By Jessica Cohen
For the Gazette
PORT JERVIS - Port Jervis building inspector David Rivera continues to receive a salary of $5,000 a month plus benefits 10 months after he was suspended from work, while city engineer Jim Farr fulfills Rivera’s duties for $5000 per month without benefits, says Mayor Kelly Decker. Residents have complained.
“I think it’s time to re-evaluate,” said Fourth Ward Councilman Stan Siegel.
But Decker said that he has no options. He said Rivera had been suspended “because day-to-day interaction with his office work could include direct contact with individuals affected by his suspension. That avoidance is best until the criminal case is adjudicated.”
The Port Jervis Common Council voted to suspend Rivera on April 11, 2019, the day Rivera was arrested on charges of sexual harassment. Some if not all charges were related to his work as building inspector. They are still being adjudicated, as are charges from a Jan. 26, 2019, incident when Rivera and his wife, Rachel, were involved in a bar melee. Police and witness reports said that both of them hit bar employees who were defending a server, Shanell O’Connell, after Rachel assailed her. The server’s mother, Shannon Smith, works in the building inspector’s office and had filed a sexual harassment complaint about David Rivera, she said.
For labor law, the city defers to attorney Stuart Waxman, who explained the city’s dilemma.
“When a criminal case is pending against an employee, it’s difficult to bring administrative charges if witnesses are involved with both cases,” he said, citing Civil Service Law Section 75.
Rachel’s charges were adjudicated on Dec. 12, 2019, when she pleaded guilty to harassment, said Chris Borek, chief assistant district attorney for Orange County. But David’s harassment charge related to the bar incident lingers, with another court appearance scheduled in Greenville on Feb.27 at 5 p.m., with Judge Gregory Wieboldt. However, the sexual harassment case was moved to the Town of Wallkill court because of a conflict of interest involving the Greenville judge, Borek said. Another of numerous pre-trial conferences is scheduled for 2 p.m. Feb. 26 in Wallkill for three charges of forcible touch in the third degree, three charges of sexual abuse in the third degree and one charge of harassment in the second degree.
Asked whether Rivera and his attorney, John Ingrassia. could be drawing out the adjudication process to delay Rivera’s loss of income, Borek said, “It’s not at the discretion of the defense to have a case continue. It’s not uncommon to have adjournments.”
Hermann Walz, criminal attorney and adjunct professor at John Jay College of Criminal Justice, explained why Rivera’s case might be lengthy.
“He won’t plead guilty to sex crimes because then he’ll always be the guy - he’d be branded. They want discovery. Who’s the outcry?” Walz said, referring to a person in whom the accuser may have confided, whose testimony would affect the case. “Because the case is newsworthy, the prosecutor crosses his t’s, and the judge won’t rush it. The prosecutor doesn’t want a plea bargain that would outrage people. A year is often the point when something has to happen. At some point the judge will say work it out or go to trial.”
However, the extended proceedings highlight the “inequities of the system,” says Dan Feldman, professor of public management, also at John Jay College. He was formerly senior legal counsel in the New York State Office of the Attorney General.
“A legal aide is drowning in casework” and would try to wrap up a case more quickly, Feldman said. “But a wealthy client can pay a private lawyer. If they can’t find a witness or a piece of evidence and need more time, the judge must respond. How plausible are the attorney’s arguments? How strict is the judge’s scrutiny of them?”
Feldman wondered aloud whether a municipality could be sued for back pay. However, he saw clear advantages to having the criminal case adjudicated first.
“The administrative case is much easier if guilt has been established without a reasonable doubt in the criminal case,” he said. “Then it’s a piece of cake.”