuesday.

The fiasco was so epic that, under the rules of the Monroe County Legislature, the two favored candidates now cannot technically be considered again until the next legislative session, which is not until 2024. It is possible, however, that legislators will find a legal workaround.

The snafu went down this way:

Legislators had gathered in chambers in a special meeting called by a majority — 14 Democrats and one Republican — that had hoped to force a vote on legislation that would appoint Julie Cianca as the next public defender. Cianca has worked in the Public Defender’s Office for 25 years and has the backing of the former public defender, Tim Donaher.

Legislators voted unanimously to send the measure to the Public Safety Committee. But that committee, controlled by Republicans, convened immediately to vote down Cianca and voice its support for Buffalo-based attorney Robert Fogg, who is the candidate of choice of Legislature President Sabrina LaMar.

“Why should majority caucus members reverse their support of an exemplary, qualified community-supported, first Black public defender in over 50 years in Mr. Fogg to instead support Ms. Cianca tonight when we have already deliberated this discussion at length?” said Legislator Richard Milne, a member of the committee.
click to enlarge Monroe County Legislature President Sabrina LaMar, right, announced in late July that she would refer Buffalo-based criminal defense lawyer Robert Fogg, left, to legislators as the next county public defender. - FILE PHOTO
  • FILE PHOTO
  • Monroe County Legislature President Sabrina LaMar, right, announced in late July that she would refer Buffalo-based criminal defense lawyer Robert Fogg, left, to legislators as the next county public defender.
But a measure to appoint Fogg, submitted earlier Tuesday evening by LaMar, was also rejected by legislators in a 17 to 12 vote in which members of both parties broke ranks.

Republican Legislator George Hebert said he was concerned that Fogg didn’t have enough supervisory experience to run what amounts to the largest law firm in Monroe County. He also questioned whether Fogg had a deep enough background representing indigent defendants in criminal cases.

“I still don’t think he’s qualified for the job so I won’t be voting for him,” said Hebert, who voted against Fogg’s appointment.

Under the rules of the chamber, once appointees are rejected by the Legislature they can’t be considered again until the next legislative session. That session begins in 2024, following next year’s Legislature elections.

Consequently, Cianca and Fogg each appear to be off the table for now. Given legislators’ aptitudes for rule-bending, though, someone may find a loophole or technical end-run that allows one or both candidates to be reconsidered.

“I think we need to take a giant step back and figure this out together,” said Democratic Legislator Rachel Barnhart, who voted against Fogg’s appointment.

The Public Defender’s Office has been without a permanent leader since Donaher stepped down in January. He’d served as public defender since 2008. By law, the county Legislature is responsible for appointing the public defender. The process began in January when LaMar announced that she’d convened a committee to vet applicants, but the process dragged on as different factions in the Legislature lined up behind their preferred candidates.

Jill Paperno, the former first assistant public defender, served as the office’s interim leader until she resigned in May. Paperno had applied for the public defender job and had received Donaher’s support, but the selection committee passed her over. She is now senior civil rights litigator with Empire Justice Center, a nonprofit legal aid organization.

Paperno had worked in the Public Defender’s Office for 35 years before her departure.

Erik Teifke, an assistant public defender, has since been leading the office in an acting capacity.

Jeremy Moule is CITY's deputy editor. He can be reached at jmoule@rochester-citynews.com.

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