LOWVILLE Lewis Countys suspended Democratic election commissioner has taken legal action against the county to get her job back.
Elaine McLear, in a state Supreme Court lawsuit filed by Rome attorney John G. Leonard last week in the Lewis County clerks office, is asking a judge to rule that she was improperly removed from her post, that she should continue to serve as commissioner and that she is entitled to back pay and benefits from the past six months.
County government is entitled to appoint election commissioners under state law, the lawsuit states.
However, the state Legislature reserved the right to remove an election commissioner, not to county government, but to the governor, thereby denying such authority to the counties, it adds.
The suit claims an election commissioner may be removed midterm for cause in the same manner as an elected sheriff, with the governor authorized to do so only after giving the official a copy of charges and the opportunity to challenge them.
County Attorney Richard J. Graham on Monday declined to comment on specifics of the case, saying he had just been served paperwork on it.
State Supreme Court Judge James P. McClusky, Watertown, is to hear the case, with a tentative hearing date set for July 26 at the Lewis County Courthouse, Mr. Graham said.
Mr. Leonard could not be reached for comment Monday.
The lawsuit specifically names County Manager David H. Pendergast, who notified Mrs. McLear of the suspension both by telephone and in writing, and the Board of Legislators as defendants.
Mrs. McLear, New Bremen, who has been the Democratic commissioner since 1997, was suspended without pay Dec. 28 pending the results of a state police investigation into allegations she had authorized payment for services not provided by a worker in last years general election.
Potential prosecution from the investigation was turned over to the state attorney generals office, as the district attorney like the sheriff is an elected official who has direct dealings with the Board of Elections.
County officials were uncertain of the status of the probe, and an email sent Monday afternoon to the attorney generals press office received no response.
The current two-year terms for both Mrs. McLear and Republican Commissioner Ann M. Nortz expire at the end of this year.
County legislators in January, at the written request of county Democratic Chairwoman Linda M. Sandri, appointed Democratic election specialist Lindsay I. Burriss as temporary election commissioner to replace Mrs. McLear on an interim basis.
Lawmakers typically make election commissioner appointments based on the recommendation of local Democratic and Republican committee members.