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Mayor Lovely Warren says she won't resign, but she could be removed. Here's how. 

click to enlarge Mayor Lovely Warren - FILE PHOTO
  • FILE PHOTO
  • Mayor Lovely Warren
The felony indictment of Mayor Lovely Warren is expected to intensify the calls for her resignation that began nearly a month ago with revelations about the death of Daniel Prude.

The mayor, who was scheduled to be arraigned Monday, has previously said she has no intention of stepping down, and nowhere does the law require a mayor facing criminal charges to resign — although state law suggests she would be removed from office if she were convicted of a felony.

"She wants you to know Monday morning she's coming to work and she's going to represent her constituents with the same vigor and dedication that she does every single day on the job," her attorney, Joseph Damelio, said during a news conference Friday. "She's gonna walk into that building with her head held high and she's gonna go to work.”

But mounting calls for her departure leave open the question of whether she could be removed before her case goes to trial and, if her office were to be vacated, who would replace her.

Recall of elected officials is not permitted in New York, but state and municipal laws leave room for the possibility of ousting an elected official.

TWO WAYS TO REMOVE THE MAYOR FROM OFFICE

The Rochester City Charter, for instance, allows for “any elected city officer” to be removed for cause by a vote of three-quarters of the members of the City Council. The process for removal is outlined in Article 2, Section 19 of Chapter C of the charter.

To start the process, Council would have to adopt a “brief and clear statement of specific charges” against the mayor and serve it upon the mayor at least two weeks prior to a hearing. Warren would have the opportunity at the hearing to be represented by a lawyer, offer testimony and evidence in her defense, and cross-examine witnesses, according to the charter.

The title of the section of the charter in question is “Removal of city officers and employees in certain cases,” but the provision does not offer any clarity on what “certain cases” means. The language of “charges,” however, suggests that the rationale for removal might hinge on some criminal charge of other legal justification.

The leadership of City Council has given no indication its members are looking to remove the mayor. In the hours after Warren was indicted, Council President Loretta Scott issued a statement stressing that it would be business as usual at City Hall.

"I believe in due process and that everyone is innocent until proven otherwise," Scott said. "I want to assure the community that the business of the city will continue uninterrupted. "

State law also provides for removal of the mayor.

Section 33 of the Public Officers Law allows for the governor to remove “the chief executive officer of every city,” as well as high-ranking municipal police officials, after said officials have been given a copy of charges against them and an opportunity to present their defense.

Again, the language of that law suggests there must be cause and a criminal or other legal justification for the ouster. But the statute is not clear and there is no precedent.

In June, after clashes between New York City police and protesters drew widespread criticism of Mayor Bill de Blasio, Gov. Andrew Cuomo was asked during a news conference if he could remove de Blasio. The governor’s answer seemed to think he could.

“Can you displace a mayor?” Cuomo said. “Yes, a mayor can be removed. It has not happened. I cannot find a precedent. But theoretically it is legally possible."

He went on to say that he thought removing the mayor in that situation would be “a bizarre thing to try to do” and that he did not think it was necessary.

WHO WOULD REPLACE WARREN?

Rochester’s charter is clear on the order of succession for the Mayor’s Office.

In the event of a vacancy in the office, the charter states that “the deputy mayor shall be the mayor” until a successor is elected either in a special election or the next general election.

Which type of election it would be in the case of a Warren resignation or removal would depend on the timing of her departure.

The seat is up for election in 2021 regardless, and as long as Warren were to leave office any time between the 2020 general election and 30 days prior to the end of candidate petitioning for next year’s elections, there would be no special election.

If Warren were to vacate the mayoralty outside of that timeframe, then the City Council would have 20 days from her departure to set a special election, according to the charter. That election would have to occur within 70 to 80 days of the office being vacant.

Should Warren leave office, she would be replaced by her deputy mayor, James Smith.
click to enlarge Rochester's Deputy Mayor James Smith takes questions about the the city's "dynamic staffing" policy for firefighters in 2019. - PHOTO BY JAMES BROWN
  • PHOTO BY JAMES BROWN
  • Rochester's Deputy Mayor James Smith takes questions about the the city's "dynamic staffing" policy for firefighters in 2019.
Smith, a Republican-turned-Democrat, joined the Warren administration in January 2015 as the mayor’s communication’s director and was appointed deputy mayor in 2019.

Prior to working for the city, Smith was the Seneca County manager. But he is perhaps best remembered in Monroe County political circles for his role in the Robutrad scandal that embroiled the administration of Monroe County Executive Maggie Brooks.

The matter involved county laborers performing construction and other odd jobs for friends, family, and people politically connected to the Brooks administration on county time.

Smith, who was the deputy county executive under Brooks, was indicted and tried in 2010 on multiple misdemeanor charges of official misconduct related to what prosecutors alleged was his failure to either prevent or report county workers bilking the county out of thousands of dollars. He was acquitted of all the charges.

SUCCESSION NOT ALWAYS SIMPLE

The relatively clean order of mayoral succession outlined in the City Charter today is a direct result of a tumultuous transition nine years ago.

In 2011, the city had three mayors in as many weeks due to language in the charter that put a mayoral successor at the time, Deputy Mayor Tom Richards, in potential violation of the federal Hatch Act.

click to enlarge Former Rochester Mayor Tom Richards. - FILE PHOTO
  • FILE PHOTO
  • Former Rochester Mayor Tom Richards.
That law prohibits some unelected local government employees who work with federal funds from running for elected office. Elected officials, like mayors, who work with federal funds, are exempted and allowed to run for re-election.

The chaos had its origins in the 2010 election, when then-Mayor Bob Duffy was elected lieutenant governor. Duffy resigned his term at the end of the year and Richards was sworn in as mayor on Jan. 1.

But his swearing in turned out to be premature because the charter at the time provided that the “deputy mayor shall act as the mayor” not that the deputy mayor became the mayor. When Richards mounted his candidacy to run for mayor in a special election set by City Council, questions arose as to whether Richards was the mayor or the deputy mayor acting as mayor.

The distinction was critical because Richards, as a deputy mayor who oversaw the city’s spending of some federal funds, would have potentially been barred by the Hatch Act from running for mayor.

The U.S. Office of Special Counsel, acting on a complaint, began a probe into whether a Richards candidacy might be running afoul of federal law. On Jan. 18, Richards resigned as deputy mayor, and thus as acting mayor, and Carlos Carballada, who had been the city’s neighborhood and business development commissioner, became acting mayor the same day.

City officials later changed the language of the charter to read that “the deputy mayor shall be the mayor.”

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

David Andreatta is CITY's editor. He can be reached at dandreatta@rochester-citynews.com.
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