Thoughts and Opinions On Today's Important Issues

Tuesday, January 26, 2010

So You Want a Public Bridge (Part 2,498)

You may finally agree to dump the concept after this.

Poor Matty Moroun. He has been given a bum rap. All those nasty thing said about him being secretive and ignoring governments. Attacks on him for how he is handling the "heritage homes" issue in the West End of Windsor. I am sure that you will agree with me after you read this BLOG that he has been treated unfairly in comparison with what others say and do.

Pshaw, he is an amateur at this game. Where are the Lessenberrys and Masses of the world and the Sandwich westender types on our side of the border burying Public Authorities, not praising them.

Imagine, Matty is playing by the rules on the homes issue in Windsor and going through the legal system. Have you ever heard him say something like this:
  • "When Farhi speaks, [London] city hall listens, as was the case 10 weeks ago, when he told politicians to step up with plans for parking or he'd raze or let rot some heritage properties.

    "Literally, I can knock down 20 buildings tomorrow," he said then."

Remember all of the abuse he took over the Bridge inspection report. SECRECY. I am still waiting for the Detroit/Windsor Tunnel one and no one seems upset, even Congressman Dingell who was so concerned about the safety of border crossing users.

Take a look at this story about Public Bridge Authority in Niagara Falls if you want to know what secrecy means:

  • "Bridge commission salaries at issue
    Judge weighs suit asking for details

    On July 21, 2008, Thomas E. Garlock abruptly and mysteriously left his job as executive director of the Niagara Falls Bridge Commission.

    Since then, commission officials have refused to reveal why Garlock left, what kind of severance package he received or what his salary was when he was working.

    Friday, attorneys for the commission asked U. S. District Judge Richard J. Arcara to protect their right to keep that information secret.

    The issue touched off heated legal argument — including tough questions raised by the judge.

    If the salaries for federal judges— $174,000 — and other government officials are public record, Arcara said, why are the salaries of bridge commission employees kept secret?

    “What’s the big secret?” Arcara asked. “Who can get the information? . . . I’ve never heard of a government agency that isn’t accountable to anybody.”

    But the bridge commission is not a government agency, does not receive any funding from taxes and is not subject to Freedom of Information laws, argued two attorneys for the commission, Kevin M. Kearney and Adam W. Perry.

    “[The commission] is a federal international transportation undertaking,” Kearney told the judge. “Not a public authority.”

    The opposite viewpoint was argued by attorneys Charles E. Graney and Nelson Perel, who say the commission is a public agency supported by bridge tolls paid by taxpayers.

    “This is a public commission. They should operate in transparency,” Graney said.

    Arcara made no decision on the dispute Friday and is expected to issue a written decision sometime within the next month.

    The bridge commission — a body made up of four Canadians and four Americans — operates three of the region’s international bridges, the Lewiston-Queenston Bridge, the Rainbow Bridge and the Whirlpool Bridge.

    Congress created the commission with a resolution filed in 1938.

    Two Niagara County legislators, Danny W. Sklarski and John D. Ceretto, filed a state lawsuit last year, trying to force the bridge commission to make the information public. They are supported by other county legislators and by State Sen. George D. Maziarz, R-Newfane, and B. Thomas Golisano, the billionaire owner of the Buffalo Sabres.

    Since the public pays bridge tolls, Graney said, there is a legitimate public interest in finding out what kind of salaries bridge commission employees are making and also whether Garlock received “lucrative” severance pay and benefits.

    Garlock, 57, of Lockport, was not in court Friday and could not be reached to comment. He has never publicly disclosed his reasons for leaving the commission.

    The lawsuit was recently moved from the state courts to federal court. Arcara must first decide whether his court is the proper jurisdiction for the lawsuit before then deciding whether the bridge commission is subject to Freedom of Information laws.

    In 2003, Robert J. Freeman, executive director of the State Committee on Open Government, issued an opinion that the bridge commission is subject to state Freedom of Information laws, but the commission’s attorneys say Freeman’s opinion is “incorrect.”

    “I don’t understand the secrecy of all this. I’m befuddled by that,” Arcara said. “It would be a lot easier to turn over the information than to go through what we’re going through today.”

    Because half of the commission’s members are Canadians, the commission maintains that it must observe Canadian laws, which bar the public from finding out the salaries of many public officials.

    Four of the commissioners are appointed by the governor of New York, and the other four are appointed by the premier of Ontario.

    Releasing the requested information about Garlock would be “violating principles of Canadian law,” said Norma Higgs, chairwoman of the commission, in a statement issued late Friday afternoon.

    Although the commission says it is not subject to Freedom of Information laws, it does put out an annual report that includes some information.

    According to its annual report issued at the end of 2008, the commission had $33.6 million in income for the year and $28.6 million in expenses. That included more than $6 million in administrative expenses."

What is in the air in that region. Remember that the Peace Bridge has argued that they are an "international compact entity" so that many laws do not apply to them. [BLOG: "Masse's Border Authority"] ].

A Court in the US seems to agree with them respecting the argument re the Buffalo Infrastructure Improvement Project:

  • "The New York State legislature authorized and empowered the Public Bridge Authority to enter into a compact with Canada with respect to the bridge crossing between New York and Canada. Laws of New York, Chapter 824 § 2 (1933). As required by the United States Constitution, Congress granted its consent to permit the State of New York to enter into the compact with Canada for the establishment of the Public Bridge Authority. House Joint Resolution 315, 73rd Congress, May 3, 1934.

    Thus, the Public Bridge Authority is “the product of a compact between New York and Canada, approved by Congress...”

    What Effect Does an Interstate/International Compact have upon a State Agency?

    An “interstate compact, by its very nature, shifts a part of a state’s authority to another state or states, or to the agency the several states jointly created to run the compact.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 42 (1994). The resulting entities “are to be regarded not as extensions of each compacting state’s authority, but rather as independently functioning parts of a regional polity . . ..”

    “In all circumstances, the compact governs the internal operations of the compact entity...” The Court’s “role in interpreting the Compact is, therefore, to effectuate the clear intent of both sovereign states, not to rewrite their agreement or order relief inconsistent with its express terms.”

    Neither state may unilaterally regulate the internal operations of a compact entity. eg New York cannot enforce its human rights laws and New Jersey cannot enforce its “Barrierfree Statute” requiring access for individuals with disabilities upon the Port Authority of New York and New Jersey. Nor could New York impose its anti-discrimination statute regarding employment for former inmates upon the Waterfront Commission of New York Harbor, an interstate compact between New York and New Jersey. Similarly, New York cannot impose its Labor Law upon the Port of New York Authority...

    However, compact entities remain subject to regulation by the compacting states when their actions affect the health or welfare of the citizens of the state...

    internal operations of the Authority – unlike its external conduct which is subject to each of the Compact State’s health and safety laws – are independent from the unilateral control of either State without the other’s concurrence...

    Is the BIIP subject to SEQRA or the City of Buffalo’s Site Plan Review Process?

    As set forth in the enabling legislation, the Public Bridge Authority has the power to “maintain, reconstruct, repair and replace and operate any properties acquired by it, and pay for the same out of any funds collected by it in the operation of properties acquired by it...”

    As the undisputed facts demonstrate that the BIIP involved internal infrastructure improvements and relocation of existing infrastructure, neither New York nor the City of Buffalo can impose their environmental regulations upon the Public Bridge Authority. To hold otherwise would usurp the authority granted to the compact.

    Is the Public Bridge Authority subject to New York’s FOIL and Open Meetings Law?

    The enabling legislation for the Public Bridge Authority authorizes the board to “adopt such by-laws, rules and regulations for the calling and conduct of its meetings and the management of its affairs as it may deem necessary or proper, not inconsistent with the provisions of this act.”

    This legislation expresses no intent that the Public Bridge Authority would be subject to New York’s subsequently enacted FOIL or Open Meetings Law. Moreover, it is obvious that New York’s FOIL and Open Meetings Law would affect the internal operations of the Public Bridge Authority. As a result, New York’s FOIL and Open Meetings Law are not applicable to the Public Bridge Authority."

Want to know about self-confidence. As the Buffalo News reported:

  • "Three residents who live on the West Side near the Peace Bridge filed a lawsuit in May 2004 seeking to stop the changes. The residents called the changes improper because they were not considered as part of the bridge expansion project. They said that violates a 2000 order by State Supreme Court Justice Eugene M. Fahey that work on the plaza could not be studied separately from a bridge expansion.

  • The authority proceeded with the project even with the pending litigation."

Jack, Brian, do you see what I mean. Matty is a pussycat compared with that developer and those Public Authorities. They are really tough aren't they.

It's time you reconsidered your position on supporting a public entity running our border crossing don't you think. Imagine if Matty learned from them!