The five-person board in Albany also drew notice earlier this month when it declined to approve the plan for Moynihan Station in Manhattan, a proposed expansion of Penn Station. Officially appointed by the governor, its members are representatives of the senate minority leader, the assembly minority leader, the governor, the senate majority leader and the speaker of the assembly. But only the last three can vote, which is to say the envoys of Gov. George Pataki, Senate Majority Leader Joseph Bruno and Assembly Speaker Sheldon Silver.
Criticism of the PACB has risen in recent months alongside the din over the proposed 22-acre, 17-building Atlantic Yards development, which includes a basketball arena. One complaint is that a board with three voting members – the governor and two locally elected officials – can't adequately represent the whole of New York in its decisions. Another is that the PACB, which vets financing and construction proposals of 10 public authorities, has too much power over the state's construction projects.
City Councilmember Letitia James of the Working Families Party, who represents the neighborhoods that include Atlantic Yards and opposes the development plan, sees the need for strong action. James says projects of Atlantic Yards’ scale "should not bypass local government." The PACB "should be challenged" in court, she says. "The members of my community are considering it heavily."
A third issue is that PACB votes are decided before the meetings, members don’t explain their votes at the meetings, and they don’t usually outline their positions in public statements – except on more controversial votes, such as Moynihan Station and the rejection of the West Side Stadium plan in 2005. What’s more, PACB members’ representatives hold briefings and negotiations that aren't open to the public and can do so because those meetings do not violate the state's open meetings laws.
The PACB does have its supporters. Assemblyman Richard L. Brodsky, a Democrat from Westchester, chairs the assembly's committee on public authorities and commissions and is a critic of how many authorities function. While Brodsky just recently announced a package of reforms for public authorities, he hasn’t proposed reforming the PACB itself. Pointing out that the board doesn't really oversee the public authorities and isn't responsible for how they operate, he says the board has "worked fairly well, given its limited mandate."
The PACB now has a new critic to contend with: Mayor Michael Bloomberg. On Oct. 20, during his weekly interview on WABC radio, Bloomberg lamented PACB's rejection of the Moynihan Station proposal. He went on to question why there is "a structure at the state level where three individuals basically have a veto over everything."
"That's not representative democracy," Bloomberg said.
Degrees of separation – from the public
The voting members of the PACB are Assembly Speaker Sheldon Silver, a Democrat from Lower Manhattan; state Director of the Budget John F. Cape, the representative for Republican Gov. George Pataki; and Senator Owen Johnson, a Long Island Republican, the representative for Senate Majority Leader Joseph Bruno, an upstate Republican.
At most PACB meetings, the voting members don't attend, but send their “designees.” Those are usually Todd Scheuermann for Cape, Steven Pleydle for Silver, and Robert Hotz for Johnson.
There's no question the monthly PACB meetings are a largely procedural affair, starting late and ending quickly, with few questions raised by board members and less discussion. Even a PACB staffer calls them “perfunctory.” On Oct. 18, for example, the PACB meeting in Room 123 of the Capitol in Albany was scheduled to review the Moynihan Station issue and take up a variety of other matters. After beginning two hours late, the presentation and vote on Moynihan Station lasted 12 minutes. Then the PACB approved bonds, grants and loans totaling $4.52 billion over the next 12 minutes – a rate of nearly $380 million a minute. Those approvals all required a unanimous vote, according to the state law governing the PACB.
So how do the meetings move at such a fast pace? According to PACB secretary Dennis Hodges, "Ninety-five percent of the work occurs before the actual meeting." Among these pre-meetings there are briefings, or information sessions between the public authorities and representatives for some or all of the three voting members. (The state budget division handles administration for the PACB and draws up the agenda for the PACB meetings, and represents the governor at both pre-meetings and public meetings.) There are also negotiations on the votes, according to both Scott Reif, spokesperson for the state Division of the Budget, and Hodges, who’s also a senior budget examiner with the Division.
These negotiations and briefings are significant to the PACB's operations. First, the pre-meetings are not public, which is legal. Under the state's Open Meetings Law, if all three voting members of the PACB are gathered in a room, that is a public meeting and has to be treated as one – public notice has to be given, and the gathering has to be in a public spot. The monthly PACB meeting fits that description: It is announced in advance on the PACB web page and to the press, and held in the Capitol.
Until three years ago, the PACB actually held closed-door discussions with all three voting members or their designees. But, Hodges said, the press objected and the Committee on Open Government, a state division, told the board that it couldn’t hold those three-member discussions in private. Since fall 2003, when the PACB wants to hold discussions without public or press presence, it uses a stand-in for at least one of the members or their designees.
That is done so the meetings “wouldn’t trigger a quorum,” Reif said. Those stand-ins are neither the voting members themselves, nor are they the designees, the political and budget division staffers assigned by the voting members to attend PACB meetings and cast their votes for them.
Reif said that though the pre-meetings aren’t public, “there’s no effort to keep anybody in the dark on any of this stuff. Some of this stuff that goes on are negotiations” in which “we’re trying to approve a project.” To find out why the voting members voted as they did – something that’s hard to discern on most all votes – the public could call his press office, he said. The number is 518-473-3885.
A spokesperson for Assemblyman Silver, Eileen Larrabee, disputed the nature of the pre-meetings. She said all of the pre-meetings are briefings. However, she wouldn’t go so far as to say that negotiations don’t take place. Senator Bruno’s spokesperson Mark Hansen did not comment, except to say he wouldn’t make Hotz available for an interview. Larrabee declined to make Pleydle available for interview. Scheuermann also did not comment.
Another controversial aspect of the PACB is its unanimous approvals, required by law. The voting members try to agree on the resolutions before the official meeting, according to Hodges. That’s to avoid the fallout of a fractured vote. In most cases, the resolutions are "pulled off the agenda before the meeting if there's not unanimous support," Hodges said. The recent Moynihan Station vote was a notable exception, with Silver's designee, Steven Pleydle, voting against the plan.
But at September's meeting, for example, a resolution on Moynihan Station was removed from the agenda during the meeting. Reif, the spokesperson for the state’s budget division, said the pre-meeting negotiations are held "in an effort to reach consensus or see where people stand on various projects."
"There's that need to try to reach consensus if you want to get something done," Reif added.
Robert Freeman, who is the longtime executive director of the state's Committee on Open Government, confirmed that “if there’s no quorum” at a PACB briefing or negotiation, the Open Meetings Law “doesn’t apply.”
Briefing staff members and reaching consensus behind the scenes is typical for lawmakers and their staffs, said Freeman, though he added he wasn’t defending a closed system. "In a lot of ways, it's an efficient way to do business,” he said.
Controlling what exactly?
The PACB approves financing for only ten of the state's hundreds of public authorities. Authorities, which are nonprofit government corporations generally funded by tax-supported bonds, direct big construction and public works projects, as with the Empire State Development Corporation's direction of the Moynihan Station and Atlantic Yards projects.
Those ten PACB authorities include the Dormitory Authority, which finances educational hospitals and other public facilities; the Job Development Authority; Battery Park City Authority; Long Island Power Authority; and the Albany Convention Center Authority.
There's also the New York State Environmental Facilities Corporation, NYS Housing Finance Agency, NYS Energy Research and Development Authority, State of New York Mortgage Agency and the NYS Urban Development Corporation. It’s the Empire State Development Corporation, or ESDC, that is overseeing the Atlantic Yards project, and a subsidiary of the ESDC that is overseeing the Moynihan Station project. And it’s because the ESDC and Urban Development Corporation are one entity that the final say on Atlantic Yards and Moynihan is up to the PACB.
Should the PACB’s workings be changed? The board has existed since 1976, when it was created by the state legislature in the wake of the Urban Development Corporation's 1975 bankruptcy, according to Joseph F. Zimmerman, a political science professor at SUNY-Albany. The PACB’s structure is written into state law.
Brodsky, who believes the PACB's structure has served it well, says that if "people want it to do more, then that is a decision you have with the governor and the legislature." He says the requirement for a unanimous vote has worked.
In his Oct. 20 radio interview, Bloomberg raised issue with the concentration of power on the board, saying while the governor is elected by the whole state, "the majority leader and the speaker are representing really only their own districts."
"And that's not what we should have," Bloomberg added.
Larrabee, the spokeswoman for Pleydle and for Assemblyman Silver, says the mayor’s comments are misleading. According to Larrabee, Silver represents more than his district, because he is "acting in his capacity as leader of the assembly."
Reif, the division of budget spokesman who represents the governor’s side, referred comment on the senate and assembly members of the PACB to those two officials. But he also took a partisan stance, saying his office “agreed with” Bloomberg that “no one person should hold up these very important developments for New York City,” a reference to Silver’s vote against Moynihan Station.
As for the remarks by City Councilmember James, of Brooklyn, that the PACB should be challenged in court, Reif had no comment. Larrabee also didn’t have a comment at this time, as "there’s nothing even before the PACB at this point" regarding Atlantic Yards.
That will change soon enough.