LOWVILLE A suspended Lewis County election commissioner should be reinstated with back pay and benefits, a judge has ruled.
Once appointed, the Election Commissioner has a property interest in her position, wrote state Supreme Court Judge James P. McClusky, Watertown, in a four-page decision reached last week and received Tuesday by attorneys for Elaine McLear and the county.
The judge ruled that Mrs. McLear could not be removed from her job by the county, only the governor, and county officials never made such a request.
Mrs. McLear, New Bremen, who has been the Democratic commissioner since 1997, was suspended without pay Dec. 28 pending the results of an investigation into allegations she had authorized payment to her daughter for services not provided as an election worker.
She is happy that the wait is over, said Rome attorney John G. Leonard, who in June filed a lawsuit on Mrs. McLears behalf.
Judge McClusky also dismissed a counterclaim by the county seeking a refund of Mrs. McLears wages between mid-August 2011 the time of the first alleged impropriety and Dec. 28.
Respondent has not offered any statutory authority or legal precedent that would allow them to withhold pay or suspend an officer prior to removal from office, or recoup money paid to an officer before a determination of any malfeasance on the part of that officer, the judge wrote.
Mr. Leonard said he was uncertain of how the matter of Mrs. McLears reinstatement would be handled logistically but planned to meet with her Tuesday evening to discuss it.
Were reviewing our options, including the possibility of appeal, said County Attorney Richard J. Graham.
Appealing the decision could stay the judges order and prevent Mrs. McLear from an immediate return to the post.
The county as of late Tuesday afternoon had not been formally served with the judges order by Mr. Leonard. The decision also was not yet publicly filed in the county clerks office, and a copy had to be obtained through Mr. Grahams office.
Democratic election specialist Lindsay I. Burriss has served as temporary election commissioner since January.
The two-year terms for both Mrs. McLear and Republican Commissioner Ann M. Nortz expire at the end of the year.
Commissioner appointments are typically made by local party committees, then rubber-stamped by the county Legislature.
According to a legal filing in the case by the county, Mrs. McLear prepared purchase orders for payments to her daughter, Diane McLear, of $35 for an election inspector training session in August 2011, $120 for working at the Sept. 13 primary election and $192 for working at the Nov. 8 general election. However, there was no record or indication that she was present on any of the three occasions, it states.
The county filing adds that Diane McLear, through attorney Michael F. Young, admitted that she was not due payment for the two elections and on June 27 issued a refund check for $312 to the county.
State police conducted an investigation into the allegations against Mrs. McLear, and their findings were passed on to the state attorney generals office. However, no action yet has been taken by the state office.
Judge McClusky was not swayed by county arguments that the suspension was warranted, given that the matter is pending and could result in charges filed against Mrs. McLear, and that the case should be dismissed on technical grounds.
The judge heard oral arguments in the case here on Aug. 27.