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The Fascinating Case of George vs. City of Buffalo
by Geoff Kelly
And of how the hiring process in City Hall appears to be a mystery, even to those in charge of it
William George is a seasonal laborer with the City of Buffalo, where has been employed since 2001. George works primarily in the Streets Department, lifting garbage totes. As a seasonal employee, George receives less pay than a permanent employee performing the same work and he does not receive personal days, vacation days, holiday pay, or sick days. For many years, George has tried to move into a permanent position with the City of Buffalo.
According to a federal lawsuit filed against the City of Buffalo in 2009, George’s supervisors have praised his work ethic and job performance verbally and in letters. George’s supervisors have on several occasions recommended that he be promoted to a permanent position. George alleges that, time after time, he has been passed over for a promotion, while workers who are younger, with less qualifications and less seniority, but who have provided political support to Mayor Byron Brown, have been promoted.
George further alleges in his lawsuit that Paul Sullivan, deputy commissioner of the Streets Department, advised him to change his political affiliation: He is a registered independent; George says Sullivan told him to become a Democrat. Sullivan also advised George that he should attend Mayor Brown’s political fundraisers and make campaign contributions. George has not changed his voter affiliation, according to the lawsuit, and he has not made any campaign donations to Mayor Brown.
George’s lawsuit claims that he is being discriminated against due to his age and that his First Amendment rights are being violated by the political patronage system in place at Buffalo’s City Hall. George testified at a deposition that he has never had anyone sit down with him to discuss his job performance, nor did he ever receive a written evaluation of his job performance.
If that’s the case, then how are seasonal employees hired and promoted at City Hall? George’s attorney, Dean M. Drew has attempted to answer that simple question through a series of depositions of city officials, including the mayor himself. George’s lawsuit has a number of weaknesses, which we’ll address later, but the depositions offer a rare opportunity to read what city officials have to say when pressed to talk about hiring, which everyone assumes is politicized but which is never discusses openly.
Dodging the Question
The dancing, dodging, and finger-pointing that results from asking such a simple question is quite amazing. It is a rare circumstance to have the following government officials testify under oath about City Hall hiring practices: Olivia Licata, director of Civil Service; Stephen Stepniak, commissioner of Public Works; Charles Masi, administrator Department of Public Works (now retired); Dana Bobincheck Floriano, former special assistant to the mayor and former campaign treasurer; and Mayor Byron Brown.
Drew, George’s attorney, faced any number of obstacles in trying to speak with City Hall officials about the hiring process for seasonal employees. In order to take testimony from the appropriate individuals with knowledge of the City of Buffalo’s hiring practices, Drew repeatedly requested the identity of individuals who participated in the hiring of Streets Department seasonal employees over the past eight years. The City responded to Drew’s request by stating that it was unable to identify individuals who participated in the selection process of seasonals for the past eight years because of the time, scope, and number of individuals who participated, along with the “realities” of municipal administration. Although Charles Masi, as administrator of the Public Works Department, signed written answers to Drew’s questions, the City would not identify Masi as a person qualified to answer Drew’s questions at a deposition, on the record and under oath.
Eventually, after much stalling, the City instead made Olivia Licata, director of Civil Service, and Stephen Stepniak, commissioner of Public Works, available for depositions.
Once Licata and Stepniak were questioned, however, it became obvious that neither one of them were able or willing to describe how seasonal employees were hired in the Streets Department. After initially opposing a request that Masi be made available for a deposition, the City finally relented.
Masi Takes the Fifth
At the time of his deposition, Charles Masi had 32 years of service as a City of Buffalo employee, 17 years as administrator of the Department of Public Works. As administrator, Masi is responsible for all payroll and personnel matters in the department. When Byron Brown started his term as mayor in 2006, Masi had been administrator of the Department of Public Works for 11 years, with a great deal of experience in all personnel matters.
Prior to his deposition, Masi responded on behalf of the City of Buffalo to written questions asked by Drew, George’s attorney. When asked to describe the process used to hire seasonal employees, Masi’s written answer was:
Because there is no contractual obligation to post non-competitive positions, it has been the custom of the Mayor’s Office to [identify] individuals that they wish to see hired, and to pass that individual’s name to this department for processing. I do not know nor am I privileged to that selection process.
At his June 9, 2010 deposition, Masi testified that prior to the Brown administration he had greater involvement in the hiring process for public works employees. Under the Masiello administration, Masi had input into hiring decisions and would discuss and make employment recommendations to the Mayor’s Office.
“Since the current administration took office, I have been excluded from any participation to that degree or any degree whatsoever regarding the selection of the candidates for any permanent positions,” he said. “I offer no recommendations. I’m asked for none.”
When Drew asked whether Masi knew what criteria the Mayor’s Office used when considering a person for employment, Masi responded: “I don’t know the reasons why the Mayor’s Office—I don’t know what criteria the Mayor’s Office uses to make an appointment.”
Masi testified that there is no written policy as to how a seasonal employee applies for a permanent position. Masi explained that when he receives written request or recommendations to make a seasonal employee a permanent employee, he forwarded those requests to the Mayor’s Office.
When asked why he forwarded such requests to the Mayor’s Office, Masi said: “’Cause I don’t make the decision to hire. That’s where those decisions come from. If anyone was going to be appointed, it would be by direction of the Mayor’s Office.”
A simple question during the deposition caused Masi to invoke his Fifth Amendment right to not incriminate himself.
Drew: “If the commissioner [of Public Works] received a request to consider someone for employment not from the Mayor’s Office, but from another department, would you expect that he would share that information with you?
Masi: “Not necessarily. It would depend on the individual and who was asking.”
Drew: “Can you expand on that a little bit? Can you give me an example even?”
Masi: “I’m uncomfortable answering the question. I am concerned about self-incrimination and retaliation if I answer this question.”
Drew: “If that’s a Fifth Amendment objection, I don’t think I can do anything about it.”
Masi: “It is.”
What an amazing exchange this is. William George is suing the City of Buffalo alleging that he has not been promoted from his seasonal position because he has not politically supported the mayor by becoming a Democrat and by making campaign contributions. Then Masi, the administrator of Public Works, takes the Fifth during his deposition, refusing to answer a question because he himself is afraid of retaliation.
Masi retired on July 31, 2010 from his City of Buffalo position, just seven weeks after he was first deposed by Drew. Eighteen months later, at a second deposition taken on December 16, 2011, Masi explained why he took the Fifth Amendment:
Masi: “When I took the Fifth, it was not because I was concerned about any illegalities. I was an employee at the time. I was concerned more about my position, how I represented the city and any retaliation I may cause to myself as a result of saying—exceeding my authority in some of the answers, so I said that because it seemed to stop your questioning, not because I was concerned about taking the Fifth. I misspoke at that time. I’m recanting that statement. I did not take the Fifth because I have concerns about anything illegal or immoral. I was concerned more about my continued employment with the City of Buffalo and how it would affect me departmentally.”
Masi explained further in his deposition that he held the position of administrator in the Public Works department on a provisional and not permanent basis. That means the mayor had the ability to remove him from his position on 10 days notice; he would keep his Civil Service position but suffer a $13,000 cut in pay—a lot of money for anyone but an especially important consideration for someone so close to retirement.
Masi stated that he was not concerned about being removed by the mayor, however; his concern was what ramifications his testimony may have had on his commissioner, Stepniak, and on their relationship. He did not want to say something that would cause hard feelings between himself and his boss.
Inside View Of The Mayor’s Office
Unsatisfied with his deposition of Masi, Drew sought to question Dana Bobincheck Floriano and Mayor Byron Brown, because Licata, Stepniak, and Masi all had testified that the hiring and promotion of seasonal employees was driven by the Mayor’s Office. (Floriano had been identfied as the liaison between the Mayor’s Office and the Department of Public Works on employment matters.) When Drew’s letters, phone calls, emails, and faxes seeking to set up a date to obtain the testimony of Floriano and Brown were ignored, Drew filed a motion seeking a court order to compel their testimony. After Drew’s motion was filed, the City agreed to have Floriano and the mayor deposed.
On April 16, 2012, Dana Bobincheck Floriano, a former employee of the Mayor’s Office, testified. Floriano worked as a special assistant to Mayor Brown from January 2006 until October 2011. Floriano testified that she contributed $250 to $500 per year to the mayor’s political fund. According to state records, Floriano contributed about $2,700 to candidates between 2006 and 2010, the lion’s share to Brown and the rest to candidates and committees affiliated with the mayor.
Some excerpts from Floriano’s deposition with Drew:
Drew: “When you made those contributions, did you understand that that was—you were required to do so?”
Floriano: “I was not required to make a contribution.”
Drew: “Was it suggested that you make a contribution?”
Floriano: “Yes, it was suggested.”
Drew: “Who suggested it?”
Floriano: “It was—It was done in the—it was not done—it was—it was—you know. You’re gonna go to the party, right? You have to pay to go to the party, you know. It was a campaign function, so—”
Drew: “It was more subtle—.”
Drew: “—than direct?”
Drew: “Who made those statements? Byron Brown?”
Floriano: “Steve Casey.”
Floriano stated that she did not believe the contributions were the prpice she paid for getting or keeping her job. In her own words: “It was—it was just something you did. You just—I don’t know how to explain it. It was just an assumption.”
When asked whether campaign contributions were an expectation, Floriano responded that it was an informal expectation on the part of the mayor and Deputy Mayor Steve Casey, who is the mayor’s chief political advisor and runs his campaigns.
Floriano testified that, as part of her job in the Mayor’s Office, she would review resumés of prospective employees, conduct an initial interviews, and then forward their names to the Public Works Department for a second interview. According to Floriano, Masi or Stepniak would let her know whether the department recommended an individual to be hired or not.
This contradicts Masi’s testimony; Masi said that he neither offered nor was asked for his opinion as to whether to hire a person or not, and that he had no idea what criteria the Mayor’s Office used in their hiring decisions.
Floriano testified that 30 percent of the prospective job candidates sent to the Mayor’s Office for Public Works positions came from other politicians.
Floriano said that she would met with Masi twice per year to view the names of seasonal employees, to determine who would be promoted to permanent positions. Floriano testified that the Department of Public Works would determine and recommend which seasonal employees got promoted—not Brown or Casey. The names recommended for promotion would be forwarded to Casey, who had final say on who got promoted. Often, according to Floriano, there were more recommended names for promotions then positions available, so a conversation would take place between the Stepniak and Casey to determine who got promoted. Again, Floriano’s testimony on this point differs from the testimony provided by Masi, who suggested that all hiring decisions were made in the Mayor’s Office.
When asked what percentage of promotion decisions were made by Casey and what percentage by Brown, Floriano said, “I would say 80 to 85 percent of the time by [Casey] with the—with informing the mayor of the decision-making after the fact, so the mayor was aware that we promoted individuals in the department of public works, but not necessarily who.”
Another interesting exchange:
Drew: “When [Casey] was reviewing the recommendations, the list of recommendations by—presented by Masi, were you present?”
Floriano: “Sometimes. Often. Not always.”
Drew: “Were political—was political affiliation a consideration?”
Floriano: “You mean if somebody was a Democrat or a Republican?”
Drew: “Was prior support of the mayor a consideration?”
Floriano: “The way that—not often.”
Drew: “How often? Thirty percent? The same percentage that you told me of names that came from political—from politicians?”
Floriano: “No, because not always—not always the names that were forwarded by politicians were hired. It was more along the lines of he would say, you know, ‘Who is Jim Smith,’ and I would say, ‘You met him at the mayor’s picnic, he was standing next to the woman with the yellow dress,’ and he would say, ‘Oh, okay.’ It was more along those lines. It was trying to place the name to the face.”
Drew: “Again, it was indirect, it was—but there was—the connection would be a political connection; is that fair to say?”
Brown Testifies That No One Tracks Political Contributions
Brown gave his deposition on April 20, 2012. When Drew asked the mayor about campaign contributions, this is the exchange that ensued:
Drew: “Do you have an expectation that employees in the Mayor’s Office will contribute to your election campaigns?”
Brown: “I do not. Some do, some don’t.”
Drew: “Who doesn’t?”
Brown: “I would say many people don’t.”
Drew: “In the Mayor’s Office, specifically, who do you know who did not contribute to your campaign?”
Brown: “I don’t know. I don’t track it. I don’t personally check it.”
Drew: “Who does that? Casey?”
Brown: “I don’t know.”
Drew: “Would Ms. Maglietto-Smith [like Floriano, a special assistant to the mayor] track who in the Mayor’s Office contributed or didn’t contribute to your election campaign?”
Brown: “I don’t believe anyone tracks that.”
Remember this: Floriano was treasurer for Mayor Brown’s Leadership Council, a campaign fund. Casey is Brown’s chief political advisor. Both worked in the Mayor’s Office. But the mayor claims no one in his office tracks campaign contributions?
On the subject of hiring policy, the following exchange took place:
Drew: “Since you have been mayor of the City of Buffalo, have you made any hiring and firing decisions regarding labor-level employees in the Department of Public Works, Parks, and Streets, and specifically the streets division?”
Drew: “Would the—those decisions be part of Casey’s job?”
Drew: “Does Casey have anything to do with hiring and firing in the Streets division?”
Brown: “He could, when receiving a recommendation, as I could, when receiving a recommendation, pass it on to the Public Works division.”
Drew: “Did you ever direct Ms. Bobinchek-Floriano to send the names of individuals you wanted hired to labor-level positions in the Streets Department either to Masi or Stepniak?”
Mayor Brown first said yes, that he had many times referred names on to Stepniak and that the commissioner would then make the decision whether to hire or not. Drew had his question read back to the mayor, asking that the mayor listen closely and just answer the question itself. After the question was read back, Brown changed his answer to no, saying he had not directed Floriano to forward names of people he wanted hired to the Public Works Department.
The mayor then modified his answer further, stating that there were times when the Mayor’s Office forwarded names and recommendations to Public Works.
When Drew tried to pin down the mayor as to who made the final decision to hire a laborer, it proved to be a difficult exercise:
Drew: “Is it your testimony that the decision to hire was made in the Streets Department and not in the Mayor’s Office for those individuals?”
Brown: “The Streets Department would always interview candidates for a position, and they would make the recommendations.”
Drew: “Who would they make the recommendation to?”
Brown: “They would make the recommendations for who they would—would hire.”
Drew: “Okay. To whom would they make those recommendations?”
Brown: “Again, they would make the recommendations for who would be hired. Once the recommendation is made, then a PR—PR form is signed.”
Drew: “To whom would they make the recommendations to hire? To you?”
Brown: “They would go to Civil Service.”
Drew: “Not to the Mayor’s Office?”
Brown: “There would be sometimes communication on hires with the Mayor’s Office. But the department would make the decision about the hiring.”
Drew: “And when a recommendation came in, did the Mayor’s Office ever make the determination as to whether to hire that individual?”
Brown: “I don’t know.”
Drew: “You never made a decision. Is that a fair statement, then?”
Brown: “I could make recommendations, definitely.”
Drew: “No. I am not asking you about recommendations, sir. I’m asking about the decision to hire. When a recommendation came from the Streets Department to—that an individual was qualified for a position or should be considered for a position, did you ever make a determination whether or not to hire that individual?”
Brown: “There might be times when I would certainly look at it, yes.”
Drew: “I need—I need a yes or no on that question, sir.”
Michael Risman, an attorney for Hodgson Russ hired to represent the City of Buffalo, interjected:
Risman: “I object to the form of that question. He answered the question. If you want to rephrase the question or ask it again, you’re welcome to. But he did answer the question.”
Drew: “Was there ever a time when a recommendation came from the Streets Department to the Mayor’s Office that a particular individual be hired to a labor-level position when you made the determination whether or not to hire that individual? That’s a yes or no question, please no explanation. It’s a yes or no.”
Drew: “ If a recommendation came from the Streets Department to hire a labor-level employee to a position in the Streets Department, and that recommendation was sent to the Mayor’s Office, would Casey have the authority to make the decision whether or not to hire that individual?”
Brown: “Casey would potentially—”
Drew: “Again, sir, it’s a yes or no question.”
Brown: “Okay. Would you rephrase it, please.”
Risman: “Drew, he can answer the question the way he—he feels comfortable. He doesn’t have to answer just the way you’re directing him to answer it. I—I think that’s totally objectionable as to form. He can answer it as he—not every question is a yes or a no. And I don’t think you can demand that he answer yes or no if it’s not a yes or no answer. So I—I object to the form of that question.”
Drew: “If a recommendation to hire a labor-level employee in the Streets Department came to the Mayor’s Office from the Streets Department did—would Casey have the authority to make a determination whether or not to hire that individual?”
Brown: “If the Streets Department made a recommendation to hire someone, that recommendation would not be overruled in the Mayor’s Office, if that’s what you’re trying to get to. No.”
Drew: “No. It’s not what I am trying to get to. I’m trying to get to whether Casey had the authority to give an up-or-down decision, a hire or not-hire decision when a recommendation to hire came from the Streets Department.”
Brown: “And what I’m saying to you is Casey would not do that. If we got a recommendation to hire someone from the Streets Department, after they did the interview and review of that candidate and made a recommendation, Casey would not make an up-or-down determination on that. That person would be hired based on the recommendation and the interview of the Streets Department.”
Drew: “Maybe I’m not asking my question right, and I apologize. I’m not asking what you believe Casey would or would not do. I’m asking if he had the authority to—to make the determination to hire or not hire.” Do you understand my question?”
Brown: “I—I—I do understand your question. But it doesn’t necessarily work the way you’re forming your question.”
Drew: “Did Casey have the authority as first deputy mayor to hire or fire employees of the City of Buffalo?”
Drew: “Would that authority extend to labor-level employees in the Streets Department?”
Brown: “Not in that way. What Casey would do is make sure, when a recommendation was made, that the employee was interviewed, that the appropriate background checks were—were done, and that the department did everything to make sure they had thoroughly looked into the candidate’s background to make sure that someone was not being hired that could be a bad worker for the administration.
“His review would be to make sure that the department followed the prescribed rules for going through the hiring process and looking into candidates’ backgrounds, making sure that any applicable background checks and that kind of thing were done.”
Mayor Brown’s downplaying of Casey’s role differs from the testimony provided by Masi and Floriano. Either the process by which seasonal employees are hired and promoted at City Hall is a great mystery—even to the officials who are ultimately responsible for doing the hring and promoting—or some of these officials are concealing the truth.
The Status and Shortcomings of the Flaws in George’s Lawsuit
The City of Buffalo has filed a motion to dismiss George’s lawsuit. That motion is still awaiting a decision from the court as to whether the case will continue or not. In the motion to dismiss, the Hodgson Russ attorneys representing the City of Buffalo, argued the following:
• George himself was hired during the Masiello administration due to a recommendation from a relative. Masiello’s assistant, Joanne Cavalieri—who occupied a position of political authority similar to Steve Casey’s—interviewed and hired George on the spot without consulting anyone in the Department of Public Works. George now complains about the mayor’s involvement with the hiring and promotion process, but had no complaint when that same process benefited him.
• The City has reappointed George to his seasonal position 22 times.
• George claims he filled out a job application seeking to be appointed to a permanent position, but he does not have any documentation of such application and does not recall what specific position he applied for.
• George admits that he never spoke to Stepniak, Floriano, or the mayor concerning an appointment to a permanent position.
• George acknowledges that the City never pressured or requested him to do political work for the mayor or to change his political affiliation.
• George voluntarily took his son to Brown’s re-election headquarters to volunteer to do political work in 2009. A campaign worker advised George that he could not carry Democratic petitions for Brown unless he was a registered Democrat. George was advised that there were other ways that he could help, and George ended up driving a campaign worker for two hours as that individual obtained petition signatures for Brown.
• George testified that he had “fun” driving the individual around and offered to help again and requested the individual call him if additional help was needed. George was contacted to help but he was unavailable and no one called him thereafter to assist with the campaign.
• One time after work, at the request of a fellow city worker, George handed out flyers in support of Brown’s re-election campaign. On another occasion George voluntarily held up a sign for James Keane, a candidate for Erie County Executive in 2007, on the steps of City Hall.
• At his deposition, George contradicted his statement that Deputy Commissioner Paul Sullivan had advised him that, in order to be appointed to a permanent position, he should change his political affiliation to Democrat. George admitted that his conversation with Sullivan was “just an informal, causal conversation” that was not in the context of obtaining a permanent appointment. George admitted that his prior characterization of his conversation with Sullivan was incorrect, in that Sullivan did not encourage him to change his political affiliation. The changing of political affiliation was discussed in the context of being able to circulate election petitions, not in terms of obtaining permanent employment.
Furthermore, George’s lawsuit originally claimed age discrimination, but the City’s attorneys claim that several seasonal employees promoted to permanent positions during the course of George’s employment are actually older than George. The First Amendment complaint was added later—according to George’s attorneys, becuase their client did not inform him of the alleged coercion until after the original lawsuit was filed.
In his response to the motion to dismiss, George’s attorney stated that the various accounts of the hiring process put forth by the City’s witnesses are “so vague, contradictory and confusing” that one or all of them are hiding the truth.
George’s response to the City’s motion to dismiss concludes by stating:
Substantial evidence has been presented in admissible form to permit a finder of fact to reasonably infer that: (1) Byron W. Brown, the mayor and principal policy maker for the City of Buffalo, established a hiring policy and hiring process that rely on political considerations rather than merit; (2) the policy and hiring process was executed from within the Mayor’s Office according to unwritten, undefined policies by the mayor’s executive assistant and the first deputy mayor—his closest political advisors and operatives, and who had little or no background in HR issues—and the mayor himself: (3) that it was a requirement that those seeking appointment to employment positions contribute to Brown’s election campaigns and campaign funds; and (4) the policy and process had a direct impact on plaintiff, an individual who was registered with a different political party and who was, overall apolitical and never contributed to Brown’s election funds, in that he was denied even consideration for appointment to a permanent employment position.
The job of the attorneys on both sides of this case is to represent the interests of their clients; a lawsuit is not always about uncovering the truth. But deponents are sworn to tell the truth—the whole truth. George’s lawsuit ultimately may fail on its merits, but the depositions of Brown, Floriano, and Masi are not claims made by the plaintiff, George, about the hiring process in City Hall; they’re the claims made by the deponents themselves.
You’ve read the depositions. What do you believe?blog comments powered by Disqus
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