ALBANY, N.Y. - After a 288-mile trip down the New York State Thruway, we've arrived at the State Education Department building in downtown Albany, where Buffalo School Board member Carl Paladino is appearing for a removal hearing in front of the state education commissioner.
These removal proceedings, prompted by a petition from six of Paladino's fellow school board members, are believed to be unprecedented in the history of public education in New York, according to the New York State School Boards Association.
The hearing began promptly at 9 a.m. Thursday, and it's expected to last into at least next week.
I'm inside the hearing room, sitting in the second row here in Albany. Follow along on this page throughout the day for live updates.
This page will continue to update as Day Two of the hearings progress throughout the day on Friday.
DAY ONE (Thursday, June 22)
9 a.m. to 9:40 a.m.: Opening Statements
Shortly after State Education Commissioner MaryEllen Elia called the hearing to order, both sides spent the next 40 minutes framing their legal arguments in opening statements.
Frank Miller, the attorney for the board majority seeking Paladino’s removal, portrayed Paladino as having intentionally disclosed confidential information about the recent teachers’ contract, which was approved in late 2016 after heated public debate. Miller said Paladino’s editorial in Artvoice on Jan. 5, among other evidence, stands as proof that he violated his oath of office as a Buffalo School Board member.
“We intend to prove… that the oath Mr. Paladino took was betrayed by him when he revealed what was discussed in two separate confidential sessions. The evidence will show this was done willfully, intentionally and without legal authorization,” Miller said. “The evidence will show the disclosures were made on a widespread basis.”
Miller argued that Paladino’s actions negatively impacted the school board’s ability to carry out its duty to serve the students of the Buffalo Public Schools.
“The evidence is going to be overwhelming,” Miller said. “The only response to this situation is to remove Mr. Paladino from the Board of Education and allow the board to resume its regular order of business.”
After Miller concluded his comments, former New York State Attorney General Dennis Vacco took the podium to offer his opening statement on behalf of his client Carl Paladino. Vacco, who is also representing Paladino in a federal lawsuit against the six school board members, immediately framed this case as an example of retaliation against his client.
Vacco called the petition for removal a “phony petition… designed to cover the true intent of the majority members to get Carl for his speech.”
As he argued in the federal lawsuit, Vacco explained that he intends to prove a history of retaliatory actions by the board majority against Carl Paladino. He also defended Paladino’s discussions of the teachers’ contract negotiation, pointing out that it was a multi-million dollar contract with major ramifications for the public.
Interestingly, Vacco also specifically brought up Paladino’s Dec. 23 Artvoice comments, which were widely viewed as racist and offensive against the Obama family. Vacco admitted that these comments were “low” and “unnecessary,” but he argued that it was illegal for the board majority to pass an original resolution on Dec. 29, which demanded Paladino resign within 24 hours or else they’d start the petition process for state removal.
Vacco said that resolution still needs to be retracted— and he said the new resolution, which focused only on the teachers’ contract negotiation discussions, was simply a way for the board to nab Paladino on a technicality.
9:45 a.m. - 10:45 a.m.: Examination of Witness #1 Barbara Seals Nevergold, School Board President
Dr. Barbara Seals Nevergold, the president of the Buffalo School Board, took the stand as the first witness Thursday morning. Attorney Frank Miller, whom she and five other board members voted to retain as legal counsel, prompted her with a long line of questions about executive sessions, district negotiations and, most notably, information released to the media and public by Carl Paladino.
Miller began by introducing the Code of Ethics for school board members as his first piece of evidence. He asked Nevergold whether the code of ethics or code of conduct allows for any exemptions in which a board member could disclose information from an executive session. She said she was not aware of any such exemption. Obviously designed to prove that Paladino breached his duty by releasing confidential information, Miller continued to question her about the board’s policies and procedures.
Likely in an attempt to establish that the board majority is acting faithfully – and not retaliatory against Paladino – Miller asked Nevergold whether she’d ever filed a complaint against a board member for leaking confidential information. Nevergold testified that she and other board members sought to remove Jason McCarthy, a former school board member, a few years ago because they said he gave unauthorized information to a reporter.
Miller then spent a considerable amount of time discussing an executive session that took place on Dec. 21, 2016, only two days before Paladino’s Artvoice comments were published about the Obamas. Nevergold testified that Paladino had emailed information from that executive session – which partly discussed the district’s pending legal action against a developer – to several members of the media.
Miller also continued to question Nevergold about whether Paladino was ever authorized to disclose information about the teachers’ contract negotiations, referring to the Jan. 5 Artvoice article in which Paladino ripped into the teachers’ union. Miller then entered the article into evidence.
Miller asked Nevergold to read the article, then asked the following questions:
MILLER: There’s a reference there to a specific individual, a person described there as a principal of a high school. Was that person discussed in executive session?
MILLER: And the issues described there… the information that is revealed there, on the top of page 8, was that information that came from an executive session?
NEVERGOLD: Yes, it was.
MILLER: And was that also information about a confidential personnel matter?
NEVERGOLD: And was that personnel matter at the time of the article’s release, was that personnel matter still unresolved?
NEVERGOLD: Yes, it is still unresolved.
Miller then asked Nevergold about Paladino’s statements later in the article, in which he wrote, “in executive session on the Wednesday before Phil’s scheduled meeting, Nate brought the Board up to date on what terms had been agreed to. Kriner said he needed authority for more money from the reserves,” referring to Buffalo Teachers Federation President Phil Rumore, district legal counsel Nate Kuzma and Superintendent Kriner Cash.
Miller asked whether the information provided in that paragraph did indeed come from an executive session. Nevergold testified that it was, as Miller continued to try to prove that Paladino breached his oath of office as a school board member by leaking confidential matters.
Nevergold later testified that Paladino’s release of executive session information was “disturbing,” adding that she believed it did harm the district’s ability to work.
Miller then entered another Artvoice article from mid-January into evidence, which he offered as further proof of Paladino’s release of executive session information.
11:05 a.m. through 4:30 p.m.: Cross-Examination of Nevergold by Paladino’s legal team and attorney Jennifer Persico
During the first 20 minutes or so of Dr. Nevergold’s cross-examination, attorney Jennifer Persico clarified some of the details and the timeline of events as they relate to executive sessions and board meetings. Persico then questioned Nevergold about how she’s been trained as a school board leader.
Eventually, Persico pointed out that while Dr. Nevergold is a highly-educated woman, she is admittedly not an attorney. It appeared to be a tactic by Paladino’s legal team to poke holes in the board majority’s understanding of their own legal petition calling for Paladino’s removal. Nevergold noted in her testimony, however, that the district’s legal counsel often consults with the board before they pass resolutions and make decisions in meetings.
Persico then moved into the issue of the teachers’ contract in the Buffalo Public Schools, which was the subject of Paladino’s Artvoice article on Jan. 5. Paladino’s legal team, in order to prove that he had the right to disclose information about the contract because it involves so much public money.
She asked the following question: “Given that we’re spending a billion dollars of taxpayer money – and thirty percent of it goes toward the teachers’ contract – don’t you agree each border member… has a duty to inform the public how the district is spending that billion dollars in tax dollars?”
Persico then referenced press releases from 2015, in which board members had provided updates about the teachers’ contract negotiations. This seemed to be an attempt to prove that board members had, in fact, shared pertinent information about the negotiations in previous years.
Legal teams for both sides then spent the next chunk of the hearing arguing about the role of an open meetings expert in Dr. Nevergold’s understanding of meetings laws. The expert in question, Bob Freeman, had been referenced in a newspaper article that Nevergold quoted on her own personal blog. In that article, Freeman appeared to side with the board majority regarding accusations that they conducted an illegal meeting. Paladino’s legal team appeared to be trying to establish that Nevergold had agreed with Freeman’s understanding of open meetings laws— perhaps because they will need to reintroduce Freeman later in the hearing.
Paladino’s lawyers then introduced video evidence of Dr. Nevergold calling executive sessions during various Buffalo School Board meetings over the past year. Persico was trying to show that Nevergold did not always specifically reference the matter in which the board was meeting in executive session, as required by open meetings laws. Persico appeared to argue that this might negate the legitimacy of the executive session and, by that logic, Paladino’s disclosure of information from an executive session wouldn’t be improper.
Following a lunch break, Perisco continued to question Nevergold about her process of calling executive sessions. She then showed the commissioner a video from the Dec. 29 special meeting, which detailed the public discussions the board had about Paladino’s racist comments about the Obama family. It was another example of Paladino’s own legal team using those comments on their own behalf, which may be able to help them prove that the board majority retaliated against him in their removal petition.
Perisco questioned Nevergold about that resolution, which demanded Paladino resign or else they’d begin seeking a removal petition. Nevergold testified that at the time, the board majority believed she was violating the Dignity For All Students Act.
After Perisco asked her about the board majority’s decision to hire Frank Miller as their lawyer, Nevergold said it was Miller who advised them to file a new petition based on the teachers’ contract issue, not the racist comments Paladino made in December. Perisco pressed Nevergold to answer questions about how the board decided to file the new petition accusing Paladino of disclosing confidential information— to the objection of Miller himself, who asked Elia not to allow that question. Elia asked Perisco to rephrase.
Perisco continued to question Nevergold about a meeting that took place in mid-January, wondering why two members (Carl Paladino and Larry Quinn, a Paladino ally) were not invited. Nevergold testified that she had not invited them because they hadn’t voted to engage Miller as the board’s attorney. Perisco presented a policy document that suggested even members who didn’t vote for something should still be allowed to discuss the matter with their colleagues during informal discussions. Miller, however, argued that this type of meeting was exempt under the open meetings laws— thus, it doesn’t really matter whether Paladino and Quinn were invited or not. Miller called Perisco’s questioning of Nevergold on this topic a “senseless” waste of time.
Perisco was attempting to question how that informal meeting on Jan. 17 factored into the board's decision on Jan. 18 to approve the filing of a removal petition. She then continued to dig for answers about how the board decided to file that second resolution focusing on the teachers' contract negotiations.
Nevergold testified that there was, indeed, a lot of "heat" and "anger" after Paladino made his racist comments on Dec. 23, but she said the board's majority simply followed their legal counsel's advice when they voted to file a petition based on the argument about the contract negotiation disclosures.
This, in a nutshell, just about sums up the entire hearing process. Did the board majority retaliate against Paladino because of his racist speech -- as Vacco and his team would argue -- or did Nevergold and the board majority legally follow the advice of their attorney? That'll be up to Commissioner Elia to decide.
After a short break, we entered the final stretch of Day One. Frank Miller, the attorney for the board majority, got the chance to ask additional follow-up questions of Dr. Nevergold after Paladino’s legal team had finished. In this final line of questioning, Nevergold was presented with her own affidavit seeking Paladino’s removal as a member of the Buffalo School Board. She was also presented with other board members’ affidavits, all signed on Jan. 18— the day after the Jan. 17 informal meeting that Paladino’s lawyers had painted as potentially improper. This was all entered into evidence by Miller to likely argue that the board made the decision on Jan. 18, not the 17th, which is an important distinction. Paladino’s lawyers, of course, would have their own questions about how that happened so fast.
Later in his questioning, Miller asked Nevergold a few questions about how the petition asking for Paladino's removal was filed. He asked her if she would have pursued a removal petition against Paladino about the contract negotiation issue regardless of his statements about the Obamas.
"Absolutely," she answered.
After a few follow-up questions from Paladino's attorney, Nevergold's testimony finally ended before 4:30 p.m.
The hearing was concluded for the day, with additional witnesses set to testify Friday morning beginning at 9 a.m.
DAY TWO (Friday, June 23)
We're settling in for Day Two here at the State Education Department building in downtown Albany. This morning, we learned that Buffalo Teachers Federation President Phil Rumore is scheduled to testify at some point today.
At the end of Thursday's proceedings, Commissioner Elia made a point to ask the legal teams for both sides to expedite their line of questioning and speed things up as quickly as they could. After all, based on Thursday's pace -- with only one witness called -- this hearing could last weeks. So expect Friday's hearing to progress a little bit faster, with multiple witnesses likely to testify throughout the morning and afternoon.
9:30 a.m.: Witness #2, Nate Kuzma
The first witness called to testify was Nate Kuzma, the general counsel for the Buffalo Public Schools. Kuzma, answering questions from attorney Frank Miller, began describing the process in which the district negotiated a new teachers' contract last year. The process was lengthy, Kuzma said, and reaching an agreement for a new contract was a high priority. A new contract had not been awarded in more than a decade.
Miller began to ask Kuzma about a board meeting on Oct. 12, 2016, just five days before the agreement was reached for a new contract. Miller asked him about the executive session that took place on Oct.12, and Kuzma testified that he remembered the session being called to discuss "collective bargaining." He testified that there were no objections to the executive session, not even from Carl Paladino.
Kuzma testified that he believes information from executive sessions is not authorized for disclosure.
"It's my understanding -- and always has been -- that conversations that take place in executive session are confidential," Kuzma said.
Kuzma testified that on Oct. 17, 2016, a few board members objected to discussing the contract issue in private executive session, believing that the public had the right to learn about the negotiations in plain view. Kuzma said he personally did not agree with that argument from certain board members, citing the fact that the teachers' union still had yet to meet at that point about the contract. That's an important testimony for Miller and the board majority, which is trying to prove that Paladino did not have the right to release information about those executive session negotiations. Kuzma testified that Paladino had never received -- or asked for -- authorization to release the information.
Kuzma then testified that he did not believe there was any legal precedent to allow for the disclosure of information from executive session after the fact. Paladino's attorney, Dennis Vacco, has argued that his client had the right to release the information because the contract had been settled more than two months prior. However, Kuzma's testimony directly disputes that assertion.
Miller then prompted Kuzma with the Jan. 5 article from Artvoice, asking him whether it appeared Paladino wrote about information that was discussed in the board's executive session from October. Kuzma testified that it did appear Paladino had written about these conversations, and that it was his understand that they were still confidential by law.
Miller then asked Kuzma about an entirely separate legal matter-- the district litigation involving the developer Ciminelli. On Dec. 21, an executive session was called, Kuzma said, and it was his understanding that the information was confidential. He testified that he had no knowledge of any authorization for Paladino to release information from that executive session.
10:05 a.m.: Cross-Examination of Kuzma
Dennis Vacco, the attorney for Paladino, began questioning Kuzma about his pedigree and expertise in labor relations law. Kuzma continued to describe his experience in the field and then described his observations and role in the recent teachers' contract negotiations.
Vacco began asking Kuzma about the history of the negotiations and how they began heating up over the final few months before the board voted to approve the new contract in October 2016. It will be critical for Vacco's case on behalf of Paladino to establish the high-stakes -- and high costs -- of the negotiations, in order to prove that Paladino was informing the public about important information.
Just as he asked Dr. Nevergold on Thursday, Vacco questioned Kuzma about information the district published on its own website relating to the teachers' contract. In theory, Vacco could argue that if the district was publishing information about the teachers' contract, then why couldn't Carl Paladino? But Kuzma testified that it was important for the public to be able to see the district's contract proposal, particularly because it could show parents and community members that it was in fact putting forth a fair plan for the teachers.
Kuzma later testified that discussions about the teachers' contract were certainly in the public interest. Vacco asked him about the executive session called in October, in which a few board members decided not to attend because they wanted discussions to be made public. Vacco pestered Kuzma about why those discussions took place in private, considering how much taxpayer money it involved.
As Vacco persisted in asking Kuzma about the content of executive session negotiations, he complained that witnesses were only allowed to speak in generalities. The two legal teams began arguing heatedly about the nature of executive session conversations and whether witnesses should be able to speak about specific conversations. Commissioner Elia eventually ordered that witnesses could speak generally about topics, but not necessarily specifically.
After a short break, Kuzma made it clear in testimony that he was not involved in the process of filing a petition to remove Carl Paladino. He said he backed off once it became clear that this was a matter pursued by the board majority. He did not know he was going to be a witness, Kuzma said.
Vacco then pursued a new angle: was Kuzma involved in the retaining of Frank Miller, the attorney for the board majority? Kuzma testified that he did make initial contact with Miller and dealt with logistics in the very beginning of the process. Vacco appears to be trying to establish a conflict of interest here.
Kuzma testified he was simply following through with the board's wishes to hire an outside counsel following Paladino's original comments about the Obamas in December.
Vacco's final line of questioning involved one of the disclosures Paladino made in the Jan. 5 article about the teachers' contract. Vacco wanted to know whether the "$10 million" figure was discussed in executive session, referring to Paladino's reference to the $10 million that Superintendent Kriner Cash apparently wanted to use in reserves as a part of paying for the contracts. Miller strongly objected to Kuzma answering any questions about this topic, but Kuzma confirmed the $10 million figure was indeed discussed.
Kuzma's testimony ended just before noon.
11:55 a.m.: Witness #3 Phil Rumore, Buffalo Teachers Federation President
Phil Rumore, a longtime rival of Carl Paladino, was the third witness to take the stand in Albany. Paladino's Jan. 5 Artvoice article about the teachers' contract negotiations focused heavily on his criticism of Rumore and the union, so he's a critical piece to this hearing.
Rumore testified that he never had any previous discussions with the Buffalo School Board about their teachers' contract negotiations prior to Paladino's editorial in Artvoice. Frank Miller asked Rumore if Paladino's claims about a threatened strike were true; Rumore answered "absolutely not." In the article, Paladino had criticized the private executive session negotiations that might be leaked to Rumore; but Rumore said this was patently false, and that there is no situation in which he would be privy to that type of information. This is important because it could help Miller make the argument that Paladino's alleged confidential disclosures that, in Rumore's view, weren't even true.
Miller questioned Rumore for fewer than 15 minutes.
12:07 p.m. Cross-Examination of Phil Rumore
Dennis Vacco was immediately fired up in his cross-examination of Phil Rumore. He aggressively asked him about the negotiating process, seemingly quite skeptical of Rumore's statement that was not ever privy to any board members' discussions. Vacco then began asking Rumore about which candidates the Buffalo Teachers Federation supported in the most recent elections, attempting to show that the BTF supported the board majority and, perhaps more notably, strongly opposed Carl Paladino's candidacy.
Vacco questioned why Rumore felt the need to call an "all-teacher" meeting during the negotiation process, which Rumore defended as a necessary tactic to ease the frustration of teachers demanding a new contract. Rumore strongly denied that he ever threatened a strike against Superintendent Kriner Cash, who had been quoted in the Buffalo News as saying the district was prepared for a strike if it came to that.
Vacco pointed out that Rumore had "declared victory" after the May elections, in which union-backed board candidates won the majority, relegating Paladino and his allies to a so-called minority. This is all a way for Vacco to connect the dots between the union and the board majority, thus helping him prove his argument that this is all a conspiracy drawn up by people who wanted to retaliate against Carl Paladino.
Vacco then turned the discussion to the weekend in October 2016, when the teachers' contract was approved. And he asked Rumore why he posted a tentative contract on Oct. 15-- to which Rumore said, "we didn't have a contract (at that point)." Vacco wanted to pull up the actual BTF website, which shows the contract being a tenative agreement on the 15th-- but the actual letter is dated on the 17th. Miller was infuriated by Vacco introducing this issue without having disclosed it in pre-hearing proceedings.
The reason this is important is because Vacco is trying to prove the union was publicizing contract information before it was finalized, which could make Paladino look better.
The dispute was never really settled. Vacco finished his questioning at 12:35 p.m.
1:25 p.m.: Witness #4 Dr. Theresa Harris-Tigg, Buffalo School Board Member
Dr. Harris-Tigg is the first of three members of the board majority expected to testify on Friday afternoon. Her testimony is expected to closely mirror that of Board President Dr. Barbara Seals Nevergold, who testified on Thursday.
Harris-Tigg did indeed testify about many of the same topics. She told lawyer Frank Miller that it's very difficult for the board to do its job when confidential information is released, such as in the case of Carl Paladino's Artvoice article.
In cross-examination, one of Paladino's lawyers questioned Harris-Tigg about her credentials and training experience in open meetings laws. The attorney, Jennifer Persico, had asked the same questions of Board President Nevergold. Persico and Harris-Tigg went back and forth when Perisco asked her to explain which information of Paladino's the board majority objected to him sharing, but she said she would not answer. "Because then I'd be doing the same thing he did," Harris-Tigg said.
Perisco appeared to be trying to establish that Harris-Tigg wasn't familiar with the petition she helped file for Paladino's removal.
Later, Perisco played video from a Dec. 29 board meeting, showing an extremely passionate Harris-Tigg ripping into Carl Paladino just six days after he'd made racist comments about the Obamas. Once again, it was an example of Paladino's own lawyers bringing up the Obama comments in order to prove their case of retaliation.
2:50 p.m.: Witness #5 Sharon Belton-Cottman, School Board Member
Sharon Belton-Cottman, an outspoken critic of Paladino, is the fifth witness in the Paladino hearing. Attorney Frank Miller, in his direct questioning, kept things very basic. He was finished within five minutes.
Perisco decided to once again play a video of board member Hope Jay reading the Dec. 29 resolution, once again part of their strategy to prove retaliation.
Her testimony ended in less than 20 minutes. The hearing then went into a break.
3:25 p.m.: Witness #6 Paulette Woods, School Board Member
Woods' testimony lasted two minutes. There were no more witnesses remaining, so the hearing adjourned. It will continue Monday at 1 p.m.