From left: Legislator-elect Nicholas Caracappa, and Suffolk Legislators William Spencer and Rudy...

From left: Legislator-elect Nicholas Caracappa, and Suffolk Legislators William Spencer and Rudy Sunderman. Credit: James Escher

Suffolk County Legislators Rudy Sunderman, a Shirley Republican, and Centerport Democrat William "Doc" Spencer show no signs of giving up their seats even though they're facing felony criminal charges — the first time in the county legislature’s 50-year history that two members have been in that position at the same time.

And come January, Legislator-elect Nicholas Caracappa will join their ranks. Caracappa, a Conservative Party member who won a special election in the 4th District on Nov. 3, was arrested Tuesday on domestic violence-related charges.

Caracappa, who has pleaded not guilty, plans to serve in the legislature after he is sworn on Jan. 4, said his attorney Thomas Campagna.

Sunderman and Spencer, who also have pleaded not guilty, continue to perform their official duties, including voting on legislation and participating in debates, although Spencer has resigned his leadership posts.

A key reason public officials facing criminal charges stay on the job is because state law allows it. In New York, they can remain in office until they're convicted of a felony or for crimes that violate their oath of office.

However, staying in office also allows the officials to continue to keep their salaries, build their pensions and potentially use their positions as bargaining chips with prosecutors.

"Elected officials have the same presumption of innocence as any other citizen and should be able to keep their employment while they defend their innocence," said Kedric Payne, general counsel and senior director of ethics for the nonpartisan Campaign Legal Center.

With two Suffolk County legislators fighting criminal charges at the same time, Newsday talked with David Birdsell, dean of the Baruch College Marxe School of Public and International Affairs, about why it is not uncommon for legislators to stay in office while facing criminal charges. Credit: Newsday / Rachelle Blidner/Rachelle Blidner

"If that official is convinced of their innocence, one of the last things that he'll want to do is to let go of their livelihood based on a false allegation," Payne said.

Craig Burnett, a Hofstra University political science professor, said politicians facing criminal charges would feel more pressure to resign if constituents and political parties were to press them to do so — instead of leaving the task only to opposing political parties or editorial boards.

"People can demand better. And it's ultimately up to the voters," Burnett said.

Sunderman, Spencer and, now, Caracappa have joined a long line of New York public officials, including former State Senate Majority Leader Dean Skelos (R-Rockville Centre) and former Assembly Speaker Sheldon Silver (D-Manhattan), who held onto their seats while facing criminal charges.

Sunderman was indicted on perjury charges in July 2019 for allegedly telling the Suffolk County Board of Ethics falsely that he no longer worked for the Centereach Fire District. Suffolk County legislators are not permitted to hold two paying public jobs at once. Sunderman, who joined the legislature in 2018, created a shell company in his wife's name so he could continue receiving income from the fire district, prosecutors said.

Sunderman, a longtime firefighter, said after his indictment, "I am innocent of all charges and will fight them vigorously." He participated in a legislative meeting a few hours after his court appearance, and was reelected with 61.96% of the vote in November 2019.

Sunderman's attorney, Ray Perini, said Saturday that a misdemeanor charge for getting two public paychecks was dismissed because Sunderman did not get a paycheck directly from the fire district.

"The theory of their case," that Sunderman was violating ethics law by collecting paychecks from two public entities, "was blown out," Perini said Saturday, after Sunderman had initially declined to comment and a version of this story was published online. "That changes the whole case."

Perini said he has filed a motion to dismiss all charges against Sunderman, which include felony perjury charges. Perini said Sunderman got an ethics lawyer opinion before creating the corporation that said it would not violate the law and testified before the ethics board that he was "making less money" while doing the same work.

Spencer, an ear, nose and throat physician, was arrested in October for attempting to trade oxycodone pills for sexual favors with a woman he thought was a sex worker, said Suffolk County prosecutors.

"Dr. Spencer is presumed innocent and is entitled to a fair court process," Spencer’s attorney, Anthony La Pinta, said in a statement. "He has a right to maintain his position as a legislator during the pendency of his case and fully intends to do so."

Campagna said the charges against Caracappa stem from a dispute with his estranged wife, who told Suffolk police the legislator-elect had choked her. Campagna called the allegations "100% untrue."

Remaining in office has significant benefits, according to political experts.

Officials keep their incomes as they seek to pay costly legal fees. They continue to boost their pension benefits. And it makes it easier to raise campaign money that under the law can go toward legal expenses, political experts said.

"There's just not much to be gained and quite a lot that can be lost by resigning," Baruch College public affairs dean David Birdsell said.

Suffolk County legislators, who work part-time, make $100,854 a year — and their pensions grow for as long as they hold office.

The average pension benefit for public employees in Suffolk County is $34,441 a year, according to data from state Comptroller Thomas DiNapoli's office.

Under a state law approved by voters in 2017, however, public officials convicted of felonies related directly to their positions can lose their pensions. A court must review the issue separately.

Some elected officials may also try to use their positions in bargaining with prosecutors.

Former Suffolk Legis. Fred Towle Jr., a Shirley Republican, resigned and pleaded guilty to bribery charges on the same day, May 28, 2003.

J. Bruce Maffeo, an attorney who represented Towle in an unrelated criminal matter this year, noted that Towle resigned early in the legal process.

"Generally, clients who feel they are going to fight the case see no reason to give up their elected position," said Maffeo, a former federal prosecutor in the Eastern District of New York.

"Conversely, if clients like Towle decide early on they're going to cut their losses and resolve the case by plea, it makes good sense to resign to help support the argument they’ve completely accepted responsibility," Maffeo said.

In 2011, then-Suffolk County Executive Steve Levy agreed not to seek reelection and to give up his $4 million campaign war chest in a deal with then-Suffolk District Attorney Thomas Spota. Spota had investigated Levy's campaign finance practices, including reports that county contractors were forced to donate to his campaign.

When they've had the choice, New York officials have approached the question of whether to stay in office in a variety of ways.

Skelos and Silver held onto their seats until their federal corruption convictions in 2015.

Others including former Nassau County Executive Edward Mangano, former Oyster Bay Supervisor John Venditto, former Suffolk Police Chief James Burke and Spota left office in the middle of their corruption cases. All were convicted in jury trials or after plea deals.

The only Suffolk legislator to hold onto her seat while fighting criminal charges was the late Legis. Maxine Postal, namesake of the legislative auditorium in Hauppauge because of her public service work.

Postal, an Amityville Democrat, pleaded guilty in 1998 to a misdemeanor for a 1997 campaign finance crime, became the legislature's presiding officer and stayed in office until the day before her death on New Year's Day in 2004.

Nassau County Legis. Carrié Solages, of Valley Stream, stayed in office after his arrest in 2017 for allegedly assaulting his son’s mother and endangering her teenage daughter. Solages pleaded guilty in 2018 to a noncriminal charge of disorderly conduct, and won reelection last year.

Public officials and political party leaders in Suffolk disagree about whether Sunderman and Spencer should stay or go.

Spencer has stepped down as legislative majority leader, chairman of the Health Committee and his post on the county’s heroin and opiate epidemic advisory task force.

County Legis. Robert Trotta (R-Fort Salonga) last month called on Spencer to resign his remaining legislative committee posts, saying "the integrity of this body deserves him to be removed."

But Presiding Officer Robert Calarco (D-Patchogue) defended Spencer's and Sunderman's right to remain in office.

"There are felony charges that have been filed, unfortunately, against two legislators in this body, and I think both of them have the right to defend themselves and the right to have their opportunity in court," Calarco said.

Suffolk Republican Chairman Jesse Garcia attributed Sunderman's case to "a mere mistake of filing paperwork," and backed his decision to remain in office.

But Garcia called on Spencer to resign.

"With the situation involving Doc Spencer, it's a sting operation that involves the trading of pills for sex," Garcia said.

"For people who ask" why Sunderman shouldn't quit as well, "then certainly they have some problem in seeing the difference," Garcia said

Suffolk Democratic chairman Richard Schaffer supports Spencer's decision to stay in office, "just like I support Legislator Sunderman's presence and anyone else accused of a crime who has the right to defend him or herself."

Both Schaffer and Garcia agreed that Caracappa should be sworn into office and given the opportunity to defend himself.

Calarco said he understands that constituents "are probably a bit discouraged" by all the criminal cases in the legislature at once.

But he said "the vast majority" of elected officials get into office "to care for the communities they live in and their residents, and that continues to be the case," Calarco said.

With Candice Ferrette

Newsday LogoSUBSCRIBEUnlimited Digital AccessOnly 25¢for 5 months