NISKAYUNA – The town made a lump-sum payment of over $73,000 in unused vacation and sick time to embattled town comptroller Paul Sebesta in 2020 despite an ongoing investigation of his conduct that eventually concluded the town could have let him go without that payout.
Town officials commissioned the probe by the Albany law firm of Nixon Peabody after reports circulated that Sebesta wore blackface to a 2014 Halloween party. In the end, the firm’s report, obtained Wednesday by The Daily Gazette, painted a scathing picture of Sebesta’s alleged behavior in Town Hall and a troubling lack of action by town officials to respond to it.
The Gazette obtained the 300-plus-page report from NiskyLeaks, an anonymous Twitter account, which has slowly been sharing portions of the document over several weeks. Former Town Board member Rosemarie Perez Jaquith confirmed the validity of the document Wednesday.
The board voted on June 30, 2020, to pay Sebesta over $73,000 in unused vacation and sick time after he resigned from his position after the town indicated to him that he would be suspended without pay pending an investigation into his use of blackface, which is considered highly offensive to Black people. That payment plus his base salary pay of $64,204 for the months he worked in 2020 made him the highest-paid town employee that year.
The investigation was conducted after the town received a complaint on June 15, 2020, from the group Progressive Schenectady regarding Sebesta’s role in human resources issues, including diversity training, after Sebesta had posted a photo of himself wearing blackface on social media, according to the report produced by the law firm.
After receiving the complaint letter, the board voted to suspend Sebesta without pay pending an outside investigation into the matter. Sebesta in turn claimed he needed two weeks of sick leave for mental stress on June 16, 2020, but then abruptly resigned on June 17, 2020, according to the report.
Nixon Peabody was hired by the town on July 1, 2020, to look into Sebesta’s conduct, including the use of blackface. The law firm also reviewed town personnel policies and assessed whether Sebesta violated those policies. The firm also provided the town with recommendations to institute a social media policy and to update its existing personnel policies. The investigation and subsequent report cost the town $154,000, said Supervisor Yasmine Syed.
The investigation, which included interviews with 27 individuals, found that Sebesta in 2014 appeared to have worn blackface as part of a Halloween costume and that he then later posted about it on social media. The report also found that a photo of Sebesta in his costume was sent from his town email account in both 2014 and 2016 and he is alleged to have had the same photo included in a calendar in his office, according to documents.
Several town employees knew of the photo, according to the report. Sebesta declined to be interviewed for the investigation but provided a statement about his choice to dress as reggae artist Bob Marley for a Halloween Party in 2014.
“Bob Marley was a cultural and musical icon, and outspoken for his message of peace and love,” Sebesta said in his statement. “It was in this spirit that I wore the Halloween costume, not to demean, mock, or offend anyone.”
One individual in the report recalled that they told Sebesta the photo was inappropriate and said Sebesta laughed it off. Other than Town Board members, the individuals who were interviewed were not identified.
In January of this year, the town released an abbreviated account detailing the investigation into Sebesta wearing blackface and that other current and former employees said Sebesta “had engaged in other objectionable conduct,” according to the five-page report. However, the other allegations were not outlined in that version of the report.
The other allegations claim that Sebesta:
- Stated that some employees were too old for town jobs for which no age restrictions were applicable.
- Stated that a female job applicant, who was eventually hired, should not have been because “the next thing you know she’ll be pregnant.”
- Opposed allowing a disabled student employee to continue working for the town and mocked his own disabled cousin.
- Commented on Syed’s ethnic background at a holiday party.
“Mr. Sebesta’s personnel file contained no documentation or records that showed the existence of any prior complaints against him or proper discipline,” the report states. “However, the investigation disclosed credible conduct of concern, including several informal and formal complaints about Mr. Sebesta’s conduct, with evidence that he faced some prior disciplinary action [albeit insufficient].”
The report states that no witnesses saw Sebesta act with “overt racial animus or racial discrimination toward other employees.” Some witnesses said they didn’t believe Sebesta was racist. However, other witnesses who worked closely with Sebesta said he was inappropriate, offensive and used racist language, according to the report.
Nixon Peabody’s report concluded that the formal complaints against Sebesta warranted investigation.
Sebesta’s attorney, Kevin Luibrand, was unavailable for comment Wednesday or Thursday, and efforts to reach Sebesta were unsuccessful.
The Nixon Peabody report concluded that the town had the right to withhold pay from Sebesta. However, the board voted 3-2 to pay him before waiting for the investigative report from the law firm. Board members John Della Ratta, Bill McPartlon and Denise Murphy McGraw voted to pay Sebesta. “Mr. Sebesta has threatened the town with litigation,” McGraw said in an emailed statement Wednesday. “Due to COVID, he is still within the time period to file a claim against the town. The Town Board believed it was in the best interest of the taxpayers to do what we did because if he was denied his benefits last year the town assuredly would be paying attorneys right now likely more than what we paid him in vested and accrued benefits. The Town Board believed by paying out those benefits we took away any additional reasons for litigation he could engage in.”
Town Attorney Paul Briggs said that by paying Sebesta, the town removed any reason for Sebesta to pursue litigation.
“The town, and for that matter the county, has historically paid out accrued benefits when employees separate from employment,” he said in an emailed statement.
Furthermore, Briggs said, he’s unsure of why the report was released.
“The report constitutes confidential attorney work product and further is material prepared for potential litigation,” he said in the statement. “I strongly question why anyone would undermine the town and our [sic] equally important our taxpayers. The disclosure was unlawful and whoever choose [sic] to disclosed [sic] it may be subject to legal action.”
The Gazette submitted Freedom of Information Law requests to the town multiple times requesting access to the report, but was denied each time. The most recent denial came on Oct. 5.
Jaquith, the former Town Board member, and Syed, the lone Republican on the Democrat-controlled body, both said they wanted to wait until the Nixon Peabody investigation was finished before determining whether to pay Sebesta.
“The comptroller sought to retire without giving two weeks’ notice, as required of town employees, and to receive payment for unused vacation days, and both issues were presented to the Town Board,” Jaquith said in an emailed statement Wednesday. “I voted NO, opposing the payment pending the investigation, which I expected to consider the applicability of a town policy that provides that an employee who leaves ‘due to disciplinary’ action will not receive such payments.”
Jaquith said the Nixon Peabody report showed that Sebesta should not have been paid.
“The law firm’s thorough investigation report confirmed my belief that under existing town employment policies, the comptroller’s conduct and the circumstances of his retirement warranted withholding payment to him for unused vacation days,” she said.
The report also addressed human resource issues in town, a task that was also assigned to Sebesta.