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His Majesty's Dog at Kew

The Common Council’s “trick or treat”

About 2:30 on Halloween afternoon, the Buffalo Common Council voted 6-3 to approve Mayor Byron Brown’s plan to sell two blocks of Fulton Street to the Seneca Gaming Corporation. In the same session, the Council also approved a resolution to limit the environmental impact study of this deal to those two blocks, rather than the whole nine-acre development site, thereby ensuring that, unless the Control Board or a court steps in, none of the potential harm the casino would do to the city’s life and economy will be given any serious consideration by any agency with any power to say, “Stop this foolishness now.”

The six members of the Council rubberstamped everything that Mayor Brown and the Seneca Gaming Corporation wanted them to rubberstamp. They ignored eloquent and informed pleas and arguments from scores of Buffalo residents a few nights earlier that they protect the city by rejecting the sale and do everything in their considerable power to block the casino project entirely.

They ignored economic reports showing that the promised 1,000 casino jobs will displace at least twice that many higher-paying jobs elsewhere in the city. They ignored a report from a reputable assessor saying that Mayor Brown and the Corporation Counsel were asking them to approve the sale of Fulton Street for about one-third of its real market value.

At the end of the part of the meeting dealing with those resolutions, Council President David Franczyk said this had been a difficult and complex issue, that no one had been pressured, and that he thanked everyone on the Council for voting their consciences.

Maybe it was conscience more than present and future money from the gambling interests, and maybe the direct phone calls from Governor Pataki on the day of the vote had no more influence than arm-twisting by Mayor Brown’s office. Maybe it is true that, as Franczyk said, the Council members voted with their consciences.

If he’s right, perhaps it would have been far better for Buffalo if those Council members had voted with their brains, or had at least let their brains in on what was going on.

Who voted how

The three Council members who voted to reject all four parts of the Fulton Street sale resolution and who refused to endorse an environmental impact study that would have no meaning whatsoever were Joseph Golombek, Jr. (North District), Michael Kearns (South District) and Michael LoCurto (Delaware District). Each of them voted no to each of the four parts of the sale. Each of them said why he believed the sale of Fulton Street, and the casino itself, was against the city’s best interests.

Only two supporters of the mayor’s and the Seneca Gaming Corporation’s deal spoke to the issue at the Halloween afternoon Council session. Majority Leader Dominic Bonifacio (Niagara District) waited until the fourth of the four sale resolution votes to say that he thought it was terrible that the mayor’s office had conducted all of these negotiations in private and only engaged the Council when it came to the sale of a street. But, he said, however lousy a process it was, there was a contract on the table and as far as he was concerned a contract is always better than no contract.

Every lawyer in the room went into giggle-control mode when Bonifacio said that. All of them could have listed scores of contracts that did one party and sometimes both parties far more harm than no contract at all. That is what you study when you study contracts in law school: contracts that went so bad that judges had to unravel the mess. When Bonifacio said that a contract is always better than no contract, I thought of a battered wife saying, “Yeah, he beats the shit out of me now and then, but when he does that, at least he’s paying attention, and that’s better than nothing.” No, it isn’t.

The other speaker was Brian Davis, who has been silent at most of the previous Council hearings on the casino issue. Davis went on at some length about community development and vision and how projects must be seen in relation to other projects. It was, I thought as he was speaking, a surprisingly good statement, one that had to end with a line on the order of, “Therefore, I will vote no on this harmful agreement and I urge all my colleagues to do likewise, and I will do everything I can to block this entire harmful project, and urge all my colleagues to do likewise there as well.”

But Davis never got that far. After a while, he just stopped talking. There was no conclusion to his recitation. It was a bunch of points leading to no final point. It was quite freaky. A few minutes later, when it came to the five votes—four on the sale of Fulton and one on the environmental impact study—Davis voted to sell the street and segment the impact study.

I don’t know how to figure the others. Antoine Thompson (Masten) came up to me in the hallway outside the chamber before the vote and let me know he was annoyed because I’d written in Artvoice that he’d been hiding from meetings at which this sale was to be discussed and that when it came to the actual vote he’d do the mayor’s bidding. “But you haven’t been seen at any of these meetings,” I said, “and you have avoided saying anything about the casino.” He grumped off, then went inside and did the mayor’s bidding.

In the final vote to sell, Thompson, Bonifacio and Davis were joined by Council President and Fillmore District representative David Franczyk (who has his job thanks to longtime casino advocate Carl Paladino), Richard Fontana (Lovejoy) and Bonnie Russell (University). None of them bothered to say anything about the sale. They just sat there, and when five key votes came up, each of them said, Yes, yes, yes, yes, yes.

When 50 loses to five

The key event leading up to Tuesday’s vote was a session in Council Chambers last Thursday night in which the public was invited to comment on the proposed Fulton Street sale. None of the Council members spoke at that meeting; they were there, they said, to hear what the citizens had to say.

About 55 people spoke. All but five strongly opposed the casino. The first regular speaker was Erie County legislator Maria Whyte (see sidebar). A homeowner who lived near the casino site said that the city had asked people like her to move downtown, which she had done, and now the city was planning to widen the streets around her house to accommodate casino traffic. What, she asked, happens to people like me now? A young building owner said the casino’s huge competitive advantage would drive him out of Buffalo. People spoke of various kinds of economic, environmental and social harm this sale and the casino would do to the community. With only a few exceptions they were eloquent, specific and lucid.

Only three regular speakers were in favor of the sale and the casino. Two of them were officials in the building trades unions, whose comments and thoughts went no further than the construction project.

The special speakers

I used the phrase “regular speaker” in the two previous paragraphs because two casino advocates were given special position and extra time. The first was Corporation Counsel Alisa A. Lukasiewicz. The other was Michael Powers, a partner in the law firm Phillips, Lytle.

Lukasiewicz spoke as if she were a PR agent for the Seneca Gaming Corporation. If you didn’t know she was an attorney on the city payroll presumably protecting the city’s interests, you couldn’t have figured it out from her remarks. Powers spoke like a trial attorney summing up in front of a jury. Most of what they said was false or misleading.

Why were they putting on this performance at all? The evening had been convened for the Council to listen to Buffalo residents giving their opinions on Mayor Byron Brown’s plan to sell two blocks of Fulton Street to the Seneca Gaming Corporation. So why were the Corporation Counsel and the lawyer who had won the case that kept the casino from going to Cheektowaga making sales pitches for the Seneca Gaming Corporation? (At the end of the evening Delaware District Councilman Michael LoCurto said, “I’d like to see that woman’s job description.”)

Were they addressing the Council members and the committed citizens, or the TV, radio and print reporters in the room, nearly all of whom left before a third of the citizens got their three minutes at the mike?

Lukasiewicz’ lecture

Alisa Lukasiewicz is hard to listen to. Her public speaking voice at first seems school-marmy or patronizing, but I think it is just a sing-song style: Dah-dah-DAH-da, dah-dah-DAH-dah, dah-dah-DAH-dah. She began with a theme Michael Powers would repeat a dozen times: the inevitability of the Seneca Creek casino:

“I think it is very important to understand that the context in which we have negotiated the proposed agreement for the sale and abandonment of Fulton Street is made in a context that the decision of casino gaming is coming to Western New York. And that decision was made four years ago when on August 18, 2002, Governor Pataki and the Seneca Nation entered into a compact. And at that time it was determined that the Seneca Nation would have the exclusive right to build and operate three Class 3 gaming facilities in Western New York. In that context, we set out to negotiate the best deal we can, knowing that the casino was coming. And that casino will be built, with or without Fulton Street, and that casino will be built with or without the protection that we have attempted to gather in this proposed agreement.

“So, with one card to play, I’m very proud of the proposed agreement that we have. Because we basically had one negotiating tool. Our only leverage was Fulton Street. And through that we have an agreement that you can sum it up in three short words: It’s about jobs, jobs and more jobs. There’s a thousand jobs, as you know, and hundreds of jobs to the trade and construction area, not to mention the [benefits] to local vendors and suppliers to the casino.”

Then she read off the bullet list of what the Seneca Gaming Corporation would do, the deal that the mayor’s office had, by playing Fulton Street hardball, negotiated on the city’s behalf. Because the mayor’s office is selling Fulton Street, for example, the Seneca Gaming Corporation will build a casino and hire people to work in it and pay for water just like everybody else. Things like that.

Then she turned on the nay-sayers, which included just about everyone in the room except the dozen or so building trades guys in the back, the six Council members who would vote to sell, Michael Powers and herself:

“I do anticipate that there will be lawsuits that will be generated from this agreement, as has happened in the past in Buffalo. There will always be issues that people use to obstruct when one tries to build, and there will always be issues that are generated every time a new project comes about. But I would like to ask the Council, if a $125 million project that promises a thousand jobs and improvements to city streets is not acceptable, what project will ever be worthy of your approval? People here and elsewhere are watching and we have to decide, will we do the same old thing or are we at the beginning of a new century of development, with jobs, along Buffalo’s waterfront?”

Her characterization of objections to this deal as obstructionism of the kind that comes up when “one tries to build” is the old lawyer’s device of, “If you don’t have the facts, attack the witness.” The primary facts neither she nor Mayor Byron Brown has ever publicly addressed are these: Urban casino jobs come at the cost of as many as three jobs, many of them higher-paying, elsewhere in the urban economy, and since this casino would have advantages held by none of the casinos in the urban casino studies—it is tax exempt and operates outside state health, safety and liability laws—it would cost Buffalo even more jobs.

That isn’t development. I don’t know what the word is for a construction/business project that moves a huge amount of money and, in the end, costs the community money, jobs and autonomy. But if there were such a word, Alisa Lukasiewicz probably wouldn’t have uttered it anyway.

The best response to her conclusion came from County Legislator Maria Whyte: “I couldn’t be more sympathetic of the view that we need to quit protesting stuff, quit studying stuff, quit delaying stuff, quit putting up roadblock after roadblock, and just build something for Christ’s sake,” White said. “But let’s be smart, not desperate. Let’s be thoughtful and strategic, not careless.”

Unfortunately, the only members of the Common Council who would take Maria Whyte’s wise advice when the vote came five days later were Golombek, LoCurto and Kearns.

Michael Powers’ jury summation

During her presentation, Lukasiewicz had looked primarily at citizens sitting in rising rows behind the Council members. After she finished, Council President Franczyk said that future speakers should address their remarks to the chair, not to the room. He then introduced Michael Powers, the lawyer who had won the lawsuit blocking the Seneca Gaming Corporation from putting its casino in Cheektowaga and who had also brokered the current deal between Byron Brown and the Seneca Gaming Corporation. Powers, Franczyk said, had received no compensation from the city for his efforts. A few minutes later, Powers would say much the same thing.

Powers, who had been sitting a row or two behind Lukasiewicz during her presentation, ignored Franczyk instruction. He stepped down into the well, looked over the heads of the Council members and addressed the room in much the same tone and demeanor attorneys use when summing up at the end of a jury trial. Behind him, on tripods, were three artists’ renditions of the hypothetical Buffalo Creek casino. They were very fancy.

“I was the one who saw the Rich Stadium and the UB issue coming again,” he said. “I saw a revenue-generating, job-generating, economic development project leaving Buffalo for the suburbs. To the extent any of you see evils in gambling, there would have been evils in Western New York because the casino would have been in Cheektowaga. The benefits of that casino, however, would have been inured to the people of Cheektowaga. The town of Cheektowaga, the residents of Cheektowaga. So I stepped in and, with the assistance of Mayor Masiello and the city, as well as Carl Paladino, we litigated that and we brought the casino back downtown. It was a popular decision with some, and an unpopular decision with others. But one thing that is sure is that the benefits of this casino will inure to the citizens of Buffalo. After the negotiations broke down for the sale of Fulton Street, I became involved again at the request of the Seneca Gaming Corporation and at the request of the City of Buffalo because I was very familiar with the issues in Buffalo. I did it on a volunteer basis and I did it for the same reason that I addressed the Cheektowaga issues.”

His main point, which he repeated again and again, was that the casino was coming to Buffalo, no matter what anyone wanted, said or did.

“Let me make sure that everyone in this room understands what the issue is here and what the issue is not,” he said. “The issue is not whether gambling is good or bad. The issue is not whether casinos are good or bad. I do not advocate on either side of that question and I never have. The issue is not whether there is going to be a casino in Buffalo. The Seneca Nation got that right in 2002 from the governor of the State of New York and the New York State Legislature. The time to fight that was in 2002…The issue tonight is not even whether the casino is going to be on that nine-acre site that straddles Fulton Street. It is. The casino is going to be built there. Whether you like it or not, the casino is going to be built there.”

But that isn’t true. When Michael Powers told everyone in that large room they could consider only one issue he was doing what lawyers do at the end of a trial: trying to focus the jury in a way favorable to his client.

But he wasn’t addressing a jury, and there are lots of issues around the Buffalo Creek casino project. There was no opportunity to fight the casino in 2002 because it was a deal cut in secret and passed at night in a bundle with a bunch of other bills, but there are indeed opportunities to fight it now. The mayor and Common Council could stop the casino project cold by refusing to issue easements or otherwise cooperate with the construction project, the same way Brown’s predecessor, Anthony Masiello, stopped the Peace Bridge twin span construction project seven years ago. A major suit challenging Secretary of the Interior Gale Norton’s action setting all of this in motion is pending in federal court. A casino may be built in Buffalo, but it is by no means the sure thing Lukasiewicz and Powers claim. If it were such a sure thing, there would be no need for them to keep saying it over and over and over and over.

Then Powers said that if the city sold the Senecas Fulton Street it would get “an A-plus casino” but if it didn’t sell Fulton Street it would only get a “C-minus casino.” The A-plus casino, he said, “is going to be a magnificent structure. There will be a $125 million development, without any tax funds being used. There will be hundreds of union jobs that will be created for the construction of the casino and there will be vendors for the casino reaping $30 to $40 million per year. In addition, you will have a three-acre urban park that’s built and you will have what by any measure is now a severely depressed and blighted area of the city brought back to life with additional police, additional security, jobs and some of the other benefits Alisa mentioned. In this agreement, the Seneca Nation has agreed to a number of things. And at the risk of repeating some of them that Alisa mentioned, instead of $70 million development, you’ll have $125 million. You’ll have assurances…”

The one new thing he said was, “The casino will stop $40 to $70 million a year that presently goes into the slot machines in Fort Erie from going to Canada. That money will stay in Buffalo.”

Where did he get those numbers? Even if he were right about the shift in slot drop from Fort Erie to Buffalo, why would those casino profits stay in Buffalo when none of the other casino profits are staying in Buffalo? Have you heard of any casino profits staying in Niagara Falls?

The response from the room was polite, but cool. Hardly anybody was buying the pitch. Powers seemed to grasp, at the end, that he was preaching the wrong case to the wrong jury.

“He stood in front of a room full of activists,” one lawyer said to me later, “people who were there because they cared and because they thought their opinions should matter, and he told them that their opinions meant nothing because the decisions had been made by other people, so all they could do was choose among two options. He got that wrong too: The option he said was C- was by far preferable to nearly everyone in that room.”

Whose dog is Michael Powers?

As I noted above, when he introduced Michael Powers, Council President Franczyk said Powers had received no compensation from the city for his efforts. A few minutes later, Powers repeated the same thing.

I couldn’t help but think of the poet John Berryman, who was fond of saying that the shortest real poem in the English language went:

I am his majesty’s dog at Kew.

Pray, sir, whose dog are you?

The point of the poem, Berryman said, is that everybody is somebody or something’s dog; the problem is sniffing it out.

I called Powers on Halloween afternoon to ask whom he’s working for. He wasn’t there so I left a message on his voicemail. His secretary called a few hours later. “He said to tell you it’s all pro bono. It was about 12 to 14 weeks.”

“All of it?” I asked, “even his court appearances this week?”

“Yes,” she said, “all of it.”

Why would the Phillips, Lytle law firm commit so much of a senior partner’s time, the firm’s resources, as well as the time of the younger lawyers who assisted Powers in the Cheektowaga case, the current City Hall lobbying and the various motion hearings in state court? Do they really believe this will be so beneficial to the city that they’re willing to spend hundreds of thousands of dollars making it happen? Does Powers, who doesn’t live in Buffalo, so love the city and believe in the casino he is willing to give up three or four months of salary to get it built?

Carl Paladino told me he spent $150,000 on the Cheektowaga lawsuit. Were lawyers in that case other than Powers getting paid but not Powers? If so, how curious.

The lies the lawyers told

What neither Powers nor Lukasiewicz told the Council members and everyone else in the Council Chamber Thursday night, or the Council members when they had their Monday caucus, is that the agreement Byron Brown “negotiated” with the Seneca Gaming Corporation is almost totally without meaning. It is full of terms that have no force in law, such as “intend.” It has many meaningless phrases, such as “The Nation agrees to work with the City, in accordance with all applicable laws.” If a law is applicable, you don’t need a contract to bind them to it; that’s what “applicable law” means.

But there are virtually no New York State laws that are applicable to the Seneca Nation of Indians. The agreement says that the Seneca Nation will work with the city get the state to up the city’s share of the slot drop. How nice. But the Seneca Nation has no say at all in how Albany will partition the slot drop. All of this section is in terms of “agree to work together to seek…” or the Seneca Gaming Corporation agreeing to reimburse the city for extraordinary expenses the city bears on the SGC’s behalf when the SGC puts on “special events.” But the document doesn’t say what “special events” are.

They agree to pay for the same water and sewer bills everybody else does. Big deal. Who thought otherwise?

The city also agrees to take 15 percent of its share of the slot drop and put it in a special fund, the distribution of which will be decided by a committee of two representatives from the city, one from the Seneca Nation’s Tribal Council and one from the SGC. That means the city is agreeing to let the Seneca Nation and SGC have a voice in how the city spends its share of the slot drop. Who’s giving up sovereignty now?

The SGC agrees to do a very small amount of advertising about its Buffalo casino outside of town and to mention the city of Buffalo in those ads. Big deal.

In return for which the SGC promises to build its casino, pay for Fulton Street, remove its garbage, make whatever infrastructure improvements it thinks will make it easier for customers to get in and out of the casino, provide the city with reports on “the Corporation’s intentions regarding hiring of Buffalo residents, minorities and females,” and to send a human resources manager to the Common Council to make presentations. It agrees to hold job fairs and to give local employment agencies advance notice of job openings.

Section 9 of the agreement contains all the hard economic stuff: the 1,000 jobs, the 50 percent local hiring goals, the use of local construction companies and vendors, etc. The section is full of toothless terms, like “intention,” “to the extent practicable,” “explore,” “to use good faith efforts,” etc. That would be bad enough, but none of it matters anyway because of the title and first sentence of the section: “Intentions. With no legal obligation of each to the other (except to the extent expressly set forth elsewhere in this Agreement) but as a confirmation of their respect good faith intentions…”

“No legal obligation of each to the other”! What is a contract but a document of legal obligations? Why would the city’s lawyers enter an agreement that transferred city property forever in exchange for ‘no legal obligation’?

Since the Seneca Nation of Indians cannot be++ sued in state court and none of these are matters that have standing in federal court, what happens when things go awry? They agree to go to arbitration, “provided, however, that no involved Party may seek monetary damages, other than specific performance, for any alleged dispute, claim, question or disagreement.”

This is like having a street marked “no parking any time under penalty of the law,” with the penalty for parking your SUV there being limited to a request, made after a great deal of discussion, that you move your SUV elsewhere. And if you refuse? Nothing.

It is an astonishing document, full of whereases and agrees and declares and intends, signifying nothing. And Mayor Brown signed it. And Michael Powers takes credit for having brokered it. And Alisa Lukasiewicz, the city’s Corporation Counsel, is proud of having negotiated it. And the Common Council ratified it.

I am his majesty’s dog at Kew.

Pray, sir, whose dog are you?

Bruce Jackson is SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at UB. His new book, The Story Is True: The Art and Meaning of Telling Stories, will be published in March by Temple University Press.