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Effort to oust Mascia from BMHA board enters court

Joseph A. Mascia, for years a vocal critic of Buffalo Municipal Housing Authority officials, became a pariah when he was outed for using the N-word to refer to Buffalo’s political leaders.

Now, almost five months after the secret recording of his comments was publicly released and almost four months after he was suspended from his BMHA seat, Mascia is getting his day in court.

A hearing on the city’s attempt to oust Mascia from his position as an elected tenant representative begins Friday morning. The hearing is being held in City Court, not because it’s a criminal proceeding, but because City Court was viewed by both sides as a neutral venue.

The case will be heard by a hearing officer, not a judge, who then will make a recommendation to Mayor Byron W. Brown. The courtroom has been reserved for a total of seven days, so the hearing, as of now, is expected to continue through the end of the year.

The city – represented by the Corporation Counsel’s Office – is expected to present its case first on why officials feel that Mascia is not fit for office.

To do that, some witnesses, including tenants, will talk about why Mascia’s comments make it impossible for him to effectively represent the largely minority BMHA tenants. Other witnesses, primarily members of the BMHA board, will explain the procedure they took that resulted in their requesting that Brown first suspend, then remove Mascia from his position. Other evidence, including the taped conversation, also will be presented as the city attempts to prove that Mascia is guilty of official misconduct and abusing his position, in violation of BMHA policies, and should be dismissed.

Specifically, the allegations state:

• Mascia used racial slurs in reference to local African-American leaders, including Brown and BMHA Executive Director Dawn Sanders-Garrett as well as Common Council President Darius G. Pridgen and Assemblywoman Crystal D. Peoples-Stokes, D-Buffalo.

These comments, it is alleged, “give the impression that he has a racial bias that affects his decision-making ability, and reflects racist tendencies and attitudes.”

Such views, the city alleges, influence his ability to act in a fair and impartial manner, impairing his judgment.

His comments, the city contends, also undermine public confidence in the BMHA and distract the BMHA from carrying out its mission.

• Mascia said on the tape he would be “taking down” BMHA board Chairman Michael A, Seaman, as well as Sanders-Garrett, Brown and others. That statement, the city alleges, amounts to Mascia using his public position to settle personal grudges and, therefore, for private gain.

After the city presents its case, Mascia’s attorney, Steven M. Cohen of the Hogan Willig law firm, will present Mascia’s defense, which will include witnesses rejecting accusations that he is racist. The witnesses will likely talk about the help that Mascia, 70, has provided to other tenants – irrespective of race – during his almost 10 years as a BMHA tenant-elected representative.

Cohen is expected to argue that while Mascia’s recorded comments were reprehensible, they don’t represent the man.

Mascia – who has publicly and repeatedly apologized – was goaded into making the comments, the attorney is expected to argue, by an individual whom Mascia thought was his friend, but who turned out to have a political agenda, as evidenced by the tape being leaked to the media four months after the recording was made in March, but while Mascia was running for a Council seat over the summer.

Mascia was handily defeated in the September primary, during which the recording became a key campaign issue.

The defense is expected to portray Mascia as someone who devoted much of his life over the last decade to helping BMHA tenants.

“The community is intelligent enough to look back at the many years history of Joe Mascia as a commissioner and community advocate and say here is one unfortunate hurtful word against the backdrop of a career in which he’s been a tremendous support of the tenants of the BMHA facilities, tenants who are predominantly African-American,” Cohen said.

“It’s very telling, even following his removal as commissioner, that tenants still come up to him to help them.”

Cohen also is expected to argue that the real reason the city wants Mascia off the board isn’t because of the recorded comments, but because Mascia has a been a strong critic of the BMHA.

“He seems to have been the one to fight most vigorously for the tenants,” Cohen said. “He is disliked by the Brown administration because he would fight so fiercely for his tenants.”

The city and the BMHA have denied the allegation.

Beyond the merits of the case, Cohen said he also has concerns about the way the hearing is being handled.

Following release of the tape in July, the BMHA requested Mascia’s resignation, and when he refused, the issue was sent to the Housing Authority’s ethics board. That panel found Mascia’s action in violation of BMHA policy and therefore asked that Brown suspend Mascia as a step toward removing him from the board. Brown suspended Mascia in late August and appointed an outside attorney, Anne E. Evanko of the Hurwitz and Fine law firm, to serve as hearing officer.

Cohen questioned the mayor’s authority to oust a tenant-elected commissioner and objected to the mayor’s unilaterally appointing a hearing officer in the case.

“To start out with an appointment handpicked by the mayor, without any input from Commissioner Mascia, sets the stage, I fear, for an unfair proceeding,” he said.

Cohen also said he believes that the city made its case against Mascia by filing charges and suspending him, and does not have the statutory authority to now present a case against Mascia during the hearing. The role of the hearing, Cohen said, is for Mascia to defend himself against the allegations – not for the city to present its case.

Some of Cohen’s concerns have already been reviewed and rejected by the hearing officer.

The city declined to comment on Cohen’s individual complaints, but a spokesman said the case has been handled correctly.

“The city has gone above and beyond the requirements for this public hearing and is confident the process will yield a just result,” said Brown spokesman Michael J. DeGeorge.

Once both sides in the dispute make their case, the hearing officer will present a report to the mayor, who then will decide if Mascia should be removed from the board or if he can fill out the rest of his term.

Either way, Mascia has said he plans to run for another term in June. His current two-year term expires July 1.

“Let the people decide,” Mascia said.