Legislators OK $125,000 settlement with former D.A.
Although they voiced frustration, Putnam County’s legislators voted unanimously on June 22 to pay $125,000 to former District Attorney Adam Levy to settle a defamation suit he brought against Sheriff Don Smith. The sheriff will pay an additional $25,000.
They justified the expenditure as necessary to avoid the costs of further litigation, including those that would arise if Smith sued the county to force it to pay the bulk of the settlement.
In an apology issued June 13, Smith admitted that four years ago he made false statements about Levy, who was then D.A. His admission ended a civil trial over the matter two days after it began. Levy had asked for $5 million but settled for $150,000 and the public apology.
Although Levy sued Smith “individually and not in his capacity as an employee of the County of Putnam,” the county, which employed both men at the time of the 2013 filing, became enmeshed.
The legislators, who voted 8-0 to approve the payment (with one absent) “fully acknowledge that using taxpayer monies to settle this case is troublesome to us, as it is to every taxpayer,” said Ginny Nacerino (R-Patterson), who chairs the body. While the case “shatters trust in elected officials,” she said, “we are not here to judge, but to make a sound decision.”
“This is a matter of saving the taxpayer money,” said Dini LoBue (R-Mahopac Falls), adding that she was “very upset” and “disgusted at what happened.”
The money will come from the county’s contingency fund.
Nacerino said that had the Levy case continued, the county risked a courtroom loss, appeals, and higher legal costs.
Responding to a question from The Current, Smith on June 29 said he did not pay the entire $150,000 himself because “under state law, municipalities are required to pay for the defense of their officials and employees in litigation relating to their official duties. In this case, I personally paid a portion of the settlement amount to facilitate closure of the case.”
Statement from Sheriff Smith
Under state law, municipalities are required to pay for the defense of their officials and employees in litigation relating to their official duties. In this case, I personally paid a portion of the settlement amount to facilitate closure of the case.
This was a civil matter that I am glad has been resolved, so that I can focus all of my energies on the important issues facing Putnam County, especially the war on drugs.
I truly appreciate all of the strong support and heartwarming encouragement that I have been receiving from the great people of Putnam County.
I will continue to do my very best for all the people of Putnam County in working with our entire public safety team to keep Putnam County a great and safe place to live, work and raise a family.
A separate, related lawsuit still looms. Both lawsuits stem from Smith’s handling of a criminal case against Alexandru Hossu, a fitness coach who occasionally stayed in Levy’s home in Southeast before moving to Brewster. In 2013, he was accused of raping a girlfriend’s teenage daughter. Recusing himself, Levy provided Hossu with a lawyer and paid more than $100,000 of his legal expenses. Hossu spent more than a year in jail before being acquitted. He subsequently sued Smith and Putnam County for $45 million.
When the Sheriff’s Department arrested Hossu in 2013, Smith issued news releases falsely stating that Hossu lived at Levy’s address; that Levy had interfered in the proceedings; and that Levy had harbored an “illegal alien” (Hossu is Romanian). In his June 13 apology, the sheriff retracted the releases, stating that they “were untrue and I should not have made them.”
Barbara Scuccimarra (R-Philipstown) said she once “had a lot of faith” in the sheriff but, like her colleagues, considers his conduct “disappointing.” Nonetheless, she said she regarded the $125,000 payment as “the way to proceed.”
Asked whether Smith had threatened to sue Putnam County if it did not make the $125,000 payment to Levy, Nacerino said he had not, to her knowledge. “But this doesn’t mean that’s not a possibility,” she said.
Ann Fanizzi, a former Cold Spring resident who now lives in Southeast, told the legislators she was “appalled that this Legislature would even think of supporting an elected official that held himself out as a paragon of patriotism and honesty but instead betrayed the public trust by misusing his office to defame a political opponent. Mr. Smith’s wrongdoing should not be foisted on the backs of taxpayers.”
The county should sue the sheriff to get its money back.
Please, someone, explain what right Sheriff Smith would have to sue the county? This is an appalling situation. Disgraceful.
The article quotes Smith that the county had an obligation to defend its employees and pay legal costs. However, a perusal of the case Levy v. Smith reveals perhaps another instance of fabrication on his part. The index to the case is 2019/2013 and can be accessed through Lexis and clearly states that the action is in their individual capacities. Additional investigation is needed.
A few months after Levy filed his suit against Smith on January 23, 2014, the Audit Committee of the Legislature went into Executive Session to discuss Chapter 35 of the Putnam County Public Officers Defense and Indemnification Act which in effect obligates the county to pay for an employees’ legal costs. Question: Did the case filed and counter by Smith fall under public employees or was it filed as individuals? See index number 2019/2013 – very interesting.
I would have thought the Putnam County Public Officers Defense and Indemnification Act would have excluded indemnification for willful misconduct. That is a standard legal provision. If the exclusion is there, then the county had no business indemnifying Smith. If the exclusion is not there, then shame on the county legislature for approving the law in the first place.
I think you are on to something.
The Putnam County law is Chapter 35.2 which is entitled “Defense and Indemnification.” Here is the section referred to:
“The County of Putnam hereby agrees to be held liable for the costs, including, but not limited to, any judgment obtained against an employee, the amount of any settlement of a claim or attorneys’ fees and litigation expenses incurred under the provisions of § 18 of the Public Officers Law.”
Note that the Putnam law incorporates by reference, Section 18 of the Public Officers Law which states:
“(b) Except as otherwise provided by law, the duty to indemnify and save harmless prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.”
It is very clear when you read the POL that Sheriff Smith is NOT entitled to have the County taxpayers pay for his legal problems because clearly they are a direct result of his own admitted “intentional wrongdoing or recklessness.”
I find it shocking that not one of the highly paid County attorneys, including the legislature’s own counsel, Mr. Firriolo, could figure out that it was illegal for the Legislature to vote to pay Smith’s legal bills.
This is another example of the complete and utter disregard for the law that our legislators (aka “lawmakers”) have when it comes to protecting one of their own.
The Attorney General needs to be notified immediately. This decision cannot be allowed to stand. It places our taxpayers in jeopardy for hundreds of millions of dollars.
The case of Sheriff Smith reveals the civic nightmare that occurs when you have a county that is controlled and run by one party, namely the GOP. This is not the first time that the God-fearing Sheriff has been guilty of questionable behavior, but it is truly disgusting that he is now holding up the taxpayers to pay for it. Maybe Smith needs to read the Bible he likes to quote, and the 10 Commandments: Thou shalt not make false statements against thy neighbor.
If you look through this case in its entirety, the magnitude of Smith’s hubris is mind boggling. Not only did he admit to making false statements, but he directly influenced the outcome of a very important election and he has now put the taxpayers in jeopardy of having to fork over millions of dollars to the man he falsely accused.
To top it off, Smith is running for re-election like nothing even happened. Where he gets the unmitigated gall to do such a thing is beyond me.
Surely there is some prosecutor or other public official higher up on the food chain who can prosecute Smith and take him out of the running before he gets his name on the ballot. If not, things are worse than even I imagined.
Fearful of facing their righteous indignant taxpayer constituents, the craven legislature reserved the adoption of the Smith/Levy settlement as the last item on the untelevised June 22 Rules Committee agenda. Fill the seats tonight at the full legislature and demonstrate your outrage. First they supported Ailes and now Smith. Did any one of the legislators demand Smith’s resignation at the vote?
The county should have no obligation to indemnify Smith for any conduct outside of his official duties, which Smith has acknowledged the conduct in question was. I assume that the county’s insurance carrier has declined to contribute to the settlement precisely because of Smith’s acknowledgement.
It is one thing for the county to contribute the cash to the settlement, but another entirely for the county not to pursue a claim against Smith for the $125K. The county should definitely pursue its own claim against Smith for reimbursement. And we should perhaps look into a derivative suit on behalf of the taxpayers if the county doesn’t take appropriate action.
In his public apology to Levy, Sheriff Smith wrote: “Today, I retract these releases unequivocally and apologize for the statements contained therein. These statements were untrue and I should not have made them. I recognize that my statements spawned substantial litigation.”
Indeed. And thanks to eight Putnam County legislators, Putnam County residents are picking up the $125,000 tab. To be clear, the settlement is not covered by insurance and even though Smith was sued personally he has refused to pay the entire settlement himself.
This is unconscionable. Smith should be responsible for his own mistakes just as all residents in Putnam County are held accountable for their own. This is a bailout — plain and simple. And this bailout will likely impact a $45 million federal civil rights lawsuit already filed against Putnam County.
What exactly is the message sent by the Putnam County Legislature? It seems to be that if you’re a “friend,” the Legislature is willing to spend thousands of taxpayer dollars on your defense and bailout. Even worse, it appears that the Legislature condones the sheriff’s clear abuse of power. Because no matter what these legislators say, they did not insist that Smith cover his own settlement. In fact, despite Smith’s complete breach of trust, the Legislators didn’t even bother to insist on his resignation.
Putnam County deserves better.
As a resident of Putnam County for 39 years, I sadly conclude that Sheriff Smith needs to be thanked for his years of public service, as both a military officer and sheriff, and removed from office.
The members of the Putnam County Sheriff’s Department deserve to be represented and led by individuals of unquestionable character and conduct. Unfortunately, Smith has fallen down on the job as a result of this fiasco. We, the taxpayers of this county, deserve better, as well.