It’s no secret Steven M. Casey, the former deputy mayor of Buffalo, is talking to the FBI.
But is he also talking to the Cleveland developer suing his former boss over allegations of a pay-to-play scheme at City Hall?
Casey is, according to the developer’s lawyers.
Even more important, they claim he verified their contention that Mayor Byron W. Brown killed a $12 million East Side housing project because of politics.
At the crux of NRP Properties’ lawsuit is the allegation that Brown’s anger over a political ally not getting a contract on the project led to its demise.
NRP says Casey recently provided statements that confirm that allegation.
“In other words, Mayor Brown did exactly what NRP’s complaint said he did," Thomas S. Lane, one of the developer’s lawyers, said in a declaration to the court last week.
Brown’s lawyers say they don’t know if Casey is cooperating with NRP and, if he is, what statements he may have provided the developer.
Casey, who left City Hall to join a private development company, is believed to be cooperating with federal and state probes into political operative G. Steven Pigeon, his former mentor.
Pigeon was recently indicted on nine felony counts, most involving bribery.
“Despite this case being around for six years, the plaintiffs have failed to depose Mr. Casey," said Michael A. Brady, one of Brown’s defense lawyers. “And we believe there ought to be no more discovery and no more depositions.”
The civil suit against the city, the mayor, Casey and former Masten Council Member Demone Smith centers around the allegation that Brown killed the NRP deal because of the Rev. Richard A. Stenhouse. The developer insists Casey recently verified this claim.
Casey’s statements, according to NRP, confirm that, “Mayor Brown demanded/required a role for Rev. Stenhouse on the project and, when it became evident such a role would not be provided, Mayor Brown issued a directive that the project was finished.”
Casey’s lawyer wouldn’t comment on NRP’s claims or the possibility that his client might become a key witness against a mayor he was instrumental in electing 11 years ago.
“Mr. Casey has no agenda and his only loyalty is to the truth," said his attorney, Rodney O. Personius.
NRP’s disclosures about Casey came out when the city’s new defense team filed a motion to kill the lawsuit and end discovery before Casey and several others are formally deposed.
The city’s new motion claims Brown, Casey and Smith are protected by “legislative immunity” and, to move forward with depositions and other forms of discovery at this time, would unfairly harm them.
“It’s absolute," Brady of the immunity protection. “The courts can’t decide why a governor or a mayor decided to pursue or not pursue a legislative action.”
The concept of immunity dates back to the founding fathers and was designed to prevent elected officials from being sued for actions they took or decisions they made while serving in government. The goal was to avoid frivolous lawsuits against public officials and to insure that public service would remain appealing.
NRP’s lawyers claim the immunity argument is nothing more than a delaying tactic and, in court papers, suggest Brown might be worried about a “potential criminal investigation by federal authorities” looking into their pay-to-play allegations.
The company would not elaborate on those claims, and Brown’s lawyers, noting the case dates back to 2009, said it’s unlikely the FBI or anyone else would be interested in the lawsuit.
“We have no direct knowledge of a federal investigation,” said Brady.
NRP says the city’s latest effort to kill the lawsuit is based on legal arguments that are “old, rehashed and repackaged,” and have already been rejected by the court.
“The defendants have now tried six times to have this case dismissed," said Nelson Perel, an NRP lawyer.
Perel believes the city’s latest effort to kill the suit in rooted in the mayor’s desire to avoid more depositions and more embarrassing disclosures.
“Defendants motion is a transparent attempt and desperate ploy to avoid further damaging evidence from entering the public record," he said.
Even the judge in the case seemed curious about the timing behind the city’s motion, which came just two months before his court-ordered deadline for discovery.
“It’s surprising you’re coming in at this time," U.S. Magistrate Judge Leslie G. Foschio told lawyers for the city last week.
The judge also referred to the $645,341 in taxpayer-funded legal fees spent on the city’s behalf and wondered aloud why the city went from one lawyer, Terrence M. Connors, to three - Brady, Personius and former U.S. Attorney Michael A. Battle.
“What prompted this wholesale change?" Foschio asked at one point. “I think it raises questions.”
Brady made it clear the city had no obligation and no intention of explaining why it changed outside counsel. He did, however, challenge the suggestion that Brown is simply dragging out the litigation in hopes of avoiding Casey’s deposition.
“It’s absolutely not a delaying tactic," Brady said. “Under the law, the concept of immunity is so important, and we decided now is the time to raise it.”
The shake-up in the city’s defense team came as the two sides exchanged “discovery” material and more than a year after Brown testified under oath about the pay-to-play allegations for the first time.
During a deposition at a downtown law office, he told lawyers he doesn’t remember a conversation in 2009 in which he is alleged to have spelled out his quid pro quo demand that NRP hire Stenhouse.
“I don’t recall that exact conversation,” Brown testified in July of last year.
NRP’s complaint is rooted in a failed housing project that was supposed to result in 50 rental homes in the Masten and Cold Spring neighborhoods.
In early 2009, the project stalled when Brown refused to transfer land the city had set aside for the development. At the time, Brown said he was uncomfortable with the project, in part because of a requirement that it be rent-to-own housing.
When the project stalled, NRP filed suit in federal court.
Stenhouse, a well-known and influential minister with his own record of development on the East Side, was a defendant in the suit until he settled with NRP for a reported $200,000 in early 2012.
Despite settling, Stenhouse has said, through his lawyers, that he never demanded or in any way insisted on a contract with NRP.