ALBANY — Part-time Athens Town Justice E. Timothy Mercer should be removed from office for misappropriating court funds, the New York State Commission on Judicial Conduct determined in a ruling announced Friday.
Mercer, owner of a private contracting business, was charged with awarding a no-bid $3,300 contract to his own company for courthouse improvements and falsifying his invoice by not revealing the equipment he bought cost $760 less than he listed, according to a complaint filed with the commission Oct. 13, 2022.
“Leveraging judicial office for personal financial gain and dealing dishonestly with town and court system officials in the process undermines public confidence in the integrity of the courts and disqualifies a person from further service on the bench,” Commission Administrator Robert H. Tembeckjian said in a written statement.
In 2020, the Athens Town Court submitted a Justice Court Assistance Program grant application to the Office of Justice Court Support to be used for court improvements. The initial application, approved by the Athens Town Board, included a request to purchase two air conditioners, window blinds, a paper shredder, a desk chair and reimbursement for COVID-19-related expenses.
Mercer acknowledged that he engaged in misconduct and asked during the proceedings that the commission “show leniency.”
“In connection with the application and the receipt of the funds, Judge Mercer surreptitiously directed that a security camera system be added to the application,” according to commission documents. “He awarded the camera-installation contract to his own company, Mercer Associates, contrary to law, and charged the town, in his capacity as owner of Mercer Associates, $3,329 for the purchase and installation of the security camera system, which included a $1,000 installation fee and an undisclosed markup fee of $760.”
Mercer signed a voucher in his capacity as town justice, authorizing payment of the invoice to his own company, according to the commission.
Mercer responded to a request for comment with a lengthy statement:
“I would like to start off by saying that it has been an honor and a privilege to serve as an Athens Town Justice for the last four years. By this point, you may have read that it has been suggested by the Judicial Ethics Commission that I be removed from office. However, the Commission’s report lacks the context from the time in question.
“In January 2021, as a newly elected Town Justice, through the Athens town Court, we applied for and were awarded a JCAP grant from the Unified Court System for a CCTV Security System for the court office, the 2nd-floor court hallway, and the entryway into the Courtroom. This request was made due to some recent events at the time which made it clear that the security of the Athens Town Court was lacking.
“The grant was applied for with the health and safety of the public, the staff in the Court office, and the judges who serve the Athens Town Court in mind. “These events occurred while we were in a COVID-19 lockdown and had limited access to the Courts. During the lockdown, with few contractors available, and many supply chain issues, I decided to supply and install the CCTV system myself. I acknowledge that this was a violation of the Judicial Ethics I pledged to uphold. Realizing the violation, I removed the CCTV system from the building and provided an invoice to the Town of Athens for $0, to close out the matter and because it was the right thing to do. I would like to emphasize that I have had no personal or financial gain from the installation of the CCTV system. “No vouchers and or checks were ever made out to me or my company. Once I was made aware of the investigation, I fully cooperated with the Ethics Commission’s efforts from the very beginning, supplying them with all documentation requested, as well as the context of the situation at the time. None of this was included in the Commission’s findings.
“During my time on the Bench, I served as Athens Town Justice honorably, fairly, and with respect for everyone who entered my courtroom. At no time over my four years as Athens Town Justice was my work questioned, and all decisions were equitable to the Athens Community as a whole.
After losing re-election, and now being removed from office, I will return to a more active role of volunteering in my community. This same community work, and volunteer efforts, are what afforded me the opportunity to run for Athens Town Justice when asked four years ago. I look forward to serving my community, albeit, in a different capacity.”
The commission also charged Mercer with assigning the security camera installation contract to his own company without disclosing his personal interest to the town or the state after the grant was awarded solely for the security camera, invoking his judicial status in an attempt to obtain payment of his invoice by using his judicial email address to leverage his request for payment after the invoice had been flagged by the town as a conflict of interest.
“After being advised by the town that it was looking into the ethical issues of his conduct, the judge advised that he would charge interest if the town continued to refuse payment, and then issued a subsequent invoice which included a fee for nonpayment,” the commission said.
Mercer withdrew his request for payment and removed the security camera system when the commission started its investigation, according to the summary report of the commission’s determination.
“Judge Mercer engaged in self-dealing to further his own business interests in connection with the JCAP grant,” the commission said in its determination. “Even after he was made aware of the ethical issues surrounding his actions, he did not take any remedial steps to mitigate his wrongdoing and by continuing to insist on payment even after being made aware of the ethical issues, the judge compounded his misconduct and demonstrated a lack of understanding of the inappropriateness of his actions.”
Mercer, who is not an attorney, became an Athens town justice in 2020. His current term expired Dec. 31, 2023. Mercer represented himself in the proceedings before the commission.
By law, Mercer has 30 days to make a written request to the state Court of Appeals for a review of the commission’s determination. If he does not request a review, the Court of Appeals will remove him as advised by the commission. If a commission determination is reviewed by the Court of Appeals, the court may accept the sanction, impose a different sanction including admonition or censure, or impose no sanction.
Under the state constitution, removal from office bars a judge from ever returning to the bench.
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