Thursday, June 16, 2011

Sovereign Immunity, Reconfiguration of Brooklyn’s Traffic And The Peculiar Verisimilitude of Government Functions When Forest City Ratner Takes Over

(Above, a screen that was part of Sam Schwartz's presentation on Tuesday about reconfiguring Brooklyn's traffic patterns.)

When I attended the forum the Empire State Development Corporation and Forest City Ratner held Tuesday night on reorganizing the Borough of Brooklyn’s traffic flow, a reconfiguration necessitated by the plunking down of the Ratner/Prokhorov (“Barclays”) Nets basketball arena atop a major congested confluence of intersections (with attendant permanent street, avenue and sidewalk closings to boot), something that was said got me musing: When asked about how all the changes would impact the emergency response time for the local police and fire department stations, Sam Schwartz, the traffic engineering consultant working for Forest City Ratner, was unable to provide an answer.

No Answer Available From the Answer Man

Mr. Schwartz was responsible for much of that evening’s Borough Hall presentation. The basic bottom line of Schwartz’s response was that “We're developing a plan with the police department.” This was after some semi-obfuscatory treading of water that was essentially to the same effect of having no answer: “We're working closely with all emergency services in this area” . . . “The emergency services have a plan for every type of emergency. We've done this with Madison Square Garden. We've done this with CitiField,” . . . “It's standard work that is done to deal with any kind of emergency that would occur in the area, both at the arena, and both going through the arena area.” This state of not knowing is where Mr. Schwartz is in June of 2011, more than eight years after the December press conference where Mr. Schwartz’s boss, Forest City Ratner, announced its massive mega-project as a purported fait accompli.

Mr. Schwartz’s inability to provide an answer about the effect on emergency response times was reported by Atlantic Yards Report, see: Wednesday, June 15, 2011, At forum on traffic, new concerns about unintended consequences of traffic mitigations: spillover onto and around Third Avenue. (There were other questions to which Mr. Schwartz was also unable to provide answers.)

Translation: Lives In the Balance

Thinking about it, everyone realizes that increased emergency response times equal lost lives, physical injuries and property damage. This is the point that community representatives strive to emphasize whenever a mayor closes fire stations and or police precinct stations, typically in response to budget shortfalls. It may seem strange that planning decisions with all the associated abstractions of statistics and projections actually translate into life and death decisions, but they do. Normally, making the argument that lives hang in the balance (sometimes shrilly) is all that all people can do when public officials make decisions. That’s because, recognizing that public officials have to make decisions and their job is to make decisions, public officials are protected by something called “sovereign immunity.”

Introducing Sovereign Immunity

“Sovereign immunity” is the reason the police can’t be sued for exercising their powers in good faith even when they may be causing terrific harm or are negligently making significant mistakes. Sovereign immunity is also the reason you normally can’t sue the government for not providing you with police protection or other services. Sovereign immunity is something the government, state, local or federal, possesses though it can be waived. The idea is that when the government is performing its functions it can’t be sued without its consent. The idea is an old one, hearkening back to the idea that the King could not be sued.

Governments frequently waive sovereign immunity as a matter of public policy in many specific areas (although sometimes uniquely subjecting such waiver to specific abbreviated statute of limitations-style conditions for suit): For instance, it doesn’t make public policy sense that nearly all drivers on our roads should be liable and carrying insurance when they have car accidents but that a small segment of drivers who are public employees (who could be similarly insured) would be exempt from the consequences of their similar carelessness.

Arguments for Sovereign Immunity

Nevertheless, there are good arguments to have sovereign immunity apply in certain situations where it is not waived. I mentioned the process of putting together a city budget. Would it really make sense if all the policy decisions that need to be balanced in that process were subject to attack and second guessing through law suits asserting liability on the part of the decision makers for bad decisions? Isn’t the political liability for bad decisions sufficient? It may be argued that Mayor Michael Bloomberg is now laying off teachers and closing fire houses because he made bad decisions such as diverting city resources into Atlantic Yards and Yankee Stadium while at the same time giving tax breaks and special benefits to the new Goldman Sachs building, but isn’t the political realm still the best place to argue about those budgetary priorities? As bad or good as the decisions may be, the fact that there is a political process check on bad decisions with public officials ultimately, theoretically, accountable to the public is one reason the continuation of sovereign immunity can be defended in America.

Sovereign Immunity Applies to Government Not the Private Sector

All that being said, here is something that may sound self-evident: Sovereign immunity only applies to governments. It does not apply to those in the private sector who look like they are performing government functions and it does not apply to private sector entities that assume what would normally be a government function. This is why a private security guard in a mall is not protected by sovereign immunity even though the job such a guard is doing may look a lot like the job of a policemen on a beat who would, in fact, be covered by sovereign immunity.

If you See Something Strange, Say Something

Sometimes you see something and because you see it before you, you somehow suppose it must be normal. Maybe you’ve never seen it before and so when you see it for the first time you dismiss any sense of oddness attributing it to your own unfamiliarity with what you are seeing. Perhaps what your are seeing has a resemblance to something else you have actually seen before, mimicking its forms. - -

- - After I thought about seeing Sam Schwartz’s presentation at Borough Hall the other night it struck me that I had seen something very odd. Yes, the presentation was in the stately courtroom of Borough Hall, the carved woodwork, towering pillars and ornate ceiling conveyed the sense of governmental formality, but here was a man, a consultant hired by and working for a private developer, describing how, as a result of that developer’s project, traffic, was going to be rerouted by him all around the busiest most populous areas of the borough.

While flash animated videos showed the multitudinous streets involved (or at least those to which Mr. Schwartz was extending his formal consideration), Mr. Schwartz casually explained about the little blue stand-ins for real vehicles scooting around in the videos “did not represent the real volume of traffic flow” (which would in real life be considerably heavier) and were there only to demonstrate the sets of theoretical turn off choices drivers would have at specific streets and avenues. Perhaps, by the same token, it should be pointed out that, appearances aside, Mr. Schwartz, standing in Borough Hall showing how so much of the borough’s traffic would be reconfigured (without actually simulating the real volume of traffic flow), did not represent a real public official.

The Private Sector Without Sovereign Immunity

So this is what I am wondering: Although Forest City Ratner and Sam Schwartz as its engineering consultant may seem a lot like the government performing a government function, that is not what they are. Forest City Ratner and Sam Schwartz are private sector entities and however much they have intruded themselves into an assumption of what we would expect would be a government process they are no more actual government officials than a privately hired mall security guard.

So the question is: Can they be liable for their negligence if they do damage in this vastly extensive and impactful reorganization of the borough affecting so many neighbors? As sovereign immunity should not apparently apply to their actions, can these private entities be sued in court if the effect that the new arena and traffic patterns have is to slow response times for the police and fire departments resulting in deaths, physical injuries and property loss when their arrival is consequently delayed?

By No Means a Normal Project With Normal Government Involvement

Normally, developers don’t have these concerns. But normally projects are developed in a very different fashion from the privatized fashion with which Atlantic Yards has been developed.

Normally, government makes up a set of rules universally applicable to all, and developers act within the envelope of those rules. Not so with Atlantic Yards, where the rule book, zoning and all the statutory and regulatory standards for good urban design and land use, including mechanisms for proper review, were thrown out the window and the developer was allowed to write his own set of rules.

Is the Schwartz plan for which so many answers are unavailable in any way negligent or unduly preferential to the developer who hired him? Might that generate liability? Even if the Schwartz plan actually does the best possible job in dealing with the impact of the arena, can’t traffic harm be traced straight back to the developer because of the developer’s private choice/ private action decisions to override zoning and planning norms? What then?

A Hallmark of Privatized Government Functions: Solving the Private Entity’s Problems At The Expense of Others?

Functions resembling those that are typically governmental not only become qualitatively different when performed on a privatized basis, they need to be regarded as so. If there is any doubt about this consider the points that were raised Tuesday night by Jonathan Glazer, a resident of State Street (just west of Third Avenue) when he talked with the press after the meeting. Mr. Glazer pointed out how (although not addressed in the state's Final Environmental Impact Statement or what was being selectively presented during the course of the evening) the new configurations were sending substantially increased traffic flows over to Third Avenue. According to Mr. Glazer, in what is probably a pretty accurate summing up: “They came up with a convenient plan that solves someone else's problem and creates problems for us.”

This problem creation, by the way, is all in the name of “mitigation” for the traffic pattern damage created by siting the arena by overriding all the normal rules that ought to have applied.

Traffic flow is actually being pushed over from the arena even farther than Third Avenue. Traffic volume is up substantially as far as Hicks Street, so that because of Hicks and Clinton Brooklyn Heights has been affected. Will this eventually diminish or stay the same or eventually get worse? (Traffic in areas surrounding Brooklyn Heights is already substantially complicated by the closing off of streets in connection with Ratner's 17 plus acre Metrotech Center.) The point is that whatever happens a private developer and his consultant are apparently calling the shots.

Correcting the Files for Coverage?

Who knows? Perhaps based on what I am now pointing out about liability will cause the Forest City Ratner/Sam Schwartz/ESDC folks to scurry back to their files to add something to their contracts that says that Sam Schwartz shall be considered to be working for ESDC as a governmental agency and hence, they might hope to be cloaked with the privileges, exemptions and immunities of ESDC. But that, like so much of the Atlantic Yards fiasco, is merely form over substance and does not change the fact that when ESDC put Forest City Ratner in the driver's seat for all the mega-project decisions they ensured that the public interest would never be given due weight in the decision-making process.

Future Litigation and Its Outcome?

It is possible that Forest City Ratner and/or its consultant Sam Schwartz may eventually be sued for injuries resulting from their actions, including any and all the various sorts of detriment resulting from the reworked traffic flow possibly extending, among other things, to increased response times resulting in deaths. If they are, it is probable that they would claim that, despite evidence to the contrary, they actually took no actions, that all the actions were taken by exclusively public agencies immune through sovereign immunity.

Possibly they would escape liability on such a basis. The question is whether justice would be served if they escaped responsibility for their private actions utilizing such an argument when, with Atlantic Yards, we have seen an unprecedented swap-out of government responsibilities with private actions? Atlantic Yards likely provides the courts with a case of first impression. Doubtless we have never seen the likes of this before. Has a developer ever before been so totally in control of what should be government functions?

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