March 30--The Erie County District Attorney's Office is investigating whether one of Buffalo's deputy fire commissioners was illegally snooping on firefighters -- and possibly others too -- by performing unauthorized criminal background checks.
District Attorney Frank A. Sedita III declined to comment, saying he could neither confirm nor deny that his office is investigating the case. Others involved said the District Attorney's Office requested a meeting with Deputy Commissioner Joseph J. Tomizzi and is reviewing an audit of the names of people the fire official conducted criminal background checks on.
Tomizzi decided not to speak with the District Attorney's Office, and instead referred county investigators to his attorney, Terrence M. Connors.
"He has already cooperated with the Corporation Counsel and provided the necessary information about his efforts on behalf of the city to his employer," Connors said of Tomizzi. The Corporation Counsel -- the city law department -- is conducting its own review of the charges against Tomizzi.
Connors defended Tomizzi, saying any criminal background checks Tomizzi made were legitimate and work-related.
"Joe Tomizzi is a dedicated and hard-working deputy commissioner who, as an arson investigator, regularly works with local and federal law enforcement," Connors said. "He has peace-officer status, and his investigative work requires frequent background checks. His background searches are related to the investigative work he does with law enforcement."
Meanwhile, Erie County Central Police Services, headed by Commissioner John A. Glascott, has canceled Tomizzi's access to its criminal records database, pending the results of the investigations.
"As soon as Commissioner Glascott received the initial complaint, he cut off the access," said Jeremy Toth, second assistant Erie County attorney.
Central Police Services conducted the audit of criminal background searches that Tomizzi made of its computerized database, but Central Police Services acknowledged the resulting list is incomplete. The audit only retrieved searches in which a person had a prior arrest, Glascott said. Names that were checked but came back with no criminal record, were not retrieved in the audit, he said.
The Central Police Services audit, which contains hundreds of names, has been forwarded to city and county officials but has not been made public.
The Erie County Attorney's Office said it will not release the list to The Buffalo News because it contains names of people who could be involved in ongoing criminal investigations as well as those whose cases were dropped or dismissed and sealed. Also, Toth said, the audit "may be used as evidence in an ongoing criminal investigation." Toth declined to elaborate.
The City of Buffalo, meanwhile, acknowledged it is reviewing a complaint against Tomizzi.
"The City Law Department is reviewing the matter. As a personnel issue, we cannot comment further at this time," said Michael J. DeGeorge.
The city has not responded to a Feb. 4 Buffalo News Freedom of Information request for a copy of the Central Police Services report it has received.
The Buffalo Professional Firefighters Association, Local 282, in February requested an investigation after one of its members, firefighter William T. Buyers, learned Tomizzi conducted a criminal background check on him about 4 1/2 years ago.
The check was made at 10 p.m. on Dec. 6, 2009, the night before Buyers, who had recently been promoted, was to start working in the Fire Department's arson investigation unit. At the time, Tomizzi was an arson investigator, and like other investigators in the unit, had authority to run background checks for law enforcement purposes.
Buyers, a 17-year veteran of the Fire Department, said he recently heard from other firefighters that Tomizzi was suspected of running a criminal background check on a now-retired firefighter who had on-the-job disagreements with Tomizzi. Buyers said he, too, had work-related disagreements with Tomizzi, so he wondered if Tomizzi had checked on him also. Buyers then asked that Central Police Services check, and was told about the December 2009 background check.
Buyers said he has never been arrested, has no criminal record, and that Tomizzi had no legitimate reason to run the check on him. Buyers filed a complaint against Tomizzi with the city Human Resources Department, which has not responded.
Since the complaint was filed, at least a half-dozen firefighters, including union leaders, told The Buffalo News they have suspected for years, but were never able to confirm, that Tomizzi improperly ran background checks on firefighters and possibly on his neighbors.
"He used to say openly that he ran his neighbors," Buyers said.
"This is an abuse of power," Buyers added. "Why was he investigating me? They've never given me a reason. I've never been involved in starting a fire. I haven't ever been involved in anything criminal."
Tomizzi's attorney said he could not comment specifically on the Buyers case, but repeated that any checks Tomizzi conducted were done for legitimate investigative purposes.
Tomizzi joined the Fire Department in 2000 and was promoted to the fire investigation unit in 2004. He was named head of the unit in April 2010 and promoted to deputy commissioner in August 2011.
As deputy commissioner, Tomizzi remains in charge of the arson unit and overall Fire Department field operations.
He also investigates sick leave abuse and injured-on-duty claims. Tomizzi's attorney implied that may be the reason some rank-and-file firefighters dislike the deputy commissioner.
"He is an aggressive investigator who holds people accountable, and that is the likely source of any complaint," Connors said.
Firefighters, however, said their complaint isn't with the city's procedures to reduce sick time. In fact, the new union contract, they said, includes additional penalties associated with sick-time abuse.
The union's complaint is with Tomizzi's apparent abuse of criminal background checks, said Daniel Cunningham, president of the Buffalo firefighters union.
"The question is why did Mr. Tomizzi run a criminal background check on Billy Buyers?" Cunningham said.
"For what reason? Mr. Tomizzi wasn't in charge of fire investigations when he did it. He was just a fire marshal. He was running background checks on the guy who sat next to him. Did he run a check on Dan Cunningham too?"
The criminal background check system used by the Buffalo Fire Department is run by Erie County Central Police Services and contains only Erie County criminal records. The rules the county adopted for proper use of the criminal records are based on the rules the state's Department of Criminal Justice Services uses for a somewhat similar statewide database, Glascott said.
Fire investigators trained to use the county system are required to use their own passwords, and are expected to identify every search they do with a case they are working on. They are supposed to use the system for fire investigations only, according to Glascott.
"It's used for criminal-justice purposes only," he said. "You've got to have a reason."
Running unauthorized criminal background checks would violate city and county regulations, and possibly criminal codes as well, officials said.
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