Schenectady County District Attorney Robert Carney sent materials on Thursday to a state administrative judge to decide whether a special prosecutor should investigate the incident involving Mayor Gary McCarthy.
Public Safety Commissioner Wayne Bennett said on Thursday that it would be inappropriate for him to get involved and that a special prosecutor should conduct an investigation.
Carney said he forwarded Councilman Vince Riggi's letter calling for an outside investigation, along with a Daily Gazette article and editorial, to Deputy Chief Administrative Judge Michael Coccoma.
"I sent the judge an affirmation, which has the letter attached to it," Carney said. "It's an affirmation from me indicating that there have been calls for a probe of what happened and that I'm clearly conflicted from the ability to do that. I'm asking the judge to appoint a special prosecutor."
McCarthy worked with Carney, a fellow Democrat, in the DA's office as an investigator for more than 20 years.
Carney said Judge Vito Caruso, administrative judge for the 4th Judicial District, recommended Carney send the materials to Coccoma for consideration.
Coccoma, of Cooperstown, currently presides over felony jury trials in Supreme Court in Schenectady County. Coccoma is responsible for managing operations of trial-level courts in the 57 counties outside New York City.
The probe would seek answers about the May 19 incident of McCarthy following Sarah Dingley, 38, of Rotterdam, and her friend to Schenectady Police headquarters. Dingley claims McCarthy was intoxicated.
McCarthy admitted that he followed the women from Lexington Avenue to the police station but said he was not intoxicated. He said he believes they were possibly picking up garbage, breaking into cars or doing drugs.
Dingley told the Gazette she left a friend's house on Nott Street around 1 a.m. that day and first spotted McCarthy following her on Lexington Avenue, where McCarthy lives. Dingley said she never got out of her vehicle.
Police questioned McCarthy and the two women separately after they arrived at the station. It's unclear what was discussed. Police have declined to answer questions about the incident. No charges were filed. There is no police report and a Breathalyzer test was not given.
Carney said he also sent the judge a Gazette article that quotes Dingley requesting an outside probe along with a Gazette editorial that calls for the state attorney general to investigate the incident.
"My reading of the law is that the attorney general can only get involved in a couple of ways," Carney said.
That includes if the governor superseded the district attorney and appointed the attorney general or if a district attorney asks for the attorney general to assist in an investigation. In the latter case, the district attorney would still have the authority.
Bennett said he decided not to go to the closed-door City Council meeting on Wednesday evening about the incident because the discussion about city police officers' actions could be leaked to the public.
Riggi said the seven-member council agreed during the meeting that an outside investigation is needed.
"There are serious guidelines of how to do personnel investigations," Bennett said. "I'm not going to discuss individual officers in that format because I have no way of keeping that confidential in fairness to them. They deserve not to be tried by social media or any other format that's not legitimate."
Bennett said he told Council President Leesa Perazzo before the meeting that he would not be attending for that reason.
"I'm more than happy to discuss this at the right time in the correct venue," Bennett said.
That would be by special prosecutor, he said.
"Then everybody can get invited in and testify under oath and find out who really has information and who does not," Bennett said.
Perazzo had planned to discuss the incident with the council again, with Bennett, in executive session during a committee meeting on June 6. She said that is no longer on the agenda.
"The only reason for us to discuss it was to ask the commissioner some questions if that path will be taken and now it has been," she said. "We really needed to know whether the commissioner had even gone in that direction. We just want to make sure it's an independent body making an assessment. My anticipation is everyone will be pleased to move forward."
City Corporation Counsel Carl Falotico said it was not a conflict of interest for Bennett to attend the closed-door council meeting.
"It's possible there would be questions asked that would be inappropriate to answer," he said. "If he were at the meeting and declined to answer questions he could have handled it that way."
Falotico said he was not asked as the city attorney whether it was appropriate for Bennett to attend the meeting.
"The labor counsel is not the appropriate counsel to determine that," he said.
Falotico said he spoke with the city's labor counsel, James Girvin, of Girvin & Ferlazzo in Albany, and that he said any city employee could legally attend the meeting.
Girvin declined comment saying he could not discuss conversations with a client.
"There is a lot of theory out there whether we have a witch hunt that's politically motivated," Bennett said. "People are taking sides and don't have the whole story. The correct format is going to be a special prosecutor."
Reach Gazette reporter Haley Viccaro at 395-3114, email@example.com or @HRViccaro on Twitter.