Mascia takes city to court to overturn Brown’s removal of him based on ‘illegal speech’

BY FRANK PARLATO

Former Buffalo Municipal Housing Authority (BMHA) Commissioner, Joe Mascia, 71, who was removed by Mayor Byron Brown from office in May, is suing BMHA and The City of Buffalo in NY State Supreme Court.

In what could emerge as a landmark First Amendment case, the City admitted Mascia’s removal was based on comments he made during 31 seconds of a private conversation that was secretly recorded.

The city learned of the secret recording wherein Mascia repeatedly used the word “n—ger” to describe certain local African American officials including Mayor Brown, after it was released to the media.

Mayor Brown, in announcing his decision to remove Mascia, made his decision based on a threefold sequitur: A public hearing, as required by law, was conducted where his finder of fact determined that 1. Based on what Mascia said during 31 seconds of a recording, he is a racist, 2. Someone who is racist is guilty of misconduct, 3. Someone guilty of misconduct must be removed from office.

Brown contends Mascia’s speech was illegal.

In addition to the illegal speech, the method to conclude it was illegal may have resulted in the first public hearing where a finder of fact set out to find and determined if an elected official is a racist.

Mascia, who was one of two tenant elected commissioners on a seven-member BMHA board prior to his removal, is represented by civil rights attorney, Steve Cohen of the law firm HoganWillig.

The City made a motion to dismiss the lawsuit.

State Supreme Court Justice John L. Michalski has been assigned the case and as of press time has not ruled on the City’s motion to dismiss.

CASE BACKGROUND 

In March, 2015, Mascia was serving his fifth term as a BMHA commissioner when his friend and associate, Paul Christopher, secretly recorded a conversation as they drove to Albany on matters unrelated to BMHA.

Three months later, the secretly recorded tape was released to the media and posted online.

It created a media frenzy.

Mascia apologized for his comments, which he said were made out of anger over the corruption of city officials including the mayor, but refused to resign as an elected BMHA commissioner.

Shortly afterward Mayor Brown suspended Mascia as a BMHA commissioner and appointed Buffalo attorney, Anne Evanko, as his “independent hearing officer and finder of fact” to conduct a public hearing and make a recommendation whether Mascia should be permanently removed from office.

At the time, Mascia and his attorney, Cohen, questioned the selection of Evanko, the managing member of Hurwitz and Fine, which, according to reports, contributed to Brown for Buffalo and The Mayor’s Leadership Council on 12 occasions, totaling  $7,500 since 2005. Evanko donated $280 to Mayor Brown on April 15, 2015.

At a Sept. 2015 conference, Evanko explained to Mascia that while her services were paid for by the City of Buffalo, she was “not representing the city. … I’m neutral. I’m the hearing officer and the fact finder, so I’m neutral and unbiased.”

According to Open Book Buffalo, Evanko’s law firm received $54,505 from the City of Buffalo in 2016 presumably subsequent to her work as a hearing officer for the mayor.

AN IMPARTIAL HEARING

Mascia’s hearing lasted from December 18 to December 30. He brought witnesses who claimed he was not a racist and that he competently performed his duties as a tenant elected BMHA commissioner. Mascia claimed that the offending conversation was private, while he was not on BMHA business, that it was protected by the First Amendment and that he should not be judged on 31 seconds of conversation but on the whole of his performance of his duties which included being a successful tenant advocate for people of all races.

The City, for their part, brought forth the tape and BMHA officials said they were hurt and offended by Mascia’s speech and that the BMHA could not run efficiently if Mascia remained.

At the hearing, attorney Shauna Strom, representing the city, admitted Mascia’s words on tape was the sole basis of the charge of misconduct brought against him.

No other evidence was presented by the City to show Mascia displayed any other racist conduct other than his 31 second speech that was secretly recorded.

THE RESULT OF THE HEARING WAS SPEECH CENTRIC 

On May 20, Evanko submitted her “Hearing Officer’s Report and Recommendation”.

It was direct and to the point and everything pointed to speech as the crime.

Evanko crafted language in a manner meant to persuade that speech, in and of itself, is, or could be, if not a literal crime, surely so damaging as to suspend normal human behavior and common sense.

She was focused on speech and the punishment for the wrong kind of speech.

Here are some quotes from her report (Evanko’s references to speech are in bold.)

“Mascia’s speech was race-based and racially-motivated and that Mascia committed misconduct as a Commissioner of the BMHA, which serves a predominantly African-American population.”

“The reprehensible nature of his comments or the clear public perception of the words as racially-based and racially-motivated.”

“Mascia chose  to  use  and  did  use  inherently  race-based, racially  inflammatory  words.”

“Mascia’ s comments do in and of themselves demonstrate that he holds preconceived notions and racial prejudices towards African-Americans.”

“Mascia’s comments give the distinct view to any listener that he has racial biases and racist attitudes.

“(T)he necessary conclusion from Mascia’s statements is that he does indeed hold such biases and attitudes and that they fundamentally affect his ability to perform his duties and make decisions in an independent, impartial, non-discriminatory manner. These conclusions are inherent in the racially-charged nature of the words Mascia elected to use.”

“I conclude that, by and because of his racial comments, Mascia: Has given the distinct appearance that he has racial bias, that such bias affects his decision-making ability as a policy setter for the BMHA, and that this has impeded the effectiveness, efficiency, and economy of the BMHA”

“…I therefore recommend the removal of Commissioner Mascia from his position on the Board of Commissioners of the Buffalo Municipal Housing Authority due to his misconduct.”

Mascia was found guilty of racism.

Based on a 31 second snippet from a secret recording, a preponderance of evidence was found by Evanko that  Mascia was a racist and being a racist meant he could not perform his duties and therefore committed misconduct.

After the Evanko report came out, Brown announced to the media, “It’s clear to me from the hearing officer’s findings that Mr. Mascia is a racist masquerading as an activist. He holds strong discriminatory beliefs against the people he claims to be helping.”

THE LAW IS MURKY ON BROWN’S

RIGHT TO REMOVE AN ELECTED COMMISSIONER

Aside from First Amendment issue, the idea that government, any government, is authorized to conduct an inquiry whose purpose is to determine if someone is racist and thereby unfit for office is Orwellian.

If the government can investigate and conclude that a single incident of speech can make a person, in this case, an elected commissioner, officially a racist, why couldn’t this court of inquiry be expanded to investigate racism of other elected officials?

No one will hardly be expected to believe that Mayor Brown never uttered a racist sounding remark which happily was not caught on tape.

Few will believe that there are no other officials who, if their worst moments were secretly recorded that they might reveal some prejudice that someone could argue makes them unfit to serve the people that they serve.

Not too many centuries ago there were tests devised to determine if someone was a witch and trials to prove it.

Tests of racism for elected officials and the populace in general could be advanced based on the Brown/ Evanko precedent, a precedent which removed an elected official from office.

ANOTHER ISSUE

But the Mascia case has another tentacle – which is the right of the mayor to remove Mascia as an elected official whether he is racist or not.

This is a question of interpretation of New York State Public Housing Law, which was enacted in 1939 when all commissioners on city housing authority boards were appointed by the mayor. None were elected.

Section 34 of the law provides for the removal of appointed commissioners: “for inefficiency, neglect of duty, or misconduct in office.”

But the Public Housing law was amended in 1974, to require, in addition to five commissioners appointed by the mayor, two commissioners to be elected by the tenants to sit on a seven-member board.

Mascia was not appointed by the mayor but elected by the votes of some of 12,000 tenants who chose to vote in the BMHA election.

Section §34 authorized a mayor to remove appointed commissioners. It was never amended to address whether a mayor had authority to remove an elected commissioner.

“There is no framework enacted in the law, nor does it currently exist contemplating the removal of an elected commissioner,” said Mascia’s attorney, Steven Cohen, in an affidavit filed with the court.

“To allow a single person to remove an individual from an elected position undermines legislative intent, public policy, fundamental fairness, democratic values, and the notion of a system of checks and balances on power.”

The matter does not seem to have been adjudicated, although in 2015, the New York State Assistant Solicitor General in Charge of Opinions, Kathryn Sheingold, issued an “informal” opinion that since Public Housing §34, was never amended, despite the 1974 legislative decision to provide for elected commissioners, this indicate that the same process for removal stands for both elected and commissioners appointed by the mayor.

Cohen disputed that opinion and argued that “While (Brown) can remove a Commissioner that he himself appointed, a Mayor cannot unilaterally remove a Commissioner that was elected by the residents, for any reason, let alone for that elected Commissioner’s exercise of constitutionally protected free speech in a private conversation.”

Turning it on Brown, Cohen added, “There has been a pattern and practice of discrimination against Commissioner Mascia that is plain, years long, and very well documented.”

For years, Mascia publicly criticized the Brown Administration’s management of the BMHA during his five terms as an elected commissioner, often making claims of corruption, wrongdoing, and suspect contracting practices.

Cohen raised a final issue: “the impartiality of the Mayor.”

He said, Brown was not motivated out of concerns about Mascia’s fitness as a commissioner, but was “personally interested in having (Mascia) removed, partially due to regrettable and derogatory comments (Mascia) made about him in a private conversation that was recorded without (Mascia’s) consent or knowledge and which became the subject of a great deal of media attention.”

Cohen also alleged that Evanko, who has donated to the mayor and was paid by the city far more than she donated for work the mayor selected her to do, was not impartial either.

“The basic principle of American Jurisprudence is that the finder of fact is impartial,” he said.

The case with all its nuances will certainly be closely followed by this newspaper and other media.

Stay tuned.