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Why Erie County Clerk Mickey Kearns could face $17.5 million in fines

A 2 On Your Side Investigation found nearly $100,000 in taxpayer-funded advertising violated state law.

BUFFALO, N.Y. — Erie County Clerk Mickey Kearns made a mistake that could cost him more than $17 million in fines, according to a 2 On Your Side investigation into his advertising practices.

Given the scale and importance of the services provided by the clerk’s office – from the auto bureaus to document processing and pistol permits – Kearns told 2 On Your Side, “We don’t want people to come in without the proper documentation. We want to communicate to the public.”

Last year, Kearns requested and received $100,000 in his approved budget to cover advertising expenses.

“We try to utilize as many ways to communicate with people as possible,” he said. That included dozens of print ads and at least 3,487 radio spots, most of which were 30 seconds each, and that aired on more than a dozen different stations in Buffalo.

There was also a weekly half-hour radio show called “Catching Up with the Clerk” on WUFO, which cost around $14,000. 2 On Your Side got invoices for all the print and radio ads, which altogether cost taxpayers at least $99,452. The problem is that New York State Law indicates that what Kearns did may be illegal because he used his face in the print ads and used his voice on the radio.

‘Ignorance is not a defense’

New York State Public Officers Law Section 73-B states, “(n)o elected government official or candidate for elected local, state or federal office shall knowingly appear in any advertisement or promotion, including public or community service announcements, published or broadcast through any print or electronic media (including television, radio, and internet) by any private or commercial entity or any other entity that publishes such advertisement for a fee, if the advertisement or promotion is paid for or produced in whole or in part with funds of the state, a political subdivision thereof or a public authority.”

In a 30-minute interview, Kearns said he was unaware of the law and blamed everyone from the county executive to the county comptroller and county lawmakers for not catching his mistake.

2 On Your Side’s Michael Wooten asked Attorney Leslie Silva, a partner at Tully Rinckey in Albany if ignorance is an excuse. “Ignorance is not a defense,” she replied. “

She said the law is designed to keep incumbent politicians from having an unfair advantage by promoting their achievements using taxpayer funds.  According to Silva, if the radio ads had been voiced by someone other than Kearns and had the print ads pictured someone else, then they would have been permissible.

“When you are a candidate, or when you are a public official, it’s your responsibility to know what you can and cannot do, especially when taxpayer funds are involved,” Silva said.

Kearns told 2 On Your Side, “I’m not an attorney. My job is to process transactions, accept paperwork, do the best job, and we do a pretty darn good job of it here in Erie County.”

Kearns said the advertising campaign has been paused and moving forward will comply with the law, though he did appear on his “Catching Up With the Clerk” radio show after being informed of the illegality.

The state law imposes a maximum $5,000 penalty for each offense, and since there are close to 4,000 instances in which Kearns appeared in radio or print ads, he could face a $17.5 million penalty if the New York State Attorney General’s Office pursues a civil case.

As of now, the Attorney General has not received a complaint and is not investigating, though that could change.

“Hindsight’s 20-20,” Kearns said. “We will not do that, again. Obviously, I will adhere to the law."

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