Triumph of Civic Virtue
Major updates – Shady Dealings
It has been a while since our last update, and we have much to tell.
In addition to failing to reply to our initial request within the required time for FOIL compliance as reported in February, DCAS did not properly address our appeal, a failure which alone would expose the agency to legal action.
After declaring our appeal “moot” without citing their authority to do so, and not responding with either the information we asked for or a reason for denying it, DCAS did send some documents, including the Requests for Proposals (RFPs) for conservation services, and construction of the custom armature for the statue’s transport. The first of these (PDF 8.4MB) fell to Krellick Conservation based out of Pennsylvania, for $49,464. (So much for Helen Marshall’s “Keep it in Queens.”) The second (PDF 5.4MB) went to SurroundArt in Brooklyn for $49,801. These amounts are listed on the cover pages. As of this time, we believe that both companies are qualified contractors with the city operating in good faith. (Green-Wood itself also covered about $165,000 for the rigging, crane, and transport of the statue.)
However, the RFPs were released on October 18th, 2012 and October 19th, 2012 respectively, with a due date of October 26th, 2012 for both. (Pages 28 and 20 respectively.) Most RFP submission deadlines are designated 3-4 weeks after release – even for office services, let alone heavy construction. At the time of this posting, every other RFP at DCAS falls into the 3-4 week range, not 7 or 8 days. This hasty turnaround time is not only virtually unparalleled in the RFP procedure, and not only unusual for DCAS, but it is potentially against the law. The City Charter states in chapter 13 § 312 (8) b.1., as well as § 325 a., and potentially elsewhere, that the Procurement Policy Board (PPB) sets the policies and procedures for competitive sealed bidding. The rules of the PPB in Section 3-03 (d) Public notice. 1. Notice of solicitation i. Distribution, state that publicly accessible notification must be given twenty (20) days prior to the due date.
Let the reader be clear: DCAS cannot arbitrarily set its own time line for releasing and closing RFPs, nor can it decide on how or when it will comply with the state’s Freedom of Information Law. As a city agency, it is bound to the statutes in the City Charter when issuing contracts under RFP. As an agency of a NY state county, it must comply with state regulations, and supply information requested under FOIL within the proper time frame, or cite why such information is exempt. Upon failing to do respond to the initial request and receiving an appeal, it must answer the appeal. In our initial request, and in the appeal, we asked very clearly for all records that constitute and/or memorialize communications or records that were communicated, in either direction, between DCAS or any City agency other than DCAS, and Green-Wood Cemetery or any contractor firm considered to provide services (whether contracted or not), that pertain in any way to Triumph of Civic Virtue (including but not limited to the relocation or possible relocation of Triumph of Civic Virtue to Green-Wood Cemetery). DCAS did not provide this, or cite any justification for why they would be exempt to. That is a FOIL violation.
We informed DCAS in a follow-up letter meant to avoid litigation that the records turned over were insufficient to satisfy our request, which was for all communications, not just some finalized bids. DCAS then responded with a copy of the contract (PDF 3.6MB) struck on September 28th, 2012 between the Design Commission and Green-Wood formalizing the long-term loan, and stipulations related to their handling of the statue. Apparently, the statue’s fate was apparently decided even before this website went live, before the RFPs were released, and no one at DCAS would speak candidly until petitioned to turn over some records months after the fact. Also included in this loan agreement are slides from Green-Wood’s presentation at the so-called “public” hearing. This was still not what we were seeking, and it is also curious why DCAS chose not to provide it in their original non-FOIL-compliant response.
Russell Ann Nobles, DCAS’ General Counsel/Record Access Appeals Officer, along with the long-term loan contract, rendered the final administrative determination of our FOIL request, stating that,
Any records of communications with Green-Wood cemetery pertaining to the possible relocation of “Triumph of Civic Virtue” or with any contractor firms regarding services related to such relocation are exempt from disclosure under FOIL pursuant to Section 87 (2)(a) and (g) of the Public Officers Law as, respectively, subject to attorney-client privilege or constituting pre-decisional, deliberative material which, unlike the Loan Agreement itself, does not reflect a final decision or determination.
Does DCAS really expect us to believe that from the moment the idea to obtain Civic Virtue was hatched in someone’s head – politician, agency official, cemetery employee or other – up to the point of fulfillment of the contracts for services and the loan, that no phone call was made, no e-mail exchanged, no meetings held, that involved anyone who was not a lawyer?
It defies common sense in coming up with the relocation idea. The Green-Wood cemetery would have surely had someone with professional curator experience – not an attorney – to present a qualified solicitation before the public hearing. Or, there must exist communications within DCAS or another agency in search of a qualified agent for the statue’s long-term loan.
It strains credibility by the dates of the contract. DCAS signed the long-term loan contract with Green-Wood in September 2012. It somehow then managed to push through the entire process for construction RFPs through to completion in 7-8 days, 2 days of which fell on a weekend on which they would not be open for contact. We believe there may exist prior communications from DCAS to interested parties regarding these solicitations, or discussions about the general nature of these services.
It is still unknown how Green-Wood cemetery was privy to the public hearing. Green-Wood delivered a presentation at the November 13th public hearing. As we were informed by the Design Commission itself prior, the notice on the night of November 9th was apparently the first public announcement, as is the Commission’s right. Unless representatives from cemetery were told to watch for the announcement in advance, it is difficult to imagine how the cemetery found out about and prepared for this hearing without being tipped off directly.
Other questions may be raised as we continue to uncover new facts. We do not, as DCAS does, consider this information request satisfied. Attorneys at the Committee on Open Government advised us that DCAS does not appear to be citing valid FOIL provisions that would exonerate them from handing over records they are implying that they have. We reserve our rights to petition for these.
We will post further updates as soon as we receive them.
Our Investigation Heats Up
In mid-December, shortly before the statue was removed, we put in a FOIL request with DCAS for all records related to the plans to move Civic Virtue, and communications with all other agencies and private parties involved.
As we expected, DCAS initially attempted to wear us down bureaucratically by ignoring our request. We were unfazed. Fully prepared for this eventuality, we consulted state-level government to determine DCAS’ eligibility to be appealed, which we can confirm DCAS has by now received. DCAS now has an NYS-mandated deadline of 10 business days to respond to the appeal in order to produce the requested records.
Our request clearly asks for all communications between DCAS or other city agencies, and Green-Wood cemetery or other agencies contracted or considered for contract, pertaining to the removal of Triumph of Civic Virtue from the grounds of Borough Hall.
We thank The Daily News for continuing to report our efforts.
Stay tuned for the latest developments…
Farewell for now, Civic Virtue
On December 15th 2012, Queens lost the Triumph of Civic Virtue.
We are still waiting upon the findings from our FOIL request, to see if anything can be done.
For now, we would like to thank Able Rigging and any other contractors involved on the ground that day. The work was carried out with care. We also learned from one of the workmen that the statue weighs 27,000 pounds from mechanical determination during the lifting phase. We would also like to thank all of the media outlets which helped bring this issue to the public’s attention.
Statue to Be Removed Tomorrow
Tomorrow, December 15th, Triumph of Civic Virtue is slated for removal. We have heard from a supporter, who has been serving jury duty in the area and spoke with the workmen, that removal will start at 7 AM. Apparently, they have already been sawing through the base.
Jon Torodash will be down at the site filming the removal, both to make sure that it is done properly and to take record of the disgrace the event symbolizes.
We welcome you to come out and witness this sad event.
FOIL Request Submitted to DCAS
triumphofcivicvirtue.org has helped to deliver a FOIL request in writing to the Office of the General Counsel at DCAS for all records that between DCAS and Green-Wood Cemetery regarding Civic Virtue. We will post the salient points of these findings as soon as they are available, and share them over our subscriber lists.
Rally this Saturday
Saturday December 8th, at 11:30.
Councilman Vallone will be there, as will representatives from triumphofcivicvirtue.org.
We will post any updates to this as we hear of them.
We expect to get press coverage. Come out and show your support!
Legal Help Needed
Further investigation into the City Charter reveals that we may have a tough fight ahead of us. The Design Commission apparently has special rights that apply to its own public hearings, and is allowing what may be the minimal notice (3 days) within the bounds of the law as it applies exclusively to itself. The commission posts these notices and holds these hearings as closely around a weekend as possible, as if to minimize public awareness of what they are doing. This also constitutes an deliberate discouragement to public involvement, because each bulletin requests (but does not require) that members of the public submit a copy of written testimony 3 business days prior, which in almost all instances of these bulletins’ posting do not exist.
If you or someone you know is an attorney interested in helping the community find legal recourse either to contest the hearing or appeal the decision, we want to hear from you.Please contact:
Design Commission Potentially in Violation
From to the Mayor’s Office of Contract Services:
Pursuant to Sections 384, 824, 1301 (2)(g), 1301 (2)(I), 1806 (6)(j)and 1804 of the New York City Charter, and Section 5-358 of the Administrative Code, Public Hearings must be held to enable the Mayor’s Office to hear testimony regarding sales, dispositions, acquisitions, and leasing of Real Property of The City of New York.
The New York City Charter can be found here.
Section 384 (page 140): states:
“Disposal of property of the city. a. No real property of the
city may be sold, leased, exchanged or otherwise disposed of except with
the approval of the mayor and as may be provided by law unless such
power is expressly vested by law in another agency.
b. Except as otherwise specifically provided by law:
- The mayor may authorize the sale or lease only for the highest
marketable price or rental, at public auction or by sealed bids and
after advertisement for at least thirty days in the City Record, of any
real property belonging to the city or any interest therein. No such
sale or lease shall be authorized until a public hearing has been held
with respect to such sale or lease after the publication of notice in
the City Record at least thirty days in advance of such hearing.”
Section 824 (page 208): states:
“Real property. With respect to real property, the commissioner
shall have the following powers and duties:
(a) to purchase, lease, condemn or otherwise acquire real property for
the city, subject to the approval of the mayor, and to sell, lease,
exchange or otherwise dispose of real property of the city, subject to
the requirements of section three hundred eighty-four and subject to
review and approval either pursuant to section one hundred ninety-five,
if applicable, or pursuant to sections one hundred ninety-seven-c and
one hundred ninety-seven-d. No such purchase, lease, condemnation or
other acquisition shall be authorized until a public hearing has been
held with respect to such acquisition after the publishing of notice in
the City Record at least ten days but not more than thirty days in
advance of such hearing”
Section 1804. (page 288) states:
“Acquisitions of real property. No purchase, lease,
condemnation or other acquisition of real property by the department
shall be authorized until (1) a public hearing has been held with
respect to the acquisition after the publishing of notice in the City 10
Record at least thirty days in advance of such hearing .”
Posted by admin at 8:02 pm
Design Commission Doublespeak
Uncategorized No Responses »
We have recently received through Jon Torodash the following response from the Design Commission, by Executive Director Jackie Snyder:
Per standard procedure, the November 13th agenda was published three business days in advance of the public hearing. The agenda was also distributed to the community boards and the City Council.
Members of the public are always welcome to attend public hearings and testify. Written testimony is also accepted at any time. People are encouraged to submit their written testimony at least three days in advance, so staff, as a courtesy, can distribute it to Commissioners prior to the meeting.
If written testimony is received before a project is calendared, it is kept on file and circulated at the appropriate time. You can also contact the City agencies directly to ask when a project will be submitted. A directory of agency liaisons is available on the Design Commission Web site.
As we have already stated, there is publicly viewable digital evidence on nyc.gov that the Design Committee did not post 3 business days prior. In fact, they have been routinely altering the final version of the public hearing bulletin within 2 or even less than 1 business day of the meeting time for all of 2012 if not earlier. We will soon post a step by step guide on how you can inspect this for yourself. A fuller technical audit (we are looking into filing a request for information) may reveal that these last minute “edits” are in fact the first posting of these bulletins.
Secondly, the DCAS has already been contacted on this matter, as have city council members’ and other offices, and we are not aware of anyone receiving any indication about when this project was submitted.
We encourage you to contact the Design Commission and your councilperson to express your concern over this matter.
Posted by admin at 10:45 am
Triumph of Civic Virtue reportedly headed for Brooklyn
Uncategorized No Responses »
According to the NY Times, the Design Commission of New York will put the Triumph of Civic Virtue on “Long-term loan” to Green-Wood.
When it comes to public hearings The Design Commission says,
Members of the public are encouraged to arrive at least 45 minutes in advance of the estimated time; those who also plan to testify are encouraged to submit their testimony in writing at least three (3) business days in advance of the meeting date.
The Design Commission’s idea of a “public hearing”, is to post the final bulletin containing the items of the agenda usually just before the weekend (on a Thursday or Friday) preceding the Monday when the meeting actually takes place, so 3 business days do not even exist. triumphofcivicvirtue.org has uncovered the following patterns between meeting and posting date:
Design Commission Public Hearing Date Final Version Posted
Tuesday, November 13th Friday, November 9th
Monday, October 22nd Friday, October 19th
Monday, September 10th Friday, September 7th
Monday, August 6th Friday, August 3rd
Monday, July 16th Friday, July 13th
Monday, June 25th Tuesday, June 19th
Monday, June 4th Monday, June 4th
Monday, May 14th Friday, May 11th
Monday, April 23th Friday, April 20th
Monday, April 2nd Friday, March 30th
Monday, March 12th Friday, March 9th
Tuesday, February 21st Friday, February 17th
Monday, January 30th Friday, January 27th
Monday, January 9th Friday, January 6th
In light of the difficulties Queens has had in the wake of Hurricane Sandy, triumphofcivicvirtue.org thought it fair and decent to refrain from campaigning to those politicians and city agencies so that they could devote their energies to the ongoing cleanup.
The Design Commission’s “public hearings” however, exemplify a bureaucracy that disenfranchises the people of New York, a complete absence of civic virtue. triumphofcivicvirtue.org will be looking into whether there is any legal action that can be taken. For now, we recommend that you phone, write, fax, and e-mail to the following points of contact to protest this outrage:
253 Broadway, Fifth Floor
Commissioners of the Design Commission we suggest you contact:
Jackie Snyder, Executive Director – as liaison to city hall for the Design Commission, Ms. Snyder has a history of diverting blame away from the Design Commission’s activities. Let her know you are not satisfied with this response.
Keri Butler, Director of Art & Conservation – should be looking into why Civic Virtue has been allowed to decay for years despite outreach efforts.
Dr. Mahnaz Ispahani Bartos – is the New York Public Library representative. Dr. Bartos’ institution benefits from having MacMonnies’ works.
Otis Pratt Pearsall – “A lawyer and preservationist for more than 40 years,” according to the Design Commission’s website. Mr. Pearsall serves on the boards of the Brooklyn Museum, Green-Wood and the New York Preservation Archive Project. It would be a fine thing for him to speak out against poaching Queens’ art.
Ann G. Tenenbaum – Representative from the Metropolitan Museum of Art, another institution which benefits from having MacMonnies’ works.
Kandace V. Simmons – Mayor Bloomberg’s representative who serves as his representative on the Public Design Commission of the City of New York. Tell her to inform her boss that the people of Queens need mayoral intervention in this matter.