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Mascia’s removal from BMHA board violated Constitution, attorney charges

The case of Joseph Mascia vs. the City of Buffalo and its housing authority is of constitutional significance, Mascia’s attorney says, with implications extending to the electoral process itself.

At its heart is whether a governing executive has the right to remove an elected representative from his or her office, lawyer Steven M. Cohen says.

Buffalo Mayor Byron W. Brown in May ordered that Mascia give up his post as a tenant-elected commissioner for the Buffalo Municipal Housing Authority after private recordings were released of Mascia using racial slurs referring to black political leaders and government officials.

Mascia is asking that a June election to fill his vacant seat be voided and that he be allowed to run for the position again.

Lawyers for the city and BMHA contend Brown properly followed the state public housing law which allows him to remove commissioners who are deemed unsuitable, and they asked that Mascia’s lawsuit be dismissed.

Justice John L. Michalski, who in June denied Mascia’s request to halt BMHA elections to fill two tenant representative seats, said Wednesday he would reserve his decision, but not until he had heard Cohen’s impassioned arguments about protected speech and the rights of duly elected officials.

In presenting his case, Cohen did everything but hold up his own pocket copy of the U.S. Constitution as he referenced not only articles and amendments to the Constitution but also its genesis and the intentions of the Founding Fathers.

He talked about the Great Compromise, the right of representation and the separation of powers.

“There is a constitutional right for anyone to run for an office for which they are qualified,” Cohen said, “And also the right of the people to vote for the person who will best represent their interests.”

He said the 1939 state law that Brown employed to remove Mascia was enacted when mayors appointed all commission members and they served at his pleasure. It wasn’t until 1974 that housing authorities had elected representatives as well.

He also challenges a bylaw amendment passed by the BMHA in February that bans tenant-elected commissioners from seeking re-election for at least two terms if they are removed from office for cause, saying in Mascia’s case it punishes actions that took place before the bylaw went into effect.

The fundamental basis for Mascia’s case is that the method to impeach an elected official is clear from the Constitution on down, and it was not followed in his case.

“There is no precedent – not one – authorizing the removal of an elected official by an executive,” Cohen said, although there are “tons” of examples of executives firing their appointees.

Shauna L. Strom, the city’s attorney, repeated her motion to dismiss the request, saying that no cause of action against the city existed, and that the mayor “followed the statutory code to the letter” by having a hearing on Mascia’s behavior and following the hearing officer’s recommendations.

Michalski did not say when he expects to issue his decision.

email: mmiller@buffnews.com

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