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High-powered Paladino legal team put Nevergold on hot seat

The unprecedented hearing before New York State Education Commissioner MaryEllen Elia is to decide whether Carl P. Paladino should be removed from his elected position.

But during the first day of testimony Thursday, it was those seeking his removal who were on the hot seat – specifically School Board President Barbara A. Seals Nevergold, a longtime Paladino nemesis.

In a brutal first day of proceedings, Paladino's team of high-powered attorneys kept Nevergold on the stand for about six hours, grilling her about whether she followed state laws for discussing matters in private executive sessions.

Nevergold's testimony will be a key part of the hearing, with attorneys for both sides using their questions to lay the groundwork for their cases.

"Every question was asked with a purpose in mind," Dennis Vacco, the former state attorney general representing Paladino, said after Thursday's session. "It might not be immediately evident today or tomorrow. But there is a purpose."

Those on the board seeking Paladino's removal must convince Elia that the Park District representative knowingly shared information about teacher contract negotiations discussed during an executive session, thus compromising the board's ability to conduct business.

"These are serious violations that impair the ability of the district to operate," said attorney Frank Miller, who is representing the board members seeking Paladino's removal.

Those board members are up against Paladino's counter argument that they want him gone not because he disclosed confidential information, but rather to retaliate for racially charged comments he made last year about then-President Barack Obama and his wife.

"What we might take away from a long day of testimony was exactly what I started with," Vacco said, emphasizing his contention that the board majority's real aim is to squelch Paladino's First Amendment rights. "This is all about his speech."

In several somewhat unexpected moves, Paladino's team also pressed Nevergold on whether she herself had violated state law and board policy by holding illegal executive sessions – including one that may have resulted in the decision to file the petition against Paladino.

Attorney Jennifer Persico, also part of Paladino's legal team, reiterated that point in several ways, first by arguing that Nevergold routinely does not properly disclose why the board is going behind closed doors to discuss its business.

More crucially, Persico spent much of her cross examination pressing Nevergold on whether the board illegally discussed and decided in a meeting with no public notice  – and without informing two board members – to seek Paladino's removal for disclosing confidential information.

The board had previously, on Dec. 29, passed a resolution pledging to hire outside counsel to explore their options for seeking his removal for the racial comments about the Obamas published the prior week in Artvoice.

The board majority then on Jan. 4 hired Miller, who advised them they could not seek Paladino's removal for those remarks because it would be unconstitutional.

At some point between then and Jan. 18, board members switched course and decided instead to seek Paladino's removal for the executive session disclosures.

Persico argued that they must have discussed and decided on the pivot at some point prior to a Jan. 18 meeting when they officially voted because Paladino was served notice of their petition at the same meeting.

"What I'm wondering is, since this was a board action, when did the board come together to vote on this issue?"  Persico asked at one point.

"We believe that is significant," Vacco said. "There is no other resolution between that date and the 18th, but the cake is baked."

Throughout the cross examination, Nevergold struggled to piece together the timeline of how things unfolded, several times changing her testimony and saying that she was confused about when things happened.

"None of us are attorneys. We were emotionally wrought," Nevergold said, explaining why the board passed the Dec. 29 resolution and then changed course.

Thursday's opening paints a tense backdrop to what was already expected to be a tedious hearing, garnering interest all over New York and even the nation.

Going into the proceedings, no one knew how much Elia would allow Paladino's team to stray from the issue of disclosure of executive session discussions. It appears, based on Thursday's proceedings, that they can stray quite a bit.

And given that Paladino can be a wildcard himself, many observers suspected he would use the proceedings to air grievances he has with the district. It is highly likely that will include how the recent teacher contract – which he voted against – was settled.

Both Buffalo Teachers Federation President Philip Rumore and a member of the Buffalo Fiscal Stability Authority – also known as the Control Board – are expected to testify Friday, as the board presses its case about the confidentiality of teacher contract discussions.

Despite the controversy Paladino has stirred up in Buffalo, there were empty seats in the hearing room and there were no public protests on the first day.

"I didn’t think there would be that many questions for her on cross examination," Miller said at the end of the session, referring to Nevergold, who was the day's only witness. "But we'll deal with it."

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