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Court: Assistant DA can’t serve

MAYVILLE — First Assistant District Attorney Michael Flaherty has been ruled “not qualified” to serve due to a residency requirement for public officials who work in the District Attorney’s office.

Judge David Foley delivered the ruling Friday after Christopher Belling, Chautauqua County counsel assistant district attorney, suggested some legal opinions argue that Flaherty does not have to be a resident of Chautauqua County since he is not in line to succeed District Attorney Patrick Swanson as John Zuroski, chief assistant district attorney, is entitled to do by virtue of his office. Foley disagreed and cited article three of Public Officers Law in New York as basis for his ruling and reinforcement of state law that requires all ADAs to have residency if not exempt from the law.

Flaherty’s counsel argued that the article was outdated, underlining a view from the District Attorney’s office as a whole. Friday’s hearing in Chautauqua County Court followed a failed resolution brought by Swanson to the Chautauqua County Legislature to allow him to hire up to four additional ADAs who would be allowed to reside outside of the county.

At that time, it wasn’t revealed that the already employed Flaherty, who has served in his position since September, was already in violation of state law by living outside of the county and serving Chautauqua’s DA’s office. An exemption was never granted by the state legislature for the residency requirement. Seventeen of 62 counties and New York City boroughs are exempt from the requirement and can allow attorneys to work and live in separate counties.

Belling said this hearing waded into “uncharted territory” and that discretion should be given to Flaherty. He said these decisions should be made on a case-by-case basis when residency requirements are being argued.

“Can an ADA reside outside of the county?” he posed at Friday’s hearing.

After a short recesses, Foley returned with his decision and cited additional Attorney General opinions that supported his ruling. He said ADAs are required to live in the county. With his ruling that Flaherty is “not qualified” to serve as an ADA, Foley said Flaherty will not serve on future cases due to the residency requirement. He also asked why Swanson did not appear to support his ADA, and Swanson later said that Foley does not have the authority to remove Flaherty from his position entirely.

“This isn’t really a very pleasant thing for me to have to deal with,” Foley said before he delivered his ruling.

Flaherty and Foley gave no additional comments after the hearing. Foley did call out Belling as well for not being a resident and working as an ADA in the county. More hearings on ADAs not living in the county could follow, and Swanson said he will continue to work on gaining the exemption from the state law, so his current and future ADAs can work. He reiterated that he wants the “most qualified people” to work in his office.

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