Wednesday, January 18, 2012

Where's the Independent Compliance Monitor for the CBA? Brooklyn Eagle article elicits evasive response from CBA signatories

Even though the enormous flaws in the Atlantic Yards Community Benefits Agreement--most glaringly, the failure to hire an Independent Compliance Monitor (ICM)--have been manifest for a while, journalists have pretty much ignored them.

So credit the Brooklyn Daily Eagle's Zach Campbell for following up, in an extensive article, headlined Still No Compliance Monitor At Brooklyn’s Atlantic Yards, which elicits some curiously evasive responses.

Campbell writes:
The compliance monitor is meant to serve as a community enforcement mechanism, and is the only legally binding tool by which the other CBA groups can make sure the developer plays by the rules. Today, six-and-a-half years after the contract was signed, five years from when the EC began accepting proposals for the job and nearly two years after the site’s groundbreaking, the position of independent compliance monitor for Atlantic Yards is still vacant.

The developer has long disputed its contractual obligations per the CBA. More recently, it has begun to say it will hire the compliance monitor for the second (non-arena) phase of construction. “They [FCR] are going to retain a compliance monitor per the CBA, but they are going to wait until the housing phase,” said Brian Moriarty, a spokesperson for the developer.
But why? Because they can get away with it.

The article cites CBA expert Julian Gross as saying it's usually a conflict of interest for CBA signatories to have financial deal with developers and that "New York CBAs are not written for accountability."

It further quotes me as writing, “If the executive committee hardly meets, hasn’t decided yet [when to hire an ICM], and has members whose groups are financially tied to or dependent on Forest City Ratner, what incentive do they have for an Independent Compliance Monitor?”

Indeed, the absence of an ICM likely helped Forest City, given that the monitor would have reported on the lack of progress experienced by participants in a job-training program, who later filed suit against BUILD  (Brooklyn United for Innovative Local Development).

CBA signatories' statements

So what do the CBA signatories say?

James Caldwell of BUILD blamed lawsuits for delays.

Lennox Britton of the New York State Association of Minority Contractors, said, “I’m sure they’ll get to it.”

The Rev.. Herbert Daughtry of the Downtown Brooklyn Neighborhood Alliance doesn't mind: "The point is that I feel, whether they [FCR] have reneged on promises, I’m not concerned about it.

Bertha Lewis, the former CEO of ACORN, did not respond to Campbell's query, while he three of the other signatories were very hard to find.

Note that Lewis in May 2006 defended the CBA by noting that it calls for an independent monitoring body that “does not have a dog in this fight” to oversee implementation.

Money issues

One "source," perhaps a CBA signatory, said that the ICM chosen back in 2007 balked at the $100,000 payment and that CBA signatories themselves had a reason to avoid scrutiny.

I'd add that Forest City doesn't mind saving $100,000 a year--that's over half a million dollars already.

The promise

The Eagle even unearths a Bruce Ratner quote from a March 2007 press release, associated with the first and only push to hire an ICM:
“Atlantic Yards is setting a new standard for inclusion and community involvement for a development, and the ICM will be everyone’s watchdog to ensure we reach all of the goals and benefits we have agreed to in the CBA."
I wrote in March 2007 about the RFP for such a monitor, part of a promotional effort that included the graphic at right.

A couple of corrections--updated

The Eagle article initially stated that Atlantic Yards was "to be half financed by public money." That's not so, but a good portion of the financing, including tax-exempt bonds, is government-related. It's been revised to say "a significant amount of public money."

Also, the quote from Mayor Mike Bloomberg--“You have Bruce Ratner’s word. That should be enough for you and everybody else in the community”--was originally said to have been uttered last year, but has been corrected to 2005.

Funding of CBA partners

I'll note that Forest City Ratner has funded, in some ways, all of the CBA signatories.

“Forest City has funding obligations and commitments to each of the organizations, and they’re reviewed on an annual basis,” executive MaryAnne Gilmartin said at a public meeting in July 2009. “We’re happy to provide an accounting, generally, of that, but I don’t have that information with me. Again, it depends on what they’re doing, presently, and what the expectations they’re going to be doing in the going-forward year, and it’s done on a very regular basis, in close consultation with each of the CBA members.”

They have not provided that accounting.


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