The Confederacy of Benczkowski, & Jasinski & Borek

Silly season came early this year, just oozing from the town of Cheektowaga. A town supervisor’s race explains the silliness. The candidates are Brian Nowak (D) and Michael Jasinski (R). Jasinski is being supported by outgoing Supervisor, Diane Benczkowski.

Things must not be looking too great for the Jasinski campaign, because he and Benczkowski have manufactured out of thin air probably the most transparently idiotic nontroversy, calling for the censure – nay resignation – of Councilman Brian Nowak because he had the audacity to point out that a woman under Council consideration to serve on a volunteer Cheektowaga town ethics board has flown a Confederate battle flag outside her home. So, they’re accusing him of “bribery”.

I mocked the whole thing in this post.

Well, Benczkowski and Jasinski (and Benczkowski’s lawyer, Gary Borek), believe that they can propel Jasinski to victory by libeling Brian Nowak, accusing him of making a $400,000 bribe (!) and of being mean to the Confederate flag lady.

The bribery allegation is as absurd in its supposed facts as it is politically manufactured. Nowak doesn’t have $400,000 with which to bribe anyone, and the whole thing is ridiculous. It goes without saying, I suppose, that if Jasinski and Benczkowski and Borek think that bribery took place, they should call the cops. Or the DA. There should be an investigation and, if warranted, a prosecution. Maybe if Nowak is indicted for bribery, then the town board can take that up. What it is doing now, instead, is defaming him. Libeling him. Notwithstanding the transparent bullshittery and absence of proof, this silly little wannabe-junta put forth a censure resolution, and it lost 3-3. WNYMedia took some great snippets from that meeting.

On this week’s episode of the @dianebencz and Michael Jasinski @CheektowagaInfo side show circus and 🤡 extravaganza we meet “behind closed doors” Christine Adamczyk pic.twitter.com/m0NkrzygoF

— WNYmedia Network (@wnymedia) September 27, 2023

In an election year, a month or so out from election day, Nowak, an astute, sincere, and honest politician, is being attacked in a nakedly political theatrical production where people pretend that it was somehow improper to point out that the lady applying for the ethics board admittedly flew a confederate flag outside her home.

I have to say, as an aside, I love the town commentariat wondering which flags Nowak approves. Good question. We should narrow that down. I’m willing to bet he’s not ok with Confederate flags or Nazi flags. I’d reckon that if you’re flying one of those outside your house on a busy road and you want to volunteer for the town ethics board, your feelings and opinions about race, religion, equality, genocide, and diversity are going to be called into question. It’s an ethics board.

At the town council meeting on the 26th, especially as to the “bribery” nonsense, Nowak correctly put the people defaming him on notice that he intends to pursue every legal avenue available to him in order to combat the defamatory accusations being made against him. Frankly, I hope he sues them all to Kingdom come.

Nowak’s supporters rallied behind him, and Benczkowski’s lawyer, Borek, takes to Facebook, (obvs), to attack Nowak and his supporters some more.

Borek is claiming that it is a First Amendment violation for a town board to reject an applicant for a volunteer post based on the fact that the applicant has literally, admittedlym, flown the flag of white supremacist secession, sedition, and slavery. He cites some legal cases to support his conclusion that “Dan Jones” is a “wannabe attorney.” Luckily, I am an actual attorney. So, I looked into it.

I should note that the applicant, whom I am not naming, blames her husband for his “act of rebellion” in flying that flag and she denies holding the views of genocide, slavery, white supremacy, and the subjugation of Black Americans for which that flag stands. I have no reason to doubt her protestations, but the fact remains that it was her house and that flag was flying there. If I flew that flag outside our house, I wouldn’t be married anymore. It’s not a joke, and she’s not a victim. If anyone should be apologizing, it’s the person who deliberately flew that flag or allowed it to be flown. The accusations, victimhood, and lack of contrition are absolutely glaring.

I also have to note the irony of this comment Borek left to his own other comment:

So, it’s ok for Gary Borek to threaten people exercising their First Amendment rights, just to be clear. A conspiracy implies criminality, and there is no criminality at issue here. If Borek thinks there is, he should immediately report this to the police or have someone swear out a complaint, because falsely accusing someone of a crime is libel per se. Also, it is protected and non-defamatory opinion to characterize as racist someone who has admittedly, knowingly, flown a Confederate flag outside their house, and I don’t care what sort of excuses or explanations you have to try and paint yourself as the victim. I mean, if you can’t maintain a basic level of intellectual consistency within the same thread, are you even Facebooking?

When we attorneys cite cases, we look to make sure the circumstances are substantially similar. The problem with Borek’s analysis is that the case he cites is factually distinguishable from the one at hand. In Gagliardi, the Plaintiffs alleged that the government officials had retaliated against their protected speech by doing something that had a direct adverse affect on a property right – something of value, which they owned. They alleged that the Village and its officials made improper decisions as to the zoning and zoning enforcement of an industrial property adjacent to the Gagliardis’ own, which resulted in harm to their property rights.

Generally, a person can bring a claim under 18 USC §1983 if they allege that their Constitutional right to something was violated in retribution for an expression of speech. It’s not an absolute right, though. Assuming that flying a Confederate flag of white supremacy, sedition, and slavery is an exercise of free speech, what did our applicant here lose? What right belonging to her was violated? She did not lose her job. She did not lose any property right. Nothing belonging to her was harmed in any way – real or imagined. She never had a property right to sit on that ethics board.

Look at the cases Mr. Borek cites in the quote above. “Wrongful discharge”; “denied permits”. Someone lost a job. Someone’s property rights were affected. In the case of this ethics board applicant, she lost nothing to which she had any pre-existing right. She did not lose employment or remuneration – the ethics board is a part-time volunteer position. Her house was not foreclosed upon nor was any sort of zoning decision implemented to the detriment of her property right.

In Christie BB v. Isaiah CC, 194 A.D.3d 1130 (3d Dept 2021), an appellate panel found that, although a Confederate flag emblem was protected speech, it is a “symbol inflaming the already strained relationship between the parties” and that the Family Court can factor in its continued presence in analyzing what may be in the best interests of a mixed-race child.

The right to free speech is not absolute or without consequence, and the government can definitely deprive someone of a right due to speech when that speech is especially repulsive. In Pappas v. Giuliani, 290 F3d 143 (2d Cir. 2002), that Court found that a police officer’s First Amendment rights were not violated when he was terminated from the NYPD after sending bigoted leaflet materials. (Note that in our case here, the ethics board applicant did not have a job that she lost – indeed, she has not been harmed at all as to any right to which she was previously entitled.)

When a government employee is terminated as a result of protected speech – of a “matter of public concern” – courts must “arrive at a balance between the interests of the citizen, in commenting on matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering v. Board of Ed., 391 U.S.563, 568 (1968).) If the government entity believes that the speech would “potentially interfere with or disrupt the government’s activities, and can persuade the court that the potential disruptiveness was sufficient to outweigh the First Amendment value of that speech,” it has acted lawfully.

The Pappas court found that the right to speak one’s mind about matters of public concern, “is not absolute. At times, the right of free speech conflicts with other important governmental values, posing the problem which interest should prevail…For this reason, the employee’s right of free speech is sometimes subordinated to the interest of the effective functioning of the governmental employer.”

The Court in Pappas found that the proper functioning of a police department is dependent on the respect and trust of the community and the perception that it enforces the law fairly and without bias. If the police treats one segment of the population with contempt, that population will see the police as an oppressor, and the work of the police is impaired.

The police officer in Pappas distributed leaflets hostile to Jewish and Black people, and the Court found that these statements damaged the effectiveness of the police department. They cause harm and strife. “The restrictions of the First Amendment do not require the [NYPD] to continue the employment of an officer whose dissemination of such racist messages so risks to harm the Departnment’s performance of its mission. “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.” Pappas, 290 F.3d at 147, citing McAuliffe v. Mayor of New Bedford, 155 Mass. 215, 220 (1892), cited in Connick v. Myers, 461 U.S. 138, 143-44 (1982).

Likewise, our prospective ethics board member has a constitutional right to fly all the Confederate flags she or her husband wants; she does not have a constitutional right to be a member of the town ethics board.

If the town feels that it would harm the reputation of the ethics board, or the board’s performance of its mission by appointing someone to it who arguably espouses Confederate viewpoints, then it is incumbent upon the Council, which appoints people to that board, to vet these prospective members and prevent the appointment of people who fly flags which stand for chattel slavery of Black people.

I think that the situation involving our Confederate-flag-waving ethics board applicant more closely follows the situation in Pappas, and the town’s hand is even stronger because there wasn’t a firing – there was a declination to appoint. The town didn’t take her flag, or her property, or any right belonging to her.

What would have happened had the board failed properly to vet this person and it came out later that this now-member of the ethics board had on a couple of occasions had a pro-slavery treason flag flying in front of her house? Would that have been better? Or would that have harmed the reputation and interests of the town and its ability efficiently and without disruption to carry out its activities?

At the town board meeting on September 26th, at least one town board member objected to the fact that Nowak did what he did at an open council meeting. Yeah, he did. But he literally just passed around photographs to the other members of the board, and told them that they should take that into account. He said accurately what it showed. He did not show the pictures to the public, even to this day. He didn’t get up and accuse anyone of anything untrue.

The town of Cheektowaga has residents from myriad backgrounds, religions, and skin colors. It absolutely should not blindly or ignorantly be hiring someone to any town office – elected or not, paid or not, who has flown a flag of sedition and racial hatred outside their house. These three should be thanking Nowak for bringing this to their attention before the appointment so as to avoid a lot of bad press and embarrassment later.