UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________
MARK SACHA,
Plaintiff,
Vs

COMPLAINT
Civ. No.

FRANK SEDITA, III, DISTRICT

ATTORNEY OF ERIE COUNTY,
NEW YORK, and THE ERIE COUNTY
DISTRICT ATTORNEYS OFFICE
Defendants.
____________________________
Mark Sacha, by his attorneys, Chamberlain, DAmanda, Oppenheimer and
Greenfield, LLP, complains as follows:
1.

This action is brought pursuant to 42 U.S.C. 1983 and alleges that

the defendant used his office as District Attorney of Erie County to fire Mark
Sacha from his position in the District Attorneys office in order to punish Sacha
for speaking as a citizen on issues of public concern regarding misconduct in the
District Attorneys office in violation of Sachas First Amendment rights.
2.

This complaint also alleges violation of the New York State Civil

Service Law, Public Employees Whistler Blower Law, Civil Service Law 75-b.
PARTIES
3.

Mark Sacha is a resident of the County of Erie, State of New York.

Sacha worked as an attorney in the Erie County District Attorneys office from
July of 1987 to October 5, 2009 when his employment was terminated.
4.

The defendant, Frank Sedita, III, (hereinafter Sedita) was an

attorney in the District Attorneys office in Erie County, New York from 1988
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until January, 2009. In January, 2009 Sedita became the elected District
Attorney for the County of Erie, State of New York.
5.

The defendant Erie County District Attorneys Office is a political

subdivision of the State of New York and a public employer.

JURISDICTION
6.

This action was brought pursuant to 42 U.S.C. 1983 and 28 U.S.C.

1331 and 1323. Jurisdiction over plaintiffs complaint under New York Civil
Rights Law is pursuant to 28 U.S.C. 1367.
7.

Venue is proper in the Western District of New York pursuant to 28

U.S.C. 1391 in that the Western District of New York is the judicial district where
the defendant resides and the judicial district where substantial part of the events
giving rise to the claims occurred.
STATEMENT OF FACTS
8.

On January 2, 2009, the day after Sedita took office, he demoted

Sacha from the position of Deputy District Attorney, a position he had held since
October, 2000.
9.

On September 27, 2009, Sacha revealed to the public through an

article in the Buffalo News, concerns he had about conflicts of interest in the
District Attorneys office and decisions made both by Sedita and his predecessor
Frank Clark with regard to evidence of criminal conduct committed by Steven
Pigeon. On October 5, 2009 Sedita terminated Sachas employment.

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10.

The District Attorneys office had been conducting a criminal

investigation into Election Law violations which occurred during the 2007 Erie
County Executives race.
THE COUNTY EXECUTIVES RACE OF 2007
11.

In 2007 Joel Giambra held the position of County Executive for the

County of Erie.
12.

At the end of his term, Giambra had little or no popular or political

support.
13.

James Keane and Paul Clark opposed one another in the

Democratic primary.
14.

In September of 2007 Keane won the Democratic primary.

15.

In October 2007, Michael Mullins, a major financial contributor to

the Paul Clark campaign revealed in the Buffalo News that he had violated
election laws by paying Donald Turchiarelli in bags of cash amounting to
$20,000 for the purpose of conducting a telephone operation and public opinion
polling on behalf of the Clark campaign.
16.

Mullins statements indicated that there had been a clear violation

of at least two provisions of New York State Elections Law which requires the
reporting of all funds received and all funds expended in a campaign.
17.

The conduct admitted by Mullins also potentially constituted felony

violations of New York Penal Law.

18.

As a result of these public admissions of illegal conduct, the Erie

County District Attorneys office began an investigation.

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19.

The Erie County District Attorney, Frank J. Clark, ordered plaintiff

Mark Sacha to conduct and supervise the investigation.

20.

During the course of the investigation Sacha uncovered numerous

instances of Election Law and Penal Law crimes by agents of the Paul Clark
campaign and the candidate himself.
21.

During the early stages of the investigation into the activities of

Paul Clark and his agents during the 2007 County Executive race, Clark at one
time appeared through legal counsel. One of the attorneys representing Paul
Clark in early negotiations with the District Attorneys office was Steven Pigeon.
22.

During a preliminary meeting in late 2007 with then District

Attorney Frank Clark and Deputy District Attorney Sacha, Pigeon argued
repeatedly that Michael Mullins was a loose cannon who unilaterally decided to
hire telephone vendor Turchiarelli and pay him with the bags of cash. Pigeon
forcefully argued that there was no coordination between the Clark campaign
and Mullins or Turchiarelli, so therefore neither Clark nor the campaign could be
held criminally responsible.
23.

Pigeon is the former Chairman of the Erie County Democratic Party

and a powerful influence on the endorsements of the Independence Party.

24.

Pigeon is a well known politician throughout the State and is

generally credited as the architect of the defection of two Democratic State

Senators to the Republican Party in the spring of 2009 which brought State
government to a standstill for several months.

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25.

Pigeon is a close political ally and social acquaintance of then

District Attorney Frank Clark.

26.

After the meeting with Pigeon, Sacha continued the investigation

and eventually Sacha interviewed among others Turchiarelli, Mullins, and

Timothy Clark, brother of the candidate Paul Clark. Those interviews revealed
that Turchiarelli was hired directly by the Clark campaign and that the use of
his phone banks was a coordinated part of the campaign. Paul Clark knew this
and met with Turchiarelli.
28.

Despite Paul Clarks knowledge and the active involvement of his

campaign, the campaign never reported that it was spent on the campaigns
behalf.
29.

Sacha discovered that Steven Pigeon was directly involved in the

illegal arrangement between the Clark campaign and Turchiarelli. Sacha learned
that Pigeon arranged, facilitated and attended a clandestine meeting between
Turchiarelli and Timothy Clark in August 2007. That nighttime meeting was
held at Pigeons mothers home on Treehaven Road in West Seneca. At that
meeting Turchiarelli was hired by the Clark campaign and was informed that he
would be paid by Mullins individually, an arrangement that was illegal.
30.

Sacha was shocked that a lawyer would represent a client on a case

in which he had his own criminal exposure. Sacha informed District Attorney
Clark that Pigeon was intentionally misleading during the earlier meeting and
that Pigeon was attempting to hinder an investigation that could and would

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uncover misconduct by Pigeon himself. Frank Clarks only response was that
sometimes Steve takes things too far.
31.

In the summer of 2008 Sacha and other members of the

investigative team continued to investigate the Clark campaign account and its
connection with a private entity called Media owned by the candidates brother,
Timothy Clark. It became clear to Sacha and the other investigators that Media
was being used as a pass through to conceal the identity of true donors to the
Clark campaign; conduct which amounted to a criminal violation of the New York
Election law.
32.

Sacha issued subpoenas, obtained bank records, and conducted

interviews which revealed that Timothy Clark and Steven Pigeon were
intentionally engaging in financial transactions designed to conceal that Friends
of Joel Giambra was the real donor to the Clark campaign.
33.

As part of the investigation Sacha obtained a search warrant and

seized computers and computer equipment owned by Erie County which were
loaned by the Giambra campaign to the Paul Clark campaign without County
authorization.
34.

By the end of the summer of 2008 Sacha concluded that Timothy

Clark and Steven Pigeon were guilty of misdemeanor and felony violations of
New York State Election and Penal Law.
THE 2008 ELECTION FOR DISTRICT ATTORNEY
35.

On the morning of May 12, 2008, Frank Clark, a sitting three term

District Attorney, announced to his supervisors that he would not run for re!6

election. On the same day, Sedita, a Deputy District Attorney, a position

equivalent to that held by Sacha, announced his intention to run for the
Democratic nomination for the position of District Attorney. Sedita came to
Sachas office within an hour to obtain his support.
36.

Sedita was not the frontrunner for the Democratic endorsement

and not the favorite of the Democratic Chairman, Leonard Lenihan.

37.

Within days Sedita pursued and eventually obtained the

endorsement of the Conservative and Independence Parties. He also obtained

the endorsement of Buffalo Mayor Byron Brown. These endorsements were
essential to Sedita in persuading the Democratic Party to endorse him rather
than other qualified candidates. Steven Pigeon, a close political and social friend
of Seditas father, Supreme Court Judge Frank Sedita, Jr. was instrumental in
Sedita III obtaining these endorsements.
38.

Meanwhile, the investigation of the Clark campaign continued.

Sacha discovered the illegal money transactions between Timothy Clark and
Steve Pigeon in late July of 2008. Coincidentally the Buffalo News ran two
articles reporting Pigeons involvement in the Sedita campaign for District
Attorney.
39.

On August 12, 2008 Sacha advised DA Frank Clark of the findings

regarding Pigeon and Timothy Clark. On August 15, 2008 Pigeon and Timothy
Clark were interviewed by the District Attorneys Office and the FBI.
40.

In late summer and fall of 2008 negotiations began with the Clark

brothers and some other potential defendants regarding possible plea

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agreements. One of the attorneys representing Paul Clark was Ralph Lorigo,
Chairman of the Erie County Conservative Party. At the first meeting Sacha was
asked to leave while matters were discussed between DA Clark and the defense
attorneys.
41.

In addition to advising Clark about Pigeons Election Law and Penal

Law violations, the District Attorney was advised that the investigation had
uncovered possible tax issues involving Pigeon.
42.

Sacha soon learned that District Attorney Frank Clark was meeting

Pigeon for lunch and dinner.

43.

Sacha expressed to District Attorney Clark that this was a conflict of

interest and that Clark should not be socializing with a target of a criminal
investigation being conducted by his office.
44.

After one meeting with Pigeon, DA Clark stated to Sacha that Steve

says he doesnt have tax problems.

45.

These meetings between DA Clark and Pigeon continued through

December of 2008.
46.

On one occasion in late November 2008 after dinner with Pigeon,

DA Clark declared to Sacha that Steve did something that he shouldnt have
done at dinner and added that Steve went too far. DA Clark would not provide
Sacha with any further details but advised that as a result of Pigeons actions, DA
Clark believed he was compelled to reject any pleas and go forward with a
Grand Jury presentment. Several days later DA Clark changed course and
directed Sacha to pursue pleas.
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47.

On yet another occasion in November 2008 Clark summoned Sacha

to his office and advised him to be careful about what he said about Pigeon.
DA Clark warned that Pigeon was angry at Sacha but refused to elaborate.
48.

In December of 2008 DA Clark advised Sacha that he and his wife

had attended a holiday party at Pigeons home. DA Clark advised Sacha that DA
elect Sedita was also at the party with his wife.
49.

On several occasions in the early fall of 2008 District Attorney

Frank Clark suggested to Sacha that the end result of the Election Law violation
investigation should be that Paul Clark would plead to a misdemeanor violation
and that Tim Clark and Steve Pigeon would not be charged with any crimes. This
plea arrangement was being pushed by lawyer Ralph Lorigo.
50.

Sacha repeatedly objected to this arrangement. Sacha repeatedly

pointed out that it was Timothy Clark against whom the DAs office had much
more substantial evidence of more serious crimes and that the evidence regarding
Steve Pigeon was just beginning to come to light.
51.

On October 28, 2009, the Buffalo News ran a pre-election profile

article on DA candidate Sedita. Buffalo News writer Matthew Spina wrote at that
time Pigeon has been a friend to the Sedita campaign by helping him lock up
the Conservative Party endorsement, which then was leveraged to get Sedita the
Democratic endorsement before the Primary.
52.

Sacha was invited to all Sedita campaign events before Pigeon was

interviewed in August, 2008. No invitations came after that point.

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53.

Sedita never disputed the Buffalo News article claiming that Pigeon

had aided him in obtaining the Conservative Party endorsement.

54.

Sedita did receive the Conservative Party endorsement.

55.

Sedita was elected Erie County District Attorney on November 4,

56.

Soon after Seditas election, Sacha attempted to report to Sedita on

2008.

the full extent of the investigation into Election Law violations in general and
Steve Pigeon in particular.
57.

Sedita rebuffed Sacha on two occasions and directed that he should

put his information in a memo.

58.

A few days later Sacha met with District Attorney Frank Clark who

informed him that he and Sedita had a conversation about the Election Law
violation case and that Sedita wanted Sacha to summarize the investigation in a
memo.
59.

On December 8, 2008, Paul Clark and the political committee

Friend of Paul Clark pled guilty to an unclassified misdemeanor.

60.

On December 22, 2008 Mullins business, After Care Management

Service, Inc. pled guilty to an unclassified misdemeanor.

61.

On December 30, 2008 Sacha personally delivered as directed the

13 page memo and supporting documentation to Sedita.

62

On December 31, 2009 at Seditas swearing in ceremony Seditas

father, New York State Supreme Court Justice Frank Sedita, Jr., publicly

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announced his thanks to Steve Pigeon for supporting his sons candidacy and
campaign.
63

Sacha approached Bureau Chief Thomas Finnerty before the change

in administration. Finnerty was generally considered a close adviser to Sedita

and active in his campaign. Finnerty is now Trial Counsel to the Sedita
administration.
64

Sacha advised Finnerty that he was concerned about Seditas

actions and relationship with Pigeon. Finnerty stated in no uncertain terms that
Pigeon was like a son to Seditas father, the Supreme Court judge. Finnerty also
claimed that the deal with the Conservative Party was made by Seditas father and
Pigeon not by Sedita himself.
65

Sacha expressed concern that Sedita was making a deal for his own

election to the position of District Attorney with a person who was a target of a
criminal investigation.
RETALIATION AGAINST SACHA
66

On January 2, 2009, Sedita called Sacha into his office and

informed him that he was being demoted from the Deputy DA in charge of
Special Units to a simple Assistant District Attorney doing arson trials.
67

The demotion was from a Grade 18 to a Grade 16. Sedita refused to

give a reason to Sacha for the demotion.

68

After his demotion Sacha was told to report to Attorney John

Doscher as his Supervisor.

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69

Three days later Doscher began questioning Sacha about the Clark

investigation and specifically Steve Pigeon.

70.

Sacha told Doscher that he didnt feel comfortable talking to him

about it and that Doscher should consult with Sedita about what was contained in
the Sachas memo.
71

Sacha was then subjected to a campaign of harassment by Sedita,

Doscher and others in the office. The harassment included denying Sacha leave
days which he had previously arranged, forcing Sacha to cancel vacation, taking
away Sachas car, and demanding detailed medical information from Sacha when
he requested family medical leave despite the fact that the leave had already been
approved by the County.
72.

In late Spring of 2009Doscher ordered Sacha to return the County

computers and computer equipment which had been seized as a part of the
investigation to Paul Clark.
73.

Sacha objected to the return of stolen goods that constituted

evidence of crime to the person who was unlawfully in custody of the property.
74.

In response Doscher threatened to have Sacha disciplined for

insubordination.
75.

Sacha complained to First Assistant District Attorney John

DeFranks about Doschers order that he return stolen property to the person
from whom it had been seized.

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76.

During 2009 Sacha reported to the FBI that he had been demoted

and expressed his concerns about the conflict of interest in the District Attorneys
office.
77.

On September 27, 2009, Sacha revealed to the public the conflict of

interest that existed in the District Attorneys office with regard to the deal Sedita
cut with Steve Pigeon and the refusal to prosecute Pigeon.
78.

Approximately two days after his revelations to the press, Sacha was

called into a meeting with Tom Finnerty, counsel to the District Attorney, John
DeFranks, First Assistant District Attorney, and three investigators from the
District Attorneys office. During the meeting Sacha was yelled at and berated.
In the course of the meeting Sacha raised his concern about Doschers order that
he return the stolen computer equipment and asked DeFranks what had been
done with the equipment which had been stored in the DAs office as evidence of
a crime.
79.

On October 5, 2009 Sedita terminated Sachas employment.

FIRST CAUSE OF ACTION PURSUANT TO 42. U.S.C. 1983

80.

Plaintiff repeats and realleges each of the allegations contained

paragraphs 1 through 79 as if fully set forth herein.

81.

Defendant Frank Sedita is an elected public official in the State of

New York and therefore acts under color of State Law.

82.

Defendant Erie County District Attorneys Office is a State entity.

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83.

Sedita and the District Attorneys office terminated Sachas

employment in direct retaliation for Sachas public statements on issues of public

concern made in the Buffalo News.
84.

In making his statement to the Buffalo News, Sacha was acting as a

concerned citizen.
85.

Seditas conduct violated Sachas rights under the First Amendment

of the United States Constitution.

86.

The conduct of the District Attorneys office violated Sachas rights

under the First Amendment of the United States Constitution.

87.

Plaintiff has suffered loss of employment, loss income, loss of

benefits including health insurance and pension contributions, loss of reputation,

emotional distress, humiliation and other damages.
SECOND CAUSE OF ACTION PURSUANT TO NEW YORK STATE
CIVIL SERVICE LAW 75-B
88.

Plaintiff repeats and realleges each of the allegations contained

paragraphs 1 through 87 as if fully set forth herein.

89.

The defendant District Attorneys Office is a public employer

within the meaning of New York State Civil Service Law 75-b.
90.

Mark Sacha is a public employee within the meaning of Civil Service

Law 75-b. Sachas complaints made to Frank Clark, Frank Sedita, Tom Finnerty
and to the Federal Bureau of Investigation constitutes disclosures to a
governmental body within the meaning of Civil Service Law 75-b.
91.

Sacha expressed his concerns about the conflict of interest in the

District Attorneys office, the close ties between Frank Clark and a target of
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investigation, Sachas concerns about Frank Sedita making a deal with Steve
Pigeon who was a target of a criminal investigation all constitute expressions of
concerns about improper governmental action within the meaning of Civil
Service Law 75-b.
92.

The demotion of Sacha on January 2, 2009 constitutes an adverse

personnel action against a public employee within the meaning of Civil Service
Law 75-b.
93.

The termination of Sachas employment in October of 2009

constitutes an adverse personnel action against a public employee within the

meaning of Civil Service Law 75-b.
WHEREFORE: Plaintiff demands judgment in his favor and against the
defendants and requests the award of damages in the form of:
a.

Reinstatement to his position as Deputy District Attorney;

b.

All lost wages;

c.

Lost pension contributions;

d.

Lost benefits including health insurance, vacation, personal

days, sick days, etc.;

e.

Compensatory damages in the amount of $300,000.00;

f.

Attorneys fees and costs;

g.

And such other and further relief as this Court deems just

equitable and proper.

Dated: December 29, 2009

s/ Matthew J. Fusco
Matthew J. Fusco, Esq.
Chamberlain DAmanda
Oppenheimer & Greenfield, LLP
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Attorneys for Plaintiff

Two State Street, Suite 1600
Rochester, NY 14614
Tel: 585-232-3730
mjf@cdlawyers.com

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