A hearing to determine whether the Cortlandville Town Board met illegally to discuss eliminating one of the town justice positions has been postponed until Nov. 13, a week after voters cast their ballots on the matter.
At the Article 78 hearing in state Supreme Court, an attorney for Judge Mary Beth Mathey, one of Cortlandville’s two sitting justices, will argue the court should declare the Town Board’s resolution to eliminate Mathey’s position void, thereby nullifying the question from the referendum.
However, the hearing, once set for Tuesday, is after the scheduled Nov. 7 vote, when residents will decide whether to re-elect Mathey, who is unopposed. The ballot also asks voters to decide whether to eliminate the position.
Eliminating the position would leave Justice Robert DeMarco as the town’s sole justice; his position isn’t up for election this year.
In a letter to the state Supreme Court, Mathey’s attorney, John Stevens, said if the court rules in favor of Mathey after the referendum, it could result in the court reversing a public vote. Stevens described the board’s move as arbitrary and capricious.
“In the event the referendum were to pass while Judge Mathey is seeking re-election, she would lose her office during the pendency of this action even if she were to win a majority of the votes,” Stevens said.
Stevens could not be reached for comment, and Mathey declined comment.
The Cortlandville board’s attorney, John Mancuso, wrote that Mathey’s request for the court order is improper. Mancuso also represents Cortlandville Town Counsel John DelVecchio, also a defendant. Mancuso did not return a request for comment.
Mancuso argues the restraint can’t be issued. He cites a law saying restraining orders can’t prevent public officials’ performing their statutory responsibilities.
“Ths request seeks to impermissibly restrain the town and board of elections from exercising governmental functions and performing statutorily mandated duties in accordance with requirements of the election law,” Mancuso wrote.
However, court documents state if a court decides a public body violated the state Open Meetings Law, a judge has authority to declare any action taken void.
Mathey argues that the board met secretly Aug. 7 when it discussed the question of a referendum to eliminate Mathey’s post, violating the Open Meetings Law, and requests the judge restrain the defendants from “issuing, promulgating, and promoting the void resolution.” This would in turn invalidate the Aug. 7 resolution.
Mathey also requested the court direct the Cortland County election commissioners and the Cortland County Board of Elections to remove the Aug. 7 resolution from the Nov. 7 ballot. However, the ballots have already been printed.
The meeting, Mathey argues, was improperly publicized. Discussion of cutting the judge’s seat was not a listed agenda item. The meeting lasted four minutes. Minutes of that meeting show one of several issues discussed with DelVecchio was to eliminate Mathey’s position.
DelVecchio revealed at the Aug. 7 meeting that he and the board met to discuss Mathey, possibly violating attorney-client privilege, Mathey’s attorney says.
DelVecchio, Mathey says, threatened to use his influence to oust her after she denied evictions for rental properties he owns in Cortlandville. Mathey also asked the court to sanction DelVecchio for unprofessional conduct.
“He has tried to fulfill his threat by influencing the town board to take improper actions,” Mathey wrote in her deposition.
According to court documents DelVecchio tried in March 2020 to evict a tenant from one of his family’s properties, but failed to meet the strict state requirements during the COVID-19 pandemic. Mathey rejected his request.
Mathey says in court documents DelVecchio and his father, John DelVecchio,began retaliating against Mathey and the Town Court Clerk’s Office, alleging verbal abuse and unreasonable demands.
In March, the Cortlandville Town Board made public that it was considering cutting Mathey’s seat, claiming the court saw “substantial financial losses” without providing data. It repeated that reasoning in a September newsletter.
“More importantly, the courts are not intended to be sources of revenue,” Mathey said. “If this policy is reversed, judges will be intimidated into assessing higher fines to satisfy the town board, rather than assessing fines appropriate to the offense.”
