Analysis: Port Authority works under its own set of rules March 16, 2014, 12:01 AM BY ABBOTT KOLOFF STAFF WRITER The Record Their bylaws allow spending millions of dollars of public money with just a quarter of their members voting. They almost always agree, but rarely say anything about their decisions in public. Even for people at their meetings, it’s sometimes impossible to know how they vote as individuals. The Port Authority’s commissioners are under increased scrutiny as their board’s chairman, David Samson, has been the subject of a growing number of reports that he voted for projects that benefited his law firm’s clients. Agency officials recently said he meant to recuse himself two years ago from a vote to give a $1-a-year lease to one of those clients, NJ Transit, even though he was recorded as voting for it. On Wednesday, sources have said, the Port Authority will put that lease up for another vote in an effort to quell controversies stirred when The Record reported on it last month. Samson, an appointee of Governor Christie’s and a significant figure in the George Washington Bridge lane-closure scandal, has not denied some of the other reported votes, including the authorization of $2.8 billion for two bridge projects that reportedly benefited two of his firm’s clients. But he has maintained that all of his actions on the board are for the benefit of the region and not for personal gain. The original NJ Transit lease vote cast doubt on the transparency of a bi-state agency that controls an $8.2 billion budget and wields immense authority over the region’s bridges, tunnels and airports. The Port Authority is not bound by New Jersey and New York laws regarding public meetings or records, existing in a bubble apart from those laws and raising questions about the commissioners’ accountability to the public, legal experts said. The agency said last month that the procedures for its meetings are based on the laws of the states it serves. But it also has some rules that appear to be unique among public agencies, including one that allows a special operations committee to make important decisions even when just three of the agency’s 12 commissioners are eligible to vote. “That’s too few people for a multibillion-dollar corporation,” Walter M. Luers, an attorney specializing in government and public records, said of the number of people required for a vote. “That’s not how public agencies are supposed to work. … The Port Authority pays lip service to the meetings act, but it doesn’t follow it at all.” In 2006, responding to criticism that it was too secretive, the board passed a resolution committing itself to “considering and voting on items presented to it individually” instead of voting for groups of items lumped together as part of a consent calendar. But more than seven years later, many of the items considered by the board, including the NJ Transit lease two years ago, are approved in a bunch without public discussion. History of consensus The Port Authority provided to The Record late last month two pages of answers to questions about the way it conducts business. An agency spokesman, Steve Coleman, said in an email that the 2006 resolution did not require “every item” to be considered individually. He pointed out that on Feb. 19 the board took individual votes on the budget and a 10-year capital improvement plan. Even during the board’s rare public votes, commissioners don’t cast votes individually, but simply give verbal approval as a group when asked for their votes. The individual votes are available to the public later in minutes posted on the agency’s website. Commissioners have a long history of consensus, creating an impression that they rubber-stamp decisions that have been made in private, experts say. In 2010, when a holdover New Jersey Democrat, David Steiner, cast the lone dissenting vote against a land purchase, it was notable because it broke a string of unanimous votes that went back years. “It definitely gives the impression that their decisions are being made prior to the beginning of the meeting,” said Judy Nadler, a government ethics consultant and former mayor of Santa Clara, Calif. “Where are those discussions?” Panel discussions Last year, Coleman said, 86 percent of the $5.2 billion in items authorized by the board were discussed in detail during committee meetings that are open to the public. “Each committee determines which items to come before the full board require discussion in detail among the commissioners,” he said. But it remains unclear how the full board reaches its decisions. Luers said “the real decisions” could be made in emails, phone calls and “discussions in hallways.” The Open Public Meetings Act prohibits government officials in New Jersey from making decisions in private, but Port Authority commissioners “do what they want to do,” Luers said. The lease vote provides an example of how problems can arise from the way the Port Authority conducts business. The agency’s general counsel, Darrell Buchbinder, said in a letter to Samson dated Feb. 19 that he determined that the chairman meant to recuse himself from voting on the NJ Transit lease at a meeting two years ago, Feb. 9, 2012. His evidence, according to a knowledgeable source, was a piece of paper with handwriting on it that was provided by Samson. The Port Authority has not provided details about that evidence. On the vote in question, minutes show Samson was among six commissioners to unanimously approve a 49-year, $1-a-year lease on a North Bergen park-and-ride lot. Previously, NJ Transit paid $900,000 a year for the same property. The vote came as NJ Transit was paying Samson’s firm, Wolff & Samson, up to $1.5 million for advice on an initiative to maximize profits on parking lots. Atypical quorums Buchbinder told Samson in the letter that minutes from the meeting would be altered to reflect his recusal. But simply removing Samson’s vote appeared to put NJ Transit’s lease in limbo because agency bylaws require at least six commissioners, three from each state, to be eligible to vote in order to have a quorum. That, the agency said two days after Buchbinder’s letter, would not be a problem because of a bylaw allowing a smaller Committee on Operations — which is considered to be meeting at the same time as the full board, according to the minutes — to take action when the board does not have a quorum. The Port Authority said Samson’s recusal triggered a 5-0 vote in favor of the lease by that committee, which needs just three commissioners, with at least one from each state, for a quorum. The agency has since decided to take another vote. Most public agencies define a quorum as consisting of at least a majority of their members, legal experts said. Several experts on government and ethics said they had never heard of anything like the Port Authority’s rule. “That’s wacky,” Nadler said. Members of the public attending meetings might not realize that the operations committee is voting instead of the regular board because it does not have a separate agenda, does not conduct a separate meeting and there is no indication which entity is voting. Two years ago, Samson and other board members apparently didn’t realize the committee was voting on the NJ Transit lease because they later approved minutes that showed the vote was taken by the regular board. Who’s taking action? “That’s problematic if you don’t know which body is taking action even if you are sitting there,” said William Bailey, a Westwood attorney specializing in government. On Feb. 19, the Port Authority’s regular agenda included consideration of authorizing additional money for Superstorm Sandy repairs at the World Trade Center site. It made no mention of the operations committee. But that committee, according to its minutes, voted 3-0 to spend an additional $19 million toward the repairs. The minutes say nothing about why seven other commissioners in attendance, including Samson, did not vote on the matter. The bylaws creating the committee only add to the confusion. Coleman, the Port Authority spokesman, said recusals are not recorded during the operations committee meeting because only commissioners eligible to vote are part of the committee. However, the purpose of the meeting is to take action when the board lacks a quorum because of “prospective recusals,” according to the agency’s bylaws. Recusals in public The controversy over the NJ Transit lease vote also highlights potential problems with the way commissioners cite conflicts. Until the rules were changed late last year, commissioners were not required to publicly recuse themselves from voting. Even now, commissioners are not required to publicly explain conflicts or to leave the dais as the items in question are considered. Samson recused himself on Feb. 19 from voting on the agency’s budget and a capital-improvement plan but never gave a reason and never left his seat. New Jersey State Ethics Commission rules require state legislators and members of state agencies to explain their recusals and to leave the room while the matter in question is discussed. While those rules don’t apply to local governments, Ed Purcell, a League of Municipalities staff attorney, said he advises officials to leave the room to avoid appearing to be part of the decision-making process. Bailey said explaining recusals is “good practice” because it allows the public to know more about “who is voting and why.” Jameson Doig, a Dartmouth professor who has written books about the Port Authority, said the lack of clarity about recusals underscores a “broader issue” of commissioners potentially influencing other board members even when they don’t vote themselves. “Recusal is a pretense; it doesn’t really reflect what’s going on,” Doig said. Several Samson votes Last year, Samson publicly praised a board vote to take over the Atlantic City Airport even after recusing himself because Wolff & Samson represented the South Jersey Transportation Authority, which operated the airport and stood to benefit. The Record has reported that Samson voted two years ago for a $256 million reconstruction of the run-down PATH station in Harrison three months after a builder represented by his firm proposed converting a nearby warehouse to luxury apartments. The New York Times recently reported that Samson voted in April to approve two bridge projects that will cost a total of $2.8 billion. One of his firm’s clients is part of a group selected to raise the Bayonne Bridge and another client is partially owned by one of the contractors hired to replace and maintain the Goethals Bridge, the report said. Samson’s firm also is at the center of allegations made by Hoboken Mayor Dawn Zimmer that the Christie administration threatened to withhold Superstorm Sandy recovery money unless she backed a real-estate development that was represented at the time by Wolff & Samson. The developer, The Rockefeller Group, has since cut ties with the firm. Email: koloff@northjersey
Posted on: Sun, 16 Mar 2014 12:24:59 +0000
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