Federal government wants to depose Oyster Bay supervisor, other town officials

Federal lawyers are seeking to depose Oyster Bay Town Supervisor Joseph Saladino and other town officials in a housing discrimination lawsuit, according to court filings reviewed by Newsday.

The U.S. Department of Justice sued the town in 2014 in Eastern District Court in Central Islip, alleging Oyster Bay’s Golden Age and Next Generation housing programs violate the federal Fair Housing Act because they give preference to town residents and children of residents who seek the below-market rate housing. Settlement talks in the lawsuit broke down last year.

The civil suit alleges the preferences discriminate against Blacks because the town is predominantly white and Blacks make up a larger percentage of the surrounding communities. According to census estimates, in 2014 non-Hispanic whites made up 77.8% of the town’s population of 297,892, and non-Hispanic Blacks were at 2.8%. By comparison, Nassau County in 2014 was 62% non-Hispanic white and 11% non-Hispanic Black, according to census estimates.

The town, which has denied the allegations, created the Golden Age program for seniors in 1993 and the Next Generation program for first-time homebuyers in 2004. The programs allow developers to build denser housing in return for participating in the town-run program that uses price controls to keep units below market rate when they are sold and resold.

"The Town created and administered the program with residency priorities to help Town residents on limited incomes afford to age and stay in their own community — close to their doctors, family, friends and support systems," town spokesman Brian Nevin said in a statement.

The preference for town residents on the 1,476 units of Golden Age housing and 58 units of Next Generation housing has remained in place, Nevin wrote.

The suit was paused in 2016 during the corruption trials of former Town Supervisor John Venditto. Venditto was acquitted of federal charges but pleaded guilty to two state charges. The corruption charges were unrelated to the housing suit.

At a Jan. 23, 2018, town board meeting, Saladino, who took office in 2017, described the lawsuit as dealing with "actions that allegedly took place prior to any of us being on this Town Board," according to a transcript.

Justice Department lawyers asked the court in an April 15 motion to allow them to depose Saladino, five town board members, the town clerk and the administrator of the programs.

"The depositions of the Town Officials are needed to get a clear understanding of the administration of the programs now," the U.S. Attorney’s Office wrote in the motion, noting that Venditto died before he could be deposed. "Among other things, the United States seeks to learn about the Town’s rationale and motivations for maintaining the challenged residency preference system and the witnesses’ knowledge of past rationales and motivations."

The U.S. Attorney’s Office also seeks to depose several attorneys about a 2004 draft memo written by lawyers from Garden City-based Berkman, Henoch, Peterson, Peddy & Fenchel PC for the town that, according to the motion, raised concerns about whether the Next Generation housing program would violate the Fair Housing Act.

The town’s outside legal counsel, Leo Dorfman of Carle Place-based Sokoloff Stern LLP, objected to this in a May 25 court filing, arguing the town already had conducted numerous depositions and that the government was on a "fishing expedition."

"Now, years later, apparently frustrated by the current Town Council’s reluctance to settle the case on Plaintiff’s terms, Plaintiff seeks to depose numerous current Town officials who had nothing to do with creating or administering these programs," Dorfman wrote.

Dorfman wrote that any discussions the council members had about the programs were in the context of litigation and would be protected by attorney-client privilege. He wrote that the individuals the U.S. Attorney’s Office seeks to redepose had either answered questions or properly invoked attorney-client privilege. He also argued in the court filing that the lawyers involved in the 2004 memo could not be deposed because of attorney-client privilege.

A hearing on the motions is scheduled for Thursday.

Feds allege intentional discrimination

The federal government alleges the town intentionally discriminated against Blacks and also discriminated through disparate impact. Disparate impact is a legal concept that a policy can be discriminatory if the effect is to deprive protected classes — defined in the Fair Housing Act as color, national origin, religion, sex or familial status — of their right to obtain housing.

Not all recent discussions have been in private with attorneys. The senior housing program, for example, was discussed at a Jan. 28, 2020, town board hearing about a proposed development at 80 Jericho Tpke. that would include 61 units of Golden Age housing. At the hearing, Maureen Fitzgerald, commissioner of the department of community and youth services, told the board the program was active.

"We’re always getting applications in and we’re always selling units," she said, according to a transcript.

The town board voted at a March 2017 meeting to pay Washington, D.C.-based Covington & Burling LLP $750,000 to settle $1 million in unpaid bills for work on the case and a parallel case brought by the New York State Division of Human Rights. At the meeting, then-Town Attorney Joseph Nocella said the lawsuit was an attempt to "break up entire neighborhoods and entire communities" and had "frozen our ability to provide Golden Age Housing for our senior citizens."