Wednesday, February 24, 2016

Hints of FCR producing CBA-related statistics (where's independent monitor?), and reasons for doubt (including history of lies, MWBE padding, "community" questions)

Can we trust the Atlantic Yards Community Benefits Agreement (CBA), the one dissed (along with other New York CBAs) by one analyst as a "borderline calamity" and described in one 2013 NextCity article as having "no guarantees that benefits will flow to others in need"?

Remember this January 2008 affidavit from Forest City Ratner attorney Jeffrey Braun, which claimed that, "pursuant to an innovative [CBA], the FCRC affiliates that sponsor the project are contractually bound to provide a wide array of far-reaching benefits to the historically most disadvantaged segments of Brooklyn’s communities.”

Well, we know how well one of the most significant benefits, job training for construction jobs, worked out: big promises, dashed hope, a bitter lawsuit, and a murky settlement.

I've described some of what we know about the CBA, but we may learn more soon.

Last Friday, Michael West of Devotion NYC, the fledgling organization pushing for community accountability (and a job-related contract for an affiliate, which is self-serving) met with Forest City External Affairs executive Ashley Cotton, reporting that she "confidently communicated a number of stats regarding employment, construction contracting, post-construction contracting, business development and more."

"The figures sounded overwhelmingly positive upon first listen," he wrote. "She agreed to send us [a written record]! This is a huge for the community. It means that for the first time, the work F.C.R.C. has done will be public!"

This is unwise, since, as I wrote on Twitter, "wasn't the point of Independent Compliance Monitor that Forest City Ratner not be self-reporting?" Devotion NYC responded "That would definitely be/have been ideal. We're still looking forward to the data #FCRC produces though!"

Reasons for skepticism

Forest City never hired the Independent Compliance Monitor required by the 2005 Community Benefits Agreement, which was supposed to report back on not only the developer's performance but also that of Forest City's partners.

That's a fundamental shadow over their claims. And now that Forest City is the junior parter of Greenland Forest City Partners, Ashley Cotton is the spokesperson for a joint venture controlled by a Chinese corporation that came in after the CBA was used to accomplish Forest City's political goals.

And even if they can claim their numbers are vetted by an "independent" monitor, I'd say: show us the data.

Any data Forest City provides should come with an asterisk, and deserves reigorous analysis, since their self-reporting is too often misrepresentation or flat-out lying. Consider the consistent claim of "2000 jobs" at the arena, which the developer admitted was 1,240 FTE (full-time equivalent) jobs. 

Is that even true? I'm doubtful, given that even a major event would require some 800 workers and shifts aren't eight hours. (Yes, the arena has staff 24/7, but let's see the data.)

Forest City was typically cagey about what workers earn and how many hours a week they work, but when I spoke last year with a former security guard at a union protest, she lamented that "you're lucky if you work 16 hours in a week."

Consider Forest City's willingness to lie or obfuscate about:
  • the actual affordability of apartments at 461 Dean (aka B2), which are less affordable than claimed
  • the plan to pile new density on Site 5, which was denied before they were confirmed
  • the nonunion shop at steel supplier Banker Steel, claimed to be union at a Council hearing
  • the interest rate on an EB-5 loan for the Nassau Coliseum
  • the schedule for closing Atlantic Avenue
  • the problems, including mold and misalignment, with the B2 modular tower
Planned configuration in B3 and B14, the two new all-affordable towers
Consider the fact that, while they are indeed on their way to building 2,250 below-market "affordable" units, the distribution so far skews significantly toward middle-income households earning six figures.

That's far different than what was promised in the CBA and the associated Affordable Housing Memorandum of Understanding signed by ACORN.

Specifically, the highest-income affordable cohort, or "band," was supposed to represent 20% of the affordable units. Instead, in the next two "100% affordable towers," representing about 600 units, it's 50%.

Measuring MWBE contracting?

From the CBA
One issue that deserves particular scrutiny is the pledge that 20% of total construction contract dollars was supposed to go to MBEs (minority-owned business enterprises) and 10% to WBEs (women-owned business enterprises). Another 20% of post-construction contracting is supposed to go to MWBEs.

Note the fuzzy results in the past. When I reported on this in 2012, Forest City had reported 16.3% in contracts to MBEs and 6.3% to WBEs, which meant the combined MWBE participation was 22.6%, about three-quarters of the way toward the goal of 20% MBE plus 10% WBE.

However, Empire State Development reported a total of 15.4% to certified MWBE firms, which meant Forest City had counted companies that had not registered or were too large/prosperous to qualify under state rules.

What's the "community"?

Beyond that, the question arises: what's the community? It's hardly clear that "the historically most disadvantaged segments of Brooklyn's communities" are the same the varied concepts of "community" used in discussing and analyzing the CBA.
After all, the groups that signed the CBA mainly represented constituencies in African-American Central Brooklyn, aiming for "systemic changes in the traditional ways of doing business on large urban development projects." (See screenshot above.)

Columnist Errol Louis (now of NY1) wrote in Our Time Press in December 2005, "At this stage of the game the question should be how and when the dollars will begin flowing into central Brooklyn."

But it's hardly systemic change if a woman-owned major company from Long Island is hired, as I've written, for regular demolition work.

This remains an unresolved issue regarding CBAs. At a hearing in 2010,  Christopher Collins, former counsel to the Council's Land Use Committee, observed: "Who’s the community? Is it the elected officials? Is it the civic association? Is it the Community Board? Who gets to decide who’s on the community team? There’s no guidance that really tells us that.”

The letter, but not the spirit, of the rules

As I wrote way back in October 2005, Forest City's hiring of established minority and women-owned firms to do consulting, bookkeeping and public relations work hardly encouraged systemic changes. 

Consider that even the recent hiring of Marvel Architects to design the B15 tower at Sixth Avenue between Dean and Pacific streets may constitute CBA compliance because Marvel Architects, as stated on its web site, is a "Certified Minority Owned Business Enterprise."

I queried the firm, and Timothy J. Rowan, Managing Director, replied that Marvel Architects was a NYC-certified MBE and had a state application pending: "Jonathan Marvel, the primary shareholder, was born, raised and educated in Puerto Rico and has Hispanic heritage."

Jonathan Marvel
So his firm qualifies, at least under city rules, which require at least 51% ownership/control/operation by a U.S. citizen or permanent resident who is part of "a designated minority group(s) including Black, Hispanic, Asian Pacific, and Asian-Indian OR a woman or women." 

New York State rules are similar--"Persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent of either Native American or Latin American origin, regardless of race"--but disallow those with net worth exceeding $3.5 million (after certain deductions).

Marvel's a fine architect, but the hiring of someone with his pedigreefamily history in architecture, and impressive record of work might fulfill the letter but not the spirit of the CBA and state goals.

"Last in line" for the program

Consider this 12/3/15 essay by David Mark Greaves, editor/publisher, of Bedford-Stuyvesant-based Our Time Press, View From Here: Gentrification, W/MBE and Wrongly-used Black Spending Power, which called for a focus on African-Americans:
And now moving that needle is a gargantuan task, only complicated by the newly-minted American espousal of ethnic and gender fairness which prevents favoring one group over another. That Asians and women receive 94% of the M/WBE payouts is no reason to favor Hispanics and African-Americans. When the truth of the matter is that it was the land stolen from the indigenous people and the labor stolen from the Africans that were used to build the foundation of this country. To be last in line for a program, whose intent should be to correct that original sin, is galling.
...So today, African-Americans and Hispanics are last in line for the 4% that is not given to what are euphemistically called non-MBE vendors; i.e., the white men and the W/MBE women who receive 96.9% of the city’s business.
The way the city spends its money deserves a “Black Lives Matter” movement of its own.
He was writing about city contracts, but surely similar concerns apply to state-overseen public-private partnerships. Let's see the "overwhelmingly positive" figures.

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