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Sander Ouster Protested,
Did Vito Lopez Threaten
Him to Aid Son-in-Law?



By Henry J. Stern
May 12, 2009

Last Thursday (May 7) we wrote on the plight of the MTA, discussing the merits of Elliot (Lee) Sander, the agency’s CEO since Governor Spitzer appointed him in January 2007. Our opinion was essentially positive. Sander is honest, competent and innovative, but we felt it might be possible for Governor Paterson to find a stronger executive who would have more influence with the agency's funders.

Late that afternoon, as we were about to e-mail the article to our readers, we received an MTA press release telling us that Paterson had “accepted Sander’s resignation.” The effective date was May 22, which gave the departing CEO two weeks to clear out of the office.

This early deadline for departure, "two weeks notice" is usually given to an employee who is being dismissed, or where a successor has been selected and is ready to start. That is not the case here; anyone nominated for the position by the governor must be confirmed by the State Senate, a process which usually takes some time. Senate Majority Leader Malcolm Smith has already expressed strong objections to Marc Shaw, a former MTA chief and a potential nominee.

Under the Public Officers Law, members of boards and commissions continue to serve until their successors qualify for office, unless they resign or are dismissed by the governor. In this case, Governor Paterson announced that he had accepted Sander’s previously tendered resignation. We'd like to see Sander's letter of resignation. It should not require a Freedom of Information Law (FOIL) lawsuit to get it.

Today, the dismissal of Sander looks much worse than it did when it was announced five days ago. First, Paterson has not expressed any appreciation for Sander or for his two and a half years of service, a practice which is customary unless the appointee is departing in disgrace. Then the governor told reporters he wanted to “clean up and clean out” the agency. “The one thing I’ve learned in this process is that the public doesn’t trust anything the MTA says.”

This expression of gubernatorial displeasure brings to mind his remarks on January 22, when he trashed Caroline Kennedy, who had been a candidate for Hillary Clinton's Senate seat, with false and gratuitous allegations of misconduct on taxes and nannies, and then denied to the press what he had done the day before. Whatever the merits of Senator Kirsten Gillibrand, there was absolutely no reason for Paterson to denigrate a woman who had never harmed anyone and was regarded by many as a national treasure. This was one of a series of errors which seriously damaged Paterson's poll ratings. Last week a majority of voters said they would prefer the disgraced former Governor Spitzer to Paterson, who was chosen by Spitzer as his legacy to the people of the State of New York.

ENTER VITO LOPEZ, TALENT SCOUT FOR THE MTA

Sunday’s News carried an important article by Pete Donohue, the newspaper’s resident transit expert. The headline ran on page one: POWER TRIP: Pol Tried to Bully MTA Chief Into Kin’s Promotion: Sources. The headline on page five was SANDER TANGLED WITH POWER POL. The lede follows:

"An Assemblyman tried to bully the MTA into giving his son-in-law a promotion – creating a wall of tension between Elliot (Lee) Sander and one of the state’s most powerful lawmakers, sources told the Daily News.

"Assemblyman Vito Lopez, the Brooklyn Democratic Party chairman, told Metropolitan Transportation Authority honcho Sander that he wanted Keith Summa, an engineer with the agency, to get a higher-paying gig. When Sander refused, Lopez flew into a rage, two sources familiar with the exchange told the News.

"Sander declined to comment, and Lopez on Monday denied ever demanding the promotion. 'The conversation never happened, Lopez said.'”

We have some observations on what is likely to have happened between the two men. First, Lopez’ use of that particular phrase to deny that the encounter occurred is not unusual. Our Rule 29-C is:: “This conversation never happened.” That locution is employed when two people have spoken about a sensitive or controversial matter, and they agree to keep the meeting to themselves, usually because disclosure to a third party would be embarrassing to one or both of them.

Rule 29-C implies the agreement of both parties to confidentiality. It cannot be invoked unilaterally by one party when either offers a bribe, or threatens or attempts to intimidate the other. The offer of a bribe is itself a crime, whether or not it is accepted by the other party.

In this case, the probability is overwhelming that the Lopez-Sander confrontation occurred in some form. Lopez has a history of intervening with government agencies on behalf of his friends and relatives. Lopez’ daughter, Gina Marie Lopez-Summa, was appointed to the State Court of Claims by Governor Pataki in 2006, in appreciation for her father’s endorsements of the Republican governor for re-election. None of this is criminal behavior. It is covered by Rule 20-O, “One hand washes the other.”

Another beneficiary of Lopez’ influence is Jack Battaglia, the brother of Angela Battaglia, who is widely reported to be well acquainted with Assemblyman Lopez. Jack Battaglia was selected at a convention of the Brooklyn Democratic Party to become a Justice of the Supreme Court of the State of New York, a position he now holds. This history has been chronicled by Gary Tilzer, a political reformer turned journalist, who blogs on his site, True News.

The reputed choice by Governor Paterson of Marc Shaw as Sander's successor has also run into strong objections.. In Monday’s Post, Fred Dicker, the state editor, reports on p2 under the headline, DEMS SET TO NIX GOV’S MTA PICK. Dicker’s lede:

“Gov. Paterson’s likely nominee to head the newly reconstituted Metropolitan Transportation Authority will be rejected by the Democratic-controlled Senate, a senior official has told the Post.

"Former MTA executive director Marc Shaw’s “nomination is considered laughable by the Democratic conference. That’s the kind of distrust they have for this guy,” the Senate official said:

“Senate Democrats claim Shaw repeatedly sought to undermine efforts by Senate Majority Leader Malcolm Smith (D-Queens) to mandate more disclosure from the often secretive MTA, including a requirement that an outside “forensic” audit of the authority’s finances be conducted.

“We had an agreement with the governor that an audit would be required.

“It was in the final language of the legislation, but when it got to Bill Drafting, the word ‘shall’ for the audit was changed to ‘may,’ and we responded, ‘That’s not going to happen,’ the official said.

“Shaw tried to play hardball with us, secretly changing the language and Malcolm was very smart about it, said it wasn’t going to happen.”

The story is covered in the News by Elizabeth Benjamin on p11, who quotes a Senate source: “It’s not going to happen; he is DOA right now.” BTW, DOA is one acronym that does not derive from the Internet. If any of you don’t recognize it, e-mail me and we will advise you. Or you could Google it.

The best part of her story is the last paragraph, which is an illustration of the consummate hypocrisy of political statements. It reads:

“Asked if Bloomberg is lobbying behind the scenes for Shaw, Bloomberg spokesman Stu Loeser said: ‘He thinks Marc Shaw is phenomenally capable, but this is entirely the governor’s decision and we look forward to working with whomever he chooses’.”

If Bloomberg thought Shaw was “phenomenally capable”, why was Shaw, who had the title of First Deputy Mayor, the only deputy mayor out of seven who was not signed on for the mayor's second term. He probably earned more at Extell, the real estate developer, but the city did pay him $194,999, which was $194,998 more than Mayor Bloomberg accepted, and only $1 less than the mayor's budget lines.

Now Patti Harris is first deputy mayor, and Edward Skyler is in charge of operations for most agencies. They have both done well at their jobs, and are a credit to the mayor..

The scapegoating of Sander is put into perspective by Nicole Gelinas in a column on p21 of Monday’s Post. The headline: PATERSON’S FALL GUY. The Gov’s False MRA Cleanup.

“Fresh from the Metropolitan Transportation Authority bailout, Gov. Paterson said last Thursday that ‘the public doesn’t trust anything the MTA says.’

“True. But that’s how Albany likes it. And, sickeningly, Paterson’s efforts to ‘clean up’ the MTA may ensure that things stay that way.

“In his faux cleanup, Paterson threw MTA CEO Elliot Sander under the bus. Paterson spun the story, making it seem like getting rid of Sander was like getting rid of the pre-bailout head of AIG. But Sander – who leaves his post in less than two weeks – wasn’t the problem.

“No, he wasn’t perfect. He didn’t speak out about the unionized labor costs that are killing the authority. But he’s a competent, seeming honest manager who made a best-faith effort to turn around the unwieldy authority."

Gelinas’ column goes on to criticize both governors under whom Sander served. “It would be one thing if Paterson just wanted to bring his own person in to execute a different good-faith straegy or even to do what Paterson thinks could be a better job. But if Paterson thinks that Sander is such a problem that he has to leave right away, it shows that Paterson hasn’t assessed the situation properly. And if he’s just pretending to think so, it’s worse.

“Paterson has made it difficult, if not impossible, to get a qualified person to head the MTA, even if he wanted one. In the perverse world of Albany, taking the job under the conditions that Paterson has helped create would identify the candidate as a hack, dumb or crazy."

Gelinas speculates over why Paterson fired Sander. One theory she offers is “The pols may want someone more willing to use financial shenanigans to push the MTA’s problems into the future. In the past, under Marc Shaw, now a Paterson adviser, who last week was thought to be a contender for Sander’s job, the MTA piled on billions of dollars in debt to give the pols a free ride.”

The controversy escalated today with a p2 story in the Daily News: MTA BIG EYES VITO; Agency Watchdog to Probe the News Report on Lopez’s ‘Bullying’ of Sander.

Pete Donohue tells the story. His lede:

“MTA Inspector General Barry Kluger will probe allegations that powerful Brooklyn Assemblyman Vito Lopez tried to bully the top transit executive into promoting a relative.

“Lopez unsuccessfully demanded Metropolitan Transportation Authority CEO Elliot Sander promote son-in-law Keith Summa to a higher-paying post in the authority’s bus and subway division, the Daily News reported Sunday.

“One source accused Lopez of using ‘extremely threatening language’ when Sander refused to promote Summa, an engineer, in 2007.

“Lopez threatened to derail Sander’s career and do unspecified harm to the authority, that source said. ‘We are looking into the allegations,’ Kluger said.”

We have had our differences with Sander, and we have not hesitated to point them out. He continued capital projects which we think are wasteful, but they were well under way when he came on the scene. Nonetheless, he was well above the norm of transit managers, knowledgeable, honest and devoted to the transit system. His resistance to political bosses seeking patronage will always be to his credit. As a former commissioner, I am well aware of attempts by politicians to foist their unqualified followers on agency heads, sometimes without the mayor’s knowledge.

The Kluger investigation may turn out to be a sham, or it could be genuine. One test of its integrity, and consequently its credibility, will be whether it holds public hearings, and summonses Lopez, Sander and other people aware of the story to testify under penalty of perjury.

The Lopez investigation will be a test for the MTA Inspector General. Will Kluger, now largely unknown to the public, turn out to be a truth seeker, or will he choose, by neglect, misjudgment or failure to act, to be part of the scandal. We hope he conducts himself wisely and honorably. We were, however, disillusioned by the botched Spitzer investigations over Troopergate two years ago, first clearing him and then accusing him when the tide turned. Kluger was appointed by Spitzer, but played no part in the bungled investigations. His slate is clean, and let us hope it remains so.



StarQuest

#556 05.12.2009 2066 wds