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Brown can't be sued, judge says, dismissing 'pay-to-play' suit

A federal judge has dismissed a Cleveland developer's civil lawsuit claiming the City of Buffalo and Mayor Byron W. Brown engaged in a “pay to play” for a city housing project.

U.S. District Judge William M. Skretny rejected NRP Properties’ contention that it was denied a $12 million housing project because Brown insisted on a related job for a longtime ally, the Rev. Richard A. Stenhouse.

But the dismissal does not hinge on any judgment about the actions of the mayor and city. Instead the judge said that Brown could not be sued for his actions as a chief executive.

Skretny’s ruling stems from an ancient concept dating to English law, according to Michael A. Brady, an attorney for Brown and the city. In a democracy, he said, governors, mayors and legislators are immune from civil lawsuits connected to their official duties. Similar immunities are recognized in the law for prosecutors, judges and members of Congress.

“If your representatives have to be worried about being sued over anything they do as legislators, nobody would want the job or they would be paralyzed by lawsuits,” he said. “The judge is concluding here that because of the legislative immunity issue, there was no basis for this lawsuit to begin with.”

NRP attorney Thomas S. Lane  said the firm is "surprised and disappointed by the Court’s decision."

"Far from absolving Mayor Brown for his actions, the Court has simply found that a technical legal argument may allow Mayor Brown to escape a civil remedy for his actions," he said.  "NRP is hopeful that the matter will be decided differently on appeal."

Former Deputy Mayor Steven M. Casey said in an affadavit: “At the time, he commented that he was tired with the out-of-town white developers handling all of these projects.” (Derek Gee/Buffalo News file photo) 

Lane  said the record contains several references to a scheme.

"Indeed, the Court’s decision is replete with references to the record concerning the defendants and specifically Mayor Brown’s participation in demanding a pay to play scheme," he said.  "The decision explicitly references the record evidence that “NRP was ‘put on the spot’ during a call with the City when the City’s representatives stated [NRP] needed to ‘make Stenhouse happy.’

From the start, NRP contended that the deal died because of Brown’s anger over the firm’s refusal to award an $80,000 contract to Stenhouse. It sued the city, Brown, former Deputy Mayor Steven M. Casey, and former Masten Council Member Demone A. Smith.

Stenhouse also was named in the original suit, but was dropped as part of a settlement.

“Assuming all of NRP’s allegations of corruption to be true, indeed, assuming that Mayor Brown and Council Member Smith had admitted to ‘unworthy’ or even criminal conduct, the actions at issue would be nevertheless immune from civil liability,” the judge said. “And, because legislative immunity is absolute, this Court has no discretion to evaluate the motives behind that conduct.”

The decision removes a longstanding legal and political albatross from around the mayor’s neck. He was criticized in some quarters when reports indicated Casey said in a 2016 affidavit that Brown wanted Stenhouse – who headed an East Side faith-based development organization – involved in the project.

“At the time, he commented that he was tired with the out-of-town white developers handling all of these projects,” Casey said in his statement.

But Casey also stopped short of linking the mayor or Stenhouse to a pay-to-play scheme. He did say Brown wanted Stenhouse to be the face of a $12 million project that NRP unveiled in 2009 and became irritated when Casey questioned the need for Stenhouse.

Lane, the NRP's attorney, pointed to Casey's affidavit in his resposne to Skretny's decision.

"The Court references the affidavit from Dep. Mayor Casey where he confirmed Mayor Brown insisted Stenhouse “had to be involved” in the project.  The Court also references the declaration from Steven Weiss where he confirmed Mayor Brown insisted that NRP hire Stenhouse “or the deal will not go through” and where he further confirmed that once NRP refused to hire Stenhouse, the Mayor stated “I told you what you had to do and you hired the wrong company.””

Though Brown is favored to win a fourth term this year, it was anticipated that any of several potential opponents could use a negative ruling against him. Now that argument, barring any successful appeal, appears to have been removed as potential campaign fodder – at least from a legal standpoint.

[RELATED: Ex-deputy mayor backs up firm's pay-to-play allegation against Brown]

Skretny said NRP failed to establish a basis for a civil suit, basically ruling that neither another party to the case – the Buffalo Urban Renewal Agency – nor the mayor, nor any other city official could award Stenhouse a contract without Common Council approval.

He also dismissed a racketeering claim against Casey under the federal RICO statute, finding that “legislative immunity precludes the RICO claims.”

Skretny also noted the city’s claims that a municipality “cannot be bound by the promise of an official who lacked authority to make such a promise.” And he said the City Charter makes clear that Common Council approval of the sale of city property was necessary for the project to proceed. Council approval was also needed for a payment-in-lieu-of-taxes agreement.

“Because those promises were, by law, conditioned on legislative approval, neither the Buffalo Urban Renewal Agency, nor any other defendant or city agent, had authority to make them unconditionally,” Skretny said.

The Casey affidavit, reported by The Buffalo News in December, provided the first details of what Brown’s onetime confidante ‑ the man credited with engineering his rise to power ‑ was saying about the mayor’s role in killing the project.

Signed in August, the affidavit supported some of NRP’s allegations, most notably Brown’s campaign to hire Stenhouse and his instructions to kill the project. But it made no direct mention of retaliation or a pay-to-play scheme.

Brown’s lawyers have maintained all along that the Casey affidavit was noteworthy for what it doesn’t include - any evidence of retaliation by the mayor.

“The Casey affidavit doesn’t say anything about a pay-to-play scheme,” Brady said in December. “And it certainly doesn’t back up their claims about a pay-to-play scheme.”

 

Brown has said he soured on the project because of how long it would have taken renters to become homeowners and because the housing would have been scattered rather than built in a cluster.

 

Casey, who left City Hall to join a private development company, is also believed to be cooperating with federal and state criminal probes into political operative G. Steven Pigeon, with whom he was once closely allied. Pigeon was indicted last June on nine felony counts, most involving bribery.

 

 

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