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A frequent critic of the Buffalo Municipal Housing Authority’s administration is fighting to keep his elected position as a tenant commissioner after pleading guilty last month to a misdemeanor in City Court.

Joseph Mascia, an eight-year veteran of the Board of Commissioners, is at the center of a legal dispute over whether his guilty plea to violating state election law in his unsuccessful 2012 run for the Assembly means he is automatically off the board.

The BMHA’s general counsel says Mascia’s plea to failing to file campaign financial disclosure statements is a violation of his oath of office under the state Public Officers Law and that as a result, his commissioner’s post automatically became vacant.

Mascia says the Public Officers Law doesn’t apply to his position and that only the board can declare the position vacant.

Mascia claims that the general counsel’s action is a political move designed to get him off the board because of his criticism of the administration.

He said it stems from his call for an investigation by the HUD inspector general into what he contends is the authority’s misuse of federal housing funds to hire outside legal counsel, even though it has its own legal staff, and to pay the Buffalo Police Department to provide “above baseline protection to residents,” although he said police mostly issue traffic citations and most of the arrests and citations they make are outside the housing complexes.

“In my eight years on the board I haven’t backed off any criticism of the BMHA,” he said. “Of course they want to remove me. It’s absolutely political, and everybody knows it.”

“I’ve been under their skin for years,” he added.

Dawn Sanders-Garrett, the authority’s executive director, denies that politics is involved in Mascia’s seat being declared vacant. “It was a result of his personal actions,” she said. “We received a letter from the general counsel informing us the seat was vacant” because of the guilty plea.

She said the general counsel’s action had nothing to do with Mascia’s votes on the board or his criticism of the administration.

Meanwhile, Mascia, a 69-year-old tenant of the Marine Drive Apartments, is running for his fifth two-year term as one of the board’s two tenant commissioners. The election will be held June 10. The current term expires June 30.

Sanders-Garrett said Mascia filed his petitions for re-election before his guilty plea. She said the League of Women Voters, which runs the election, researched whether he could remain on the ballot in light of his guilty plea. If he can stay on the ballot, she said the next question will be whether he can take office July 1 in the event he is re-elected. Six or seven candidates are running for the two tenant commissioner positions.

Mascia said he received a call Friday from a BMHA staff member indicating that his name will be taken off the ballot and that he subsequently received a letter from the League of Women Voters informing him of the decision. He said his attorney, Joseph G. Makowski, worked over the weekend to prepare legal papers and will file a motion in State Supreme Court today seeking a court order putting him back on the ballot.

Makowski contends that his client is still a commissioner, can run for re-election and can start a new term if he wins. Mascia said he plans to attend a candidate “meet and greet” at 6 p.m. today at Holling Homes.

Mascia faces sentencing July 2 before City Court Judge Thomas P. Amodeo.

In an April 15 letter to the BMHA board and its chairman, David Rodriguez, the authority’s general counsel informed them of Mascia’s plea. He said that under the Public Officers Law, Mascia’s position automatically became vacant because the plea involved a violation of his oath of office.

However, Makowski in an April 17 letter to Rodriguez said Mascia’s seat is not vacant because the Public Officers Law does not apply to his position. He said Mascia is neither a state officer nor a local officer as defined by the law and neither a public officer nor a public official under the law.

Even if the Public Officers Law applied to Mascia’s position, Makowski said, his guilty plea to an unclassified misdemeanor does not violate his oath of office, since it involved election law, not penal law.

He also said the plea did not involve a crime of moral turpitude, a crime for which public officers can be removed for misdemeanor convictions arising outside the line of duty, according to a state Court of Appeals ruling he cited.

The state’s highest court said such crimes demonstrate “intentional conduct indicative of a lack of moral integrity” and involve “willful deceit or a calculated disregard for honest dealings” – crimes such as perjury, conspiracy to commit bribery and grand larceny, and underpayment of taxes. It also said there must be “intentional dishonesty” or “corruption of purpose.”

Makowski told The News that crimes of moral turpitude generally involve the improper taking of a benefit, citing the case of Cheektowaga Council Member Charles Markel, whose seat became vacant after he pleaded guilty to improperly receiving jobless benefits.

He said Mascia received no benefit from his failure to file financial disclosure statements.

In his letter to Rodriguez, Makowski said the only way Mascia can be removed is if the board takes formal action deeming his seat vacated and gives his client an opportunity to be heard on the matter.

If the board takes such action, he said Mascia can challenge it in court and seek an order keeping him in his tenant commissioner position.

Rodriguez told The News that the Public Officers Law does apply to commissioners of housing authorities. He said housing commissioners elsewhere have been removed after pleading guilty to a crime in violation of their oath of office.

He said Mascia’s guilty plea constitutes a violation of his oath because it involves intentional dishonesty and corruption of purpose of the campaign finance law, which he said seeks to ensure public accountability and transparency in elections.

He said Mascia intentionally violated that law, noting that the state Board of Elections sent him notices of his failure to file campaign financial disclosure statements and that the Erie County Board of Elections later invited him in three times to file the disclosure statements.

He said Mascia did not file the statements, and the case was referred to the Erie County District Attorney’s Office, leading to last month’s guilty plea.

“He refused to file,” Rodriguez said. “That’s intentional and corrupts the intention of the statute to make the public aware of who candidates are getting their money from.”

Makowski said Mascia’s campaign treasurer failed to file the statements, and by the time Mascia learned of it, a substantial period of time had passed.

Mascia said he, not his treasurer, was ultimately responsible for filing the statements.

email: jstaas@buffnews.com