SCRIBA — Michael Barry, the highway superintendent for the Town of Scriba, recently filed a lawsuit against the town for its "sham" efforts to remove him from office over a driving while intoxicated charge town officials say voters were unaware of through the election season.

In reaction to the news that Barry faced charges in Cayuga County for his third charge of driving while intoxicated, the Scriba town board passed a law in December to change the elected highway superintendent position to an appointed post. Voters will determine on Nov. 8 whether to approve the change.

The lawsuit, filed March 18 with the state Supreme Court in Oswego County by attorney Terry Kirwan, argues the town, if successful in ousting Barry, has the "apparent intent ... to return the position to an elected position" in the following year, "making this whole process a sham ... to remove Barry from office." "The sham and subterfuge violates Barry's rights, including those rights afforded by the Civil Service Law," Kirwan wrote, asking a judge to declare the law establishing the referendum "illegal." The town's actions are "clearly not undertaken in good faith and such law should have no effect," he wrote.

Town attorney Kevin Caraccioli said Tuesday that while the lawsuit was pending, the town would refrain from commenting.

"However, having reviewed the petition filed by Mr. Barry, I find his action completely lacking in merit," Caraccioli said.

The town's insurance carrier would "vigorously" defend the action, added Caraccioli, who previously noted Barry's driver's license had been suspended pending prosecution.

Messages left with Barry and Kirwan were not immediately responded to by press time.

Reached by phone Tuesday, Town Supervisor Ken Burdick said he could not make "any comment" directly on the lawsuit.

But he said his feeling on Barry — who he has called unfit for duty despite having nothing against him personally — has "not changed one bit." "My attitude hasn't changed on how the law comes down to have a revote on [the highway superintendent position]," he said. "It's a town board decision so everybody has a second chance to make an informed vote. I think the voters will do the right thing." The contentious issue has produced large crowds at recent town board meetings, with heated debate between those who believe Barry should be removed and others who say the town board should respect their vote.

State police arrested Barry July 26 in the Town of Brutus, initially stopping him for operating a mobile electronic device while driving. Auburn state police said Barry was later found to have a blood alcohol content of .14 percent.

Barry's position in the highway department had just been restored following litigation over a prior arrest for driving while ability impaired just two weeks prior to his arrest in July.

A message left with Scott Mooney, a partner with Boylan Code — which is handling the matter for the New York Municipal Insurance Reciprocal (NYMIR) and responding to the suit on behalf of the town — was not immediately responded to by press time.

Town officials initially announced plans to hold the referendum in February after a state-mandated 60-day waiting period elapsed, but the board pushed back the vote after considering absentee and military ballot logistics.

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