Wednesday, February 29, 2012

EDC: Hide and Sneak

NYCEDC Response
NYCEDC's FOIL Response: Access Denied

Agency refuses to disclose just the names of the developer firms that responded to the Willets Point Phase One Request for Proposals

Decision is contrary to a legal advisory opinion of the New York State Committee on Open Government

Willets Point United to appeal

* * *

As the deadline for developer firms to respond to the New York City Economic Development Corporation's ("NYCEDC") Request for Proposals ("RFP") seeking a developer for "Phase One" of the proposed Willets Point development was September 9, 2011, and NYCEDC has stated that it intends to select the developer this spring, there is interest in knowing the identities of all of the respondent firms, and how many there are.

The press has speculated about the identities of the RFP respondent firms, but NYCEDC has not confirmed any specific information. Given that elected officials have allocated $410 million taxpayer dollars to this project, the public has every right to expect transparency from NYCEDC, especially concerning the availability of non-sensitive information regarding interested developer firms.

This is particularly true since questions have been raised about a certain developer in this town and its affinity for one particular box store. In addition, there is the other question about how this developer seems to always get favored nation status. Crony capitalism anyone? Willets Point United Inc. ("WPU") routinely makes Freedom of Information Law ("FOIL") requests of NYCEDC and other agencies, to obtain information that is not otherwise published. One such Request, sent by WPU to NYCEDC on January 14, 2012, sought records that would reveal just the names of the firms that responded to the Phase One RFP.

WPU deliberately limited the scope of the Request so that it excluded the creative content and other sensitive items of respondent firms' proposals. NYCEDC's response, dated February 22, 2012, acknowledges that NYCEDC possesses records that are responsive to the Request; but denies access to all of them. NYCEDC claims that disclosing the records – that is, just the names of the RFP respondent firms – "would impair present or imminent contract awards".

WPU disagrees, and considers NYCEDC's denial of access to be especially outrageous, because it conflicts with a published legal advisory opinion of the New York State Committee on Open Government ("COG"), the Albany-based agency that administrates both New York State's Freedom of Information Law and its Open Meetings Law.

Indeed, prior to sending this FOIL Request to NYCEDC, WPU consulted with COG, whose Executive Director and counsel confirmed that under the circumstances of this Request, it is unlikely that NYCEDC can justify withholding the requested records. That is, disclosing only the names of the RFP respondents would not impair any contract award.

In a prior case that is strikingly similar to WPU's present Request – involving a FOIL Request seeking RFP records that only identify respondent firms, at a time after the RFP response deadline has passed but prior to the award of a contract pertaining to the RFP – COG's legal advisory opinion concludes: "I do not believe that the policy of withholding the names of submitters of proposals, or bids, until a contract is awarded is consistent with the Freedom of Information Law." (The entire advisory opinion is accessible online at:

WPU included an excerpt of that COG advisory opinion within the FOIL Request. NYCEDC's Records Access Officer, Annette Shannon, was aware of the advisory opinion when she decided to deny access to the requested records. WPU believes that it is unlawful for NYCEDC to deny access to the requested records, which would reveal just the identities of the Phase One RFP respondent firms.

WPU is appealing from NYCEDC's denial of access, and if NYCEDC's FOIL Appeals Officer does not grant the Request within 10 business days, then WPU will have no choice but to commence a court proceeding pursuant to Article 78 of the Civil Practice Law and Rules to compel NYCEDC to produce the requested records.

Everyone in NYC should be concerned about the secrecy at NYCEDC – an unaccountable agency that operates beyond the reach of any oversight. NYCEDC needs to give up the names of the developers ASAP: Let the sun shine in!

Wpu Foil Request

Thursday, February 9, 2012

Unconventional Wisdom

The NY Times focuses today on the fact that we now have two areas of Queens-Willets Point and Aqueduct-looking at a possible convention center when experts believe we really don't even need one. This is what passes for economic development wisdom from the governor and the mayor-dumb and dumber:

"Heywood Sanders, a professor of public administration at the University of Texas at San Antonio who is writing a book on convention centers, said attendance had been declining for more than a decade, and started to drop even before the current economic downturn. He said the trend was a result of tighter spending by businesses and the Internet’s ability to let clients examine new products and communicate with far-flung peers."

So, how about two centers? "Thus, building two centers in Queens, or even one, “makes no sense whatsoever,” Professor Sanders said. “You’re talking about building more space in a market that’s oversupplied,” he continued." That brings us to the original convention idea at Willets Point-the so-called linchpin of the redevelopment of that area:

"In December, when Mayor Michael R. Bloomberg broke ground for sewer mains and storm drains for Willets Point to open the way for the neighborhood’s transformation, the city’s Web site trumpeted a convention center, citing it as helping to create “New York’s next great neighborhood.”

Oh well, never mind the experts are at work so let's not disturb them. But WPU's Jake Bono is disturbed by all of this sleight of hand:

"Jake Bono of Bono Sawdust Supply, which for almost 80 years has sold sawdust to circuses and horse farms, said that if the Aqueduct convention center was built, “that point-blank means there’s not even a need for a convention center at Willets Point.” As Mr. Bono sees it, local politicians have been staging a “charade,” wielding a convention center at Willets Point as a politically palatable enticement to justify the destruction of what is, to some eyes, an unsightly warren of car-repair shops that now greets fans patronizing the nearby Citi Field."

Now remember that the entire basis for the use of eminent domain is that there be a sensible economic development plan in place-but it seems that as far as Willets Point plan is concerned there is only this: get these little guys out of there because they're stinking up the joint. Jack Friedman represents this view-after all, it's not his property the city is looking to take: "Willets Point right now looks like something in a third-world nation, and if we’re going to be able to maximize economic opportunities it’s going to require full redevelopment,” said Jack Friedman, the chamber’s executive director." Which makes him something of a chamber pot, no?

Folks there is no economic plan for Willets Point apart from the land grab-the city will figure out what to do with the area when it gets around to giving Related or Vornado the keys to the abandoned property. What the Bloomberg administration has been doing for ten years is little more than crony capitalism-and his friends in the real estate industry are really proud of their billionaire brother for sticking up for them in these hard times.

Will Helen Marshal voice an objection-after all, the convention center was the rationale for her support? Don't hold your breathe: "Queens officials have also regarded the city’s redevelopment plan as intimately intertwined with a convention center. Helen M. Marshall, the borough president, was reportedly taken aback when she heard of the governor’s Aqueduct proposal. “What happened to Willets Point?” was the way Dan Andrews, her spokesman, described her reaction. “Oh my God, there’s going to be two!”

The BP Is, however, like Gumby-flexible to the extreme:

"...Ms. Marshall had since embraced the idea that there could indeed be two convention centers, the one at Aqueduct and a smaller space of fewer than 400,000 square feet at Willets Point for smaller trade shows and for local and regional conferences of, say, the Queens medical and dental societies. Events at such a center may be too big to fit into a hotel ballroom but not big enough for the proposed Aqueduct center. And the Queens Chamber of Commerce emphasizes that “an exhibition hall or conference center” was only a single feature in the overall plan."

Marshall, who hasn't taken a courageous stand in a thirty year political career would have accepted a partridge in a pear tree-the quintessential go along to get along kinda gal. But this mess simply highlights what we at WPU have said all along. The Willets Point development is a charade and there is nothing worthwhile going on here aside from the taking of property for its own sake-and for whoever the rich player to be named later the mayor designates.

Friday, February 3, 2012

Justice or Just Us?

We have been complaining quite loudly about the Cuomo choice for the new head of the ethics commission-and the manner in which the comely Ellen Biden was chosen. The arm twisting by the governor-for the ethics chair!-bodes ill for her independence from the state's chief executive and his entire administrative retinue. The WSJ weighs in on this controversial choice:

"The governor’s office encouraged commission members to vote for Biben. In the week leading up to the vote, Cuomo’s office directly reached out to legislative leaders to promote Biben’s hiring, according to people familiar with the conversations. The commission approved her in an 11-to-3 vote and offered her the job, which she accepted."

What this indicates to us-and Biben's refusal to even respond to Willets Point United's request that her IG office look into the governor's choice of Joan McDonald as NYS DOT commissioner underscores our concerns-is that the legislature will be a target rich environment but the governor's minions will be an out of bounds game preserve. But why are we so exercised about the Biben choice?

It's quite simple really. It appears to us that Governor Cuomo actively thwarted the original investigation into the city's illegal use of a development corporation to lobby for the Willets Point project. After getting into a legal dust up with the Bloomberg administration over subpoenas in 2009-2010 then AG Cuomo did a disappearing act after September, 6, 2010 when the mayor endorsed his gubernatorial bid. A few short months later he appoints Joan McDonald (a former EDC executive) to head DOT-the key agency in charge of the oversight of the controversial Van Wyck ramps.

McDonald-at least to out knowledge-never even asked for a waiver for a clear conflict of interest. While at EDC as late as 2007-the lead agency in the Willets Point land grab-she was the vice president for transportation! Gee, might she have a built-in bias on the ramp issue in favor of her old patrons? And lo and behold, after her taking over, DOT does a 180 and becomes completely sanguine about ramps that had created a huge amount of skepticism in the previous administration of DOT.

So, WPU writes to Biiben who doesn't feel any slight compunction about looking into the complaint-or even deign to bother to write a reply that acknowledges the potential conflict of interest charge. And this is the governor's choice for ethics chair? This kind of double standard is why the federal prosecutors have a field day with NYS lawmakers. The governor should be ashamed of this appointment and the manner in which he executed it.

Thursday, February 2, 2012

Ethically Speaking-Careful What You Imbiben

City Room has a breaking story about the appointment of Ellen Biben to become the state's lead ethics watchdog-and not everyone is happy with the governor's choice;and we agree with those who are concerned:

"The appointment raises question about the commission’s independence from the executive branch, and its commitment to transparency. The new executive director, Ellen Biben, is a respected former federal prosecutor who served as a deputy under Mr. Cuomo in the attorney general’s office, and now serves as his inspector general. It is not clear why the appointment was not announced, or if Ms. Biben, who is said to have applied for the job, is having second thoughts."

Our agreement with those concerned about Biben's independence comes from the fact that her office has failed to even acknowledge-after more than half a year's time has elapsed-the WPU letter that raised questions about the governor's appointment of Joan McDonald, the former vice president for transportation at NYC EDC, as the new commissioner of NYS DOT. As we said last July:

"WPU sent a letter to the IG on May the 18th concerning the questionable appointment of Joan McDonald, a former NYC EDC executive, as commissioner of SDOT and we have yet to hear from her. In that letter we had pointed out:

"We are now calling on the Office of the State Inspector General to institute a full review of the actions of NYS DOT and its new commissioner in order to determine whether Commissioner McDonald has treated this review process with the fairness and impartiality it deserves.The governor has made governmental ethics a signature policy issue of his administration.

In the same spirit, WPU requests that you institute such a review by first calling on Commissioner McDonald to recuse herself from the ramp review process; and by then calling on the agency to also launch an independent evaluation of all of the environmental data that has been submitted by NYC EDC.

The actions of the new commissioner since she took office need to be subject to close scrutiny. This needs to be done in order to determine whether her past association unfairly deprived WPU and the citizens of New York State of an impartial review of a transportation project that we believe will cause huge negative impacts on the residents of New York City."

Not a peep from someone who-as a laudatory story in Capitol News highlighted-was been portrayed as an overseer who who be fiercely independent politically (unlike those ethically challenged Pataki folks, don't you know). Now Biben's silence on the Willets Point related issue may perhaps be no accident since she had previously headed the NY AG's "Public Integrity Unit," the one that punted the Claire Shulman investigation right after AG Cuomo accepted the endorsement of Mayor Bloomberg: "When Biben accepted the Public Integrity Unit post with Cuomo in 2007, she took over an office that had been gutted by prior administrations but was suddenly facing its most high-profile case in years."

That would be the Hevesi case and Biben and the AG went after the former Comptroller with a vengeance. But what about issues that are closer to home? Never crap where you eat is a phrase that comes to mind and we shouldn't expect any degree of real Independence from Biben on anything that remotely might impact the new Emperor of New York. Everyone else in Albany, as City Room reports, better watch out:

"Mr. Cuomo has put a priority on ethics reform in Albany, where there has been a parade of lawmakers accused or convicted of using their office for corrupt means. He hailed the ethics overhaul last year that created the joint commission as an important step in restoring the trust of New Yorkers in state government."

WPU is not finished with IG Biben, however, and we are going to be asking that her office investigate the conveying of public funds to Shulman's group while it was till supposedly under investigation by the current AG's office. What needs to be said most forthrightly here is that Cuomo shouldn't appoint a loyal retainer to do a job where independence is vitally needed. That he hasn't done so in this case is an indication that-as far as Albany is concerned-the more things change the more they stay the same.

Wednesday, February 1, 2012

Doubling Down on DimTec

Earlier we posted on our support for Assemblyman Hevesi's investigation into the little known activities of NYMTC-and we pointed out that the agency's actions regarding the proposed Van Wyck ramps raised real concerns about how it conducts its-and the public's-business. We did, however, leave out some important points that an investigation into NYMTC needs to take a look at.

Our earlier concerns revolved around the fact the NYMTC failed to do any due diligence about the potential negative impact of the city's ramp proposal: "When confronted with the ramp proposal NYMTC never even bothered to do any of the needed due diligence and simply rubber stamped the project because the city sold the group a bill of goods that hid the dramatic traffic impacts that the ramps would have - not only on the Van Wyck - but on local roads as well."

This is an even more serious matter than we first discussed because of the role NYMTC plays in the disbursal of federal highway funds. NYMTC's addition of the proposed Van Wyck ramps to the Transportation Improvement Program ("TIP") list makes the ramp project eligible to receive federal funds. NYCEDC President Seth Pinsky has told the press that the City is attempting to obtain federal funds. NYMTC's negligent failure exercise due diligence to evaluate the proposed ramps, is now the-at least to us fraudulent-basis of the ramps' eligibility for federal funds.

This problematic nature of the NYMTC rubber stamp has been acknowledged by FHWA officials. FHWA has admitted in internal email that it "can be a problem" when NYMTC conducts no review of an application. If it is "a problem", then why has nothing been done to correct it? Rescind the negligently implemented TIP amendment, conduct the proper required analysis, open it to public review, then put the notorious ramps to a NYMTC vote again.

Here's the quote from FHWA's Senior Operations Engineer, New York Division Office:

"Sometimes, [NYMTC's] basic review is nothing more than accepting the info provided by a sponsor and having a vote. Knowing how some sponsors work, this can be a problem. … If the sponsor promotes a project and states all is acceptable in the documentation, I don't think many voters would have asked for further info". – Tom Breslin, Senior Operations Engineer, FHWA, New York Division

Office, email to Ian Francis, Senior Transportation Analyst, NYSDOT Region 11 and Peter King, Director, Planning/Program Management, NYSDOT Region 11;
June 7, 2010, 1:07PM EST.

This has been a screw up and a cover up from the very beginning of the review process-but NYMTC's cavalier attitude to professional review that determines eligibility for federal funds should alarm Hevesi and lead to a thorough shake-up in the agency's make up and decision making structure. Make no mistake here, the city is pushing hard for these federal funds but proper procedures need to be adhered to and NYMTC must be forced to reconvene a proper review before and such funds are ever even considered.

The Willets Point development will-much more than freight rail transportation-wreck havoc on Queens infrastructure and the environment. We have gotten one after the other fraudulent and self serving "analysis" of the impacts and it is time for EDC to come out from under its desk before the city is being faced-as the City of New London-with the unpleasant task of apologizing to the property owners it has unfairly targeted for condemnation.


The NY Times is reporting on the possibility that Assemblyman Hevesi will be investigating the local transportation monitoring organization called NYMTC:

"The State Assembly has begun an investigation of a little-known government body that plays a major role in setting transportation policy in New York City and its suburbs. The investigation is the first significant inquiry undertaken by Andrew Hevesi, the new chairman of the Assembly’s Oversight, Analysis and Investigation Committee. He is investigating the New York Metropolitan Transportation Council...

“It’s an entity that’s ripe for review,” Assemblyman Hevesi said. “I’m not going to prejudge, but there needs to be an analysis of their decision making since they’re using large amounts of taxpayer dollars for different projects in communities throughout the city of New York.”

Oh boy is Hevesi right about that. And while he is at it he might want to examine the role that this group played in the failed oversight of the Willets Point ramps. When confronted with the ramp proposal NYMTC never even bothered to do any of the needed due diligence and simply rubber stamped the project because the city sold the group a bill of goods that hid the dramatic traffic impacts that the ramps would have - not only on the Van Wyck - but on local roads as well.

When the Willets Point United and Brian Ketcham went to the NYMTC meeting last January the assorted members of the group were struck dumb by the information we gave them. But it shouldn't have been if the Department of City Planning-a NYMTC member organization-had apprised the group of the contradictory reporting from EDC's traffic consultant in the FGEIS on Willets Point and the AMR for the ramps.

Hevesi's investigation is prompted by a concern about the impact of rail freight transportation in Queens but he should be even more concerned about a whitewash and rubber stamping of a project that will generate 80,000 car and truck trips a day-choking the Van Wyck and the Grand Central right up to and through the Kew Gardens Interchange.

The exit question is: Who is NYMTC and what does it do to actually protect the public interest when it comes to mega-developments that will adversely impact the local transportation infrastructure and the environment? Millions of dollars flow through the NYMTC funnel. Isn't it time that someone gives some oversight to the overseers?