Touchstone For Whether There Will Be Change In Albany: Attorney General Candidates on Atlantic Yards and Eminent Domain

(Above at the May 6, 2010 Candidates forum, the five Democratic candidates for state Attorney General.)

Are things in Albany about to change? We are in the middle of an election cycle where we will see turnover in all the important offices. Notwithstanding that all the candidates will be talking about reform, is change and reform what we will get in the end or will we just get be more of the same, a continuing lack of transparency, pay-to-play political contributions, and the same old mire of tangled political relationships that separate us form proceeding directly to the reforms that need to implemented?

Do we really need to remind our readers that in the last election cycle, just four years ago, the candidates Eliot Spitzer, Alan Hevesi, David Paterson, also all ran on the platform of reform? Because of scandal one of those candidates, Alan Hevesi, never took office as state Comptroller, Eliot Spitzer soon resigned from the governorship in scandal and David Paterson who succeeded Spitzer is now enmeshed in is own crippling scandals that would likely remove him from office were he not so close to the end of his term and were the public not already so utterly exhausted by the scandal-driven midterm turnovers to date.

Touchstones and Stepping Stones

Are things in Albany about to change? We think we can furnish some insight. We arrive at the perceptions we can offer by use of the singular touchstone reference which we think cuts through obfuscation and the political posture and pretense like a hot knife through butter: Atlantic Yards. We apply our test to a race for a state office which itself can serve as a touchstone, the race for New York State Attorney General. That race is a touchstone not only because of how key the office is itself, but also because it is now being vacated by Andrew Cuomo, the perceived front runner in the race for Governor, the highest office in the state, who like his predecessor, the disgraced Eliot Spitzer, has been able to use the AG’s office as the penultimate stepping stone to the highest state office.

What Doesn’t Seem to Follow If the Job of AG Includes Investigation

The good news with respect to the possibility of change is that at least two of the candidates for state Attorney General (the Erics) think that the job of Attorney General should entail actions designed to stop Atlantic Yards dead in its tracks. That includes, in the case of state senator Eric T. Schneiderman, investigation of likely violations of law and, in the case of former state insurance superintendent Eric R. Dinallo, use of the Attorney General’s power to issue opinions and rulings to make clear that the law is not being properly interpreted when eminent domain is abused by state officials. (We will be quoting both at length further on.)

The bad news is that if the Erics are correct and that addressing these Atlantic Yards abuses should be part of the Attorney General’s job (or at least within the AG’s discretion), none of the current AG candidates are willing to say that it is improper for gubernatorial candidate Andrew Cuomo, the current holder of the AG position, to be taking campaign money from Forest City Ratner, the mega-project’s developer. That this is not improper notwithstanding the fact that Mr. Cuomo has been asked to investigate Atlantic Yards and issue rulings on the conduct by the public authorities facilitating it. That it is not improper notwithstanding the questions that lurk: Is Mr. Cuomo taking action on Atlantic Yards and is Mr. Cuomo taking appropriate action?

What Makes Atlantic Yards the Superlative Touchstone

Atlantic Yards is the superlative touchstone to detect for true reform-mindedness is because, despite the superficial PR gloss to which the media often succumbs (e.g. New York Times “business reporter” Richard Sandomir proclaiming that Atlantic Yards basketball arena owner Mikhail Prokhorov is the happy product of “Russia's frenetic transformation to capitalism”- “Capitalism?”), there is probably no set of abuses more extreme than the examples set by Atlantic Yards. As Attorney General candidate and state senator Eric T. Schneiderman puts it in commenting about how people are “pointing to” what has been going on in Brooklyn with Atlantic Yards when they talk about the abuse of eminent domain: “the example here is what is held up to advocates all around the state of what we do not want.”

Think of anything going on the state that is objectionable to reformers and Atlantic Yards trumps it by several shades of darkness.

• Yankee Stadium investigated by Assemblyman Richard L. Brodsky? Atlantic Yards is not only a sports arena boondoggle; it is also a huge mega-monopoly real estate grab for many more acres of property.

• The sweetheart selection of Aqueduct Entertainment Group to run a video casino at Aqueduct Raceway without adequate bid, one of the the investigations of the sitting governor that could (but hasn't been) turned over by Attorney General Cuomo to former Court of Appeals Judith Kaye? Yes, that involves similar objectionable practices and reoccurrence of some of the same names: rapper Jay-Z, Darryl E. Greene as well Governor David Paterson himself, but we think that Norman Oder’s Atlantic Yards Report has made clear that when the parallels are laid out the no-bid Atlantic Yards is the surpassing example of abuse. (See: Thursday, March 04, 2010, Despite eerie parallels, more outrage over Queens video casino deal than Vanderbilt Yard bids; however, FCR, not AEG, had an 18-month head start.) (Reports say that this is currently being investigated by the State Inspector General. So far Kaye is only definitely looking into questions concerning Paterson's handing of matters relating to a favored aide's domestic violence and improper acceptance of baseball tickets.)

• The destruction of the Coney Island amusement area? The public realm is being sacrificed and developers are benefitting but it is exclusively a rezoning with no eminent domain land grab and the show is not being initiated and run by one single developer with the most supremely powerful of all state authorities (ESDC) in thrall to implement dictates of that developer’s every whim.

• Willets Point? The issues concerning whether there is really “blight” and the responsibility of government officials for actually creating it is more nuanced with respect to Willets Point, and the responsibility is laid entirely at the feet of New York City not, not New York State, officials. (Defending the Willets Point community against eminent domain was the way that Mario Cuomo, Andrew Cuomo’s father and former three-term governor of New York, made his political bones. It is fascinating to note the marvelous alchemy by which the issue of eminent domain abuse may now be used as a test for how straight Andrew Cuomo’s political backbone is.)

• Public Authority reform? Four years ago public authority reform was one of the principle platforms that Spitzer, Hevesi and Paterson ran and were elected on, and yet during the terms that they should have been in office, (with Spitzer and Paterson being quite complicit) Atlantic Yards has provided the spectacle of new unprecedented public authority reform abuse involving multiple public authorities: the Empire State Development Corporation, the Job Development Authority, the Brooklyn Arena Local Development Corporation which was specially created by the two former agencies to circumvent the Public Authorities Control Board’s checks on abuse, and the Metropolitan Transportation Authority which violated at least the intended spirit and purpose (if not the letter) of the hot-off-the-presses (as a result of the last campaign) Public Authorities Accountability Act of 2005, (signed into law January 13, 2006) and its restrictions on dispositions of public authority property without appraisal or bid. Public officials violate that law with impunity because Bloomberg and Paterson do not instruct that it be followed and the public doesn’t have legal “standing” to challenge violations. (The state Attorney General doesn’t have to worry about not having such standing.) And ESDC and its sister agencies perpetrating Atlantic Yards even failed to adopt the whistleblower protection policy they were legally required to by virtue of previously enacted public authority reform measures.

• Campaign finance, State Ethics and Lobbying Reform? Again Atlantic Yards is hard to surpass for the examples of excess it provides. (See: Friday, April 23, 2010, FCR spent $1.13 million on New York lobbying in 2009, including the second-largest (or likely largest) single contract, Wednesday, April 01, 2009, FCR third in city lobbying; is spending about documents or about advantage? Tuesday, October 06, 2009, Lobbying firm hosts $1000 (minimum) fundraiser for Senator Sampson at FCR's MetroTech offices, Monday, March 16, 2009, Despite Atlantic Yards slowdown, Forest City Ratner spent $928,652 in 2008 on city/state lobbying Tuesday, March 17, 2009, Second thoughts on yesterday's post: FCR's lobbying will continue, Wednesday, January 06, 2010, Ratner, no longer a campaign contribution "refusenik," is already investing in Cuomo and DiNapoli 2010, Wednesday, January 06, 2010, More "sewer money" from Forest City to Housekeeping accounts, including $10,000 from a Cleveland Ratner to New York Senate Republicans, Monday, October 19, 2009, As the Times says "Stop the sewer money" in Albany, a prime exhibit could be Ratner's $58K check to a Silver-controlled committee and Monday, October 13, 2008, Marty "bought and paid for"? Following up on the Post's scoop.)

• Columbia University’s land grab in West Harlem? It runs a pretty close second to Atlantic Yards and involves a cast of characters that includes almost all the same misbehaving public officials engaging in almost all the same pretextual games to seize land, but even this is arguably a shade less awful than Atlantic Yards.

The Touchstone of Atlantic Yards as It Pertains to the Race for Attorney General

We have already written about how the issue of Atlantic Yards is before Andrew Cuomo as state Attorney General at the same time he has taken and not returned campaign contributions from its developer/subsidy collector Bruce C. Ratner. (See: Wednesday, February 3, 2010, Two Things About the Pataki Administration and a Hope About What Is Secretly Going on Behind the Scenes Respecting Atlantic Yards.) In a story about how the real estate industry is the “top giver to Mr. Cuomo” (17-20% depending on how it is measured, what time period and whether one is looking at corporations or individuals) the New York Times noted that “Bruce C. Ratner, the Atlantic Yards developer” was among the “prominent givers” to Mr. Cuomo. We pointed out that while the Times coverage did specifically mention that Atlantic Yards is “likely to come before the next governor,” the Times did not point out that Mr. Cuomo, who is likely to be that governor, has already been asked as Attorney General to investigate Ratner’s mega-monopoly development. (The article also passed up the opportunity to mention the Times’ own business relationship to Mr. Ratner.)

As we also previously wrote in more detail (in the story linked to above), Cuomo has not returned Ratner’s contribution despite the fact that Mr. Cuomo purportedly has procedures to protect against conflicts of interest from those developers considered to have matters before his office and “a rigorous screening process” for the donors and “goes further than any other state official in vetting contributors.” (It was, however, reported that three donations Mr. Cuomo accepted from developer Shaya Boymelgreen totaling $8,000 were to be returned by Mr. Cuomo after “an inquiry from The Times” in connection with which it was documented that Mr. Cuomo’s office had not taken action requested by “residents at the Newswalk building” (surrounded by the Atlantic Yards footprint) who were suing Boymelgreen. Boymelgreen has been intricately involved in Atlantic Yards-related litigations though that was not apparently the reason the contribution was returned.)

Pending Requests to Attorney General Cuomo on Atlantic Yards

Here is more of what we wrote about the “Pending Requests to Attorney General Cuomo on Atlantic Yards”:

State Senator Bill Perkins has asked the Attorney General to issue an opinion with respect to whether the issuance of the Atlantic Yards arena bonds was legal. (See: Wednesday, December 23, 2009, Perkins to Cuomo: issue an opinion as to whether AY bond process was legal.) Perkins had already sent to Cuomo (and also State Comptroller DiNapoli) a copy of an earlier letter to the Governor raising Atlantic Yards legal issues. (See: Saturday, December 19, 2009, Hail Mary or silver bullet: Perkins, raising questions of fraud in arena bond sale, asks Paterson to put Atlantic Yards on hold.) Develop Don’t Destroy Brooklyn has asked that the Attorney General Cuomo (and State Comptroller Thomas DiNapoli) investigate the issuance of the bonds. (See: Cuomo and DiNapoli Urged to Investigate Ratner's Arena Junk Yard Bonds, December 14, 2009.) Noticing New York sent its own letter similarly asking for such an investigation. (See: Sunday, December 13, 2009, To Attorney General Andrew Cuomo and State Comptroller Thomas DiNapoli: Investigate and Halt Issuance of Arena Bonds.) In addition to giving campaign contributions to Cuomo, Ratner is giving campaign contributions to DiNapoli. (See: Wednesday, January 06, 2010, Ratner, no longer a campaign contribution "refusenik," is already investing in Cuomo and DiNapoli 2010.)

All of this is to say that the issue of Atlantic Yards is clearly front and center before the Attorney General’s office.

Given that our article was focusing on a then-pending strengthening of whistleblower requirements for state authorities that just took effect in March, we continued:

If Mr. Cuomo has not already begun an investigation of Atlantic Yards the dynamic could be very interesting when the new whistleblower-related requirement for public authorities take effect in March and are ultimately investigated (or not) by Mr. Cuomo and then by the Attorney General who is the successor to Mr. Cuomo.

As we will proceed to describe, the candidates themselves provided further impressions of actions the Attorney General could be taking in responding to questions at the candidates forums.

The Five Candidates For AG

There are currently five candidates for state attorney general. They are, in no particular order: Kathleen M. Rice, the Nassau County district attorney; State Senator Eric T. Schneiderman, Assemblyman Richard L. Brodsky, Eric R. Dinallo, a former state insurance superintendent, and Sean Coffey, a trial lawyer who won a $6.15 billion in settlements for WorldCom investors in 2004 and 2005 following collapse of the company linked to accounting fraud. A sixth potential candidate, attorney Liz Holtzman, a four-term U.S. Representative, two-term Kings County District Attorney, and former New York City Comptroller never officially declared and decided not to pursue the office further. (See: May 25, 2010, Liz Holtzman Steps Away from AG Contest, by Celeste Katz.) Ms. Holtzman did not appear at either of the forums we will be writing about (though she was scheduled to be at one).

Our Noticing New York Impression of the Candidates: Offering the Reader a Blindfold Test

Our impression of the candidates are as follows. Two are extremely smart, extremely capable, extremely well-informed and savvy political office holders, one of whom is less direct and more inclined to dance with agility around the issues that are important to Noticing New York. Either of these two candidates could be excellent in taking on the Atlantic Yards issues as Attorney General: One of them would probably be more likely to do so. Two more candidates are smart, competent attorneys, seemingly less equipped with as much political-insider information, whose adeptness at dealing with some of the necessary nuance is probably still at a more journeyman level. The fifth candidate comes across as an intellectual lightweight whose answers seem to come less from any personal struggle about principles vs. political pragmatism than from guesses about what others will deem is the correct response to give.

We don’t think that we will need to tell you which is which: We think it will be sufficiently apparent from the answers the respective candidates give to the three questions covered in this article. While all three of these questions relate to the touchstone of Atlantic Yards we think that you would still form the same impression of the candidates by listening to the other questions asked of and answered by the candidates at the forum and you are welcome to listen in full to our tapes of the evening which you can download from the links provided.

March 18, 2010, Independent Neighborhood Democrats Candidates Forum

Our first encounter with the Attorney General candidates as candidates in this race was at the March 18, 2010, Independent Neighborhood Democrats candidates forum at the Kane Street Synagogue in Cobble Hill. Three of the five candidates showed up that night. We got to ask one Atlantic Yards question. As is our despicable Noticing New York wont we endeavored to cram as much into that one question as we conceivably could. (Audio download of forum is available here.)

The first candidates we got to ask our question of was Assemblyman Richard Brodsky. Please accept our assurance that although we did not put the question to all three candidates in exactly the same words we were careful to ask substantially the same question of each candidate. (Sometimes other candidates were in the same room when we were asking our question and the other candidates were answering, and sometimes not.)

(Above, Assemblyman Richard L. Brodsky.)

We put our question to Mr. Brodksy after he had just concluded touting his work investigating Yankee Stadium (something for which we agree that he deserves substantial credit): “ ..if I can take on the Yankees, if I can disagree with the mayor, and win those fights, I can win those fights on behalf of the community.” (Note: The bracketed after-the-fact inserts below are amplifications which we are sure the knowledgeable Mr. Brodsky didn’t need us to elaborate upon.)

NNY: Michael White, Noticing New York. This is a touchstone question that I’d really like to put to all of the candidates although I acknowledge that you have a head start on the background.

If you attain the office of the Attorney General do you intend to investigate Atlantic Yards? In addition, in view of the fact that Attorney General Cuomo has already received requests from a number of quarters [including State Senator Bill Perkins] to investigate Atlantic Yards [including investigation of the issuance of the bonds for the Ratner/Prokhorov arena], do you think he should be investigating Atlantic Yards? Do you think that this is something he should be turning over to Judge Judith Kaye [investigating Paterson] with other matters? Norman Oder has already laid out the parallels between Aqueduct and Atlantic Yards and shown how Atlantic Yards is worse. And should Cuomo also be returning his campaign contributions from that developer? Lastly, in view of the Ridge Hill investigation do you think, would you speculate that Atlantic Yards is already under investigation?

RICHARD BRODSKY: I would not speculate on that at all. I would not advise Mr. Cuomo what he should do with his own political decisions. I will reserve judgment on the technical question of the investigation until I’m Attorney General but now I’m going to answer your question. It seems to me to me the key element in the Atlantic Yards controversy is a change in the requirements of the developer which endanger whatever commitment there was to affordable housing and whether that constitutes such a serious change, such a material condition to the agreement as to require revisiting of that. That seems to me to be both a political issue. . . It seems to me to be an issue that could be ripe for “inquiry’- that’s a different version than the word you used- as to the events that transpired and the policies behind them. A commitment to investigate people is not, in the vernacular, “chopped liver.” And I am not going to speculate and nod and wink. I have some record on this issue, unlike other candidates. I have changed the law so that elements of this deal* could not have gone forward if the law had been in place. I am conversant in the law of eminent domain and a leading proposer of amendments and change that will help communities respond to that so that what I would focus on as attorney general preliminarily is the question of whether there has been a material change in condition that rises to a level of a broader inquiry by my office.

(* Something well worth examining at a level of detail that is beyond the scope of this article.)

Here, later in the evening after we asked the same question again, is attorney Sean Coffey’s response:

SEAN COFFEY: Thank you for the last part of the question. It really informs my answer for all of them. If there is, in fact, an active investigation going on now then it really wouldn’t be appropriate for me to comment on it. My view is that if there is evidence of wrong doing, I am going to pursue it wherever it goes. The one thing that I learned as a prosecutor is that people. . There is something called a grand jury, there is something called discretion where you don’t lay out in the front papers everything you know, all the documents you’ve received. That’s just not appropriate. It’s not fair to the potential defendants. And so whether the AG’s office has evidence of crime, how far along that is: They know that; I don’t. Based on what I know, is there something worth looking at? You know what appears to be? I have every confidence that if there is a reason to investigate, the office is handling it. In terms of everything that flows from that, returning contributions, you know, I think that is up to Andrew Cuomo and what he knows that I don’t. Because I’m sure he’s a lot smarter about the facts because he’s running the investigation.

(Above, Nassau County district attorney Kathleen M. Rice.)

Finally, here is the response we got from the Nassau County district attorney Kathleen M. Rice:

KATHLEEN RICE: Look I’m quite into the senior years of my life but I am going to try to remember every single question you asked. First, whatever referral is made to the Attorney General’s Office I will investigate, because obviously that’s the job and, regardless of where it comes from, it has to be. I don’t think there is anything that would preclude me from looking into anything that happened at Atlantic Yards if it came to the office through some kind of a referral. Anything having to do with anything that Andrew Cuomo has done or responding to anything that may or may not have come to his office, it’s just inappropriate for me to comment on. I don’t know enough of the facts. I’m not the Attorney General. It would be inappropriate for me to comment on that or anything having to do with campaign contributions.

(We should note for the record that IND has now endorsed Richard Brodsky for Attorney General.)

May 6, 2010 Candidates Forum

The forum in which we next got hear the response of all five candidates to questions pertaining to Atlantic Yards, including a two-part question of our own, was on May 6, 2010, at the Attorney General Candidate Forum held at Brown Memorial Baptist Church, 484 Washington Avenue in Clinton Hill, Brooklyn. The event was sponsored by Brown Memorial Baptist Church, Central Brooklyn Independent Democrats (CBID), District Leader Jesse Hamilton, Rosa Parks Independent Democratic Club, District Leader Shirley Patterson, District Leader Olanike Alabi, The 57th Assembly District Democratic Organization, Clinton Hill AARP - Chapter 2197. (Audio download of forum is available here.)

Before we proceed to the actual questions and answers of the May 6th evening, we will provide background on two things.

Cuomo’s Exercise of Influence Over Who Is Running for Attorney General

First, when we asked our Noticing New York question at the prior March 18, forum a member of the audience remarked loudly that none of the candidates were going to criticize Andrew Cuomo because they were all conscious of the influence Mr. Cuomo would be exercising over the selection of who else would appear on the Democratic ticket alongside Mr. Cuomo. We dwelled upon this thought afterward.. There have since been some relevant stories published in this regard.

The New York Times ran a May 20, 2010 story specifically about Mr. Cuomo’s efforts to control who will succeed him. (See: Cuomo Tries to Influence Who Will Succeed Him, by Nicholas Confessore.) That article described how “aides and allies of Mr. Cuomo have moved quietly and methodically to bolster Kathleen M. Rice, . . the candidate widely believed to be Mr. Cuomo’s preferred successor.” It also described actions taken by Mr. Cuomo or those working on his behalf to undermine or eliminate the other four candidates, such as a personal call from Mr. Cuomo intended to dissuade New York City Comptroller John Liu from endorsing Eric Schneiderman.

The Times story included these telling paragraphs:

Supporters of other candidates this year say it is inappropriate for a man who may well be the state’s next governor to try to handpick the state’s next attorney general.

“It’s very choreographed,” said Alan M. Fleishman, a Democratic state committeeman from Brooklyn. “I’m concerned about having an attorney general who is the governor’s pick. I’d like someone who’s independent of the governor to be attorney general.”

While the Times coverage offers several reasons Mr. Cuomo might ostensibly favor Ms. Rice over the other candidates, furnished by “several” [unidentified] “people familiar with Mr. Cuomo’s thinking” it cryptically notes:

But those who know Mr. Cuomo well say he is also keenly aware of the powers of the attorney general’s office: His own investigations of Eliot Spitzer and Gov. David A. Paterson crippled both men’s political careers, paving the way for Mr. Cuomo to run for governor in the first place.

If the Times is too polite to close the loop on this thinking, Henry Stern of New York Civic isn’t. Observes Mr. Stern:

A more threatening possibility is that by dictating the choice of his party for Comptroller and Attorney General, Mr. Cuomo is assuring himself that these officials, once elected, will be indebted to him and act favorably in matters in which he has an interest. The Comptroller, for example, is the state's chief fiscal officer. He certifies the budget and performs many other duties under the State Constitution. He is also the sole trustee of the state employees' pension funds, which now exceed $129 billion. The position provides many opportunities for personal enrichment, which some comptrollers have used for their own advantage.

(See: Cuomo Would Pick Ticket, Seeks Pledges for Reform By Henry J. Stern, May 21, 2010.)

The good news is that as of Wednesday the result of the Democratic state convention is that all of the five candidates will remain on the Democratic ballot for the primary. (See: Democrats Put 5 on Ballot for N.Y. Attorney General, By Nicholas Confessore, May 26, 2010.) The Times reports that, in theory, this results from a backlash against Cuomo’s efforts to favor Rice:

The push to put all candidates on the ballot followed an outcry among upstate Democratic leaders over efforts by allies of Mr. Cuomo’s to steer the vote toward Ms. Rice, perceived to be his favorite in the race.

That bad news is that by putting all of the candidates on the ballot Cuomo gets something close to what he wants: Ms. Rice as the only woman in a field where all the other candidates are men and all five are “largely unknown to Democratic primary voters” so:

“They’re going to have a five-way primary that starts out with Kathleen Rice in the lead,” said Steven Greenberg, a spokesman for the Siena Research Institute, which has polled the race.

Norman Oder’s Atlantic Yards Report Article on Sheldon Silver’s Endorsement of Richard Brodsky

On May 4, two days before the second forum we attended at the Brown Memorial Baptist Church, Norman Oder’s Atlantic Yards Report covered Assembly Speaker Sheldon Silver’s endorsement of Richard Brodsky in the race with a healthy degree of jaundiced skepticism:

Westchester Assemblyman Richard Brodsky, known for pursuit of public authorities reform and criticism of the Yankee Stadium deal (but not the similar Atlantic Yards deal), has won a key endorsement in the hard-fought race for the Democratic nomination for Attorney General.

* * * *

As I've written, it's widely believed that Brodsky didn't push on Atlantic Yards (despite occasional swipes at the Metropolitan Transportation Authority's failure to fulfill its fiduciary duty) so as to not offend Silver.

(See: Tuesday, May 04, 2010, Brodsky gains Assembly Speaker Silver's endorsement in Attorney General race; was quiet about Atlantic Yards a factor?)

It didn’t seem that we could go to a candidates forum for the Attorney General’s race expecting to ask a question about Atlantic Yards without planning to mention Mr. Oder’s take on the endorsement in the race from Atlantic Yards-supporting Sheldon Silver.

We should add that our own take is that it does not take much careful analysis before it is appropriate to conclude that Assemblyman Brodsky did not pursue Atlantic Yards anywhere nearly as aggressively as he pursued Yankee Stadium. Yankee Stadium is a good and a well-deserved target for anyone making a point about abuses by public authorities but Atlantic Yards is a far better, far juicier one. We should also note that Mr. Brodsky did excellent work on Yankee Stadium as a result of which he got, in our assessment, a lot of good press in that regard from Mr. Oder. We think Mr. Oder probably wrote more good press for Mr. Brodsky than anyone else in the state covering these issues.

The Evening’s First AY Question, About Eminent Domain Abuse: We Hear That the AG Should Be Taking Actions That Would Stop Atlantic Yards

The first question of the evening that put Atlantic Yards in the spotlight did not come form us and it did not come from the audience: It was a pre-solicited question from the evening’s moderator about eminent domain abuse. The moderator asked the question and the candidates answered sequentially as set forth below:

MODERATOR: The next question is on eminent domain. [Clapping from the audience caused the moderator to comment] (We’re against it.) It had been said that New York State has the worst record of eminent domain abuse in this country. It is one of the few states that did not strengthen its eminent domain laws after the Supreme Court’s Kelo vs. New London Decision. How do you see the AG’s office addressing eminent domain abuse? Ms. Rice?

KATHLEEN RICE: This is a tough crowd: There is one right answer and one wrong answer I suppose, but the job of the Attorney General. . . You are going to hear people come up and advocate and they’re going to have very strong opinions. . . The job is that there has to be a balance, the balance of development vs. the interest of the community. And the Attorney General comes out on the side of advocating for. . . supports the community advocating for themselves. And I think that that’s the issue here because I think this is a very touchy issue here, with everything going on in Brooklyn and all around the city and we deal with it too in Nassau County. So again: It’s a balance and that’s the job of the Attorney General, to advocate on behalf of people in situations like this. And that’s what I would do.

(Above, State Senator Eric T. Schneiderman.)

ERIC SCHNEIDERMAN: Yes, Thank you. I agree about balance but there is no question that right now the law is heavily out of balance. I disagree with the New London decision. I’m sponsor of legislation in the Senate that would change the eminent domain laws to stop this business of private interests being able to use public powers to enhance their own [inaudible]. I don’t have objections to the concept of eminent domain but that’ s supposed to be for the public good. That’s like if you have to build a bridge between two communities that will benefit people you know you may have to take some land. The idea was not to get land so someone can build a megadevelopment for a shopping mall or something else. This is just completely out of balance. Now if I’m in the Attorney General’s office- - first of all the next Attorney General because the Democrats now are in control, and I will argue, I think persuasively, that in spite of all the troubles we are going to stay in control,- - The next Attorney General’s ability to move program bills which is part of the Attorney Generals’ function, is going to be greater than it’s ever been, or been in recent history. This last year is the first year since 1937 that the Democrats have held the assembly and the senate so our opportunity to enact reform is new. I would move program bills to correct this and I would enforce them rigorously. Also, the Attorney General can also just conduct investigations into the way these projects are carried out. Because even if they are technically complying with some of the laws I assure you that there are other issues that can be raised by an attorney general willing to take a look aggressively at the way these folks are proceeding. But the most fundamental issue is: This is not a close question; The Kelo decision was a terrible decision by a conservative Supreme Court*. At the state level we can correct that. You know in Brooklyn this is what a lot of people are pointing to to say “if they can do this in Brooklyn”- - and you all have fought hard and long about this issue and it’s been a tough struggle- - but the example here is what is held up to advocates all around the state of what we do not want so I’m going to fight as hard as I can for it. I sponsored the bill and if it isn’t passed this year when I am Attorney General that will be a program bill from my office. Thank you.

(* Although Mr. Schneiderman’s response may otherwise be erudite, as Mr. Brodsky stated correctly shortly afterward, the decision was the handiwork of the liberal not the conservative wing of the court.)

RICHARD BRODSKY: Five years ago - oh more- Seven years ago, I passed the first bill to reform the eminent domain system, before the Kelo issue came up because it had occurred in my county. And I’ve had an opportunity over the years to work with council member James on Brooklyn issues, and with members of the community some of whom I see here in the audience. But I want to be very clear. I have a very specific agenda for how to reform the eminent domain laws. What I would urge this community and advocates to avoid is any redefinition of those laws that allow “blight” to be a characteristic of what allow eminent domain laws, the pwers to be exercised. “Blight” as we say in the old country is Yiddish for poor people. [Clapping.] And if you start a reform of blight communities, you are just going to get more of the same. Now the fact of the matter is that Supreme Court decision in Kelo was not a decision by the right wing of the court. It was a decision by the left wing of the court which was opposed by Scalia and Thomas and that wing of the court. The problem was never the decision. The problem was the state laws that essentially allowed a legislative body to transfer private property from one private person to another private person in the name of the public good. It’s baloney! The method. . The instrumentalities of that transfer are called public authorities. And we may not- I hope get a chance- since I have thirty seconds to point out that the only fundamental large reform of all these institutions in the last thirty years came out of my shop, building on the work of Al Vann, when we passed the authority reform bill which no longer would make the Hudson Yards and Atlantic Yards transactions possible. The fight about eminent domain in the end is a political fight. Yes, it’s important if you have a candidate who knows what the eminent domain laws are, but you’ve also gotta . . . need to have a candidate who will apply those laws in a political process and stop rich people frm screwing poor people.

(Above, former state insurance superintendent Eric R. Dinallo.)

ERIC DINALLO: I agree that when I was in law school the eminent domain law was about the ability of the government to seize property at a certain market price to advance the public good and it is now transformed into a sort of private to private interest which to me is a complete change from what the court had intended and what I was taught. And what I would do is I think I would use the appeals and opinions section of the attorney general’s office to issue a revisitation of it. So I think the office now has such prominence both in the state and across the country that I would issue an opinion that would explore this again and disagree with it pretty clearly and then lead that into the signaling of a potential lawsuit around getting the laws changed and in an approach that I think should include returning back to more of a public enterprise condemnation proceeding and not a private taking.

SEAN COFFEY: Well I think we all agree the Supreme Court decision was a bad one and one of a number of decisions many of us would disagree with. The question is what to do about it and legislative action is the preferred route and I support the notion of trying to support the right balance between public taking of private property for the public good, that’s what it should be about. But I think it’s a symptom of a larger problem. Why don’t we have that law on the books? There are a lot of things that are not getting done in Albany. They’re just not getting done and why not? The machinery of government in Albany isn’t working and we need to change it. We need to have new blood up there, and somebody from the outside, a number of people. We have a very successful and talented attorney general who we hope will be our new governor. He’s going to need help. I think what he needs is someone who has effected change elsewhere and I was able to do that on Wall Street in connection with many of the cases I took on. I took on the most powerful interests in this country. In the Worldcom case, seventeen investment banks, Goldman Sachs, and they tried to crush my little team with the best law firms in the country, and lots of them. And we took them to trial and got the $6 billion dollars. We were very, very tough. You need an agent of change. Just rotating people from seat A to seat B in Albany isn’t going to get you the kind of results you need on eminent domain and all sorts of other issues. So I am running because I think we need something very, very different up there: Somebody who's been a success in the private sector who's saying, `You know what, I’m going to leave the comfort of the private sector to come in and effect change.' And so, eminent domain is one example of something hat hasn’t been fixed. What hasn’t it been fixed? There are a whole bunch of things that haven’t been fixed. Doing the same things over and over and expecting a different result is the definition of insanity. It’s time for something very, very different and I believe that I offer not only something very, very different but a very, very experienced lawyer who's taken on tough assignments and is ready for the toughest assignment of all which is helping to reform Albany. Thank you.

Noticing New York Asks About Maneuvering Around the Politics of Atlantic Yards: What about the Candidates and Cuomo and Silver?

The question about eminent domain abuse and the responses that the candidates gave provided an excellent tee-up to the two-part Noticing New York question we then asked about Atlantic Yards and about maneuvering around two of New York’s heaviest political hitters, Andrew Cuomo and Assembly Speaker Sheldon Silver (a heckler tried to interrupt us as we asked the question):

NNY: You’ve all spoken about public corruption and the need for transparency. I am going to name two names: Andrew Cuomo and Sheldon Silver. It has been suggested that because Andrew Cuomo will have a huge amount of influence about who goes on the Democratic ticket with him that none of you will criticize him for the money he has taken from Forest City Ratner, the developer of Atlantic Yards. Andrew Cuomo has been asked to investigate Atlantic Yards. Eric Schneiderman, you said tonight that the Attorney General has that power to investigate with respect to eminent domain and investigating Atlantic Yards specifically and Eric Dinallo, you said tonight that the Attorney General should be issuing opinions and rulings that would be preventing hat kind of eminent domain abuse. Is it true that none of you will criticize him for taking those contributions and not returning them? Sheldon Silver: I think on the subject of corruption, Norman Oder has written more. . . .

[At this point a heckler tries to interrupt saying that this is not a question.]

MODERATOR: We need your question, sir. We’ve got the first one.

NNY: . . . [continuing about Norman Oder], he has suggested although giving a lot of good press to Richard Brodsky, that Richard Brodsky went light on Atlantic Yards in order to get Sheldon Silver’s endorsement. How does the panel respond to that?

MODERATOR: To Mr. Brodksy’s endorsement from Silver?

NNY: Whether he went light on Atlantic Yards as opposed to the kind of good work he did on Yankee Stadium in order to get Sheldon Silver’s endorsement?

(Above, Kathleen M. Rice.)

MODERATOR: Thank you. Ms. Rice?

KATHLEEN RICE: I can’t comment on that.

MODERATOR: Mr. Schneiderman?

ERIC SCHNEIDERMAN: I’ll let Richard speak for himself which he is capable of doing but let me mention on the first point: Look, I have never shied away from criticizing people who are bigger and more powerful than I am and I will continue to do so. Again, this does point to the issue I’ve been fighting on since I was the president of Citizens Action which is that you’ve got to get the money out of politics. Everybody. . No one believes in unilateral disarmament and I think that when there is an actual conflict of interest we have to criticize it, but, you know, until we have public financing of campaigns this is going to be plain laughable and that’s not the way to do good public policy.

RICHARD BRODSKY: As the only non-Brooklynish guy who even got his feet wet in the Atlantic Yards thing, as the guy who stopped these kinds of deals from going forward in the future, as the guy who did the investigations of the MTA and held their feet to the fire on Atlantic Yards, I find the question one of those things in which you engage in circular insanity. I will not defend my integrity based upon innuendo, rumor and who I happen to have been endorsed by. If I take money from Forest City Ratner, nail me. If anybody here is taking money from Goldman Sachs, nail them. If anybody here is taking money from Leo Hindery, nail them. My record of integrity and my activism on Atlantic Yards is unique for a nonworking person. And while these are open forum and I welcome the right of anyone to ask questions, let me suggest that the endorsements I’ve gotten have nothing to do with my ongoing light on anything. It’s the first time in my life anyone ever accused me of being diplomatic.

ERIC R. DINALLO: I’ve stood up to the biggest banks, the biggest insurance companies. I don’t think it’s an issue of being afraid to stand up to someone. I, first of all, don’t have all the facts in hand and secondly I agree with Senator Schneiderman: A lot of this is about campaign finance reform. You could pick across anyone’s filings and find, you know, arguable innuendo or conflict until you get public financing of these offices. As Sean said earlier, I like this sort of staged approach, and by the way I think the money would actually pale in comparison compared to the inefficiencies and ethics that surround government. You just can’t do that sort of approach in my opinion.

(Above, trial attorney Sean Coffey.)

SEAN COFFEY: I’ll answer. . . touch upon the second question first. I don’t know Mr. Brodsky well but we are doing a lot of these and from what I see he’s one of the most ethical people I’ve ever met, so I don’t know where you are getting your information or speculation but I happen to think that this is a good man.

With regard to your first question, having been a prosecutor, there’s just so much that the public doesn’t know that the prosecutor knows, because they have subpoenas. So I can’t comment on whether Andrew’s gone light or not. If he has I’m quite surprised. I’m certainly not abstaining from criticizing him because I have this feeling that he’s done something wrong there. We just don’t know what he knows. And I think I answered that question the same way when you asked me that same question at a forum here in Brooklyn about two months ago. We don’t know what Andrew knows.

And I will close with echoing what I said before and what some of the folks here said, which is that we need to be more proactive in draining money out of politics. I happen to believe that it is almost as bad to have the perception of a conflict as to have the actual conflict. And so we need to start somewhere. Part of the reason I am running is because I don’t think that people trust their government anymore and that’s really dangerous. And so one way to do that is to drain money out of politics. I would start with the two offices in 2014: The office with audit power which is very important, the Comptroller, and the Office with subpoena power which is the Attorney General. Let’s start there. Let’s go the extra mile. Let’s do all the other campaign financing. And if I can end with the following: I do think we are going to see change in Albany. We are because you’re going to make it happen. Every attorney general candidate is going to talk about reform. Andrew Cuomo is going to talk about reform and every legislator whose running for reelection and every legislator who is looking to replace them is going to talk about reform and they are going to have to answer:”Where are you on reform?” And what’s going to happen? You’re going to have the best chance in a generation for reform in Albany because everyone is going to have to commit to it. So let’s not just shrug our shoulders and say Albany will never change. That’s not an option. We have to do something different.

A NNY Follow-up With Mr. Brodsky’s Campaign Office

Admittedly, the second part of our two-part question targeted Mr. Brodsky with an uncomfortable particularity to which the other candidates were not subject and we also acknowledge that while Mr. Brodsky should be an avid reader of Mr. Oder’s Atlantic Yards Report, perhaps the question took Mr. Brodsky somewhat by surprise. For this reason and also because, while it may not be entirely clear from the printed page that Mr. Brodsky appeared angered by the question as he was answering it, we decided that we should offer him another chance to respond to Mr. Oder’s article contemplatively. We called Mr. Brodsky’s office, directing them to Mr. Oder’s article and shortly thereafter got this May 11, 2010 quote from Mr. Brodsky:

Alone among the candidates, I worked with the committee members and leaders for many years to try to remove the unfairness in the eminent domain laws. I authored legislation which has been signed into law which would make below market asset sales of the kind that the MTA entered into illegal. I will continue to exercise my authority over the MTA to make sure that MTA property is not given away and that the interest of riders is the top priority. I also led investigations into New York City's use of public money to build sports facilities. No other candidate has a record on these issues close to those consistent and successful reform efforts.

We will let the reader conclude how responsive this is to the characterization that Assemblyman Richard Brodsky is “known for pursuit of public authorities reform and criticism of the Yankee Stadium deal (but not the similar Atlantic Yards deal)” and is widely believed not to have pushed “on Atlantic Yards . . so as to not offend Silver.” If it isn’t responsive, then I note that the irksome thing about bloggers is that bloggers are prone to getting the last word.

The Last Word on Whether Albany Is About to Change

If it is true that if Albany is going to change, now is the best time for change to be getting underway. We are in the middle of an election cycle, just as Sean Coffey notes, all the candidates are going to be talking about reform whether or not such change is likely. Mr. Coffey tells us that he believes that there will be change, that we have "the best chance in a generation for reform in Albany," because all the candidates are talking about it and must commit to it. But four years ago it was the same thing. Mr. Coffey attributes meaning to the fact that Andrew Cuomo will be talking about change, as Mr. Cuomo indeed is.

When he announced his candidacy for governor Mr. Cuomo said “The chronic dysfunction of Albany metastasized into the corruption of Albany, and it was a bipartisan affliction,” while, according to the New York Times:

Appearing in front of the former Manhattan courthouse named for Boss Tweed, the corrupt political boss of Tammany Hall, Mr. Cuomo told a crowd of supporters: “Unfortunately, Albany’s antics today could make Boss Tweed blush. Our message today is simple. Enough is enough.”

(See: Cuomo Opens Campaign for New York Governor, by Danny Hakim and Nicholas Confessore, May 22, 2010.)

In his speech accepting the nomination for governor Cuomo said:

“When you go around the state, from Montauk to Buffalo, you hear over and over and over again the betrayal people feel towards the government,” Mr. Cuomo said in the speech, adding that trust “has to be restored, and we’re not going to do it with words.”

(See: Cuomo Accepts Governor Nomination, by Danny Hakim and Nicholas Confessore, May 27, 2010.)

We suggest that you save yourself some time sorting through what veracity and hope can be extracted from all this. Just apply the Atlantic Yards test! How willing are the candidates to be honest about the corruption with respect to Atlantic Yards and do those candidates tell us that they are willing to do something about Atlantic Yards today? We are not talking about theoretically making megadevelopements like Atlantic Yards impossible in the future (until some new loophole or strategy for abuse is discovered): We are talking about stopping this misconduct today. Atlantic Yards is a project that will be peddling its corruption around the city and state for multiple decades.

The Answer Put in the Words of the Five Candidates to Succeed Him as Attorney General

Will there be change in Albany? Or just more of the same old, same old? Applying the touchstone test of Atlantic Yards to the race for the office of Attorney General we think we can find some hope for change though not a lot of it, not nearly as much as we think there ought to be. We thought though that we should leave it up to you to judge from the five candidates’ own words. In that regard we will leave you with this from the Times article about Cuomo’s acceptance of the nomination at the state Democratic convention:

The three-day convention focused largely on Mr. Cuomo; the party’s five candidates to succeed him as attorney general were not permitted to speak from the podium, an unusual development that left some of the contenders seething.

Well, if the party's five candidates to succeed Cuomo were not permitted to speak at the convention, we hope that we have made up for that unusualness here, giving you a chance to decide from their own words whether any of these candidates will bring us change.