FROM: HOLLEY CARNRIGHT
DATE: JUNE 27, 2013
RE: PRESS RELEASE –MAYOR JASON WEST
On May 7, 2013
Village of New Paltz Mayor Jason West voted in the New Paltz Village election
at a time when he was not residing in the Village of New Paltz. That matter was referred to my office for
investigation and possible criminal prosecution for a violation of NYS Election
Law.
Under NYS Election
Law, it is a felony to vote in an election when that individual is not
qualified to vote. A person who does not
reside in the election district is not qualified to vote. The question presented in this investigation
is whether Mr. West knowingly and unlawfully voted in the May village election
when he was not qualified to do so since he was no longer residing in the election
district.
What is clear from
our investigation is that Mr. West had been evicted from the village address
under which he was registered to vote on January 6, 2013, some five months
prior to the election. It is also clear
in the months leading up to the election Mr. West attempted to relocate his
residence to a different address within the village.
Mr. West cooperated
with our inquiry. He readily admitted
moving out of the village in January but stated that he had always intended to
return and considered that his “legal” residence, for the purpose of voting,
remained in the village. To support that
claim the Mayor stated he had been “couch surfing”, a term to which I had been
heretofore unfamiliar. Apparently “couch surfing” is a term that the Mayor uses
to describe his residing in a series of temporary locations with various
friends. At the time of this writing
Mayor West has in fact moved back into the Village of New Paltz.
The issue in the
case is how New York State defines the term “residence” and whether Mayor West
intentionally violated the Election Laws.
The seemingly clear
definition of “residence” found in NYS Election Law section 1-104(22), to wit, “….that
place where a person maintains a fixed, permanent, and principal home and to
which he, wherever temporarily located, always intends to return” has been
muddied by various NYS and Federal court cases.
For example, our esteemed courts have determined that college students
living in a college dormitory fit the definition of “residence” as defined in
our Election Law even though it strains the imagination to suggest that
dormitory residences would be their permanent home to which they always intend
to return.
However, our
analysis of the May voting by Mr. West is, in my judgment, not determined by
his professed “intent to return” to the village. While it is true that the definition
of “residence” contained in the Election Law comes from traditional notions of
domicile-that a person’s residence is dependent upon that person’s expressed intent
and conduct, it is also true that a “crucial factor in determining whether a
particular residence complies with the requirements of the Election Law is that
the individual must maintain an intent to reside there coupled with physical
presence without any aura of sham.” People v O’Hara 96 NY 2d 378
Mayor West advised,
and we have confirmed, that before voting he had counseled with an attorney regarding his situation viz-a-viz whether he would be able to
vote in the village election. According to Mayor West, that
attorney advised the Mayor
that since he was only temporarily out of the election district and intended to
return there, he could lawfully vote.
In conclusion, were
this an application to a court of appropriate jurisdiction to invalidate Mr.
West’s vote, I opine that said vote would be determined invalid. However, that
is not the matter before me. Before me is the question whether Mayor West
should be prosecuted for committing a felony. In my opinion, he should not be.
The NYS Attorney
General’s Office has a public integrity unit created for the investigation and
prosecution of these types of fact patterns when they involve elected
officials. Before releasing my decision
not to criminally prosecute the Mayor I conferred with that office and offered
to refer the matter to them. They have
advised that they are not inclined to review my decision.
