batavia

A 33-year-old Batavia man pled guilty today in U.S. District Court to a felony charge of receiving child pornography.

Samuel W. Nigro faces a prison sentence of five to 20 years and a fine of up to $250,000.

The case was prosecuted in a Buffalo federal court by Assistant U.S. Attorney Aaron J. Mango. Mango said Nigro received images and videos of child pornography using various internet sites on or about Dec. 9, 2008.

A search warrant was executed on Nigro's Batavia residence on Dec. 9, 2009. Mango said a forensic analysis of Nigro's computer revealed a total of 5,239 images and 113 videos of child pornography.

Sentencing is scheduled for 1 p.m., Nov. 16 in Buffalo.

This entry concludes Sunday's article on the comments of Victor DeSa, M.D., who spoke to senior citizens at Batavia's First United Methodist Church last week.

Please remember, this is a summary of DeSa's presentation and does not necessarily reflect the views of The Batavian:

Medicare, Medicaid and senior services

By requiring insurance companies to expand coverage, the new health care law will drive costs up, according to DeSa. The government has told consumers that these costs will be offset by subsidies for people making less than $80,000 per year.

These subsidies will be coming, in part, from a $500 billion cut from Medicare -- and that's where senior citizens and others eligible for Medicare should be concerned.

But this is not the only problem. Both Medicare and Medicaid, which DeSa called "the original two public options," have met with disaster. Medicaid has already failed, and Medicare is on the brink of failure.

"The government has no idea how to handle the rising costs. Their idea of handling the costs is to take a machete to (the programs) and cut."

The result is the "doctor fix," a 21-percent cut in doctors' reimbursements. This could be disastrous in a system where the cost of providing services is already greater than what the doctors receive in compensation.

For that reason, many doctors no longer accept Medicare. The Mayo Clinic in Arizona has already determined that because of the new health care legislation, it will no longer deal with the program.

"So Medicare patients are going to have fewer and fewer choices of who is going to take care of them."

With fewer doctors available, waiting periods will increase. So the direction Medicare is taking presents seniors with a double disadvantage.

The government "carved the 21-percent doctor fix out of the bill" in order to avoid upsetting America's seniors, but that doesn't mean they've addressed the cost. They are simply pushing it to the side and will have to deal with it later.

"Six months down the road, they have to still come up with a fix for this 21-percent cut that they are going to make on Medicare payments to the doctors."

So that's the story with Medicare and Medicaid. As far as insurance for retired citizens goes, people who worked in the public sector should be okay (although DeSa said it's not impossible that this could change, because "anything is possible" with what the government is doing), but people in the private sector should be concerned.

What to do?

When asked how we can change the course we've taken, DeSa answered: "We've got to kick out the guys who did this."

He appealed to the power of senior citizens -- which he became two years ago -- who are "feared in Washington because we vote."

Many seniors were suspicious when the government said that $500 billion had to be cut from Medicare to cover health care.

"If they really addressed costs the way we asked them to do, a person making $40,000 a year be able should be able to afford health care coverage without subsidies, don't you think?"

Failure to address the problem of cost in the current system was one of DeSa's main critiques of the health care bill. He said that in looking for alternative plans, we need to look for one that does address them.

Counting the costs 

There are three main factors driving health care costs:

1) Overuse

Back in the old days, when there was usually only one doctor in town and he had to go to patients' homes to treat them, people only went to the doctor when there was something really wrong.

Now, with easy access to medical examination and treatment, people will go to the doctor -- and even to the emergency room -- whenever they have a minor health concern.

"We have to change that if we want to truly address the cost of health care."

But it's not just patients -- doctors sometimes overuse the system, too.

"I hate to admit it, but there's greed in every profession. There are bad apples in every bunch, and you've got to admit it."

2) The fact that people have insurance in the first place

Strange as this may sound, this can be a problem.

"Insurance is like a credit card, but you don't have to pay every month. So there's no incentive for you to be prudent with the costs. You don't even want to know what the cost is, you just want the health care."

DeSa believes that while insurance cannot be eliminated altogether, people should reduce their dependence on it. For health purposes, they should only turn to insurance in times of emergency.

Generally speaking, the way people take care of this part of the cost is by having "skin in the game."

"If you shop around for a car or a house, why shouldn't you be able to shop around for a doctor? Especially in this day and age, with the Internet and everything."

3) Liability

"Everything from a Band-Aid to a heart valve has a mark-up depending on the risk."

In other words, the more dangerous the a product or its failure can be -- and, therefore, the greater the likelihood of a lawsuit -- the more expensive the product.

Because the liability cost is factored into the price of the product itself, "the little guy gets it in the neck every time."

DeSa fully supports the patient's right to sue when a doctor has done something wrong or is incompetent, but he also believes that the whole liability issue should be looked at when considering the cost.

Government out, skin in (the game)

Costs are going down for procedures that are not covered by insurance (Lasik surgery is one example). The reason?

Competition.

"Costs come down if there are market forces in place."

DeSa saw this in his native India, which had a socialized health care system until the early 1990s.

When he was studying at Jabalpur University in the mid '60s, the Indian government had total control of health care and sent all competing forces out of the country.

The effect of this was what DeSa called a "brain drain."

"The best and the brightest (doctors) were all leaving the country."

He sees the same thing happening here in Western New York, where there is a serious shortage of doctors.

"Over 80 percent (of young doctors surveyed at Western New York teaching institutes) say they'll train here, but they're not going to stay in New York to work. We are known as one of the most heavily taxed and over-regulated states in the country."

Our response to this situation should mirror the response taken in India back in 1990. At that time, India began to default on its World Bank loans. Finance Minister Monmohan Singh -- who is now India's Head of State -- saw that the system was not working and started the country on a different path.

"He got rid of the government, encouraged entrepreneurship and lowered taxes."

Above all, the patient must take responsibility and be in control of his/her own health care. It can't fall to the federal government to make important decisions regarding people's health care, no matter how well-intentioned they might be.

Déjá vu

In addition to drawing from the experience of his native country, DeSa also discussed two other examples of what he sees as a health care system set up for failure.

The U.S. government's new health care model is based on the Massachusetts health care model, which DeSa called "an abject failure." He cited problems related to his comments about young, healthy citizens abusing health insurance.

"Just Google 'Massachusetts Health Law -- success or failure?'"

Socialized health care has proven disastrously ineffective in Britain as well.

"Just this month, Britain recognized that its system is a failure and said they are going to change the whole thing."

Part of that change will be a shift in power from bureaucrats -- of which there are 1.5 million overseeing the United Kingdom's National Health System -- to the doctors. As good as this sounds, DeSa fears it may be too late for it to work.

"The doctors (in the UK) have no business experience. Up to this point, the government has been taking care of everything."

His concern is that U.S. doctors will share a similar fate. As his presentation drew to a close, he told everyone that under the government's new plan, there will be over 120 new bureaucracies controlling health care.

DeSa admitted right at the start of his presentation that he had a bias as a health professional. He encouraged everyone to do their own research and decide for themselves whether or not the new health care reforms are to be welcomed or feared.

UPDATED 11:59 a.m.

With recent reports that the Rochester Red Wings are not likely to operate the Batavia Muckdogs for a fourth, reportedly money-losing season, the local owners of the storied franchise announced today they are seeking a buyer for the ball club.

Presumably, the owners, Genesee County Baseball Club, will seek an owner willing to keep the team in Batavia, though that's not yet confirmed.

Club President Brian Paris said ideally, the Genesee County Baseball Club will be able to find a buyer willing to keep the team in Batavia.

"Obviously, that's our first preference," Paris said.

But he's also hopeful that just like the miracle of the Red Wings rescuing the team at the last minute three years ago, perhaps another miracle will keep the team in GCBC hands.  What the club needs, he said, is three or four deep-pocket Western New York companies to step forward with sponsorships of $25,000 to $50,000 each.

It happens in other small markets, he said.

"That's a very realistic thought because other teams have those kinds of sponsorships," he said.

Paris said he doesn't blame the community.

"The tragic portion of this, is that we are on brink of losing the team and I think I’ve tried to be very frank with people and the media that this is what could happen if we don’t have a greater amount of support in ticket sales and sponsorship," Paris said. "I love Batavia and this is something we're just going to have to work through one way or another."

One of the team's most valuable assets is its name, Batavia Muckdogs. Little League teams across the nation have licensed the logo and name. It the team moves, it will no longer be the Batavia Muckdogs.

Paris said it's too soon to talk about scenarios involving no buyer being found, or a buyer being found and the team being moved to another city.

"I hate to be Pollyanna, a small town tree hugger, but something good is going to come of this," Paris said. "It’s going to work out. We just don’t know what it is yet."

Full press release after the jump:

BATAVIA, NY—The Genesee County Baseball Club, the not-for-profit organization that owns the Batavia Muckdogs of the New York-Pennsylvania Baseball League, announced today that it is soliciting offers from potential buyers of the team.

For the past three years, Rochester Community Baseball, owner of the Rochester Red Wings, has operated the Muckdogs under an agreement with the GCBC. The Red Wings have informed the GCBC that it is unlikely that the relationship will continue for a fourth year.

“We thank the Red Wings for these last three years, which included the memorable 2008 championship season,” Paris said. “They have indicated that they are probably going to move on, and we respect their decision.”

Paris said that the GCBC will give “strong preference” to potential buyers who pledge to keep the team in Batavia.

“Batavia has had a team in this league since 1939,” said Paris, “and we are very hopeful that we can find a buyer who appreciates the rich history, family atmosphere, great ballpark, and wonderful community spirit of Batavia.”

The NYP League, then called the PONY League, was founded in 1939 at a meeting at the Hotel Richmond in downtown Batavia. Batavia and Jamestown are the only two original PONY League cities that are still in the league.

Willie J. Woods Jr., 36, of Casper Street, Rochester, is charged with one count of criminal possession of a controlled substance, 3rd, one count of criminal possession of a controlled substance, 7th, and aggravated unlicensed operation of a vehicle. Woods was stopped at the entrance to the New York State Thruway by members of the Local Drug Enforcement Task Force and uniformed deputies. Woods was nabbed after a month-long investigation into the trafficking of crack cocaine in Batavia. Woods was allegedly found in possession of 22 bags of crack and a quantity of suboxon as well as $2,000 in cash. Woods was jailed without bail.

Jerry T. Saddler, 34, of 112 State St., Batavia, is charged with disorderly conduct and harassment, 2nd. Saddler was reportedly involved in an altercation in a front yard on State Street on Wednesday. Saddler reportedly aggressively approached neighbors and used profane language, leading to a disorderly conduct charge. On Wednesday, the woman he reportedly hit in the face declined to press charges. She changed her mind on Thursday and Saddler was charged with harassment, 2nd.

Ra Aaron, 39, of 111 Liberty St., Apt. C, Batavia, is charged with harassment, 2nd, disorderly conduct, attempted assault, 3rd. Aaron reportedly aggressively approached a person on Lewis Place and grabbed her by her wrists. When police responded, Aaron was located a short distance away. When approached by Officer Thad Mart, Aaron allegedly threatened the officer and then attempted to punch him. Aaron was jailed on $1,000 bail.

Martin L. Flickner, 48, of 4503 York Road, Leicaster, is charged with grand larceny, 3rd, and falsifying business records, 1st. Flickner was taken into custody on an arrest warrant upon his release from the Livingston County Jail. He is accused of falsifying the business records of his employer and stealing more than $3,000 between July 2008 and January 2009.

One Batavia man was arrested and a warrant issued for another last week by Monroe County Sheriff's deputies for an alleged scheme to shoplift a basketful of items from the Home Depot in Henrietta.

Chad M. Johnston, 24, of Batavia, was taken into custody Aug. 5 and a warrant was issued for Mark W. McWerthy, 43, also of Batavia.

The duo is accused of filling up two shopping carts full of identical merchandise, running one through a check-out stand while leaving one unattended, then returning for the second cart and trying to exit the store using the first receipt as a proof of purchase.

The cart reportedly contained more than $1,000 in merchandise.

Johnston, already on parole, was jailed without bail. McWerthy reportedly fled the scene before deputies arrived.

Both are being charged with grand larceny, 4th.

In February, Johnston admitted in Genesee County Court to a burglary on Fairway Drive, where he attempted to steal more than $1,000 in household items, including a washer and lawn mower. Johnston was reportedly on parole at the time.

Philip E. Kroft Jr., is indicted on ten counts of rape, 2nd. Kroft is accused of being 18 years of age or older and engaging in sexual intercourse with a person 15-years-old or younger. The alleged encounters occurred between Sept. 29 and Nov. 10, 2008, in the City of Batavia.

Kenneth R. MacGregor is indicted on three counts of criminal possession of a forged instrument, 2nd, and one count of aggravated unlicensed operation of a vehicle. MacGregor is accused of writing a forged check on June 4 in the Village of Corfu for $482.12, and on June 7 for $477.18 and on June 7 for $892.43. He is also accused of driving a car with his privileges suspended on June 7 in the IGA parking lot, Village of Corfu.

Javonie E. McKinney is indicted on one count of DWI and one count of aggravated unlicensed operation of a vehicle. McKinney is accused of operating a 2009 Kia on Bank Street, Batavia, on April 17 while intoxicated.

Tara Marie Gardner, 31, of West 3rd Street, Oswego, is charged with criminal possession of a stolen vehicle. Gardner was taken into custody at 7:51 a.m., Wednesday, on Route 98 near the Thruway entrance. The vehicle she was in was reported stolen earlier in Fulton. She was jailed on $100,000 bail.

John Patrick Smith, 39, of Somers Drive, Fulton, is charged with criminal possession of a stolen vehicle, DWI, and breath test refusal. Smith was taken into custody at 8:16 a.m. on Route 98, Batavia, following a complaint about use of a stolen credit card. The vehicle he was operating was reportedly stolen in Fulton. Smith was jailed without bail.

Jolene J. Goodell, 30,  of 13 Gilbert St., Le Roy is charged forgery, 2nd. Goodell is accused of altering a doctor's prescription in order to receive more of a narcotic medication. Goodell allegedly tried to pass the prescription in September at a local pharmacy, but a pharmacist detected the alteration.

Kathleen A. Wenzel, 62, of 8481 North St. Road, Le Roy, is charged with DWI, aggravated DWI with a BAC of .18 or greater and consumption of alcohol in a motor vehicle. Wenzel was taken into custody Wednesday on Lake Street by Det. John Condidorio after a witness reported seeing Wenzel seemingly having a hard time getting in and out of her car.

Several reforms in the policies and procedures of the city's plumbing board will be implemented following the Batavia City Council meeting Monday, where no council members raised any major objection to the plan.

After the meeting, City Manager Jason Molino said the next step is for he and his staff to meet with the plumbing board -- which currently consists of one master plumber and two city staff members -- and work out a plan for implementing the reforms.

The reforms include ensuring state laws regarding open meetings and public records be followed, that better records be kept and filed on applicants for plumbing licenses, and that a third-party company be found to fairly and unbiasedly administer plumbing exams.

The city must also continue looking for a new part-time inspector of plumbing -- a job candidate who can also share code enforcement duties.

If no such candidate can be found, then the city will need to have one of its current code enforcement officers be certified to perform plumbing inspections.

Councilman Bob Bialkowski said that's the one part of the plan that makes him the most uncomfortable. He would much rather have an experienced plumber performing inspection duties.

Three plumbers and the city's former plumbing inspector, Barb Toal, spoke during the public comments portion of the meeting, well before the city manager's report came up for council discussion.

The plumbers made general statements about the importance of plumbing regulation with regard to public health. Toal spoke more to the point of the report, questioning its accuracy on meeting notices and minutes and how exams were administered.

Toal's speech was delivered rapidly and was somewhat disjointed. She seemed to blame the lack of minutes and the fact no tests were administered for some period of time on the fact that the board has not been able to operate as a full, five-member board.

The city has traditionally found it difficult to meet state requirements to have a journeyman plumber on the board.

"There has not been a full plumbing board for a full year, so therefore there have been no meetings, no minutes and no business conducted,” Toal said.

Later in the meeting, council members discussed the fact that the board only needs three members present to conduct business.

Toal also criticized the report for claiming that meetings were not advertised with proper public notice in accordance with state law.

"Planning board meetings for last four years are on the third Wednesday of every month," Toal said. "What a surprise? How is the meeting not legal? How does management not know what’s going on?"

As for not administering tests, Toal said applicants were told that without a full board, the board couldn't write a test for them to take. She said they all understood the situation.

One of the speakers wasn't a plumber, but a customer of plumbers.

City resident Paul Passamonte discussed his own difficulty in finding a locally licensed plumber at a reasonable cost. It's the same topic Passamonte covered in a letter to the city last week.

Passamonte wrote that after hiring a contractor from Buffalo for a room addition, the same contractor offered a bid for the plumbing work. He said it would cost $3,200, but the contractor wasn't licensed in Batavia.

After obtaining the list of 31 licensed plumbers for Batavia, Passamonte said a surprising number didn't even live in Genesee County, and the ones who did usually didn't return his calls. Only four ever acknowledged his calls and only two showed up and gave bid estimates -- one for $5,200 and the other for more than $12,000.

When the plumbing report came up on the council agenda for council discussion, Councilwoman Rosemary Christian had her hand up first.

She wanted to know why, if the board had been meeting for more than a decade without proper meeting notices and minutes, why that problem wasn't caught earlier.

City Manager Jason Molino said that part of the issue is that the board wasn't being required to file their documents with the city clerk's office. The board was only dealing with the plumbing office, so there wasn't any additional oversight.

"I can’t give you an answer for why this has gone on for a period of time, but we’ve identified it and now we need to correct it," Molino said.

Councilman Bill Cox suggested that when a person files an application to take a plumbing test, the application should be logged in the city clerk's office and the applicant should receive a formal letter of acknowledgment in a timely manner. The rest of the council concurred.

That was the one additional reform added to the city manager's proposal.

Council President Marianne Clattenburg praised the report as thorough, well documented and factual.

"It's not emotional," she said.

"I think we also have to keep in mind what the plumbing board is all about and how it benefits the city when we have a fully functional, fair plumbing board and a competent plumbing inspector," Clattenburg added. "It is ultimately about serving the citizens of the community. It really isn’t about serving one interest."

After the meeting, Molino said the reforms should make a big difference in how plumbing business is conducted in the city.

"The recommendations, I don’t think are monumental, but in terms of significant change, they’re important," Molino said.

Photos: Christian, Molino and Bialkowski.

A solution may have been found for the white streaks on the red bricks of City Hall.

On Monday, City Council approved a $31,500 contract with Highland Masonry and Restoration Inc., of Buffalo, to replace 46 windows and sills with material that won't run and create new streaks.

Once the building's cleaned up and the new windows are in place, the building should be more attractive, officials say.

"It does bother the citizens of Batavia," said City Council President Marrianne Clattenburg. "I get comments on it all the time – when are you going to fix those windows?"

Director of Public Works Sally Kuzon said the city tried two different replacement or repair options on three different windows on the building. The replacement process showed the most success on two windows, so the city then sought bids for the work on the remaining 46 windows.

Councilman Sam Barone was the only council member to object to the work, saying he was concerned about the expense and that he could live with the situation.

The city did budget $27,000 for the project. The $4,500 shortfall will be taken from the city's facilities reserve.

Councilwoman Patti Pacino was among the council members who questioned why the city couldn't sue the contractor who installed the windows, or the architect who wrote the specs.

"I still don't understand how it's not some body's fault," Pacino said.

City Attorney George Van Nest explained that the building contractor was merely going off the plans and specs provided by the architect when the building was erected five years ago, so couldn't be held libel.

As for going after the architect, he said expert opinion, according to his research, varies on the proper construction process and materials for installing windows in a masonry building, making getting a win on a lawsuit much more difficult.

"Legal action could cost more than the project itself," said City Manager Jason Molino.

Both Molino and Van Nest explained that winter-time construction and the compounds used in installing the windows at that time of year may be the reason the streaks appeared. Van Nest said he's seen the same problem appear on buildings in Buffalo.

"In my opinion, this is a beautiful building and those stains under the windows really detract from it," said councilman Frank Ferrando. "I think we owe it to this community and the investment that we made here that we make it look good. This is our downtown. This is something we should all be very proud of."

Photos: Kuzon, Ferrando, Pacino.

The Batavia Police would like your help in recovering a missing power wheelchair owned by a Washington Towers resident.

The wheelchair broke down this morning and the elderly resident left it nearby. The resident was able to get back home and he called a repair service.

Tonawanda Valley Federal Credit Union officials called police after customers reported it unattended in the parking lot.

When police responded, the chair could not be located. Police officers are concerned the chair was stolen.

Anyone with information about the chair is asked to call the Batavia PD at 585-345-3000.

A fire leader with 23 years experience in the Kodak Fire Department of the Eastman Kodak Company and 30 years experience -- both as a volunteer and as chief of the North Greece Fire Department -- has been selected to head the Batavia Fire Department.

James Maxwell will be become Fire Chief next Monday.

Monday night the Batavia City Council approved a resolution giving Maxwell 12 months to relocate to Batavia and City Manager Jason Molino said Maxwell is eager to move here.

Maxwell was not available for comment.

He replaces Interim Chief Craig Williams, whom Molino praised for his three months of dedicated service in the role.

It's been a long search for a new chief for the department, which has been run in the past couple of years by Thomas Dillon followed by Ralph Hyde before Williams. Hyde came out of retirement to handle the duties when Dillon was forced to step down because the state wouldn't let him draw a full-time salary and retirement benefits.

At Kodak, Maxwell served as a HazMat Resource Tech, Senior Firefighter/EMT, Lieutenant and Battalion Chief. He became chief of the North Greece department in 2006. North Greece is staffed by 33 career firefighters and 68 volunteers.

In looking for a new chief, Molino said the city wanted to hire somebody of character, integrity and enthusiasm.

"Obviously, we are looking for a good personality and right mentality not only for the department itself and management and (city) council, but who’s going to be a good fit for the community," Molino said. "Resumes are important, but it doesn’t always mean that somebody with the best resume is going to be the best fit in that department or the organization."

Maxwell's wife is Mary Jo and he has two sons, Brian, 26, and Craig, 24.

His starting salary will be $75,170.

Investigators are piecing together the final hours of Deborah Maniace.

The body of 47-year-old Batavia resident was found early Saturday morning next to the train tracks under the CRX overpass on Clinton Street Road, Stafford.

Maniace had attended the Elba Onion Festival Friday and been out with her boyfriend. At 2 a.m., Maniace called her son and said she was walking home.

Chief Deputy Jerome Brewster said that a just-released medical examiner's report says her wounds were consistent with a fall from a bridge. There is no other sign of trauma -- not from a fight and not from a car hitting her, and she was not sexually assaulted.

There are no skid marks or other markings on the roadway at the bridge that would suggest she had to move quickly to get out of the way of a swerving car.

Brewster noted that the wall along the bridge roadway is pretty high. It would be hard for a 5' 2" person to just fall over.

There is no indication that Maniace was suicidal.

"We would love to talk with anybody who might have seen her walking on Route 33," Brewster said. "We would like to talk to anybody who drove that section of Route 33 between 2 and 3 a.m. and didn't see her -- we would like to know that, too."

To contact the Sheriff's Office, call 585-345-3000.

Russell J. Hamilton, 20, Route 19, Brockport, is charged with reckless endangerment, 3rd, criminal mischief, 4th, and harassment, 2nd. Hamilton is accused of driving his car in a reckless manner, nearly striking two people sitting in lawn chairs. Hamilton then allegedly got out of his car and verbally threatened one of the victims. He is also accused of causing damage to the victim's driveway on Aug. 4. He was jailed on $1,500 bail.

Kevin F. Tierney, 51, of Creek Road, Pavilion, is charged with endangering the welfare of a child and sexual abuse, 3rd. Tierney is accused of forcing a woman into sexual contact.

Colleen Marie Kress, 45, of Crown Oak Drive, Rochester, is charged with unlawful possession of marijuana, aggravated unlicensed operation, 2nd, operating on a suspended registration, operating without insurance and speeding. Kress was stopped at 1:10 a.m., Monday, on Route 5 in Le Roy by Deputy John Weis for allegedly driving 70 mph in a 45 mph zone.

Daniel Thomas King, 30, of Johnson Road, Bernhards Bay, is charged with DWI, aggravated DWI, speeding and failure to keep right. King was stopped at 12:04 a.m., Monday, on Route 77, Pembroke, by Deputy Patrick Reeves. King was allegedly driving at 63 mph in a 45 mph zone.

Marc F. Faggin, 30, of Triphammer Road, Ithaca, is charged with DWI, driving with a BAC of .08 or greater and following too closely. Faggin was stopped at 11:29 p.m., Sunday, on Route 77, Darien, by Deputy Chris Parker.

Janet Rae Langer, 32, of South Street Road, Le Roy, is charged with DWI and refusal to take a breath test. Langer is accused to driving to a location on West Bergen Road at 8:58 p.m., Sunday, in connection with a property dispute. Langer was allegedly intoxicated at the time.

For nearly 20 years, the Batavia Plumbing Board has conducted secret meetings, failed to keep proper minutes, not abided by its own regulations regarding plumbing examinations and administered tests seemingly designed to assure failure.

These are the accusations contained in a report issued by the City Manager's office on Thursday in advance of Monday's city council meeting.

"After researching the Plumbing Board and Plumbing Inspector actions over the past two decades, it has been discovered that there are numerous questionable actions with regard to the conduct of prior Plumbing Boards and the Plumbing Inspector," reads the report.

"Furthermore, when considering the severity of issues revolving around illegal meetings, refusal to review plumbing exam applications, lack of aptitude in creating the exams and answer keys, and blatant disregard for accurate record keeping, it would appear that the actions of the Plumbing Board and Plumbing Inspector have been collusive, self-serving, and not in the best interest of the residents of the City of Batavia.

"These actions further reveal a deliberate abuse of public trust and obvious pursuance of self interest for those involved."

The 18-page report contradicts most of the reporting of the Batavia Daily News on plumbing board issues. The Daily's stories have consistently protrayed city plumbers as protectors of public safety foiled in their public service efforts by an uncooperative City Hall.

In a July 22 article (City plumbers are united in protest), the Daily reports:

The board corrected the tests and all three applicants failed.

It is a difficult test, plumber Doug Diegelman said.

“It absolutely should be. It’s a definite public safety issue,” he said. “I want to try and get this resolved so that everyone is working on the same page. Each and every plumber had to have certain qualifications to pass that test.”

Of course, any test is difficult if the answer key doesn't match the questions. In each of the sets of questions given, the answer keys contained between 4 and 21 incorrect answers. In one case, the answer key contained "false" as the correct answer on a multiple choice question.

City Manager Jason Molino said in an interview with The Batavian on Friday that he isn't even sure the exams are up to date with current plumbing codes. And since the plumbing board has generally failed to keep proper meeting minutes, there is no record of the board adjusting the tests to keep pace with changes in code.

According to the plumbing board's own regulations, the board is required to offer examines three times a year, but until the three applicants were offered the exam in February, no potential plumber has been allowed to take the test since October 2006. 

The board received applications in November of 2004, 2006, 2008, March 2009 and June 2009. The plumbing board did not even respond to these applications until January, according to the report.

When the exam was given, as noted, all three applicants failed. One of the applicants has 32 years plumbing experience and is already licensed in six other jurisdictions.

Though issues with the plumbing board have existed for 20 or 30 years or longer, according to the report, much of the current controversy surrounding the board arises from a Jan. 20 meeting and the decision to deny a city employee, Jimmy Ficarella, an opportunity to take the test.

At a previous meeting -- with all five board members present -- Ficarella's application was approved unanimously.

At the Jan. 20 meeting, only three board members were present. Another board member and the chairman were not notified the meeting was taking place, according to Molino.

The next day, Chairman Ricky G. Hale resigned, writing in his resignation letter, "Such a job requires dedication to the trade, a commitment to the citizens of the community and an unprejudiced demeanor between the City and licensed plumbers thereof."

While neither Hale nor another board member knew about the meeting -- and there's no documentation for proper, legal meeting notice -- several local plumbers knew to attend the meeting.

They all signed a petition -- for what, Molino isn't entirely sure, because the writing was, to him, illegible -- that helps document their presence at the meeting.

According to the Daily's stories, the remaining plumbing board members justified their action by saying Ficarella had been practicing plumbing without a license, even though no such concern was raised when his application was approved in December.

In an interview by the Daily with City Attorney George Van Nest, Van Nest raises the same issue, and the Daily's story provides unqualified cover for the plumbing board.

In, Plumbing Board refusing to correct test taken by city DPW employee:

That's not exactly true, Ron Toal said. The board needed time to fully review Ficarella's supporting documentation. Once that was done, board members agreed his experience did not qualify him to go for master plumber.

Which begs the question -- unasked, apparently, by the Daily's reporter: Why didn't the board complete its review before approving Ficarella's application in December?

Board members have claimed that Ficarella was found to have practiced plumbing without a license and without the proper supervision of a master plumber, but Molino said no one has come forward with evidence to support the claim.

"The entire board approved the new application in December, so obviously there’s new information that came in (for the Jan. 20 meeting)," Molino said. "So, let’s see the new information? ‘Well, there is no new information.’ Well, let’s see the investigation? 'There is no investigation.’ There’s no information, no justification, no new information whatsoever (to disqualify Ficarella)."

Even if it were true that Ficarella was practicing plumbing without a license, there's nothing in New York's General Cities Law on plumbing that would prohibit him from qualifying to take the exam.

However, a plumber found guilty of a misdemeanor (like practicing plumbing without a license) would lose his license. There is no claim The Batavian has yet to uncover that Ficarella was ever been charged with a misdemeanor, let alone convicted, to potentially disqualify him from taking the exam.

For months, the board refused to grade Ficarella's test. When it did -- because Van Nest required it to protect the city from litigation -- Ficarella wasn't given a passing grade.

After two of the candidates filed Freedom of Information requests for their tests and the answer keys, they challenged the test's validity.

Matt Worth, superintendent of water and sewer, regraded the test, checking the answer keys against relevant state and city codes. Once the incorrect answers in the answer keys were corrected, the two applicants were found to have achieved passing scores.

In a July 29 story (Recorrected: 2 plumbers pass test), the Daily quotes Larry Toal saying he believes the city “manipulated the codes to fit the answers.”

Former Plumbing Inspector Barb Toal told the Daily that the city's Licensed Plumbers Association plans a legal challenge to the passing grades.

In the same story, the Daily's reporter writes of the meeting that the only master plumber on the board at the time, Al Rosemark, objected to the meeting taking place since there weren't two other plumbers to vote on the regrading process.

General municipal law for cities states that the board is to include two master plumbers, one journeyman plumber, a city engineer and a plumbing inspector.

Ron Toal doesn’t think that Water and Sewer Superintendent Worth should be on the board since he’s not a plumber or an engineer and there is already a city representative on it.

But that's not correct, according to the city's report.

Under Section 40-a of the GCL (General Cities Law) Article 4, the Plumbing Board is to consist of five members: two (2) master plumbers of whom shall be employed as master plumbers of not less than 10 years experience in the business of plumbing, one (1) journeyman plumber of like experience and two (2) city staff members.

As explained above, the GCL provides that "the other members of such board shall be the chief inspector of plumbing and drainage of such city, or officer performing the duties of such inspector, and the chief engineer having charge of sewers in such city, but in the event of there being no such officers in such city, then any two other officers having charge or supervision of the plumbing, drainage or sewerage" may be appointed to fill the Plumbing Board positions.

The Daily's stories have also repeatedly left the impression that the city must employ a person with the job title of "Plumbing Inspector," and that such a person must be a master plumber.

In a June 4 story (Code officer sent for plumbing work), the Daily reports:

Former inspector Barb Toal said that neither of the code officials, Ron Panek nor Doug Randall, has ever taken the city plumbing test to be a certified master plumber. Only certified master plumbers are to do plumbing jobs and inspections in the city.

That's simply not true, according to the city manager's report.

Article 4 of the GCL does not provide that cities shall employ a separate titled position of "Plumbing Inspector," but rather the person inspecting plumbing work shall have a Certificate of Competency issued from the Plumbing Board.

This has been misstated in recent media reports, giving the impression that a city must have a distinct Plumbing Inspector position.

However, the relevant section of the GCL also requires that the inspector be a "practical plumber," whatever that means; however, he or she cannot be engaged in the trade of plumbing while serving as a plumbing inspector.

The plumbing inspector must also be a qualified building-code officer, according to the report.

If no person can be found who meets the qualifications, the Attorney General has ruled that a city cannot be forced to follow the General Cities Law.

"In researching the situation, we learned that the cities of Corning, Geneva and Canandaigua do not have active Plumbing Boards, do not license plumbers and do not employ plumbing inspectors," the report reads. "All three cities employ code enforcement officials (or building inspectors) to issue plumbing permits and conduct plumbing inspections."

Molina's report concludes with nearly a dozen recommendations for restoring public trust and confidence in the plumbing board, including obeying New York's laws on public meetings (publishing agendas and keeping accurate minutes, for example).

It also recommends that objective criteria be established for determining whether a candidate is qualified to take the plumbers' exam, and if a candidate's application is rejected, that detailed records be kept on why the board did not find the candidate qualified.

As for the exam itself, the report recommends hiring a third-party firm to write, administer and grade the tests to ensure complete impartiality.

Recommendation number 11 deals with the plumbing inspector position itself.

The recommendation is twofold. Firstly, try to find a qualified candidate who would then be required to go through the necessary training, within a year of being hired, for the part-time position of code-enforcement officer.

This is required by law. The lack of sufficient plumbing inspection work means the inspector will be required to perform other duties.

Or, secondly, have the Batavia Plumbing Board allow either of the current code-enforcement officers (who are otherwise qualified under New York law to take the exam) to take the plumbing exam and achieve a Certificate of Competency."

The city council is expected to discuss the city manager's report and its recommendations when it meets at 7 p.m., Monday.

If you wish to read the entire report for yourself, The Batavian's news partner, WBTA, has posted the report here.

Dr. Victor DeSa talked with seniors Friday about the federal government's new health care legislation. This followed his hour-long presentation, sponsored by the "Older Adult Ministries" program of Batavia's First United Methodist Church.

DeSa is a retired surgeon who had a private practice in Batavia for many years and currently serves on the United Memorial Medical Center Board of Directors. He is well renowned and respected in the community and very knowledgeable about how the health care field works -- including the role of legislation and the relationship between health care and the government.

There is a lot of misinformation about the new health care law and how it could affect  people -- especially Medicare and Medicaid recipients.

The doctor expressed disappointment in the mainstream media's handling of the topic.

"The people in the media are not doing their job," DeSa said. "The media used to look out for the common man, but now they have a bias and a preference. (Consequently), the news we get is filtered and we don't have all the information we need in order to make informed decisions."

For those who could not be there, here's the gist of DeSa's presentation (it will be divided into two parts for the reader's convenience) -- it reflects the arguments he made based on careful and meticulous research, and does not necessarily reflect the opinion of The Batavian.

Health care: rights and responsibilities

The question of whether health care is a right or a privilege came up early in the presentation. This language, said DeSa, is problematic. The real question is this:

"Is health care a right, or is it a personal responsibility?"

He pointed out that health care is considered a right in socialist countries, where people "have abrogated their rights to the government" so that the government "will take care of (them) from the cradle to the grave -- and that includes health care."

"The United States is not yet a socialist country," he said (and yes, he did emphasize yet), "so here, health care is a personal responsibility."

What he meant by this, is that each person has a certain amount of control over his/her own health (diet, exercise, etc). For instance, if someone chooses to live on bacon, cheeseburgers and cigarettes all the time, then he/she is indirectly "choosing" to have weight problems, heart problems, high blood pressure, etc.

"If I'm responsible for my own health, should everybody pay for it or should I?"

Misconceptions about U.S. health care

DeSa assured his listeners that we here in the U.S. do, in fact, have the best health care in the world. To prove it, he spent some time debunking two popular myths that lead people to believe the contrary: that our infant mortality rate is higher than in countries with socialized health care, and that lifespan is shorter in the United States than in said countries.

On infant mortality, he said: "We (in the U.S.) over-report infant deaths, while other countries under-report them. Here, we're so meticulous about reporting, that if a baby takes a couple breaths and has a couple heartbeats after birth, it's reported as infant mortality. But in developing countries, a baby dies an hour or two after being born and it's reported as a stillbirth."

He also pointed out that a large percentage of infant deaths take place in the inner-cities, where there are a lot of crack cocaine and AIDS babies.

"These babies die in spite of very good health care. Their deaths are due to social problems, not medical problems."

As far as lifespan goes, he said that longevity is about the same in this country as in those that have socialized health care; what doesn't get factored in with lifespan studies is the fact that the U.S. is the "murder and accident capital of the world."

"If you took the murders and deaths from accidents in Chicago, Detroit or New Orleans in one month, they are more than the deaths of our soldiers in Iraq or Afghanistan in one month."

In short, the evaluation of U.S. life and health often ignores social problems and unfairly puts all the blame on health care.

Universal care vs. universal insurance

...Wait a minute, aren't they the same thing? Not according to DeSa.

"We do have universal care in the U.S. The EMTALA Law ensures that no one who comes into the emergency room will be refused care -- even illegal immigrants. That's the right thing to do, the humane thing to do and the moral thing to do, and I support it."

He says there is a "subtle but important difference" between this and universal insurance, which we don't have. There are currently 47 million Americans uninsured.

The Congressional Budget Office predicts that as a result of the new health care legislation, 32 million people who were previously uninsured will be insured at the end of 10 years. However, there will still be 21 million people uninsured -- and this is in spite of the fact that the new law will require people to buy insurance!

Who are these 21 million uninsured, you ask? Young, healthy people making between $35,000 to $82,000 a year.

"When you're young, and you're starting a family, and you have mortgage payments, you have a whole host of other host of things you have to worry about. You're going to say, 'Well, I'm young, and I'm invincible...maybe I won't fall ill. I'll take the chance and hold off on buying health insurance.'"

This is going to have a couple of important consequences. First of all, DeSa said, "the IRS is going to need about 16,000 new agents to track them down."

Even if they do track them down, not much is likely to change.

"If I'm a young person," DeSa said, "and a federal agent tells me I have a choice between a fine -- which starts at $95 and over the course of seven years will go up to about $700 -- and purchasing health insurance for $12,000-$13,000, it's a no-brainer."

Secondly, these people will cycle in and out of insurance programs. Faced with a serious condition like cancer, a young person will go to an insurance company for coverage -- and they cannot be refused under the new law. But when they get better, they will forego the insurance.

"People will abuse the system. That's just human nature."

While uninsured, these individuals will be able to make partial payments for hospital visits about 27 percent of the time; the rest will be covered by the state's "uncompensated care pool," into which each hospital in the state pays.

But even this won't cover the whole cost. To whom does the remainder of the cost shift? The taxpayers.

"This varies from state to state depending on the percentage of uninsured they have, but the average each person pays is $300."

The second and final part of the article will be up soon.

Two men have been injured in a construction-related accident at the Travelodge hotel in Batavia. Initial reports say a high-lift machine fell over, injuring the men.

One is being taken by Mercy Flight to Strong Memorial Hospital in Rochester. The other is being transported to a hospital via Mercy EMS.

The address of the incident is 8204 Park Road.

UPDATE: Since this was an industrial accident, there was no law enforcement on scene. Only through a law enforcement report could we obtain more details, so there will likely be no further updates about this incident.

There are large sewer pipes on each side of Bank Street -- part of the Bank Street sewer-replacement project.