Court records unsealed this month in the wrongful dismissal case of former City Clerk Gary Margiotta fail to explain exactly why he was fired in December of 2006, though various reasons are offered by the four Common Council members who discussed his dismissal on the phone and then made it happen.
In September, after all but two of the council members from that era had departed, and long after Margiotta began serving as assistant clerk in the village of Avon near Rochester, officials voted to settle the case for $125,000. While insurance covered all but the city’s $5,000 deductible, records show the city paid its own special counsel, Albany attorney Bryan J. Goldberger, about $31,000 for work on the case. Those records also show the city’s insurance carrier paid another $87,000 in legal fees.
Margiotta was fired after 16 years as city clerk on Dec. 29, 2006, when then-mayor Tim Hughes and then-councilman-at-large James Handy appeared at his office and, without explanation, had a police officer escort him out of the building.
It was later revealed that Handy and three allies on the Common Council had talked by telephone before the action was taken; other council members had not been informed or given any explanation for the action. In 2007, Margiotta filed suit against the city, seeking unspecified compensation on the grounds of wrongful dismissal.
Former Republican 2nd Ward Councilman Lance Gundersen, one of the four to join in the consensus to dismiss Margiotta, said Thursday he has some regrets about the way the dismissal was handled and admitted, “I kick myself often,” when he ponders the chain of events.
If he could do it over, Gundersen said he would have moved to table action at the Jan. 2 organizational meeting after learning that Handy had failed to call the three-member council minority.
“We should never have voted on it until everybody was equally informed … I wish we had done that,” Gundersen said.
Handy had polled his three colleagues and council allies on the phone before arranging to have a police officer escort Margiotta from his office on the last business day of 2006.
He asserted Tuesday that there were no grounds for an appointed official to challenge the dismissal and win a settlement.
“I don’t think there was a means or a merit [to the case],” Handy said, expressing no regrets about failing to include the three members of the council minority. Though Margiotta was escorted out of City Hall on Dec. 29, Handy continues to point out that actual dismissal did not occur until the council voted 4 to 3 at the Jan. 2 organizational meeting.
Margiotta, whose dismissal triggered months of controversy, said he has adjusted to his new position in Avon and would rather not discuss the case.
“It was a trying time,” he said, adding, “I have pretty much put it behind me.”
The court records — mainly depositions given by city leaders serving at that time — have been sealed since 2008 on the basis of a motion by the city’s attorneys. In a June 14 decision on an appeal filed by The Daily Gazette, U.S. District Court Judge David N. Hurd vacated the protective order issued by his colleague, Magistrate Judge George H. Lowe, and allowed access to the documents.
“The magistrate judge issued the protective order to protect the defendants … from ‘embarrassment and annoyance,’ ” Hurd noted in the decision. “Such an order might be appropriate during a pending action in order to promote settlement and to insure a fair trial without any prejudicial publicity. It is not appropriate to protect public officials in the performance of their public duties after the case has been settled.”
“The public has a right to know the actions of their elected public officials and others which results in a legal action and a settlement by a municipality … public officials cannot hide behind ‘embarrassment and annoyance’ in the performance of their public duties,” Hurd ruled.
Margiotta’s lawyer, Elmer Robert Keach III, argued in this case that former Mayor Hughes conspired with Handy to fire Margiotta because the clerk readily made city records available to former city councilwoman Shirley Savage, who then used them to criticize other city officials. Savage is now a Fulton County supervisor, representing Gloversville’s 4th Ward.
Depositions unsealed in the case show that Savage’s colleagues were generally irritated by her practice of filing regular Freedom of Information requests with Margiotta and then using information to badger other officials.
But, in his deposition, Gundersen said he considered Margiotta a leak: “the basis [for supporting dismissal] would be the fact that information was finding its way into the media that should not have been finding it there … and there was only one real person who could provide that information.”
Former councilwoman Cynthia Morey, R-1st Ward, a close ally of Gundersen’s, testified in her deposition that she and Gundersen were surprised to learn that after the phone calls from Handy, that Handy and Hughes took immediate action against Margiotta and did not wait for the Jan. 2 vote.
“Because Mr. Handy had indicated that he would contact the other three … and he apparently did not contact them … and we felt as if he not only owed the other three an apology, but he also owed us an apology,” she testified.
In his deposition, reflecting on his and Morey’s discovery that Margiotta was fired without formal council action, Gundersen testified, “I got the impression that both of us had a sense of impending doom … that it was a decision that probably was going to have some fatal consequences.”
While Gundersen has testified he considered Margiotta a leak, Morey said in her deposition that she was dissatisfied with Margiotta’s response in preparing meeting minutes and believed he was “burnt out,” at times insubordinate, and subject to outbursts.
Handy, who wrote a letter to the editor of a newspaper following the firing to say it was “in the best interest of the community,” and based on “facts I don’t care to reveal at this time … maybe never,” testified in his deposition that he was angry Margiotta failed to assist Handy’s brother obtain a marriage license when the brother arrived at the clerk’s office after the 3 p.m. daily deadline. Margiotta set the deadline.
Handy also testified about instances in which he considered Margiotta to be insubordinate — once over the clerk’s role in monitoring the status of tabled resolutions and once while advocating for a raise for his deputy clerk.
The late councilwoman Lou Ann Warren, R-5th Ward, testified that she witnessed Margiotta being rude to two customers at his counter. “Gary was actually very rude and very … abrupt with two customers,” Warren testified, also recalling a second instance in which a member of the council barged into the clerk’s office to rummage through personnel records, ignoring Margiotta’s protests. “That was a total lack of control of the office,” Warren said.
Warren also cited Margiotta’s effort to get his subordinate a raise, recalling “his jugular veins were sticking out, and he started screaming and his voice got louder and louder.”
‘Ax to grind’
But Savage said the grounds cited for the dismissal “were a joke.” Citing Margiotta’s efforts for the city, including successful grant writing that won the city hundreds of thousands of dollars over the years, Savage said, “they had an ax to grind against me … they couldn’t get to me so they went after Gary and it cost the taxpayers.”
If the council majority was so insistent about firing Margiotta, she said, “all they had to do was call him and tell him he would not be reappointed. They left a bad taste in the taxpayers’ mouths.”
Hughes could not be reached for comment, but he testified he was not involved with Handy and the council majority in making the decision to fire Margiotta.
About his relationship with Savage, he said, “you have your good days and your bad days.”
When he and Handy arranged for a police officer to escort Margiotta, Hughes said he considered it proper protocol and viewed himself as “the bearer of bad news.”
Hughes said “it was standard procedure. It protects both sides … nobody can say you did this or you did that.”
Former councilman Patrick Clear, reflecting on the case before the settlement, said, “I have always felt that a conspiracy existed in the matter and that all the players and the truth are yet to be disclosed.”
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