Mar 182013

It has been a while since our last update, and we have much to tell.

In addition to failing to reply to the initial request within the required time for FOIL compliance as reported in February, DCAS did not properly address the appeal, a failure which alone would expose the agency to legal action.

After declaring the 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 respond to the initial request and receiving an appeal, it must answer the appeal. The initial request and the appeal asked very clearly for all records of communications, 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 the attempt to relocate Triumph of Civic Virtue. DCAS did not provide this, or cite any justification for why they would be exempt to. That is a FOIL violation.

DCAS was informed 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, 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.

(emphasis ours)

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. 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 exposed and received implicit admission by the Design Commission itself, the notice on the night of November 9th was 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.

 Posted by at 3:54 am