With All Due Respect

      * The international span between Buffalo, NY & Ontario, Canada serves as a useful measuring stick when gauging Gov. Cuomo’s integrity *

Many New Yorkers understandably view Gov. Andrew Cuomo’s conduct regarding the Moreland Commission as grounds to question his integrity – from its sudden and premature dismantling, to the Governor’s delayed and unconvincing response to the July 24 New York Times report of his top aide’s repeated interference with the workings of the ethics commission.  

A close examination of the Cuomo Administration’s actions regarding the second busiest border crossing between the U.S. and Canada raises similar concerns.

Photo from Sept. 2007 Peace Bridge Expansion Project DEIS cover

* The April 2014 audio tape – a reflection of Cuomo’s disdain for opposing points of view and procedural impediments *

An example of the Cuomo administration’s subterfuge is described in the August 6, 2014 Buffalo News article, “Plotting at the Peace Bridge.”  The audio of the April 2014 Peace Bridge Authority meeting paints an unflattering picture of the deceptive tactics used by Gov. Cuomo’s cronies to implement his expansion plans.  The words of PBA chairman Sam Hoyt (the governor’s “eyes and ears upstate”), project manager Maria Lehman, and former Buffalo mayor Anthony Masiello, reflect a disdain for anyone who questions the governor’s plans, and for any procedures that might slow down the process. More specifically:

        – Peace Bridge Authority Chairman Sam Hoyt explains how state officials had “brainwashed” potential opponents of plaza renovations at the bridge in order to win their support.

        – The state’s Peace Bridge project manager, Maria Lehman, describes her conscious decision to keep the environmental approval of an expansion project quiet in order “not to kick sleeping dogs” [nearby residents?] who might otherwise challenge the adequacy of the environmental review in court.

        – PBA member and former Buffalo mayor, Anthony Masiello, expresses his agreement with Lehman’s suggestion that the city’s sale of property for Peace Bridge expansion should be combined with “a whole lot of transactions” and brought directly to the full Common Council for approval, thereby circumventing the normal process of having the transactions reviewed by the Council’s Real Estate Committee – a subcommittee of the Community Development Committee, which is chaired by one of the most vocal opponents of Peace Bridge expansion, North Council Member Joseph Golombek Jr.

[Hear state official Maria Lehman explain the “conscious decision not to kick sleeping dogs that otherwise might not be paying as close attention,” and PBA chair Sam Hoyt say state officials “brainwashed – no, work closely with, nudged – those sleeping dogs and brought them over to our side”: https://www.youtube.com/watch?v=MKN-B8vtLww&feature=youtu.be.]

[Hear Ms. Lehman discuss plans to circumvent of the Common Council’s Real Estate Committee to speed up the city’s approval of property transactions needed for Peace Bridge expansion: https://www.youtube.com/watch?v=o4vpPHZnEKk&feature=youtu.be.]

But the audio tape is merely one instance.

* The “no current plan” ploy regarding the Episcopal Church Home site – Cuomo’s stratagem to avoid the required environmental review *

SEQRA, the state’s environmental review law, places an obligation on agencies to examine “long-term, short-term, direct, indirect and cumulative impacts” of an action, including land purchases or demolition of buildings.  [6 NYCRR 617.7(c)(2)]  To circumvent this mandate, the Cuomo-dominated Empire State Development Corporation has insisted that there are “no current plans” to utilize the Episcopal Church Home site for plaza expansion.

The disingenuous nature of the “no plan” claim is underscored by statements made by the PBA and Gov. Cuomo.  A May 2012 PBA resolution lists potential plaza projects including the “redesign and relocation of the existing Duty Free Store to a larger, more functional area on the property currently occupied by the vacant Episcopal Church Home.” And the governor’s August 15, 2012 press release announcing steps to acquire the ECH property refers to the parcel as “a crucial block of land that will be a central part of the transformed plaza.”  Additionally, in a moment of refreshing candor, April 2013 court papers executed by the head of the Episcopal Church Home organizations seeking judicial consent to sell the ECH campus to Empire State Development, assert:  “ESD intends to develop the Downtown Campus property as part of an expanded Peace Bridge Plaza.” 

Don’t Truck Up Our Neighborhood!

 * Cuomo’s questionable use of State funds to finance the purchase of the Episcopal Church Home property *

To ensure the governor could claim he kept his promise to move aggressively to improve the U.S. side of the international border crossing, the Cuomo administration paid $4.7 million in July 2013 to purchase the ECH site, despite its appraised value of $1.7 million.  The ESD President/CEO’s February 2013 memorandum had described the State’s proposed acquisition agreement in the following manner, identifying the NY Works Fund as the funding source for the purchase:

        “Upon approval by the Directors, the [ESD] Corporation will enter into a contract of sale with the Owner [ECH] for acquisition of the Property for the purchase price not to exceed $4,731,500… Funding for the acquisition costs and immediate maintenance/ stabilization will be provided by the New York Works Fund (“Fund”). The $75 million dollar fund is contained in the 2012-2013 State Budget and was included by the Governor to assist ESD and other State entities in advancing economic development and infrastructure related projects.

      The Property is currently assessed at $3.4 million and appraisals set the value at $1.862 and $1.65 million…”

Gov. Cuomo’s August 24, 2013 press release announcing finalization of the acquisition of the Episcopal Church Home property also makes reference to the role funds from the “New York Works Initiative” would play in the transaction (as well as the connection between the purchase and plaza expansion):

      “In his 2012 State of the State Address, Governor Cuomo proposed improvements for the U.S. Peace Bridge plaza. As part of the NY Works Initiative that was passed in the 2012-2013 state budget by the New York State Legislature, $15 million was allocated for the expansion of the U.S. Peace Bridge plaza and related enhancements, including community projects…”

It is difficult to reconcile the State’s proclaimed purpose for its purchase of the ECH parcel, that is, to ensure that the “asset” is “properly secured, maintained and readily available” for some unspecified future economic development plan, with either the expressed goal of the NY Works Initiative, “to coordinate a statewide infrastructure plan that will more effectively and strategically allocate New York’s capital investment funding,” or the Cuomo administration’s description of the purpose for the New York Works Task Force:  “Governor Andrew M. Cuomo and legislative leaders launched the New York Works Task Force in May 2012 to put an economic growth strategy in place and to expand the State’s capital investment and execution capability with a combination of smart procurement policies, great project execution, and innovative financing options.”  Justification of the acquisition of the ECH property is made even more difficult when one considers the fact that the State paid three million dollars more for the “asset” than its appraised value.

Allowing the Episcopal Church Home site to be acquired with moneys obtained through the NY Works program makes the Initiative appear to be little more than a slush fund to be used by Governor Cuomo to further his own political agenda.

An equally troubling aspect of the State’s purchase of the ECH property, from a legal perspective, is the reference in the ESD’s President’s February 2013 memo to “various State Department of Health (“DOH”) liens totaling $711,000.”  It appears that, as part of the ESD’s agreement with the Episcopal Church Home entities, the State of New York waived $711,000 of DOH liens on the ECH properties.  A strong argument can be made that such action constitutes an unconstitutional “gift” of State money to a private corporation, prohibited by Article VII, Section 8(1) of the Constitution of the State of New York. In relevant part, that section of the State Constitution declares: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.”  [Note: For purposes of the “no gift or loan” provision, money passed by the State of New York to the Empire State Development Corporation, a public benefit corporation, “cannot be subject to the Article VII, Section 8(1) prohibition gifting or loaning state money as such money is no longer in control of the State.” See, Bordeleau v. State, 18 NY3d 305 (2011).]

* Cuomo’s abuse of the legislative process *

Most troubling of all is Gov. Cuomo’s coercive use of the legislative process. In 2013, a number of Cuomo allies in the State Legislature enacted a law aimed at dissolving the Peace Bridge Authority.  [Some accounts have indicated that Cuomo was infuriated when Canadian members of the PBA balked at overpaying for a piece of land adjacent to the U.S. end of the plaza.] Gov. Cuomo refused to veto the deeply flawed law, despite its factual inaccuracies and disregard of the PBA as the product of an international compact between sovereign nations. Instead, Mr. Cuomo dishonored the legislative process by treating it as a negotiating ploy to win concessions from the Canadian bridge authority members – holding the threat of dissolution over their heads.

So much for integrity.

With All Due Respect,

Arthur J. Giacalone

P.S.  Just how wide is Governor Andrew Cuomo’s credibility gap these days? About as wide as the Peace Bridge is long –  3,580 feet in length from abutment to abutment, a distance of just over two-thirds of a mile. That’s the approximate gap, from my vantage point, between what Gov. Cuomo and his administration say and the truth – with one exception.  Sam Hoyt was quoted in an April 4, 2012 Buffalo News article announcing the Cuomo administration’s commitment to aggressively pursue expansion of the U.S. plaza at the Peace Bridge:  “We will do everything we can to make it happen quickly.”  That is one statement that I have no trouble believing.