[If you are interested in the “retaliatory First Amendment claim” asserted by attorney Dennis Vacco on behalf of the controversial Carl Paladino, please see my column, “Did Carl Paladino engage in protected free speech?” in the July 10, 2017 print version of the Buffalo Law Journal, and on-line here.]
What do Carl Paladino, school board member, developer and former gubernatorial candidate, and Mark Chason, developer and president of the Chason Affinity Companies, have in common?
They both turned to former State Attorney General Dennis C. Vacco and the firm where he is a partner, Lippes Mathias Wexler Friedman LLP, for legal representation.
What is stunningly different in Mr. Vacco’s representation of his two clients?
In his current role as the lawyer representing Mr. Paladino in the proceedings to remove Mr. Paladino from the Buffalo School District’s Board of Education, Mr. Vacco is a champion of the First Amendment’s Free Speech clause.
In stark contrast to his free speech advocacy on behalf of Mr. Paladino, Mr. Vacco appeared oblivious to a lawyer’s First Amendment rights when he argued several years ago on behalf of the Chason Affinity subsidiary, Affinity Elmwood Gateway Properties LLC, for a gag order restricting the freedom of speech of his opposing counsel in a civil lawsuit.
Affinity was plaintiff in litigation brought to extinguish deed restrictions from 1892 on Chason Affinity’s properties at the southeast corner of Elmwood and Forest avenues in the City of Buffalo. I was the opposing counsel who had displeased Mr. Chason (“Of course, if it wasn’t for him there would be a beautiful development on Elmwood.”), and, as a result, was aggressively pursued by a handful of lawyers at the Lippes Mathias firm, including Dennis Vacco. They sought – through the use of a Temporary Restraining Order – not only to bar my communications with Kaleida Health, a non-party health care provider, but also to prevent me from contacting the City of Buffalo regarding property maintenance violations at Affinity’s Elmwood Avenue properties. Their accusations against me bordered on the preposterous, and included baseless claims that I had violated the New York Rules of Professional Conduct.
The judge who oversaw – and, even aided and abetted the Vacco team in their efforts to stifle me – was the now-disgraced John A. Michalek.
The events that transpired in “His Honor’s” courtroom from November 2012 through March 2013 are detailed in the Appellants’ Brief that I prepared to challenge the temporary restraining order and subsequent “permanent” order issued by Michalek at the behest of Dennis Vacco and his colleagues at Lippes Mathias. The series of court orders precluded me from communicating with Kaleida Health, concerning the subject matter of the deed restriction lawsuit.
In the end, I spent 409 days – from November 20, 2012 through January 2, 2014 – with my First Amendment right to free speech restricted by the “gag order” pursued by Mr. Vacco on behalf of Mark Chason’s development company. Fortunately, on January 3, 2014, the New York State Appellate Division, Fourth Department, ruled unanimously that the lower court had “abused its discretion” when Michalek prohibited me from communicating with Kaleida Health, and struck down the impediment to my free speech. “Justice” Michalek’s orders were so clearly contrary to the court rule relied upon by the lower court, that the appellate court didn’t need to address the constitutional issues raised in the appeal. [Note: Courts prefer not to render decisions based on constitutional claims if lesser laws or regulations can provide the basis for their rulings.]
I find the contrast between Carl Paladino’s words that the former State Attorney General finds worthy of First Amendment protection, and the letter-to-the-editor that I wrote that led to the prior restraint of my free speech rights, so striking that I’ll set them out here:
CARL PALADINO’S COMMENTS IN DECEMBER 23, 2016 EDITION OF ARTVOICE THAT DENNIS VACCO CHARACTERIZES AS “LOW AND UNNECESSARY”:
What do you want for 2017?
Carl Paladino DEVELOPER, SCHOOL BOARD MEMBER, POLITICAL ACTIVIST:
- Obama catches mad cow disease after being caught having relations with a Herford (sic). He dies before his trial and is buried in a cow pasture next to Valerie Jarret, who died weeks prior, after being convicted of sedition and treason, when a Jihady cell mate mistook her for being a nice person and decapitated her.
- Michelle Obama. I’d like her to return to being a male and let loose in the outback of Zimbabwe where she lives comfortably in a cave with Maxie, the gorilla.
…
ARTHUR GIACALONE’S LETTER TO THE EDITOR, PUBLISHED 09-10-2012 IN THE BUFFALO NEWS, THAT MR. VACCO CLAIMED IN OPEN COURT WAS “SCURRILOUS” (in other words, vulgar and evil):
August 28, 2012
Re: Affinity is a risky choice for Kaleida/Gates Circle
Dear Editor:
Chason Affinity’s proposal to re-use the Millard Fillmore Gates Circle Hospital site as a veterinarian teaching hospital may well be “visionary.” But more than an inspired idea will be needed if Kaleida Health is to reach its laudable goals for re-use of the prominent landmark.
The expressed purpose of Kaleida’s million-dollar development competition was to “get the best ideas and the most capable developers to do something great” with the hospital site – great for the neighborhood, city, developer and Kaleida. For that goal to be met, Chason Affinity will need to substantially up its game from its performance the past several years at the southeast corner of Elmwood and Forest avenues.
In 2007, with vague plans to construct student housing, a Chason Affinity subsidiary signed a contract to buy several century-old buildings at Elmwood and Forest. A year-and-a-half later, despite a risky financial market, a group of unhappy neighbors, and deed restrictions prohibiting “any business establishment,” Affinity proceeded with the purchase, spending nearly $2 million for eleven parcels. When the developer subsequently announced its vision for the “gateway to the Elmwood Village,” it proposed construction of a 6-story, 175,000 square-foot “mixed use” project poorly suited for the neighborhood, rather than the creative re-use of the quintessential “Elmwood Village” properties.
Unable to convince the adjoining owners to approve its project, Affinity is now in court seeking to extinguish the restrictive covenants that protect its neighbors. During the intervening years, the developer’s properties have been allowed to deteriorate in plain sight of residents, commuters and tourists. Affinity has been recently cited for code violations at eight of its properties.
Chason Affinity may have won the competition, but Kaleida may want to think long and hard before designating it the developer of the Gates Circle site.
Sincerely,
Arthur J. Giacalone
In case you are curious, Kaleida Health did end up rethinking its approach to the former Millard Fillmore Gates Circle Hospital site “after Chason Affinity was unable to recruit a veterinary school as previously planned.” [See Kaleida Health Press Release issued 09/24/2013.]
With all due respect,
Art Giacalone
APPENDIX:
The “SCHOOL BOARD MEMBER CODE OF CONDUCT” of the City of Buffalo Board of Education provides the following: “As a member of my Board of Education, I will strive to improve public education, and to that end I will:… (g) Abide by the District’s Code of Ethics.
The “CODE OF ETHICS FOR BOARD MEMBERS AND EMPLOYEES OF THE BUFFALO CITY SCHOOL DISTRICT” expressly states: “V. REQUIREMENTS … (h) Confidentiality Requirements of Public Information and Records: (i) No board member or employee shall disclose confidential information acquired by them in the course of their official duties to further their personal interests or the interests of anyone in his/her family. (ii) No Employee or Board Member shall disclose the following matters discussed in executive session: (4) Discussions regarding proposed, pending or current litigation; (5) Collective negotiations under the Taylor Law;…
Section 306 of the state’s Education Law empowers the Commissioner to remove a school officer (including a member of a board of education), after a hearing (with the right of representation by counsel), “guilty of any willful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or willfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education.” Section 2559 of the Education Law confirms that “for cause shown” – and after giving notice and opportunity of defense – the commissioner of education may remove any member of a board of education for “willful disobedience of any lawful requirement of the commissioner of education, or a want of due diligence in obeying such requirement or willful violation or neglect of duty.”
Also, Section 805-a of the state’s General Municipal Law [GML] expressly states that “No municipal officer or employee shall: … (b) disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interest.” A “municipal officer or employee” is defined to include “members of any administrative board, commission or other agency” – whether paid or unpaid – and, “municipality” expressly includes a school district. GML Section 805-a(2) provides the following: “In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate this section may be fined, suspended or removed from office or employment in the manner provided by law.”
With All Due Respect 