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CRITICS CLAIM CITY IS BEING SELECTIVE IN RESIDENCY LAW

Sandra Marciniak and Sandra Harvey got the ax last summer and 25 other rank-and-file heads at City Hall may roll soon.

But Marilyn Smith, a top aide to Mayor Masiello, continues to collect a city paycheck despite allegations that she, too, lives in the suburbs.

"It's funny how it works," said W. James Schwan, a lawyer for Ms. Harvey. "Marilyn Smith, for whatever reason, this law does not apply to her."

Mrs. Smith, the city treasurer, has become a lightning rod for critics who claim the city is ignoring top-level managers as part of its residency crackdown.

Of the 25 employees who may be fired in the coming weeks, none is a department head or manager.

The Masiello administration has been vocal about the need to clamp down on residency violators. Although the law dates back to 1939, the city has been lax in its enforcement.

City officials deny the claims of selective enforcement and say no one has formally complained about Mrs. Smith.

"If someone makes a request, she'll be investigated," said Edward J. Mahoney, a member of the Buffalo Civil Service Commission.

Mrs. Smith, who earns $47,739, has indicated in the past that she lives at the Fairfax apartment house on Delaware Avenue and last week stood by those claims.

"The record speaks for itself," she said. "When I relocate, I will notify the city."

The Fairfax, however, says Mrs. Smith no longer lives in the apartment house.

"She and her husband moved out of here on Sept. 30," said Carol McCarthy, resident manager at the Fairfax.

The allegations that Mrs. Smith lives outside the city have been revived by Masiello's own campaign-spending reports. They reveal that Mrs. Smith's husband, the Rev. Bennett W. Smith, recently gave the mayor $1,000.

His address was listed as Red Oak Drive in Williamsville.

Mrs. Smith is not alone when it comes to allegations that Masiello's top aides are living outside the city.

Thomas Williams, assistant director of the Buffalo Municipal Housing Authority, owns a house in Clarence, but claims his primary residence is at a relative's house on West Avenue.

"I do own property in Clarence, but I live in the city," Williams said. "I do on occasion go to Clarence. I've never denied that. But what I do on the weekends is my business."

Williams, active in Democratic Party politics, said he expects to be called before the Civil Service Commission and at that point will offer proof that he lives in the city.

Buffalo's white-collar union has raised the issue of selective enforcement as part of a formal complaint against the administration.

"We have filed an improper practice charge alleging the city is selectively enforcing residency requirements against union members and not against managerial employees and that's against the law," said Robert Reden, a lawyer for the union.

The union also is appealing a lower-court ruling that upheld the Civil Service Commission's authority to fire union employees. The union argues that, under its contract with the city, all dismissals should be handled by a neutral third party.

"The three-man commission is made up of politicians," said John A. Grieco Jr., president of the union.

Nevertheless, Buffalo is moving ahead with the potential firing of 25 employees. The commission will begin hearings later this month as part of the city's crackdown on residency violators.

In July, the commission dismissed two employees, the first residency-related firings by the Masiello administration.

Masiello said employees should take the firings as a warning to move back into the city or suffer the ultimate consequence -- losing their jobs.

"Some have complied. Some have not," said Stephen T. Banko III, a Masiello spokesman. "Some have chosen to retain counsel rather than live up to the terms of their employment. We will see them in court."

Banko said the mayor also is considering a class-action lawsuit to retrieve salary payments to employees in violation of residency laws.

The two fired employees, Sandra Marciniak and Sandra Harvey, are reportedly challenging their dismissal. Schwan said Ms. Harvey can prove she lives in the city and has gone to court to get her job back.

Residency has become a hot issue as city officials look for ways to plug budget holes, increase the tax base and stem the population drain to the suburbs.

The city, by most estimates, pays $150 million a year in salaries to police, firefighters and other workers who live and spend their money in suburbs.

State law exempts police officers, firefighters and some street sanitation workers from residency rules.

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