Supreme Court, Rockland County, April 28, 2023

Daniel Szalkiewicz & Associates, P.C., New York City (Daniel S. Szalkiewicz of counsel), for petitioners.

Lawrence A. Garvey & Associates, P.C., New City (Lawrence A. Garvey of counsel), respondent pro se.

Ugell Law Firm, P.C., New City (Scott B. Ugell of counsel), respondent pro se.

Bleakley Platt & Schmidt LLP, White Plains (Matthew G. Parisi of counsel), for Rockland County Board of Elections.

This special proceeding brought by petition and order to show cause filed on April 20, 2023, under Election Law §§ 16-100, 16-102 and 16-116 by petitioners, Emily King and Justin Sweet (collectively petitioners), seeks an order:

"(1) Declaring insufficient, defective, invalid, null, and void the designating petition filed with the Board of Elections of the County of Rockland ('the Board'), purporting to designate Respondent SCOTT B. UGELL ('Ugell') as a candidate for the Public Office of SUPERVISOR CLARKSTOWN in the Republican Primary Election to be held on June 27, 2023; (2) Declaring insufficient, defective, invalid, null, and void the designating petition filed with the Board of Elections of the County of Rockland, purporting to designate Respondent LAWRENCE A. GARVEY ('Garvey') as a candidate for the Public Office of SUPERVISOR CLARKSTOWN in the Republican Primary Election to be held on June 27, 2023; (3) Enjoining, restraining, and prohibiting the ROCKLAND COUNTY BOARD OF ELECTIONS from printing and placing the name of said Respondents SCOTT B. UGELL and LAWRENCE A. GARVEY on the official ballots to be used at the June 27, 2023 Primary election [sic]; and (4) Granting such other and further relief as to this Court may seem just and proper in the premises."^[FN1] (NY St Cts Elec Filing [NYSCEF] Doc No. 5.)

For the reasons set forth below, and upon the papers and all proceedings held herein, the petition, as amended, to invalidate the designating petitions purporting to nominate Scott B. Ugell as the Republican candidate for Supervisor Clarkstown in the June 27, 2023 primary election and, upon his declination, to substitute Lawrence A. Garvey in his stead, is hereby granted in all respects. The designating petitions are [*2]declared invalid, null and void. The Rockland County Board of Elections is{**79 Misc 3d at 845} hereby enjoined, restrained and prohibited from printing and placing the name of either Scott B. Ugell or Lawrence A. Garvey on the official ballots to be used at the June 27, 2023 primary election for the Republican Party nomination for the office of Supervisor Clarkstown.

Following assignment of the instant Election Law matter, the court held a conference on April 21, 2023, to discuss the allegations of the petition and to address scheduling issues in light of the directive from the Honorable Hector D. LaSalle, Presiding Justice of the Appellate Division, Second Department, that all determinations in Election Law proceedings related to the June 2023 primary elections must be decided no later than April 28, 2023. At the conference, and throughout these proceedings, petitioners were represented by Daniel S. Szalkiewicz, Esq. Respondents Ugell and Garvey, both attorneys, appeared and represented themselves. The Board of Elections and the two Election Commissioners, Patricia A. Giblin (the Republican Commissioner) and Kathleen Pietanza (the Democratic Commissioner), appeared by the Rockland County Attorney's Office and in person for the conference.^[FN2]

The court was advised that there were, essentially, two challenges to the designating petitions for Ugell, who had declined the nomination and was replaced by Garvey as the candidate by the Committee on Vacancies which was specified in the designating petitions.^[FN3] Petitioners alleged that Ugell was ineligible to run for the position of Supervisor Clarkstown for two reasons. First, petitioners contend that because Ugell is currently an elected, sitting Justice of the Clarkstown Town Court, he cannot run for a second office in Clarkstown because he is barred by the Town Law from holding two elective positions within the Town of Clarkstown simultaneously. Second, petitioners contend that Ugell is ineligible to run for Supervisor Clarkstown because, as a sitting Town Justice, he is precluded from seeking a nonjudicial office without resigning his judicial office. As stated in petitioners' specific objections filed on April 20, 2023, section 2.2.7 of the Judicial Campaign{**79 Misc 3d at 846} Ethics Handbook of the New York State Advisory Committee on Judicial Ethics (2023 ed) (Handbook) provides:

"A judge must resign from judicial office on becoming a candidate for elective non-judicial office either in a primary or in a general election, other than that of a delegate in a State constitutional convention (22 NYCRR 100.5[B] . . . ) . . . A judge who authorizes or knowingly permits their name to appear on a publicly circulated nominating petition as a candidate for nonjudicial office is a 'candidate' under the Rules Governing Judicial Conduct and thus must resign from judicial office. If the judge does not wish their name to appear on the nominating petitions, the judge must object in writing to the appropriate political party leaders (Opinion 21-50)" (NYSCEF Doc No. 4).

Petitioners' specific objections continued, stating that "[t]he nomination of a candidate who is statutorily ineligible to serve is a nullity." (NYSCEF Doc No. 4 ¶ 2, citing Matter of Brayman v Stevens, 54 Misc 2d 974 [Sup Ct, Dutchess County 1967], affd 28 AD2d 1095 [2d Dept 1967].) [*3]Thus, petitioners alleged, the "petitions purporting to nominate Scott Ugell for Supervisor, Town of Clarkstown, are invalid." (Id.) Petitioners posit that if the named candidate's petitions are invalid, so, too, is any attempt to name a substitute candidate. Petitioners' counsel advised the court that Garvey, acting for the Committee on Vacancies, filed a certificate designating himself as the substitute candidate after Ugell declined the nomination. Petitioners contended that because Ugell was ineligible to run for the office, the designation of Garvey as substitute candidate is similarly fatally flawed.

Petitioners also alleged that Ugell had not secured the requisite 500 signatures to be placed on the ballot since petitioners had challenged 496 of the 777 signatures which were submitted. Upon inquiry at the conference, the court was advised that the Board of Elections had not completed its review of the signatures but expected to do so later in the day.

Ugell advised the court that he had not sought to be named on the designating petitions and upon learning that he had been nominated by filed petitions, immediately filed a declination of nomination.^[FN4] Ugell denied collecting any signatures on any designating petitions and informed the court that he was{**79 Misc 3d at 847} aware that, as a sitting elected Town Justice, he could not seek another office without resigning his position. Garvey advised the court that he had inserted Ugell's name on the designating petitions which were circulated because Ugell was already a Town-wide elected official, and he was known throughout the Town. Ugell informed the court that he would be available to any party to give testimony at any scheduled hearing, but he would not be participating further.

At the conclusion of the conference, the court scheduled a hearing to examine the challenged signatures, if necessary, to commence on April 24, 2023, at 11:00 a.m. In addition, the parties were directed to submit simultaneous briefs on the legal question of Ugell's eligibility to be a candidate and, concomitantly, Garvey's designation as substitute candidate, by April 25, 2023, at 10:00 a.m.

On April 24, 2023, the parties (sans Ugell) returned to court as scheduled. Petitioners' counsel advised the court that the challenge to the number of valid signatures was being withdrawn. Counsel further advised that a review of the designating petitions revealed an additional basis for challenging Ugell's nomination, because petitioners learned that Evelyn Ugell, Ugell's wife, had carried designating petitions for Ugell. Mr. Szalkiewicz alleged that this fact, combined with Ugell's denial of being an active candidate as previously stated on the record in open court, constituted fraud. Consequently, Mr. Szalkiewicz moved to amend the petition to add an allegation of fraud. Garvey acknowledged that he had been made aware of the impending request to amend the petition herein on Sunday, April 23, 2023, and had, in fact, informed Ugell of the reported discovery of the petitions carried by Mrs. Ugell.

Petitioners contend that Ugell's denial of active candidacy was falsified by the fact that Mrs. Ugell carried petitions for Ugell.^[FN5] Petitioners contended that Ugell was, or should have been, aware of the fact that petitions were being circulated for him as a candidate and therefore, his disavowal of an active candidacy called into question the legitimacy of all of the designating petitions as fraudulent. Because the application to amend came within the period allotted for [*4]objections, Garvey did not object to the amendment.{**79 Misc 3d at 848}

The court extended the time for the parties to submit their letter briefs to 11:00 a.m. and extended the page limit to 10 pages in light of the addition of the fraud allegation. Garvey was instructed to inform Ugell of the amendment to the petition so that he could, if so advised, submit papers.

Upon consideration of the issues and after review of relevant case law, the court determined that a hearing was required. Consequently, a court notice directing the parties and Mrs. Ugell to appear for a hearing on April 26, 2023, at 2:00 p.m. was posted on NYSCEF on the morning of April 25, 2023. (NYSCEF Doc No. 6.)

Petitioners' counsel and Garvey filed their letter briefs timely. (NYSCEF Doc Nos. 7, 8.) Ugell did not submit any papers.^[FN6]

The Parties' Briefs

Petitioners' brief starts with the axiomatic statement that a person who is ineligible to run for office should not be designated as candidate for that office. (NYSCEF Doc No. 7, citing Election Law § 6-122.) Petitioners state that Town Law § 20 (4) prohibits an individual from holding more than one elected position within a town at a time. Town Law § 20 (4) provides, in pertinent part, "[n]o person shall be eligible to hold more than one elective town office."

Relying on Matter of Nichols v Bacon (175 AD3d 831 [3d Dept 2019]), petitioners posit that this rule is grounded in the separation of powers. Petitioners distinguish this case from cases such as Matter of Phillips v Suffolk County Bd. of Elections (21 AD3d 509, 510 [2d Dept 2005]), which involved the rule prohibiting "incompatible candidacies" where an individual seeks election to two positions simultaneously. Petitioners assert that since Ugell currently holds a position within the Town, he is ineligible to seek or hold another position within the Town.

In addition, petitioners restate their contention that Ugell is ethically ineligible to run for Supervisor Clarkstown because of his status as a sitting Town Justice. In support of that assertion, they refer indirectly to the Rules Governing Judicial Conduct, which prohibits a sitting judge from running for a{**79 Misc 3d at 849} nonjudicial position. In addition, petitioners assert that a hearing is necessary given Ugell's "inconsistent statements." (As noted above, by the time the parties filed their briefs, the court had scheduled a hearing.) With respect to the need for a hearing, petitioners point to Ugell's statement in open court to the effect that he had no intention of running for Supervisor Clarkstown and the fact that Mrs. Ugell witnessed a designating petition sheet, two facts that appear inconsistent on their face. Finally, petitioners argue that to prevent a fraud on the electorate, the entire nominating petition should be invalidated, thus eliminating both Ugell and Garvey as potential candidates.

Contrary to Ugell's statement to the court that he had no intention of running for Supervisor Clarkstown, Garvey asserts that Ugell was aware of, and supported, circulation of petitions which bore his name. On this basis, Garvey contends that there has been no fraud or impropriety because Ugell could have, if elected, resigned from his position as Town Justice. Thus, he argues, there is no basis for disqualification of either Ugell as the nominated candidate [*5]or of Garvey as the substitute candidate. Garvey asserts that any claim that he and Ugell conspired to accumulate signatures for Ugell in anticipation that Ugell would decline the nomination so that Garvey could become the candidate is illogical.

Garvey asserts that Ugell did not violate any judicial ethics rules by allowing his name to be used to solicit signatures. Garvey contends that Ugell was not bound by section 2.2.7 of the Handbook because he had not yet become a candidate. To reach this argument, Garvey recites the definition of "candidate" from the Handbook provided for in section 2.2.1, urging that the definition would appear to exclude Ugell under these circumstances. Section 2.2.1 provides: "A person becomes a candidate for public office under the Rules as soon as he or she makes a public announcement of candidacy or authorizes solicitation or acceptance of contributions. The definition of candidate does not in any way depend on obtaining a political party's nomination or support." (Judicial Campaign Ethics Handbook of the New York State Advisory Committee on Judicial Ethics § 2.2.1 [2023 ed] [internal quotation marks and citation omitted].)

Using this definition, Garvey argues that Ugell was not a candidate because he neither announced a candidacy nor solicited or accepted contributions. Thus, Garvey argues that Ugell was not prohibited by section 2.2.7 from running. In this{**79 Misc 3d at 850} regard, Garvey quotes a portion of the rule as follows: "A judge must resign from judicial office on becoming a candidate for elective non-judicial office either in a primary or in a general election, other than that of a delegate in a State constitutional convention." (NYSCEF Doc No. 8, Garvey mem at 5.)

Garvey continues, stating that he "maintains unequivocally that he had no knowledge that Respondent Ugell intended to decline the nomination. Furthermore, Respondent Garvey does not believe that Respondent Ugell intended to decline the nomination of the Republican Party." (NYSCEF Doc No. 8, Garvey mem at 6.)

On April 26, 2023, the court took testimony in an effort to resolve this petition, and most particularly to attempt to resolve the inconsistency between Ugell's total disavowal of any candidacy or intention to be a candidate on the record on the initial return date, as juxtaposed to Garvey's assertion that Ugell knew that petitions were being circulated for him. Although the court directed Mrs. Ugell to appear, she did not. Thus, testimony was taken only from Ugell and Garvey.

Ugell's Eligibility

Petitioners argue that pursuant to Election Law § 6-122,^[FN7] Ugell could not be designated or nominated for the position of Supervisor Clarkstown because he is not eligible to be elected to the position under Town Law § 20 (4), or by virtue of section 100.5 of the Rules Governing Judicial Conduct, as referenced in section 2.2.7 of the Handbook.[*6]

Town Law § 20

Town Law § 20 (4) provides that "[n]o person shall be eligible to hold more than one elective town office." The elective town offices are specifically enumerated in Town Law § 20 (1): "[t]he supervisor, town counsel members, town clerk, town justices, town superintendent of highways and receiver of taxes and assessments{**79 Misc 3d at 851} in every such town shall be elective." (Emphasis added.) Petitioners contend that, as a result of currently holding the position of Town Justice in the Town of Clarkstown, Ugell is ineligible to be a candidate for the position of Supervisor Clarkstown.

Garvey concedes that Ugell could not continue to hold the position of Town Justice after being sworn in as Supervisor Clarkstown and would have to resign his judicial office; however, he contends that it did not bar Ugell from seeking nomination to that elected office. Garvey asserts that Ugell's designating petition was not a nullity because he could resign as Town Justice after being nominated but before being elected to the position of Supervisor Clarkstown. Garvey cites Matter of Walker v Furst (64 Misc 2d 186, 190 [Sup Ct, Rockland County 1970], mod 35 AD2d 727 [2d Dept 1970],^[FN8] affd 27 NY2d 805 [1970]), which held that Election Law § 147 (currently § 6-122) did not render a person who holds one position ineligible to run for a second position when they are prohibited by law from holding both positions simultaneously.

Walker involved the issue of whether the Mayor of the Village of Suffern was eligible for nomination to the position of County Legislator, following a plan to reapportion the Rockland County Board of Supervisors and reorganize it as a County Legislature. The petitioners therein contended that the Village Mayor was ineligible to be nominated for the office of County Legislator pursuant to a provision in the plan which stated that "[n]o county legislator shall be eligible to hold at the same time any other elective federal, state, county, town, village or school district office except for the duly elected supervisors of the towns." (Walker, 64 Misc 2d at 187.) The provision in the plan was contrary to a provision in the Village Law which stated that "no person shall be disqualified from holding a village office by reason of holding any public office unless there results a conflict of interest." (Id. at 188.) The court stated that if the plan's provision controlled, the Village Mayor was not eligible to hold his office simultaneous with serving as County Legislator. Conversely, if the Village Law controlled, the Village Mayor was eligible to hold and run for the office of County Legislator. (Id. at 189.) The court held,{**79 Misc 3d at 852} based on its finding that the plan did not contain a specific prohibition on seeking election to the legislative position while retaining the village position and the Village Law permitted it, the Village Mayor was eligible for the nomination to the County Legislator position. The court stated that "[i]f the holding . . . were otherwise, no person holding public office in this State would be eligible to be nominated to a different public office." (Id. at 190.)

This issue was addressed in an Attorney General opinion (1984 Ops Atty Gen No. 84-27, 1984 WL 186584, 1984 NY AG LEXIS 65 [addressed to Jean Mary Reinhardt]) (AG Opinion), which considered the question of whether a provision in a city charter which stated that a member of the police or fire department could not hold any other office or be employed by any other department of the city disqualified the member from being a candidate for public office. The AG Opinion conducted a review of the [*7]applicable case law, beginning with People v Purdy (154 NY 439 [1897]), wherein the Court of Appeals held that a Town Law provision which stated that "no trustee of a school district shall be eligible to the office of supervisor of any town or ward of the state" precluded a school trustee from being elected to the prohibited office. (1984 Ops Atty Gen No. 84-27, 1984 WL 186584, *1, 1984 NY AG LEXIS 65, *2.) The AG Opinion referenced Matter of Clancy v Sloan (273 NY 152 [1937]), which is of particular relevance here, as it interpreted a similarly worded Town Law provision to that which is at issue here: "no person shall be eligible to hold more than one elective town office." (1984 Ops Atty Gen No. 84-27, 1984 WL 186584, *2, 1984 NY AG LEXIS 65, *3.)

In Matter of Clancy, the Court of Appeals held that the provision in the Town Law regarding eligibility to hold office did not prevent an elected town official from being a candidate for a different town office. The Court of Appeals stated that the "sole question presented [was] whether Clancy was disqualified or incapacitated to be a candidate for the office of Supervisor while holding the elective office of Assessor of the same town." (273 NY at 154.) The Court of Appeals held that the language of Town Law § 20 (4) did not speak to the eligibility to seek another town position; rather, it "has reference to the time the elected candidate takes office, and not to the time when he is elected to office." (Id. at 155.) The language at issue in Clancy is the same language at issue here: "This is what it says: 'No person shall be eligible to hold more than one elective town office.' " {**79 Misc 3d at 853} (Id.) As explained in the AG Opinion, the Court of Appeals distinguished Purdy as referencing the eligibility requirements of the office of supervisor, and that "[t]he distinction is the presence of the word 'hold' in the statutes." (1984 Ops Atty Gen No. 84-27, 1984 WL 186584, *2, 1984 NY AG LEXIS 65, *4.)

Matter of Clancy, despite its advanced age, is still good law. That case precisely answers the question that Ugell was not statutorily ineligible pursuant to Town Law § 20 to be a candidate for the position of Supervisor Clarkstown.

Rules Governing Judicial Conduct

Petitioners asserted in their specific objections that section 2.2.7 of the Judicial Campaign Ethics Handbook requires that "[a] judge must resign from judicial office on becoming a candidate for elective non-judicial office." (NYSCEF Doc No. 4, citing Rules Governing Jud Conduct [22 NYCRR] § 100.5 [B] ["A judge shall resign from judicial office upon becoming a candidate for elective nonjudicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so"].) A sitting judge is prohibited by section 100.5 from "participating in any political campaign for any office or permitting his or her name to be used in connection with any activity of a political organization." (22 NYCRR 100.5 [A] [1] [d].)

Taking the position that ineligibility as used in Election Law § 6-122 refers to statutory ineligibility, Garvey argues that section 2.2.7 of "the Judicial Campaign Ethics Handbook is not law." (NYSCEF Doc No. 8 at 4.)

A town justice would not be constitutionally ineligible to be a candidate because that position is not one of the judicial positions enumerated in the NY Constitution as being ineligible "to be a candidate for any public office other than judicial office . . . unless he or she resigns from judicial office."^[FN9] (NY Const, art VI, § 20 [b] [2].) "However, a town justice who [*8]becomes a {**79 Misc 3d at 854}candidate for another elective office without first resigning his or her judicial office is guilty of conduct inconsistent with the proper administration of justice and will be removed for cause." (1A Carmody-Wait 2d § 3:73, citing Matter of Schamel, 46 AD2d 236 [3d Dept 1974].)

No court has yet passed on the question whether a violation of the Rules Governing Judicial Conduct would render a sitting judge "ineligible" to be elected to a nonjudicial public office or position. It bears noting that Election Law § 6-122 states that "[a] person shall not be designated or nominated for a public office or party position who . . . (2) is ineligible to be elected to such office or position." That provision does not restrict ineligibility to either constitutional or statutory grounds, though these grounds have been referenced in the case law. (Brayman, 54 Misc 2d at 977.)

[1] This court finds that section 100.5 of the Rules Governing Judicial Conduct rendered Ugell ineligible to be a candidate for nonjudicial public office. The Preamble to the Rules of the Chief Administrator of the Courts, part 100, Judicial Conduct, explicitly states that "[t]he text of the rules is intended to govern conduct of judges and candidates for elective judicial office and to be binding upon them." (Emphasis added.) Section 100.5 (A) (1) (d) provides as follows:

"(1) Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity except (i) as otherwise authorized by this section or by law, (ii) to vote and to identify himself or herself as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice. Prohibited political activity shall include: . . .

"(d) participating in any political campaign for any office or permitting his or her name to be used in connection with any activity of a political organization." (22 NYCRR 100.5 [A] [1] [d] [emphasis added].)

The proscription against political activity is clear, unequivocal and binding upon all sitting judges of any court, unlike the constitutional provision in article VI, § 20, which applies only {**79 Misc 3d at 855}to certain judges, and excludes town justices. Because section 100.5 (A) (1) (d) was binding upon Ugell as a sitting judge, and he is charged with the knowledge of its application, it operated to make him ineligible to be a candidate for the office of Supervisor Clarkstown.

The court rejects Garvey's argument that the Handbook does not address obtaining signatures on a designating petition for nonjudicial office. Garvey argues that the Handbook defines a candidate as a person who announces their candidacy or authorizes the solicitation or acceptance of donations, but "does not in any way depend on obtaining a political party's nomination or support." (NYSCEF Doc No. 8, citing Handbook § 2.2.1.) Garvey takes this section of the Handbook, which deals exclusively with an individual's candidacy for judicial office, and seeks to apply it to section 2.2.7, which deals with a judge as a candidate for nonjudicial office, to argue that it was reasonable for Ugell to read the prohibition on becoming a candidate for nonjudicial office to exclude the petition process. What Garvey ignores, however, [*9]apart from section 100.5 of the Rules Governing Judicial Conduct, is the following relevant language of section 2.2.7 of the Handbook:

"A judge who authorizes or knowingly permits their name to appear on a publicly circulated nominating petition as a candidate for nonjudicial office is a 'candidate' under the Rules Governing Judicial Conduct and thus must resign from judicial office. If the judge does not wish their name to appear on the nominating petitions, the judge must object in writing to the appropriate political party leaders (Opinion 21-50)."

Therefore, Ugell was clearly in violation of the Rules Governing Judicial Conduct by acquiescing or turning a blind eye to the circulation of designating petitions for nonjudicial public office with his name as the candidate.

Accordingly, the petition is granted on the ground that Ugell was ineligible to be a candidate for the public office of Supervisor Clarkstown.

Even if the court were to find that Ugell was not ineligible based on his violation of section 100.5 of the Rules Governing Judicial Conduct, the petition to invalidate the designating petitions must be granted based on: (1) the perpetration of a fraud that permeated the nominating practice, and (2) Ugell's knowledge of, and participation in, that fraud.{**79 Misc 3d at 856}

Fraud in the Petitioning Process

Petitioners' amendment to their petition contends that the entire designating petition must be invalidated because respondents committed actual fraud upon the electorate by knowingly gathering signatures for an ineligible candidate who never intended to hold the office and filing a petition for the sole purpose to substitute a different candidate.

Petitioners bear the prima facie burden to establish fraud by clear and convincing evidence. (Matter of Felder v Storobin, 100 AD3d 11, 16-17 [2d Dept 2012], citing Matter of Lavine v Imbroto, 98 AD3d 620 [2d Dept 2012], Matter of Finn v Sherwood, 87 AD3d 1044, 1045 [2d Dept 2011], Matter of Testa v DeVaul, 65 AD3d 651 [2d Dept 2009], Matter of Robinson v Edwards, 54 AD3d 682, 683 [2d Dept 2008], and Matter of Hennessey v DiCarlo, 21 AD3d 505, 506 [2d Dept 2005].)

"The inclusion of a candidate's name on a designating petition, without his or her consent, may constitute fraud (see Matter of Richardson v Luizzo, 64 AD2d 942 [1978], affd 45 NY2d 789 [1978]). 'While a single instance of adding another candidate's name without consent, standing alone, has been found insufficient to warrant the invalidation of an entire designating petition' (Matter of Lynch v Duffy, 172 AD3d 1370, 1373 [2019]), a designating petition will be invalidated upon a showing that the entire petition is permeated with fraud (see Matter of Felder v Storobin, 100 AD3d 11, 15 [2012])." (Matter of Ariola v Maio, 195 AD3d 888, 889-890 [2d Dept 2021]; see Matter of Volino v Calvi, 87 AD3d 657, 658 [2d Dept 2011]; Matter of Harris v Duran, 76 AD3d 658, 659 [2d Dept 2010]; Matter of Drace v Sayegh, 43 AD3d 481 [2d Dept 2007].)

Moreover,

"where a candidate's own knowledge or activities are at issue, candidates are held to a higher standard under the Election Law than noncandidates. Absent permeation with fraud, a designating petition may be invalidated where the candidate has participated in or is chargeable with knowledge of the fraud (see Matter of Lavine v Imbroto, 98 AD3d 620 [2012]; Matter of Volino v Calvi, 87 AD3d at 658; Matter of Leonard v Pradhan, 286 AD2d 459 [2001])." (Felder at 15-16.)

In this case, Ugell occupied a position as candidate. Therefore, he is held to a higher standard under the Election Law {**79 Misc 3d at 857} than noncandidates. (Felder at 15.) Furthermore, as a sitting judge, Ugell is required to "personally observe [high standards of conduct] so that the integrity and independence of the judiciary will be preserved." (22 NYCRR 100.1.) Arguably, Garvey's position as Chairman of the Rockland County Republican Party also subjects him to a [*10]higher standard of conduct.

The court held a hearing on April 26, 2023, to resolve the inconsistency between Ugell's total disavowal of any candidacy or intention to be a candidate and Garvey's assertion that Ugell knew that petitions were being circulated for him. Resolution of that issue necessitated the court to assess the credibility of Ugell and Garvey.

"A hearing court's assessment of the credibility of witnesses is entitled to deference, as that court had the advantage of hearing and seeing the witnesses." (Felder at 17, citing Matter of Finn v Sherwood, 87 AD3d at 1045, Matter of Harris v Duran, 76 AD3d at 659, Matter of Drace v Sayegh, 43 AD3d at 482, Matter of Morini v Scannapieco, 286 AD2d 459 [2d Dept 2001], Matter of Walkes v Farrakhan, 286 AD2d 464 [2d Dept 2001], and McGuirk v Mugs Pub, 250 AD2d 824 [2d Dept 1998].)

[2] The court finds that there is clear and convincing evidence that Garvey and Ugell entered into a scheme to utilize Ugell's name recognition within the Town of Clarkstown, based upon his 32 years as a Town Justice and the nine judicial campaigns he participated in, to collect signatures on a designating petition for a position Ugell may never have intended to fill. The impetus for that decision was the extremely short time frame Garvey had to work with to find a replacement candidate for the position of Supervisor Clarkstown after the current Supervisor George Hoehmann was ruled ineligible to run due to the statutory term limit in effect in the Town of Clarkstown. The evidence is compelling that Ugell and Garvey, aware of the ethical issues presented by Ugell's status as a sitting judge, sought advice, not from the judicial ethics hotline whose purpose is to guide judges in their efforts to uphold the high standards of their office,^[FN10] but instead from an Election Law practitioner, John Ciampoli, Esq. The evidence is compelling{**79 Misc 3d at 858} that Ugell and Garvey intentionally sought to skirt the ethical issues faced by Ugell's candidacy with deception, subterfuge, willful blindness and half-truths. Garvey and Ugell urge the court to turn a blind eye to Ugell's Wizard of Oz candidacy, one where Party committee members were instructed by Garvey not to talk to the man behind the curtain—Ugell. Garvey would have this court believe that he was unaware that Ugell did not intend to serve as the candidate until the eve of the deadline for filing designating petitions. Such explanation, in the court's view, is revisionist and designed to avoid an allegation of a petitioning process that was permeated with fraud. The designating petitions are invalid for the further reason that the putative candidate participated in or is chargeable with knowledge of the fraud.

Ugell participated in the fraud or is chargeable with knowledge of the fraud not by getting signatures, announcing or acknowledging his candidacy, or soliciting contributions. He participated by hatching the plot with Garvey, with the advice of Ciampoli, to seemingly avoid the ethical violation presented by his running for a nonjudicial public office without first resigning his judicial position. With Ciampoli's advice, Ugell believed that he could straddle both positions by shielding himself from active participation in the petitioning process, whereby [*11]even his own wife was instructed not to speak with him about the petitions being circulated with his name. That instruction came from Garvey, perhaps not to Mrs. Ugell specifically or individually,^[FN11] but to the group of Party committee members who carried petitions with Ugell's name.

Ugell participated in the fraud when he consulted with Ciampoli, not about whether he could be presented as a candidate for Supervisor Clarkstown, but how the subterfuge could be implemented, given his current position as a Town Justice. Ugell's reasons are irrelevant. Ugell's intent to run and serve are irrelevant. Ugell was not just any candidate, he was a sitting{**79 Misc 3d at 859} judge who was prohibited by the Rules Governing Judicial Conduct from running for nonjudicial office. That fact was, of course, known to Ugell and Garvey, although they pretended otherwise.

Eager to find a substitute candidate on short notice, Garvey undertook what he testified he had never done in his 10 years as Chairman of the Republican Party—he ran someone for public office whom he knew was, or could become, a shadow candidate if Ugell's ethical dilemma was exposed. Garvey's insurance policy against Ugell either changing his mind later^[FN12] or being outed for the ethical violation was the Committee on Vacancies, which had the same vested interest in obtaining a Republican candidate for that public office.^[FN13]

Hearing

The testimony presents a conundrum for the court because Ugell and Garvey's statements are inherently inconsistent with each other. In any case, the testimony reveals that the nomination process was permeated with fraud and/or the putative candidate participated in or is chargeable with knowledge of the fraud, requiring the invalidation of the designating petitions.

Ugell's testimony left much to be desired. Charitably stated, Ugell's testimony was fraught with inconsistency and evasion. In fact, it was almost completely lacking in credibility. Taken as a whole, Ugell's testimony reveals an individual who wanted it both ways, dangling his toes in the pool of candidacy for Supervisor Clarkstown while preserving his sinecure judicial office, despite universally known ethical prohibitions against political activity while sitting as a Town Justice. Ugell's testimony was largely at odds with his on-the-record rejection of any intent to be a candidate and seemed designed to create a defense of ignorance to any proceeding that might be initiated arising from his ethical violation.

On the one hand, Ugell testified that he never intended to run for, or serve as, Supervisor of the Town of Clarkstown. (Tr {**79 Misc 3d at 860}52: 5-8.)^[FN14] On the other hand, he consulted with Ciampoli about [*12]how he could retain his judicial office and simultaneously run for the position of Supervisor Clarkstown, a nonjudicial office. Both Garvey and Ugell testified that Ugell never specifically authorized Garvey to place Ugell's name on the designating petitions. (Tr 52: 9-14; Tr 39: 6; Tr 19: 18-20.) The court believes these statements to be half-truths. Ugell may not have specifically authorized Garvey to place his name on the designating petitions, but it was apparent from the testimony and the witnesses' demeanor and the entirety of the circumstances here that there was an understanding between them that Garvey could do so. Indeed, Garvey testified that "I came away from my conversation with Scott [Ugell] clearly of the belief that if he were offered the nomination, either through petitions, or through a vacancy, he would absolutely accept." (Tr 75: 2-6.) Garvey's impression was later confirmed when Ugell contacted him the week the designating petitions were due to be filed to state that Ciampoli had given them the wrong advice. (Tr 42: 1-6.) These are the pivot points on which the fraud rests.

Garvey advised the court that he began looking for a candidate to run for Supervisor because he had concerns that the Hoehmann petitions might be invalidated based on term limits. (Tr 73-75.) As such, he sought out individuals who might have Town-wide appeal. Garvey stated at the initial appearance that Ugell was one such person, having run nine successful campaigns for Town Justice. More importantly, Ugell had expressed interest in possibly running during a telephone conversation. (Tr 72: 12.) Thus, Garvey had a name that he could put forward as a putative candidate in the designating petitions. However, as reported above, Ugell testified that he never intended to actually run for the office or serve if elected. (Tr 52: 5.)

Both Ugell and Garvey admitted that because of concerns about the legality of Ugell's candidacy, they reached out to Ciampoli, who, while not engaged to provide legal advice, nonetheless offered the opinion that Ugell could run for Supervisor Clarkstown, but only if he did not take an active part in the petitioning process. (Tr 73: 23-74: 4.) Ciampoli allegedly told Garvey that he could put Ugell's name on the petitions and that such action would not constitute an affirmative step by{**79 Misc 3d at 861} Ugell toward participating in the nomination process. (Tr 74: 4, 37: 13.)

Ciampoli's opinion was clearly incorrect as a matter of law, a fact that should have been immediately obvious to Ugell, a Town Justice for 32 years, and to Garvey, the Chairman of the Rockland County Republican Party for the past 10 years and self-described person with "more than average familiarity with political campaigns." (NYSCEF Doc No. 8, Garvey mem at 4.) In fact, as set forth above, a judge can take no steps towards running for a nonjudicial office, especially allowing his name to be used on petitions, without resigning from his judicial office.

It cannot be stressed enough that Ugell is charged with knowing the ethical rules for judges which prohibit political activity. Indeed, Ugell was required to take a campaign ethics course each time he ran for reelection. (22 NYCRR 100.5 [A] [4] [f].) Simply put, Ugell is held to a higher standard than a regular candidate because he is a judge. Similarly, given Garvey's extensive involvement in politics including the campaign of former Supreme Court Justice Thomas E. Walsh III for District Attorney, in which Walsh received the Republican Party endorsement (Tr 94: 15), Garvey should have known that a judge could not run for nonjudicial office without resigning. To believe that either of them was ignorant of these rules is a flight of fancy, and the court finds that each knew or should have known that what Ciampoli told them was incorrect. Yet, neither sought advice from any reliable source such as the Judicial Campaign Ethics Center which operates a hotline for judges to call in the event of a question and neither conducted any research independently to verify what was permissible. The assertion that an experienced election lawyer like Ciampoli would not know that a town justice cannot run for a [*13]nonjudicial position without resigning defies credulity. However, Ciampoli's supposed informal opinion gave Ugell and Garvey the cover they needed to implement their scheme to use Ugell's name and presumed popularity in the Town to quickly acquire sufficient signatures, only to have Ugell decline and allow the Committee on Vacancies to select an alternate candidate—here, Garvey.

Why would two experienced politicians not seek further information when presented with such obviously incorrect guidance? Garvey clearly wanted to provide the Republican Party with a candidate in the election given the questionable viability of Hoehmann's candidacy. Ugell may have shared Garvey's{**79 Misc 3d at 862} desire to obtain a candidate, wanted to stroke his own ego, or perhaps felt beholden to the party that has supported him through his nine elections. Whatever the reason, the result of their chicanery was that Ugell's name appeared on the petitions as candidate for Supervisor Clarkstown and signatures were obtained from voters based on that premise. Here is where the court finds there to have been fraud—knowingly collecting signatures where the candidate whose name is on the petition may have had no real intention of running for the office and was ethically prohibited from doing so without resigning his judgeship.

Ugell believed that his denial of knowledge of the petitions would give him plausible deniability in the face of any possible ethics inquiry. Ugell went so far as to deny that he knew that his wife was circulating petitions for him. (Tr 40: 6.) The court finds this testimony to be utterly false and unbelievable. On this record, this court finds that Ugell was aware of the existence of petitions being gathered for him. Illustrative of Ugell's less than forthcoming testimony which pervades the record and reveals improprieties that permeate the nominating process by extension and which justifies the rejection of his petitions, Ugell testified that when contacted by a local news reporter who inquired whether he was a candidate for supervisor, he responded that he was not actively circulating petitions but that "the GOP [Republican Party] might be." (Tr 49: 3-5.)

Garvey attempted to help provide Ugell with plausible deniability by instructing Party committee members not to speak to Ugell about his candidacy. (Tr 45: 1.) By keeping Ugell shielded from the Party committee members who carried the designating petitions, Ugell and Garvey hoped that Ugell could continue to lend his name to the nomination scheme but avoid having to investigate further. In other words, Garvey's instructions to signature gatherers not to speak to Ugell about his campaign furthered the scheme and, in fact, revealed that he had knowledge that the plan to use Ugell's name was impermissible. Why else create this Wizard of Oz candidate?

Unfortunately for Ugell and Garvey, another attorney familiar with judicial ethics, Deborah Scalise, Esq., somehow learned that Ugell's name was on petitions being circulated and contacted Ugell on April 3, 2023, the Monday before the filing deadline. (Tr 34-35, 38: 1.) Ugell's testimony about what he did next is confusing and inconsistent. Again, the court rejects Ugell's testimony that he was unaware of whether petitions{**79 Misc 3d at 863} were being carried for him until Ms. Scalise's phone call the week the petitions were due to be filed.

Ugell claims that on April 4th or April 5th, he called Ciampoli to discuss the situation and complained about the incorrect advice he provided. Ugell was ultimately put in contact with Steve Leventhal, another Election Law practitioner. (Tr 38: 4.) Leventhal advised Ugell that he "absolutely ha[d] to go and make arrangements to decline, and to also send a letter to Mr. Garvey, simultaneously, and to decline, which is what I did." (Tr 38: 11-14.) When he contacted Garvey, Ugell claims to have informed him that "now I am not running." (Tr 43: 23.) Ugell's [*14]statement to Garvey reveals that he acquiesced in the petitioning process until he learned that the sham was exposed by Ms. Scalise, and it belies his assertion that it was never his intention to run. (Tr 52: 8.) Instead, it corroborates his continuous involvement in the scheme. Moreover, one might wonder why, when alerted to a serious breach of judicial ethics, Ugell opted to delay acting, first in calling Ciampoli and, ultimately, in declining the nomination on April 7th. The answer is clearly that additional time was needed to gather more signatures before the filing deadline, since, as Ugell stated, they were almost out of time to obtain them.

Despite being told by Ugell that he would not run, Garvey nonetheless had Ugell's designating petitions filed with the Board. (Tr 79: 15.) Ugell declined the nomination minutes later. (Tr 43: 22.) Coincidentally, Garvey was present at the Board's office at that moment and Ugell hand-delivered to him a letter stating that he declined the nomination. Garvey argues in his brief that the declination is not fraud. The court holds that in the circumstances presented here, it was.

Ugell and Garvey expect this court to conclude that the petitioning process for Ugell was not unusual or was the product of misinformation provided by counsel and that Ugell's declination on the last day to file designating petitions was done in the normal course. This is a hard pill to swallow given the nearly complete lack of candor by Ugell, the half-true statements submitted by Garvey in his brief^[FN15] and the universal availability of resources to provide information to a judge seeking{**79 Misc 3d at 864} to run for a nonjudicial office. The election process, including the nomination process by designating petitions, must be transparent and conducted within the rule of law and ethics. Here, the attempt to have Ugell be a candidate and not be a candidate simultaneously while having him serve as a shadow candidate cannot be tolerated.

The court concludes that Ugell's aborted candidacy was not the result of misinformation provided by a lawyer. Neither Ugell nor Garvey can hide behind the alleged advice obtained from Ciampoli, as they intended, when the court system itself maintains an ethics hotline and Judicial Campaign Ethics Center to answer such questions. The court concludes that respondents' attempts to mislead the court are consistent with their intent to mislead the electorate by using Ugell's name on designating petitions as a stalking horse. Put differently, Ugell's efforts to be a candidate while not being a candidate could only confuse the electorate who thought it was signing a petition in support of his candidacy when his ability to be a candidate was clearly at issue.

The court rejects Garvey's argument that respondents are shielded from a finding of fraud by the Court of Appeals' holding in Matter of Mahoney v May (40 NY2d 906, 907 [1976]) that the use of "placeholders" in some instances, primarily for the minor parties, is permissible. The Court of Appeals stated that "the general practice of the parties, particularly the minor parties, to substitute candidates is so prevalent that no one is or should be deceived." (Id.) That is not the situation at bar. Garvey testified that he believed that Ugell was a serious candidate, and that the Republican Party, at least during his tenure as Chairman, has never used placeholder candidates. Moreover, as the Court of Appeals stated in Mahoney, "[t]he situation, of course, would be quite [*15]different if there were evidence, beyond the practice itself, to establish actual deception of the voters or members of the party involved." (Id.) That is the situation here. The electorate was deceived in this instance because the Party's practice is to run only those candidates who intend to serve. Here, it is clear that Garvey and Ugell caused and allowed petitions to be filed for a candidate who put himself into the nomination process in violation of the law governing judicial conduct and whose nomination was at risk. In particular, the 777 voters who signed Ugell's designating{**79 Misc 3d at 865} petitions believed that he was an actual candidate. In addition, the Party committee members who gathered signatures in support of Ugell's presumed candidacy were also defrauded of their efforts in connection with selecting a candidate for Supervisor Clarkstown. Under the circumstances presented here, the designating petitions and the substitution of an alternate candidate were invalid.

Accordingly, the petition to invalidate Scott B. Ugell's designating petitions and the substitution of Lawrence A. Garvey as the candidate is granted on the additional ground that the petitioning process was permeated with fraud and the putative candidate Ugell participated in or is chargeable with knowledge of the fraud.

Summary

It is hereby ordered that the petition, as amended, is granted on the ground that the designating petition naming Scott B. Ugell as a candidate for the position of Supervisor Clarkstown was invalid, because he was ineligible to be a candidate for that office; and it is further ordered that the petition, as amended, is granted on the further ground that the petitioning process was permeated with fraud and the putative candidate Scott B. Ugell participated in or is chargeable with knowledge of the fraud; and it is further ordered that the Rockland County Board of Elections is hereby enjoined, restrained and prohibited from printing and placing the name of either Scott B. Ugell or Lawrence A. Garvey on the official ballots to be used at the June 27, 2023 primary election for the Republican Party nomination for the office of Supervisor Clarkstown.

"A person shall not be designated or nominated for a public office or party position who (1) is not a citizen of the state of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or statutory qualifications thereof or, with respect to judicial office, who will not meet such qualifications within thirty days of the commencement of the term of such office."