City asks for order to silence attorney

Lawyer for former city clerk to appeal

By RODNEY MINOR, The Leader-Herald
GLOVERSVILLE — The city is trying to stop Gary Margiotta’s attorney from releasing deposition testimony gathered during the former city clerk’s wrongful-termination lawsuit.

Attorneys from Albany-based Girvin & Ferlazzo, which represents the city, also want to stop Margiotta’s lawyer, Elmer Robert Keach III, from revealing information he’s been gathering that is not considered a “public document” under state law.

The city is seeking the protective order from U.S. District Court in Utica.

Margiotta was escorted by a police officer from City Hall Dec. 29, 2006. In January 2007, four members of the Common Council voted not to reappoint Margiotta.

In the lawsuit Margiotta later filed, Keach alleges Mayor Tim Hughes and members of the Common Council had

Margiotta removed in order to silence former 4th Ward Councilwoman Shirley Savage. Keach contends the people who had Margiotta removed believed he was helping Savage in her attempts to get information about city programs and issues.

The lawsuit is in the “discovery” phase, where both sides are gathering information that can be used in court.

As part of the process, Keach has taken deposition testimony from Savage, Margiotta, Robin Walrath, chairwoman of the city ethics commission, and Councilman-at-Large James Handy.

Last month, Keach released the deposition given by Handy.

According to court documents filed by the city, that deposition contains irrelevant personal information, such as Handy’s home address. The deposition was disseminated before Handy had a chance to review it and make any necessary changes, a right the city’s attorneys claim Handy had no chance to exercise.

During the deposition, Handy claimed Margiotta was insubordinate three times, leading to Handy’s vote to dismiss the 16-year city employee.

Keach referred to Handy’s reasons as “really specious and after the fact.”

“The dissemination of deposition transcripts, coupled with [Keach’s] statements to the media concerning the content and veracity of that testimony, serve nothing more than to use the information obtained during discovery in a patent attempt to gain an unfair advantage or leverage in the prosecution of this action and abuse the discovery process,” according to the documents filed by the city’s attorneys.

Part of the protective order would extend to all documents and items produced during discovery that would not be subject to the state Freedom of Information Law.

Keach has requested documents as part of the discovery process involving Margiotta’s termination — such as e-mail communications between the council members about Margiotta — that might not be obtained by a FOIL request.

The city’s attorneys said in the court documents seeking a protective order that members of the media still would be able to report on the litigation and could still try to obtain the material from other independent sources.

Keach said Monday the public has a right to see the deposition testimony, and when city residents see some of what the discovery process has turned up, they will be “justifiably outraged.”

He pointed out one of the four council members, former 2nd Ward Councilman Lance Gundersen Sr., had talked publicly about his reasons for dismissing Margiotta.

In October, Gundersen posted on an Internet message board, “In my opinion, Mr. Margiotta lacked the management, leadership and technical skills his office needed to be efficient. The clerk’s office was chronically behind in the production of meeting minutes, and demonstrated little technical ability to spearhead modern changes in information dissemination.”

Keach said Girvin & Ferlazzo had no problem with Gundersen “publicly denigrating” Margiotta when that happened.

The protective order requested by the city’s attorneys would prohibit Keach from making public statements that the city says violate state law.

A list was submitted by the city’s attorney to show examples of what Keach has said to the media during the litigation. According to the list, Keach described the city government as “a cesspool of incompetence, stupidity and petty politics.”

He described the actions of Mayor Hughes and the council members as those of “a bunch of petty political ankle-biting fifth-graders.”

Keach said the reason for the protective order has nothing to do with the case, but with public officials who are now embarrassed by their conduct.

“[Girvin & Ferlazzo] want to silence the one person who can bring [what the council members did] to light,” he said.

Keach said he will ask Judge George H. Lowe to schedule a public hearing related to the request for the protective order so members of the media and the public can express their opinion.

Keach said he has until May 23 to submit documents in response to the request by the city’s attorneys.

Attorney’s with Girvin & Ferlazzo could not be reached for comment Monday.



Rodney Minor covers Gloversville. He can be reached at gloversville@leaderherald.com.