L to E: The new Train Station RFP process should be a model of transparency
Tuesday, October 28, 2014
by Robin Murphy
Last month, the Town of New Castle released a new Request for Proposal (“RFP”) for the publicly-owned Chappaqua Train Station and the deadline for submissions was last week. This is the current Town Board’s second attempt to find a tenant for the Train Station and by issuing the RFP in advance of all public presentation, this time they have allowed a more appropriate window (weeks, instead of days) for the submission of proposals, certainly making the current process an improvement over the prior one. However, there is yet a lot to happen and I am concerned that the Town Board plans to keep the decision-making mostly confidential instead of being transparent and assuring that residents can be confident of the integrity of the process.
As the events in the spring showed, our community is very interested in the future of the train station as well as the manner in which our town government works. Although not everyone agrees on the best use for the space—some want food service, some believe a non-food service better fits the site, and others want the building to be left as-is—what seemed to unite the larger-than-expected number of residents who signed the petition that led to a do-over of the RFP process is the importance of knowing that our elected officials are acting in the Town’s best interests.
With the prior RFP, the written proposals were kept confidential until after the Town Board made their selection and the lease was signed. This time, while the identity of those the Board selects to make presentations will be known, the Town has not said it will identify those not selected nor will it disclose all written submissions.
Make all the RFPs public
Last week I submitted a request under the Freedom of Information Law (FOIL) seeking all current train station RFP submissions. While residents Peter and Erin Chase have already posted their proposal online—on a Facebook page, “Our Station, Our Town,” with a link to their proposal—I suggest that the Town take the initiative and show its commitment to transparency by immediately posting all proposals on the Town website.
In addition to these proposals, I’m hopeful that going forward the Town Board will hold relevant discussions on the Train Station space in public meetings rather than confidential executive sessions. Shared information will help ensure that the decision is fair and protects the common good.
For example, while the Board has decided that food service is still the goal for the station, the discussions leading to that decision were not part of any public meeting and, as a result, we do not know whether other types of use were considered, why food service is viewed as the best use of that space for the community, and whether the final decision for food service was unanimous or just a majority.
Transparency would also allow residents to hold our elected officials accountable for their actions. For example, when the train station lease was rescinded, it happened suddenly, with no public discussion. Instead, a prepared resolution was read around midnight at the June 24th Board meeting. Residents never learned exactly why the lease was rescinded other than a vague statement that it was not in the best interests of the community to spend money on a referendum. And although that may have been what motivated the rescission, we don’t know—we can’t know—because residents were never allowed to hear the discussions. There was also a concern that the Town Board seemed not to have been familiar with the Westchester County Health Code before selecting a food service tenant.
Had discussions been in public meetings, we would have an idea what went on and also might be able to determine whether taxpayer money was well spent. After all, the train station lease ended up costing taxpayers over $19,000 in legal fees alone. Although the Town Supervisor warned that the legal fees related to the permissive referendum would be expensive, it’s worth noting that those efforts didn’t start until Saturday, May 31st and most of the legal costs (around $17,000) were in April and May when lease negotiations were underway.
The State’s Open Meetings Law
While the public deserves to have our town government to do the right thing, our State government supports it as well. For example, the New York State’s Open Meeting Law (“OML”) requires that meetings of public bodies be open to the public unless there is a basis for entry into an executive session (i.e., “that portion of a meeting not open to the general public”).
One of the categories that may be discussed in executive session is “the proposed acquisition, sale or lease of real property…, but only when publicity would substantially affect the value thereof.” In other words, the Open Meetings Law requires discussions about the lease of the train station to be held at public meetings unless “publicity would substantially affect the value thereof.” That is apparently the Town’s main justification for confidentiality in terms of meetings about the train station RFP and lease.
I am not a lawyer, but the NY Committee on Open Government has made clear that this exception to the public meeting requirement is not automatic just because a town is considering a possible lease of public property. It must be decided on the facts of the specific situation. The connection between publicity and the value of the lease must be clearly established. While all those discussions have been in executive session, it is extremely hard to see how having public discussions on the RFP itself would have any impact, let alone a “substantial” one, on the value of the train station lease.
It is also a stretch to see how disclosing the written submissions, including the financial terms, would “substantially affect” the value of the lease. The RFP lays out a very flexible review process that covers a wide variety of factors and in bold-faced type says the Town has no obligation to accept the highest rent.
Considering that the Chases have disclosed the rent they are proposing in their new RFP, the rent cow seems to be out of the barn and, in any case, I, for one, cannot see why anyone wouldn’t favor full disclosure as a way of fostering competition and getting the best result for the community. In the FOIL letter I sent last week, I quoted from an advisory opinion by the Executive Director of the Committee on Open Government, who noted in another case that:
…in the RFP process, the figures offered by submitters are subject to negotiation and change; they do not reflect the “bottom line.” In view of the flexibility of the process, it is difficult to envision how disclosure of those figures would adversely affect an agency’s ability to engage in the best contractual arrangement on behalf of the taxpayers… If anything, disclosure might encourage submitters to better accommodate the needs of the agency or propose what might be characterized as a better deal. Rather than impairing the process, disclosure might enhance it.
As for the discussions involving the selection of a tenant for lease negotiations, those too should be public. Every step of the decision-making process on this important community asset is a matter of public concern—as has been made extremely clear. The community wants and deserves transparency and the law requires it.