State judge pumps the breaks on Kensington Expressway project

The Kensington Expressway’s Ferry Street overpass in 2021, © Andre Carrotflower, CC BY-SA 4.0

Where’s The News?

Over the past few years, The Buffalo News has produced consistent and in-depth coverage of the state and federal government’s plan to spend over one billion dollars transforming three-quarters of a mile of East Buffalo’s portion of the Kensington Expressway into a tunnel, as well as community opposition which has resulted in five lawsuits over the project. 

A veteran News journalist, Mark Sommer, produced much of that coverage. Following his resignation to protect younger hires from layoffs, the newspaper has not reported on last week’s court appearance—which saw arguments in three of the cases—despite its editorial board having published an endorsement of that court appearance and called on the state to complete a comprehensive environmental study “to answer legitimate concerns.”

Four local television networks filmed the hearing and broadcasted segments including clips of the arguments and interviews with the plaintiffs’ attorneys and their clients. The Law Office of Stephanie Adams, a small part of the legal team representing the East Side Parkways Coalition and Buffalonians residing in the vicinity of the expressway, provides this long-form story in the absence of coverage by Buffalo’s only remaining daily newspaper. We hope it will return to this important beat in November.

Lawsuits commence

In February 2024, Governor Kathy Hochul announced the state’s “negative declaration” for the project’s environmental assessment, which asserts that it will not have a significant impact on the environment, the community, or local traffic. Four months later, the East Side Parkways Coalition, the Western New York Youth Climate Council, Citizens for Regional Transit, the Coalition for Economic Justice, the New York Civil Liberties Union, and about sixty individuals challenged the negative declaration by suing the New York State Department of Transportation, the City of Buffalo, and the Federal Highway Administration.

The goals of the four state lawsuits, all pending before New York State Supreme Court Justice Emilio Colaiacovo, include ordering the state to complete an environmental impact statement, compelling compliance with a greenhouse gas emission reduction law called the Community Leadership and Climate Protection Act, vindicating the environmental protections of our state constitution’s Green Amendment, and ultimately restoring the Humboldt Parkway, which was destroyed in the 1950s in order to construct the expressway. The state cases are being heard through a single, consolidated scheduling process but remain separate actions with unique but overlapping arguments relating to the past and future of the parkway and the expressway.

Notably, the parkway’s namesake, Prussian polymath Alexander von Humboldt, is considered a father of environmentalism and the first scientist to write about human-induced climate change. The Kensington, on the other hand, derives its name from a central neighborhood of London, England—a city whose air pollution killed up to 12,000 people during a 5-day weather event in 1952 known as “the Great Smog.” While New York State Highway Law Section 343-O designates the portion of the Kensington Expressway within city limits as the "Reverend Dr. Martin Luther King, Jr. Expressway," the state’s transportation department named the tunnel project—which is squarely within city limits—the “Kensington Expressway Project.”

a temporary restraining order

On October 7th, 2024, Judge Colaiacovo granted the coalition’s request for a temporary restraining order to prevent work from commencing on the expressway project. The judge did not extend the order to prevent the state from awarding contracts for the project. Attorneys for the state said that an award of the project’s first contract, which would include replacement of the Best Street overpass, was "imminent,” but—in response to questioning by the judge—admitted not knowing its status or any further details.

Four days later, Governor Hochul announced the award of the $44.5 million dollar contract to Union Concrete and Construction Corporation of West Seneca, despite knowing that work was blocked by lawsuits. The same day, Hochul responded to the restraining order, telling The Buffalo News, “We get sued every single project. There are always legal delays. It’s the nature of major, large-scale projects in the State of New York.”

In the days preceding the next court date, October 25th, the pace of new court papers accelerated to a multiple filings per day across four dockets. The judge pushed back hearing arguments on some motions previously scheduled for the 25th. No motions to dismiss, nor any motion in the case brought by the New York Civil Liberties Union, would be heard that day. The questions still at play included whether the restraining order would remain in effect and whether a preliminary injunction would replace it.

The court was alerted that scores of plaintiffs, petitioners, and supporters were planning to attend, and the judge changed the hearing’s venue to the largest courtroom in the building.

October 25th

One hour before the 2 P.M. hearing, members of the East Side Parkways Coalition wearing forest green t-shirts reading, “Restore the Humboldt Parkway,” gathered in front of the towering granite courthouse at 92 Franklin Street. They hugged, laughed, and speculated: Would the temporary restraining order continue? Would the judge rescind it for the Union Concrete contract? Would he comment on the merits of the cases?

Attendees started to file in through security at about 1:30. When the courtroom opened for people to take their seats around 1:50, the mood was expectant. The room was filled.

The hearing opened with a presentation from East Side Parkways attorney Adam Walters. Because a preliminary injunction can only be granted if a party asking for it can show a likelihood of winning, Walters described the state’s deficient scrutiny of the project’s impacts: a meager half-page transportation analysis with a single sentence addressing traffic congestion, no consideration of the noise that would be emitted by excavation, blasting, and construction, no predictions as to how blast vibrations would impact the environment and adjacent structures, and inadequate consideration of the effects on air quality.

Walters argued that the transportation department’s analysis is belied by air quality data published by the New York State Department of Environmental Conservation, and he described the serious traffic implications of the project, arguing that it would cause daily backups to the city line for at least four and a half years.

When it was the state’s turn to present, the judge raised the issue of the potential insufficiency of environmental assessment, using the Scajaquada Creek—encased underneath the expressway—as an example of a potential complication. For each concern about insufficient review, the state’s attorneys stated that the environmental assessment was sufficient or that mitigation and surveys would be conducted after the start of construction (through an approach called “design-build”).

When the judge asked the state’s attorney Patrick Omilian why there was no evaluation of the project’s potential effects during construction, Omilian replied, “Exactly, there’s no significant impact expected," which elicited an audible reaction from the audience. Chuckles and gasps rose and fell as the judge replied, “That’s hard to believe,” and reminded the audience to maintain decorum.

An attorney for Union Concrete appeared at the hearing too, and requested permission to submit arguments against the temporary restraining order and any preliminary injunction, claiming that each would hurt his client. Arguing against this request, attorneys for the petitioners pointed out that the state had ample time and opportunities to address contractor concerns after receiving notice of the lawsuits and prior to awarding the contract.

Finally, the state attorneys argued for a $445,000 dollar bond to to off-set potential inflationary costs of further delays to the project. East Side Parkways attorney Alan Bozer argued for a nominal amount, $500 dollars or more, and pointed out that highway cost projections for the fourth quarter of this fiscal year are deflationary and that the state had not demonstrated damages warranting a higher bond.

A Temporary Ruling

At the conclusion of two hours of legal arguments, Judge Colaiacovo carefully read aloud a decision that denied the state’s motion to strike from the record references to the Department of Environmental Conservation’s air quality data, denied the motion to intervene by Union Concrete, requested the parties to each submit a memorandum of law with their best arguments for or against a preliminary injunction, extended the temporary restraining order, and ordered the petitioners to post a $10,000 dollar bond pending the judge’s anticipated ruling on November 18, 2024.

Following adjournment, members of the East Side Parkways Coalition and their attorneys gave confident remarks for the television cameras that had reassembled in the hallway outside the courtroom, and state officials left without a passing word.

The East Side Parkways Coalition is accepting donations to its legal fund for the advancement of environmental justice in East Buffalo, where air pollution has resulted in pulmonary disease, cancer, and life expectancy rates worse than up to 99% of the state. A few years ago, greater Buffalo came together to tell the East Side that we are one, and that we choose love. No matter where you live, you can donate here to make good on that promise.

Little progress on progressive police reform agenda

The City of Buffalo’s 2021 police reform agenda

In 2021, a marketing agency called The Martin Group and a commission empaneled by the Mayor of Buffalo produced a report known as the Buffalo Reform Agenda, pursuant to an executive order by Governor Andrew Cuomo requiring all local governments to adopt a plan to reform their police forces.

The reform agenda was the culmination of the City of Buffalo’s response to the racial justice protests of 2020 that broke out in Buffalo and across the world in response to a Minneapolis police officer’s murder of an unarmed Black man, George Floyd. The Buffalo Common Council approved the reform agenda by a 6-to-3 vote on a resolution that set forth nineteen commitments for police reform.

Three years later, few of these objectives have been accomplished, and the city hasn’t publicly reported its progress or expanded the reform agenda, both of which the resolution promised.

The resolution’s most detailed objectives included a “community planning process” pledged to be undertaken by the Commission on Citizen Rights and Community Relations, a commitment to “implementing Law Enforcement Assisted Diversion,” a promise of improved “Data Transparency,” and revisions to the police department’s use-of-force policy. As of 2024, none of these key reforms have materialized.

Community planning process

The 2021 reform agenda resolved that the Commission on Citizen Rights and Community Relations (CCRCR) would issue bi-annual reports, publish a survey, and produce findings and recommendations about community-police relations and the CCRCR’s membership, structure, and powers. As this blog reported last year, the CCRCR has not met or produced any material since 2020, although its staff continue to be paid full-time salaries.

“At the beginning of the pandemic, an administrative hold was placed on all commission’s activities including the CCRCR,” said its executive director, Jason Whitaker. In response to subsequent Freedom of Information request, Whitaker and a city attorney stated that there are no records related to the “administrative hold” and that no officer or employee of the CCRCR maintains a work calendar.

The CCRCR’s work program statistics in the mayor’s proposed budget for fiscal year 2025 say that, in fiscal year 2024, the CCRCR had 93 customer visits, serviced 93 non-police complaints, opened 30 cases, and closed 30 cases, but these and the CCRCR’s other work program statistics are identical to those in last year’s budget.

Law enforcement assisted diversion

The reform agenda states that the “City of Buffalo is committed to implementing Law Enforcement Assisted Diversion (LEAD) as a pilot program in B District.” According to a May 2023 story in The Buffalo News, the city never did so, nor has it launched the full program, which promised alternatives to arrest for petty crimes related to drug use, sex work, poverty, and mental illness.

“We have moved it as far as a coalition of community groups and health agencies can,” said Andrea Ó Súilleabháin, executive director of the nonprofit organization that developed the planned program in partnership with the city, Buffalo police, and district attorney. “The only thing we’re missing is action from City Hall or the Police Department to do the work of getting a pilot up and running,” Ó Súilleabháin told the newspaper.

Data transparency

The reform agenda made the ambitious claim that “the Buffalo Police Department is well-situated to become one of the most data-driven and transparent police departments in the nation” through its partnership with the data analytics company SAS Institute. Far from it, the results of Buffalo’s $2.2 million dollar contract with SAS remain a mystery. The city denied a Freedom of Information request for its SAS dashboards, and there’s no trace of the “publicly accessible reports on the metrics regarding the implementation of the reform initiatives,” which the reform agenda promised. Although the reform agenda states that “the City of Buffalo is committed to joining the Police Data Initiative (PDI)” to promote public access to the SAS data, Buffalo does not appear on PDI’s list of participating agencies.

“The primary focus of the SAS contract was the Department of Permits and Inspections,” said the city's former Open Data and Analytics Project Coordinator, Matthew Austin. “Towards the end of the consultants’ hours, SAS developed a use-of-force dashboard for the police department that to my knowledge was never used. It was almost a carbon copy of the publicly available dashboard SAS developed for the Ventura County Sheriff in California,” Austin said. That dashboard is available on the Ventura County Sheriff Office’s website and breaks down use of force by year, location, and category. It further breaks down police shootings by suspect race and sex, officer race and sex, and the number of officers firing, among other details.

The “Officer Involved Shootings” tab of Ventura County Sheriff’s Office SAS dashboard for use of force

The Data Transparency section of the reform agenda concludes that the “Buffalo Police Department will also issue a Departmental Report to the Community and an Internal Affairs Report to the Community, annually.” Last year, the department issued its first annual report since 2005, though it has not updated its published Internal Affairs statistics since 2021.

Use-of-force policy

In its seventeenth and wordiest objective, the reform agenda recommended three changes to the police department’s use-of-force policy based on “comments received by the City of Buffalo from the New York State Office of the Attorney General.” On the proposed change of the policy’s recognition of “the value of human life and dignity” to “an active duty to preserve that life,” the agenda states that the “City is committing to make this change in its Use of Force Policy and then training each officer in its meaning and practice.” Second, the agenda states that the policy “must be updated” to make de-escalation “an active duty” rather than something that officers merely “should” do. Third, the agenda states that the policy “must also be amended to include clear definitions of ‘necessity’ and ‘proportionality’” and stresses that this change is necessary “for the protection of the officers and the community.”

The use-of-force policy on the police department’s website, posted as a PDF last modified March 25, 2024, contains none of these changes. The version of the policy in the department’s Manual of Procedures does not either.

In summation

Most of the nineteen commitments in the Buffalo Police Reform Agenda—and all of the most detailed—appear to have been abandoned or forgotten. The status of several of the minor reforms are unclear, though in cases such as such as the pledge to “expand the Police And Community Together (PACT), Citizen’s Police Academy,” a definite lack of commitment is evident. the PACT webpage appears not to have been updated since 2020.

A contemporary evaluation of the last item on the reform agenda gives a small but unambiguous measure of the agenda’s success. Of the four bills that the “City will work with the local State Delegation to pass,” three of the four never became law. The one that did, the HALT Solitary Confinement Act, had already been passed by the state legislature two weeks before the reform agenda was completed.

West Side Winter Resources for Those in Need

This West Side Winter 2023-2024 FAQ lists soup kitchens, food pantries, libraries and community centers, and sources of warm clothes, all without charge and supported by the community. If you know a place to add, please send it to nathan@losapllc.com and we'll include it. An interactive map with these locations is available here.

It's the West Side of Buffalo and I'm cold, where can I find a free warm place?

1. Crane Branch Library, 633 Elmwood Ave, Monday 11 AM – 7 PM, Tuesday 9 AM – 5 PM, Wednesday 10 AM – 6 PM, Thursday 11 AM – 7 PM, Friday-Saturday 10 AM – 6 PM

2. Isaías González-Soto Library, 280 Porter St, Monday 11 AM – 7 PM, Wednesday 11 AM – 7 PM, Thursday 10 AM – 6 PM, Friday 9 AM – 5 PM, Saturday 9 AM – 5 PM

3. The Belle Center, 104 Maryland St, Monday – Friday 6:30 AM – 6 PM

4. West Side Community Services, 161 Vermont St, Monday – Friday 9:30 AM – 5:30 PM

5. Asarese-Matters Community Center, 50 Rees St, Thursday & Friday, 2 PM – 10 PM

It's the West Side of Buffalo and I need free warm clothes, where can I find them?

1. FRIENDS OF NIGHT PEOPLE, 394 Hudson St, by appointment: call 716.884.5375

It's the West Side of Buffalo and I need a hot meal, where can I find that?

1. FRIENDS OF NIGHT PEOPLE, 394 Hudson St, Breakfast: Monday-Friday, 9 AM-11 AM, Dinner: everyday, 5 PM - 7 PM

2. Big Big Table Community Café, 272 Hudson Street, Tuesday-Friday, 11 AM-2:30 PM

3. ST. VINCENT DEPAUL DINING ROOM, 1298 Main St, MON-TUES, FRI-SAT 11 AM – 12:30 PM

It's the West Side of Buffalo and I need groceries, where can I find them?

1. The Salvation Army - Temple Corps, 187 Grant St, Tues & Thurs 9:00 A.M. To 1:00 P.M.

2. Native American Community Services, 1005 Grant St, Tue-Wed 10:00 A.M. - 1:00 P.M.

3. Provisions 139, 44 Breckenridge St, Wednesday: 12-3 P.M. Thursday: 5-7 P.M.

4. Iglesia El Calvario, 211 East Street, Wednesdays 10 AM To 2 PM

5. Network Of Religious Communities, 1272 Delaware Avenue, Tue 10:00 A.M. - 2:00 P.M. Wed 2:00 P.M. - 5:30 P.M.

6. Food Farmacy Food Pantry at D’Youville Health Professions Hub, 301 Connecticut St,
   located on the third floor of the D’Youville Health Professions Hub. Tuesdays and Thursdays from 10 a.m. – 2 p.m.

Wishing you peace and warmth in the winter season. 

— Cole, Nathan, and the LOSA team

FOILed again: Getting public records can be difficult

The Law Office of Stephanie Adams takes compliance with New York State’s Freedom of Information Law (FOIL) very seriously. Our client base include numerous entities that maintain compliance with FOIL, and we send FOIL requests to various state and local agencies to serve the interests of our clients.

Over the last couple years, we have observed inconsistent and, in some cases, declining compliance with the provisions of FOIL by divisions of our hometown government, the City of Buffalo. We want to encourage improvement by the weakest performers and commend the most compliant, so today we are publishing letter grades for several municipal agencies, accompanied by a percentage determined by a 5-item weighted total:

• 15 points for listing a FOIL officer’s contact information online

• 15 points if listed on the city’s FOIL submission web portal and a request can be submitted without getting an error message

• 20 points for responding within the required 5 days of receipt, in a FOIL-compliant manner (partial points awarded for each request)

• 20 points if the agency makes its determination within its given timeframe (partial points awarded for each request)

• 30 points for disclosing records sought or if a denial is affirmed on appeal (partial points awarded for each request)

This scale allows for a maximum score of 100% (A+), which no city agency has yet achieved. Unlike many county agencies, none of the below-listed city agencies listed a FOIL officer online, so the highest assigned score is 85% (B), while the lowest score is 10% (F).

Department of Administration, Finance, Policy, & Urban Affairs — 40% (F)

This agency didn’t respond to a FOIL request submitted through the web portal. It didn’t respond in a compliant way to one request sent by e-mail and didn’t respond at all to another. In one case, this agency e-mailed records in a timely fashion.

Department of Audit & Control — 72% (C−)

This agency didn’t respond to a FOIL request submitted through the web portal, but it has since claimed to have added its staff to the web portal system. When requests were sent by e-mail, the agency didn’t issue a compliant response within 5 days of receipt in two of three cases and didn’t make a timely determination in one case, but it disclosed at least some records in all three cases.

Board of Ethics — 75% (C)

The city clerk’s office acknowledged in a compliant manner all requests submitted to the Board of Ethics through the web portal and usually made timely determinations. In one case, the city’s law department reversed a denial by the clerk’s office on appeal.

Buffalo Police Department — 65% (D)

This agency is usually compliant in acknowledging FOIL requests submitted online and makes timely determinations, but it improperly denied records in most cases. One such denial was reversed by a state judge.

Department of Citizen Services — 70% (C−)

Despite this agency controlling Buffalo’s 311 system, which is integrated with its FOIL portal, submitting a request to this agency on the web portal produced an error message. When a request was sent by e-mail, this agency responded in a compliant way, made a timely determination, and produced the requested records.

City Clerk’s Office — 85% (B)

This agency gets full Marks, except it doesn’t list a FOIL officer on its webpage.

Civil Service Division, Department of Human Resources — 15% (F)

This agency is listed on the FOIL portal, but it never responded to a FOIL request submitted there.

Commission on Citizens Rights and Community Relations — 50% (F)

This agency isn’t listed on the FOIL portal. It didn’t acknowledge in a compliant way two e-mailed requests, but it issued timely determinations for both. This agency pointed to limited information online to satisfy one request, and responded to the other that the agency did not possess the requested records, including any employee’s work calendar.

Department of Law — 30% (F)

This agency responded to a request from the web portal but did not respond to a request by e-mail. It did not give timely notices of receipt or timely determinations. In one case, it eventually provided the requested records.

Mayor’s Office — 10% (F)

This agency isn’t listed on the FOIL portal. Two requests sent by e-mail were never acknowledged, while another wasn’t acknowledged or decided in a timely fashion. A city attorney eventually provided the requested records in that case.

Department of Parking — 75% (C)

This agency responded in a compliant way to requests submitted online, made timely determinations, and in two of three cases, provided the records sought.

Department of Public Works — 40% (F)

This agency is listed on the FOIL portal, but submitting requests yielded error messages. It responded to a request by e-mail in a compliant way and made a timely determination but did not provide public records which the city code provides that it maintains.

"I'm going to Disney World!"

One passage in an October 15, 2023 story in The Buffalo News, City of Buffalo rejects News' request for public records about potential lawsuits, took me by surprise. Out of 378 lawsuits brought or pending against the City of Buffalo between January and August of 2023, the newspaper singled out just one case for which it named a litigant—me.

The 378 notices of claim filed against the city since Jan. 1 that are listed in the spreadsheet include allegations of sewer backups, vehicle damages, drinking water issues, a wrongful conviction, a property that was improperly demolished and more than three dozen property damage claims, many of them due to trees falling in the 2022 Christmas weekend blizzard.

Also among the claims – a case involving the city’s denial of a FOIL request for records by a private citizen. The citizen, Nathan Feist, ultimately prevailed by taking his case to state Supreme Court, where Judge Emilio Colaiacovo in July ordered the city to disclose the records to Feist within five days.

Technically, the five-day order wasn’t handed down until September. Justice Colaiacovo ruled from the bench in July that the City of Buffalo must disclose the records I sought, and the city prevaricated concerning the court’s expectation that the city submit a draft order for the judge to sign. Seven weeks later, I submitted the draft order myself, which the court issued on September 22, after a week of attempting in vain to learn if the city had any objection. A city attorney sent me copies of twenty-five e-mails six days later.

The process began over one year prior, when I submitted a request under New York State’s Freedom of Information Law (FOIL) for records related to a trip to Walt Disney World which WIVB News 4 Buffalo reported the Buffalo Police Department was awarding to a Buffalo family because this family is “an example of a great family.” This reporting brought to mind several questions: What makes a family great? How does the police department determine a family’s greatness? How did this family stand out among other great families to the degree that the police department decided to send this family on all-expenses-paid trip to Disney World?

To my disappointment, the city’s response to my FOIL request answered none of these questions. Instead, it claimed that its records search “revealed only inter-agency materials and agreements that are exempt from disclosure.” However, I did not request any inter-agency materials, and basic materials that I did request, including financial records and correspondence between the police department and the family that the department selected, do not categorically fall under any exemption to disclosure.

So, I wrote to the agency that issues advisory opinions on FOIL, the New York State Committee on Open Government. The committee advised that I ask the police department for a certification allowed by FOIL to establish which records, if any, weren’t revealed by the records search, leaving the remaining records as those the department claimed to be “inter-agency materials and agreements.”

After my request for this certification went unanswered for two weeks, I called the police department’s FOIL division. The officer who answered my call said nothing more would be provided, and when I explained that FOIL requires agencies to certify if records are not found, the officer hung up. So, I appealed the department’s determination to the city’s law department.

In the city’s response denying my appeal, the police department’s Disney World trip awarded for being a great family transformed into what the city now referred to as “a raffle of a trip” that was “voluntarily organized and privately funded.” Nevertheless, the factual materials which the police department admitted to possessing are public records, so I took the matter to court.

In response to my lawsuit, the city continued to insist that the trip was a raffle, testifying that the department “was aware of some internal emails spreading the word about a raffle trip to Walt Disney World.” After I pointed out that such e-mails are not subject to the only statutory exemption to disclosure cited by the city, Justice Colaiacovo asked the city to send him the records so he could inspect them himself—a so-called in camera review. Three and a half months later, the city sent him a collection of e-mails that an IT contractor determined were related to the Disney World trip and which the judge then ruled should be made public once the city redacts personal information, such as the names of the great family’s children.

The e-mails that the city eventually provided do not contain such redactions and reveal that the trip was not a raffle, contrary to what city attorneys stated in sworn testimony. Rather, a Buffalo Police chief e-mailed his mother (a substitute teacher at the Charter School of Inquiry) at her work address and asked for help selecting a family, which her school did less than an hour and half later.

“I talked to Mr. Rembert who said it would amazing to be selected for the Disney trip,” wrote Associate Principal Joseph Peek, 59 minutes after receiving the police chief’s forwarded e-mail.

Four months later, the police chief told an inquiring Mr. Rembert that the deputy commissioner of police was still waiting for approval from the city’s law department. “I apologize for the wait time but unfortunately we have to wait for clearance on their end,” wrote the police chief.

The records disclosed in response to the court order do not include any materials submitted for approval. Shortly after I received the e-mail trove, I asked the city attorney assigned to the case if there are any records of the law department issuing the approval. “There are not,” he replied.

According to the last e-mail from the police department, the trip was paid for “using the funds raised by the Buffalo Police officers football pool.” Offline sports betting in New York State is only legal at four casinos operated by Indian nations, and knowingly collecting over $500 dollars a day in proceeds from a gambling ring is a felony pursuant to New York State Penal Code Section 225.10, punishable by up to four years in prison and five years’ probation.

Earlier this year, a handful of New York State Assembly members introduced bills to amend the state constitution and pass a law to legalize football pools for restaurants and bars, which the assembly may vote on next year.

Revived city ethics board to issue subpoenas

On Wednesday, October 25, 2023, I attended the first meeting of the City of Buffalo’s Board of Ethics since July 2023. These meetings are not widely announced; Stephanie Adams and I are the only members of the public who attend them. At this meeting, the ethics board took the remarkable step of unanimously moving to issue subpoenas to fourteen current and former city employees and members of other boards who have failed to submit annual financial disclosures as required by the city’s code of ethics. The ethics board said that the subpoenas will call the fourteen people to testify at the next ethics board meeting, on November 29, where the ethics board will ask them why they haven’t filed the required disclosures. If the board finds a city officer or employee in violation of the code of ethics, it can impose a fine of up to $10,000 dollars for each violation.

According to meeting materials obtained via a Freedom of Information Law request, one of the fourteen in delinquency is former Preservation Board member Terrence Gilbride, currently an attorney at Hodgson Russ LLP, who hasn’t filed disclosures for 2019, 2020, or 2021. Another attorney in delinquency is Environmental Management Commission member Charles Grieco, who hasn’t filed disclosures since 2020, although it’s unclear if the environmental commission has met in recent years. Two current Preservation Board members, four Buffalo Sewer employees, and two Planning Board members are among those who have not filed their 2023 disclosures, which were due in January.

How did we get here? In September 2021, Stephanie Adams, on behalf of herself and about 140 other residents of Buffalo, submitted to the Board of Ethics a letter of complaint concerning a political advertisement for Buffalo Mayor Byron Brown’s 2021 reelection campaign, which appeared on local television and on Facebook. The campaign ad featured nearly twenty people whom the ad identified as Buffalo police officers and falsely claimed that proposed budget cuts by the Democratic nominee, India Walton, required police officers to lose their jobs. The complaint did not concern the content of the ad’s messaging but rather the participation of police officers who invoked their official roles for a political purpose, which is prohibited by state and federal law, as well as the Buffalo Police Department’s policies, and could be a violation of the city’s code of ethics.

Having heard nothing about the status of the complaint nearly one year later, I requested the ethics board’s 2021 and 2022 meeting materials from the city clerk, who replied that the board had not been meeting since 2020. I mentioned this to an Investigative Post journalist, who then reported in August 2022 that the Board of Ethics had not met since February 2020 and that all five of its appointed seats were vacant. Three weeks later, the mayor appointed five new members to the board, four of them having donated to his electoral campaigns.

Since then, Stephanie Adams and I have closely followed the proceedings of the ethics board, which has been investigating and discussing the complaint in private since December 2022, in addition to scrutinizing delinquencies in the filing of financial disclosures. At the end of the October 25 meeting, the board chair reported that the board believes that it will come to a decision on the complaint at its November 29 meeting, which will is scheduled at 1 P.M. in Buffalo City Hall Room 1417.

Developers, developers, developers, developers.

Along with approving a $600 million dollar project to redevelop two of Buffalo’s municipal housing complexes on July 31, 2023, the Buffalo Planning Board approved plans for the completion of Elmwood Crossing: a massive and privately-led, mixed-use redevelopment project at the site of Buffalo’s former Women and Children’s Hospital in the Elmwood Village neighborhood.

One resident who spoke at the planning board meeting, Daniel Sack, asked the board to adjourn the meeting since its agenda packet had grown from 841 to 879 pages the Friday before the meeting and grew to 909 pages on the Monday that the meeting was held, depriving board members and the public of a reasonable amount of time to review the material. Sack noted that three of the pages added Friday comprised a Planned Unit Development—or “PUD” (rhymes with “bud”)—for Elmwood Crossing, which had never before been published in the time since the Buffalo Common Council adopted the PUD on October 4, 2022. (A PUD comprises the rules and standards against which the Planning Board is to evaluate an application such as the one for Elmwood Crossing.)

Sack also took issue with the fact that the board was willing to entertain the Elmwood Crossing application while the site in question included signs advertising commercial leasing whose size Sack claimed violates Buffalo’s Green Code zoning ordinances.

“The illegal real estate signs were still there as of a few days ago. I asked the board to table this item until the applicant takes our laws more seriously,” Sack said.

The planning board discounted Sack’s concerns after those related to the PUD were echoed by attorney Stephanie Adams, who represents several residents whose properties abut the former hospital. Adams asked the board for time to review the newly published PUD with her clients to determine whether Elmwood Crossing’s planning board application complied with it.

The Planning Board was not moved, and the five members present approved the application fifteen minutes after opening the item for a presentation from the developer, comments from the public, and discussion by board members.

“We’re just not in a situation where, when hundreds of people are involved in this overall process, that two or three people who are not satisfied with the change or feel that they’re not fully informed should be able to hold up what is otherwise a pretty robust process,” said planning board member Cynthia Schwartz.

Residents including Sack have been concerned that potential conflicts of interest concerning Elmwood Crossing could affect the planning board’s decision-making. Schwartz sat on the neighborhood committee that advised Kaleida Health on selling the former hospital to the present owners. Public records reveal that planning board member Martha Lamparelli’s husband Paul and her brother-in-law Joseph Jacobi jointly own a house less than one hundred feet from the northeast corner of the hospital property. Two other board members have not filed their annual financial disclosures for 2023.

The non-profit Kaleida Health sold the hospital complex, assessed in excess of $22 million dollars, to Elmwood Crossing, LLC for $1 million dollars in 2017. The LLC is a collaboration between Ellicott Development—a real estate company long operated by Carl Paladino—and Sinatra & Company, led by Nick Sinatra. Both men have been the subject of public scrutiny. Paladino was removed from the Buffalo School Board in 2017 after making racist comments about Barack and Michelle Obama and later expressed admiration for Adolf Hitler in his 2022 campaign for the U.S. House of Representatives. Sinatra has kept a lower profile, but Public Accountability Initiative and The Buffalo News singled him out in 2018 for deliberate nonpayment of property taxes.

Spies in the Skies

The Buffalo Police Department (BPD) has recently built out a fleet of unmanned aerial systems—commonly known as drones—without the approval of the Buffalo Common Council or authorization from the Federal Aviation Administration (FAA). Some BPD drones are made by a federally blacklisted Chinese military company called DJI, which shares civilian drone flight and sensor data in real time with China’s government according to U.S. intelligence and anonymous sources within DJI. Other BPD drones are designed for military reconnaissance and strike teams, cost $10,000 dollars, and weigh about one pound each.

A DJI Mavic Air 2 in flight, © C.Stadler/Bwag; CC-BY-SA-4.0

According to purchasing records I obtained through a Freedom of Information Law request, the administration of Mayor Byron Brown purchased for BPD two DJI Mavic drones from B&H Photo in May 2020, two Loki MK2 drones from Aardvark Tactical along with a DJI Mavic from Enterprise UAS in May 2021, a Loki MK2 from Aardvark in December 2022 to replace a Loki that had crashed, and another DJI Mavic from B&H Photo in June 2023.

BPD’s use of DJI drones poses national security risks. In August 2017, sUAS News reported that the U.S. Army issued a prohibition on its use of DJI drones due to “cyber vulnerabilities,” citing a classified Army Research Laboratory report and a Navy memorandum from May 2017. A few days later, the U.S. Immigration and Customs Enforcement Special Agent in Charge Intelligence Program Los Angeles assessed with moderate confidence that American-operated DJI drones are “providing U.S. critical infrastructure and law enforcement data to the Chinese government” and assessed with high confidence that DJI “is selectively targeting government and privately owned entities within [infrastructure and law enforcement] sectors to expand its ability to collect and exploit sensitive U.S. data… that the Chinese government could use to conduct physical or cyber attacks against the United States and its population.”

Bloomberg reported in March 2020 that DJI created a program for China’s air force to track civilian DJI drones and identify drone operators from their phone numbers and that DJI partnered with China’s government to provide drones for the Xinjiang Public Security Bureau, which operates internment camps for the arbitrary detention of over one million Muslims (the largest internment of an ethnoreligious group since the Holocaust). In December 2020, the U.S. Department of Commerce banned American companies from selling components and other technologies to DJI, claiming that the company, along with three others, has “enabled wide-scale human rights abuses within China through abusive genetic collection and analysis or high-technology surveillance.”

Some of BPD’s DJI drones possess “intelligent flight modes” that allow them to autonomously follow targets including vehicles and pedestrians, although federal regulations prohibit flying drones outside of a remote pilot’s line of sight and prohibit sustained flight over people and moving vehicles by heavier drones with exposed rotors, such as BPD’s DJI Mavics, or by drones without Remote ID, such as the Loki MK2. FAA regulations also prohibit drone operation at night without anti-collision lights, but BPD’s $7,274 dollar Mavic 2 Enterprise Advanced includes a “discrete mode” that turns off its navigation LEDs so the drone can operate undetected while using thermal imaging to see in the dark.

A review of the approximately 13,000 active FAA authorizations for drones registered in New York State reveals only one attributable to BPD—a DJI Mavic registered to its SWAT team. The Buffalo News bears two drone registrations—also for DJI models—and the Erie County Sheriff’s Office is down to one Autel drone (made by a Chinese competitor of DJI) after registrations for its three DJI drones expired in January 2023.

BPD’s only FAA authorized drone was registered May 23, 2022, but Police Commissioner Joseph Gramaglia had earlier disclosed use of a BPD drone to search for a missing woman in January of 2022, while serving as a deputy commissioner. BPD later published a glimpse of its drones in a May 2023 social media video, which also shows off its Vantage robot and Lenco BearCat SWAT truck. Unlike in the case of six $8,626 sniper rifles—or even for an innocuous $2,500 dollars worth of second-hand groundskeeping equipment—none of BPD’s drones (nor its Vantage robot or Lenco BearCat) appear to have been the subject of requests to the Buffalo Common Council for permission to purchase.

BPD has not provided other drone-related records I requested, including records of the funding and bidding for its drone purchases. Only some of the provided purchase orders reflect that drones were purchased pursuant to a bid. They also show that most of the drones were ordered by BPD’s grants office, but the leading provider of law enforcement grants, the U.S. Department of Justice, forbids the purchase of DJI drones with its grant money and requires that drones which aren’t forbidden to be accompanied by a comprehensive risk mitigation plan as well as policies and procedures for cybersecurity, for privacy protection, and to ensure compliance with federal law, regulations, and the U.S. Constitution. BPD’s Manual of Procedures does not cover drone use, and BPD did not provide any policies, procedures, or any records other than purchase orders in the time that BPD allotted to respond to my request for all its drone-related records.

BPD’s steadily growing fleet of currently up to six drones is known to few and appears to be operating without the federal oversight which is required by law. The drone fleet’s capabilities and vulnerabilities pose significant safety hazards, security risks, and threats to civil liberties. Drone technology must be strictly stewarded with appropriate and well-enforced protocols for training, certification, deployment, operation, data encryption, and record-keeping, but BPD may not be exercising any such safeguards, and its records access division has not been able to provide reassurance to the contrary.

Commission out of Commission

This blog remarked in April on Buffalo’s former Commission on Human Relations, which investigated a Buffalo police officer in 1966 for the fatal shooting of an unarmed Black youth. That body’s present-day successor, the Commission on Citizens' Rights and Community Relations (CCRCR), has the power to issue subpoenas and hold public and private hearings to mediate discrimination disputes, including police misconduct complaints, pursuant to the Charter of the City of Buffalo.

The CCRCR’s bylaws require it to meet quarterly to fulfill the City Charter’s requirement that it meet at least four times a year. The Charter also requires each of the city’s boards and commissions, including the CCRCR, to produce an annual report.

According to public records, the CCRCR has not met since 2020, and its last annual report was for the year of 2019.

In response to a Freedom of Information Law request that I filed in my free time this March, the CCRCR’s executive director, Jason Whitaker, stated that the CCRCR has no records of any subsequent meetings, hearings, or reports, since “at the beginning of the pandemic, an administrative hold was placed on all commission’s activities including the CCRCR.” In response to a second request, Mr. Whitaker and a city attorney replied that there are no records related to the “administrative hold” and that no officer or employee of the CCRCR has a work calendar.

My initial request also sought a reasonably detailed current list by subject matter of all records in the possession of the agency (which each state or local government agency in New York State is required by law to update each year) and a record of the name, public office address, title, and salary of every officer and employee (which state law also requires each agency maintain). Mr. Whitaker declined to provide either of these records but pointed to the CCRCR’s website and to the OpenData Buffalo website, whose payroll records indicate that in 2022, the city paid the CCRCR director $101,071 dollars and the CCRCR secretary $54,724 dollars. Their combined pay since 2020 tops $500,174 dollars, according to the payroll dataset.

Of the budgeted salaries for the 34 directorships in the city’s 2022-2023 adopted budget, the CCRCR director’s $102,683-dollar budgeted salary is higher than half. Of the 16 other secretaries budgeted, the CCCRC secretary has a higher budgeted salary than 13 of them and the same budgeted salary as the Secretary to the Commissioner of Police. Buffalo’s Police Commissioner oversees over one thousand employees, while the CCRCR director oversees just one (the CCRCR secretary).

In the Mayor of Buffalo’s 2023-2024 recommended budget, salaries for the CCRCR director and CCRCR secretary increase to $105,764 and $55,061 dollars. After the inclusion of $700 dollars budgeted for supplies, rentals, printing, and binding (up from $600, despite that the recommended budget shows that the CCRCR has not used any of these funds from the last two budgets), the budget’s recommended allocation for the CCRCR is $166,175 dollars.

This sizeable taxpayer expense appears wholly unjustified in light of the city’s indication that the CCRCR is paralyzed by an undocumented prohibition on the duties it is empowered by law to perform. Even worse, these duties include responding to and resolving complaints of discrimination by our government, which are allegations of serious federal crimes.

Buffalo’s elected officials must take action if they are to honor their oaths of office. The clear long-term solution is to replace unaccountable bureaucratic appointees with a transparent and directly elected citizens review board, for which this blog has previously advocated.

During its budget deliberations this month, the Buffalo Common Council has an opportunity to reallocate the CCRCR’s funding and earmark it for an independent and effectual oversight body. Buffalo residents have opportunities to demand that change when completing the council’s budget survey and when speaking in person or remotely at the council’s public hearing on the budget, which is scheduled for Tuesday, May 16 at 5:00 PM. The social welfare organization Our City Action Buffalo is scheduled to host an online budget information session the night before.

Police police Police police police police Police police.

That title is a fully grammatical sentence. Put another way, it says:

Police of the Town of Police, Poland, who police the police of the Town of Police, Poland, are themselves policed by police of the Town of Police, Poland.

I modeled this after Buffalo buffalo Buffalo buffalo buffalo buffalo Buffalo buffalo. Combining the two, we can create the sentence: Buffalo police Buffalo police police buffalo Buffalo police. This means police of the City of Buffalo, New York, who are policed by police of the City of Buffalo, New York, buffalo (deceive or intimidate) police of the City of Buffalo, New York.

Last month, The Buffalo News reported that Buffalo police captain Amber Beyer, previously suspended in response to racial discrimination and retaliation complaints from members of the Buffalo Police Department’s Behavioral Heath Team (which she led), will now be reassigned to the office of Police Commissioner Joseph Gramaglia and will be able to “put in for a position on the open transfer list.”

According to the reporting, this result follows a departmental disciplinary hearing in which Captain Beyer pleaded guilty to unspecified charges and is the second disciplinary action taken against Captain Beyer for her conduct last year. After Captain Beyer allegedly subjected her colleagues to a “racist rant” that is now the subject of a federal civil rights lawsuit, Commissioner Gramaglia appears to have ordered Captain Beyer to take implicit bias training. The Buffalo News used the passive voice in avoidance of specifying who ordered she take the training, but according to the Buffalo Police Department Manual of Procedures, the Police Commissioner determines what disciplinary measures, if any, officers face.

A Buffalo News editorial responding to this story points out: “Whatever the BPD’s implicit bias training includes, it does not seem to have taken hold with Beyer, at least not enough to prevent September’s alleged high-volume racial slurs in front of three Black members of her team.”

Further, the appropriateness of bias training alone as a disciplinary measure is questionable since Buffalo police officers reportedly are already receiving implicit bias training as a matter of course. Commissioner Gramaglia claimed in November 2022 that “since June 40% of the department has been trained in implicit bias.”

The impact of the department’s bias training is also questionable since the Buffalo News Editorial Board previously revealed that a current Buffalo police officer, Lieutenant Lance Russo, like retired officers who testified in another federal civil rights case, “could not remember when he received in-service training on racial bias, though he is ‘sure we have.’”

Twenty-three years ago, the City of Buffalo established an executive agency to monitor and review police department training programs and investigations of misconduct and to “eliminate prejudice, bigotry, and discrimination.” I will discuss the status of that commission in my next post.