Wednesday, August 31, 2011

Held to a Higher Standard............. (of Proof)

As noted in a recent post, City Council is due to consider a community drafted police accountability bill. It seeks to document various types of searches and requires more data collection. This is then to be reported in the Police Bureau’s annual report.

This bill has run into a surprising amount of opposition from the FOP and Ravenstahl’s office. Indeed this opposition has been of the worst sort. A refusal to meet with community activists and a closed-door council session to discuss the matter has meant that there has been almost no public argument made by the administration or the police which states why they oppose the bill.

Against this background, expect those who oppose these measures to point to the recent charges filed against Officer Garrett Brown –“one of the baddest of the bad apples” – as evidence that further efforts toward police accountability are not needed. 

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In fact, the case of Garrett Brown, and other officers charged with serious crimes, reveals an urgent need for further police accountability measures.

An analysis of cases going back almost five years reveals that, despite the most egregious conduct, and despite many cases involving a history of ongoing criminal behavior, our District Attorney’s office has failed to secure any felony conviction of a Pittsburgh Police Officer in a misconduct case! And, further, no city officer has even served so much as a day in jail for any criminal conduct! In fact, only two cases presented in the last five years have any police official serving any jail time at all. But those cases came on the heels of successful federal prosecutions, and they didn’t concern city police.

This points to some rather serious flaws in the way that oversight is conducted. But those flaws don’t just affect the Police Bureau.  The District Attorney’s office and the courts also seem to play a role in ensuring that officers evade sanction for criminal conduct.

Before we delve more deeply into the case of Officer Garrett Brown, let us review the handful of recent cases where criminal charges were filed. What is most notable about many of these is the extensive history of misconduct on the part of the accused officers. In many cases, by the time charges are filed, an officer has already been the subject of repeated investigations and exonerations into misconduct of exactly the same kind as that which forms the basis of the criminal charges. We also see less than aggressive attempts at prosecution. The DA simply doesn’t fight very hard in these cases to ensure felony convictions or jail time.

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Let us begin back with the case of Detective Bradley Walker. In 2010 Detective Walker was convicted of a road rage incident. During this altercation Mr. Walker, allegedly, kicked and punched the side of car that he had been involved in a minor accident with. He then pulled his gun on that motorist and pointed it at him before smashing the man’s window to choke him.

Surprisingly, Mr. Walker was not convicted of any felony charges. The judge, Anthony M. Mariani, threw out aggravated assault charges and only sentenced Mr. Walker to probation for the incident. He did however lose his job with the Police Bureau.

Was there any indication in Mr. Walker’s past that he might be too violent and aggressive for police work?


 In 1999 Mr. Walker was the subject of a complaint which alleges that,

Further, in 2007 he entered into a plea bargain on a domestic violence charge. He allegedly punched his wife and choked his son. The District Attorney’s office let this man walk and allowed him to keep his job by offering to withdraw the domestic violence charge if Mr. Walker completed a course in anger management. Those actions kept Mr. Walker on the police force for another 3 years.

That same year he was also internally disciplined for assaulting another officer who accidently shocked Mr. Walker with his Taser.

This man’s history reveals a troubling amount of rage and an inability to control violent impulses. It is no surprise that this behavior culminated in an incident of road rage and choking – precisely those behaviors that had already been well-documented. However, the DA’s office seems to prefer to let someone with these tendencies evade felony charges. In fact, our DA didn't file charges against him, the State did. And even they failed to make the felony charges stick. Mr. Walker has not served a single day in jail for any of these incidents since Judge Mariani decided that 4 years probation was sufficient punishment for this conduct.

But Walker’s case is no anomaly.

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Lets next examine the cases of Patrick Moffat and Joseph Simunovich. These two got into an altercation with police from Brookline during a Toby Keith concert. (Yes, that Toby Keith concert.) They allegedly disparaged the Brookline Police Force and told officers working that concert that they didn’t have to respect their authority. When a scuffle broke out, Moffat and Simunovich were arrested, as was Moffatt’s sister who tried to take the service weapon of one of the Brookline officers.

Despite the felony charges being filed at the time, both Detectives were released on their own recognizance. If convicted they faced the possibility of losing their jobs.

But, of course, those charges never materialized and the now demoted officers were allowed to plead guilty to disorderly conduct, pay less than $500 in fines, and retain their jobs as Pittsburgh Police Detectives.  In one final twist, all parties agreed to sign confidentiality agreements which effectively prohibit anyone involved in the case from speaking about it. I guess the DA’s office thinks that the justice it dishes out doesn’t need to be subject to public scrutiny.

The fact that one of them was the son of Allegheny County Police Superintendent Charles Moffatt had nothing to do with this, I am sure.

To be fair, Moffat and Simunovich’s case is one of the least egregious. Neither Detective seemed to have a history of this sort of thing and neither have made headlines since.

Still those two appear to be part of a pattern of soft-ball prosecution.

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Consider the, now well-known, case of Eugne Hlavac. In 2009 Sgt. Hlavac became the test case for the Bureau’s new zero-tolerance policy on domestic violence. But this is his second involvement with the policy. His promotion in 2007, despite two previous domestic violence incidents, also made him the inspiration for the Bureau’s zero-tolerance policy.

This case garnered so much attention in the past that little needs to be added here. In 2007, after police had been called to Mr. Hlavac’s residence for a domestic dispute, Hlavac’s supervisor recommended that he undergo anger management and have limited contact with the public. The recommendation that he be removed from contact with the public was ignored and three months later he was promoted to Sergeant – prompting an outcry from women’s groups.

Three of the other officers involved in that round of promotions also had domestic violence issues in their past and the subsequent complaints lead to the formation of the Bureau’s zero-tolerance policy. 

In 2009, Hlavac was charged with felony domestic-violence for dislocating his ex-girlfriend’s jaw – a woman 20 years his junior. However, Judge Nathan Firestone reduced those charges to a misdemeanor. And he was later found not-guilty.

It is also worth noting that the CPRB thought that a complaint filed in 2006, which charged Hlavac with endangering public safety by driving his car through a group of free-ride bicyclists, contained enough credibility that he should be disciplined.

Again, many serious complaints alleging criminal conduct result in no jail time and no felony convictions.

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To see further evidence of this pattern of easy-going judges and soft-ball prosecutions look not further than the cases of Officers Anthony Scarpine and Ken Simon.

Simon, it is alleged, lied in his police report to support the arrest of two suspects on drug charges. He claimed to see the two meet and pass drugs between them. However, video tape of the incident doesn’t support that. Neither of the suspects has any contact with each other and indeed arrived at the location 25mins apart.

Scarpine already had a complaint upheld against him for a previous false arrest. In that incident he claims to have seen a suspect assault a witness in a trial. However, video evidence contradicted his claims and revealed that he wasn’t even present to witness the event.

But, despite the fact that both officers were charged with felonies,and despite Scarpine's history of being contradicted by videotape, Judge James Hanley threw out the charges against him. Further, even though Simon was also alleged to have stolen money from one of the suspects arrested, he had his charges reduced to misdemeanors

No verdict has been made in this case yet. But even if the prosecution wins on all counts, there will be no felony conviction and, judging from similar cases, there will be no jail time either. 

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Then, there is the case of Paul Abel. This one has garnered a huge amount of attention and scrutiny. Some allege that the prosecution performed deliberately shoddy work so that this officer could escape punishment.
Paul Abel was drunk and off-duty celebrating his wife’s birthday on the Southside. While driving home, he was punched through his open car window by one of two assailants who then ran off into the night.

Abel, then decided to go looking for them. He found a man, who witnesses say was not wearing the same clothes as his attacker, and proceeded to assault ‘make an arrest’ – though, how a drunken take-down of an innocent man by someone who fails to identify himself as a police officer qualifies as an ‘arrest’, I will never know.

In the course of this ‘arrest’ Abel pistol-whipped the innocent man and then accidently discharged his firearm striking him in the hand.  (Just so we are clear, even Chief Harper calls the victim 'innocent'.) When real uniformed police officers arrived on the scene, they took Abel back to the station. They then waited over three hours to administer an alcohol test. PA law stipulates that, unless the prosecution presents reason that it should not be, a test may be discarded after a delay of two-hours. This move virtually ensured that Abel would beat the drunk driving charge. His BAL was .111 even many hours after the incident.

So did the prosecution give reason to use the evidence from the delayed alcohol test? It seems not. Critics of the prosecution’s efforts claim that they offered no challenge to seeing the drunk driving charge thrown out. This would have been the easiest charge to prove since witnesses saw him driving and the BAL was so far over the legal limit. If these critics are right, it was lax prosecution that allowed the evasion of this charge.

They also allege that the prosecution failed to demonstrate how difficult it is to accidently discharge a Glock pistol. They argue that the multiple safety features of this weapon make it likely that the only way it could have accidentally discharged was through reckless conduct.

He has a long history of overly aggressive and plain criminal conduct.  His own wife alleges that he pressured her to make false claims against her children’s grand-parents. She claims that Abel wanted her to report that the grandparents sexually abused the children to thwart a custody request.  

Abel is further alleged to have started a fist-fight inside the County Courthouse, bragged about ‘knocking the shit out of people’ on his myspace page and generally being an aggressive and out-of-control menace. But, he still wears the uniform of a Pittsburgh Police Officer.

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It is also useful to recall the case of Talib Ghafoor. This former Pittsburgh Police officer was recently charged with running a prostitution ring. However, before that, he was caught committing perjury. Indeed, the evidence that he perjured himself came from recordings made at the jail which contradicted his claim, under oath, that he did not have contact with two defendants in a murder trial. Ghafoor resigned from the Pittsburgh Police under a cloud of suspicion. That seems to have been enough for our DA since he then failed to file perjury charges, despite evidence solid enough to force the resignation.

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So now we have felony charges filed against Officer Garrett Brown. Officer Brown, you may recall, was the off-duty officer who forced a truck driver off to the side of the road in the wee hours of the morning last year and twisted his arm while throwing him against the vehicle. When uniformed police arrived they allowed the motorist to leave and he subsequently sued the City of Pittsburgh and received a 150K settlement for his efforts. That case seems to have been ignored both by OMI and the DA’s office.

However, later that year Officer Brown seems to have suffered another incident of road rage. The City Paper reports that he deliberately backed his car into a delivery truck that had cut him off earlier and then exited his vehicle and challenged the delivery driver and his passenger to a fight. When they refused to exit their vehicle and called 911 to report the incident, Brown continued to follow them and had uniformed police officers charge them with hit and run when they stopped to make the next delivery. Brown, of course, denies all criminal conduct and claims he was struck by the delivery vehicle.

Officer Brown faces felony charges for insurance fraud and theft by deception.

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In all of the research I did spanning the last five years I could only locate one case of misconduct that was successfully prosecuted and resulted in jail time. A federal investigation into Chief Frank Diener of the West Mifflin Police Department revealed that he stole government property, built an unaccountable slush fund, and was in possession, with intent to distribute, of both cocaine and marijuana that had been stolen from the evidence room. The DA’s conviction, in that case, came after both federal and state prosecutions and didn’t result in any increase in jail time. In fact, for all of these crimes the former chief was only sentenced to a year and a day.

As part of that investigation into misconduct at the West Mifflin PD, it was revealed that Officer Missig assaulted a juvenile suspect and lied to obtain a search warrant. This case was sucessfuly prosecuted and resulted in jail time. However, Missig was only sentenced to 6-12 months for these offenses, and he served only 3.

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This much should be obvious, but it bears repeating. A practice of treating police with kid gloves is incredibly corrosive to the public trust. Indeed, it should be recognized that almost every case of police misconduct is a violation of someone’s constitutional rights. If an officer lies to get a search warrant, the fourth amendment is violated. An unjustified use of force violates one’s right to suffer no punishment without due process of law. This country, for reasons I can’t really fathom, has chosen to build one of the most extensive and dehumanizing systems of incarceration that the world has ever seen. Let us remind ourselves that our country incarcerates more people per capita than any other country ever has. We lock up a greater percentage of our population than the Soviets did during the gulag and they had the whole of Siberia to send people to.

For this system of incarceration to be a system of justice, it must work impartially. And the evidence presented here makes it look exceptionally partial. Indeed, I would wager that if those who administer this system were subject to its full force, it wouldn’t be able to continue. Too many powerful and compelling voices would speak out against it and highlight its unfairness and draconian consequences.

Also troubling is the fact that this problem is just not the sort of thing that the legislation currently being considered is designed to combat. Too often efforts at police accountability are split along race lines. But the issues are linked. Those who allow conduct to slide because it happens in minority communities help build a culture that refuses to take rights and the law seriously. 

But, legislation and citizen action can address this problem. Pittsburgh needs a more transparent and proactive system for investigating and disciplining officers. There are some very minor changes that could be made today that would go a long way toward achieving this.

First, make the Bureau’s Police Policy Manual public. Our police have resisted doing this for years citing concerns about officer safety. Indeed, they won’t even share this document with City Council which is why the recent session debating Bill 234 had to be closed to the public. This is ridiculous. There is already a precedent for making this information public. Denver, Minneapolis, Seattle and Cincinnati among others make these documents available. They recognize, as Pittsburgh has not, that one cannot exercise civilian control over a police force if the public is unable to see the policies that are in place. This wouldn’t even require a majority vote of council. If an intrepid and bold councilor were willing, the document could be subpoenaed and put into the public record.

Second, stop treating officer discipline as an internal personnel matter. It must be acknowledged that misconduct is a violation of a citizen’s rights. We cannot hope to be a people that take rights seriously unless we acknowledge that a violation of one person’s rights is not a closed matter between that person and the transgressor. A violation of some person’s rights is a public matter because it is only by creating an environment where rights are respected that any single person can make a claim to have his rights upheld. By making internal discipline secret we have essentially set up a parallel system of secret justice where unknown rules and principles dictate what punishments are to be meted out for a violation of duty to the public. This is no way to secure public trust because in the absence of scrutiny and transparency there can be no basis for this trust. Indeed, if it is true, as some of these cases seem to suggest, that the DA’s office will sometimes not file charges because discipline has already been handled internally, this means that a substantial portion of the law is secret. The average citizen is in no position to see justice being done in cases involving police because those matters are resolved in behind closed doors and even the rules and procedures are opaque. This step could be accomplished in a variety of ways. Council might refuse to ratify contracts that treat internal discipline as a non-public matter. Alternately, we might empower the Citizen’s Police Review Board in such a way that it can review officer discipline, make binding recommendations, and disseminate that information to the public.

Third, we can stop defending egregious conduct in the civil trials that inevitably follow this kind of misconduct. Chicago already does this. If police knew that behavior which shocks the conscience would result in personal financial accountability, especially when that behavior occured off-duty, it is my belief that many would think twice before allowing their emotions to get the better of them.

Other changes to address this problem probably need to be made by altering the attitude of the citizenry. It is no secret that the voting block of the police union has significant power in determining elections for Judges and District Attorney. Many people pay very little attention to the election of judges – most of which are determined in the primaries. But not everyone is so apathetic. Judges and the District Attorney know who they must please if they are to be reelected – it’s the police union. Only an engaged and informed citizenry who see even the justice system as ultimately answerable to them can exert the influence at the polls needed to alter the status quo. Further, an engaged citizenry is one that contacts and questions its public officials. If you don’t contact the Mayor’s office, Council offices, the DA and Judges and tell them what you think of their performance there will be very little pressure for them to see that your concerns are being responded to.

 The flaws in American justice are more extensive that those pointed to in this discussion of Pittsburgh. But local politics is one place where voters can make the greatest impact. We can only do this by demanding a transparent and equal system of justice for everyone. Current efforts are a step in the right direction, but much more needs to be done.

The work that needs to be done begins with building an engaged citizenry that demands to be heard and demands to scrutinize the work of those who work for us. But when things are stated that way I wonder if, collectively, we are up for that challenge.  

Thursday, August 25, 2011

It is Only Certain Kinds of Pollution That Don't Belong in Cemeteries

One of the latest fronts to open in the ongoing fight against Shale Gas drilling concerns drilling leases sold by various cemeteries in the area. Just this week the issue has garnered an article from the Post Gazette as well as an editorial. I have seen both of these pieces making their way around social networking where the very thought of drilling in cemeteries is invariably condemned.

This condemnation can't make use of all of the usual talking points against Shale Gas, however. Many of the arguments just don't apply. Cemetery land doesn't usually contain wells for drinking water or crops that may be polluted by run off. Of course, the usual points about surrounding properties and fracking fluid are still live.

Since some of those talking points are impotent, opponents have adopted a different tack. They stress a moral opposition to drilling on cemetery land. County Council Vice President Charles Martoni calls the area "sacred ground" and the PG editorial stresses the "quiet, green and peaceful" nature of the cemetery and calls it 'hallowed'. Finally the executive director of Catholic Cemeteries Association in the Pittsburgh Diocese goes so far as to say "We would never allow any activity within the cemetery properties that compromises our mission or the sacred nature of the Catholic cemetery."

From these descriptions you would think that the maintenance of such sacred space is already scrupulously performed with an eye to honoring the land by maintaining its pristine character.

You would be wrong!

The fact is that at least one of the cemeteries, right here in the city, is already terribly polluted. Allegheny Cemetery has created a landfill that can be seen from space. What you are looking at in that picture is a pile of trash and dirt about 300 feet across sitting directly on a creek bed that goes on to drain into the Allegheny. This pile of garbage is over ten feet high in some places and contains not only remnants of the decorative items that had been placed on graves, but also: electronics, tires, household waste, clothes, food and plastic of all kinds. Indeed this garbage pit is just 100 yards down a road from the municipal garden plots that sit on Stanton Ave. No effort is even made to section this area off or mark it as 'No Trespassing': one just walks down the hill from his garden plot and finds himself standing knee deep in waste.

Where is an activist when you need one?

Now, fair enough, this pile isn't found right at the front gate. Still, it sits right on a waterway that dumps into the Allegheny. Further, this sort of thing is not standard cemetery practice. Arial views of Homewood and Calvary Cemeteries reveal areas for dumping displaced dirt from burials, but you don't see anywhere near this level of debris and waste in them. 

Now surely this kind of thing violates all kinds of laws against dumping. And if, for some strange exemption, it doesn't, it certainly should. 

But I think the more important thing about the state of this cemetery is that it shows the arguments that drilling activist have been using are only being used rhetorically. No one is really interested in making sure cemeteries are clean, because if they were, they would be focused on the very real state of this trash heap rather than sending press releases filled with speculative concerns about future drilling that may never happen. The moral argument that was used above is just as powerful against this style of pollution as it is against gas drilling. This does just as much to destroy the verdant and reverential place that we build for the dead as would a horizontal well. 

This practice has clearly gone on for quite some time. I cannot have been the first person in Pittsburgh to come across it or even complain about it. A pile of garbage over ten feet tall didn't just appear overnight. But, the fact is that this particular variety of pollution doesn't fit into a narrative that powerful people are making use of at the moment and so it is certain that nothing will be done about it.

From a political standpoint there is nothing to be gained by trying to get this area cleaned up. It would make life more pleasant for the few that walk dogs and hike through the cemetery and it would burden the cemetery itself with a hefty clean-up and so make a political enemy. The moral argument, it seems, only gains traction when it suits the agenda of those who employ it.

 If only we could amend the city charter.

So do activist groups really recognize the cemetery as sacred space? Then, please, do something to address this desecration of it. But, the cynic in me suspects that a different kind of recognition took place. Activists recognized a chance to goad a few knee jerk reactions and took it. 

When moral questions are reduced to mere conflicting positions the right answer is just the one that wins the conflict. 

Tuesday, August 23, 2011

4 Deaths on Washington Blvd: An Avoidable Tragedy.

I have avoided commenting on the deaths in Highland park because it just felt positively unseemly to speculate about causes and culpability in the face of something so concrete. My heart goes out to the victims and all who knew and loved them.

In the coming days and weeks we may learn more about what was or wasn't done and how more could be done in future. However, I was in the East End for the flooding in July and it was clear then that when Washington Blvd became impassable the rest of the area was thrown into chaos. No police directed traffic at the major intersections that lost power, no real detours seemed to be in place to handle the disrupted traffic flow. In short, the city didn't seem to have any plan at all!

Having seen that, and now seeing how dire the consequences of having no plan can be, I can't help but agree with the sentiment expressed at WWVB - just close the road at times like this.

Friday, August 19, 2011

A 'Concise' Guide to the Woes of the PWSA

I had been wanting to compile a list of the scandals and shady dealings surrounding the Pittsburgh Water and Sewer Authority for some time now. However, really detailing all of what has gone on there in just the last few years would require far too much space. And, in any case, there are others out there who have already done the research and are doing a better job spelling it all out than I ever could. So, below, I give you all the newsworthy events I can recall and links to the required reading for each.

First, there is the shady variable-rate bond deal they got into. Raising this issue was part of Dowd's campaign for Mayor. Then, infrastructure improvement was delayed to pay off that bond. Nullspace attacks the way it is all being spun now.

Then, we have the debacle with Iron City where PWSA debts were forgiven with the promise of retaining jobs in the city. (But, those jobs moved to Latrobe) First, Ravenstahl negotiated a package to reduce Iron City's debt with PWSA, in addition to other incentives, in exchange for production staying in the city. But then Iron City moved production to Latrobe and PWSA sealed all the documents relating to the deal with them.

Finally, there is the line insurance program.This program offered insurance to customers at a rate of 5$ a month in case repairs were needed to the customer's water lines. This one is like a octopus!

There was the initial controversy about it being an opt-out program.

Then, later, the lawsuit that ended it.

On top of that, the director of PWSA's board, Michael Kenney, had been an owner of the company that provided the line insurance. So, after Dowd called for it, he resigned.

But then PWSA took steps to ensure that he wouldn't be investigated or prosecuted. Dowd's previous calls for transparency grew faint as his fellow councilors Shields and Peduto called for an investigation into Kenney's dealings at PWSA.

And now it turns out that the line insurance money is gone and claims aren't being paid. PWSA's promise that all claims would be paid seems to have been forgotten.

Finally, we learn that the insurance scheme probably wouldn't have been able to cover all the claims even if it had survived. Nullspace has even more coverage of the issue here.

Ughhh, when you lay it all out like that it looks pretty disgusting.

Wednesday, August 17, 2011

The Real Loser in the Buncher - Terminal Building Deal may be the Pgh Public Market

After the loss of the Igloo, I began to worry about other pieces of our city's history falling to the bulldozer. Indeed, after reading this post at The Radical Middle I was getting pretty fired up about what was being proposed for the Terminal Building.

It was with this in mind that I attended the public meeting put on by the URA and Buncher (the developer) to hear their proposal for developing the Strip District. The event seemed fairly well attended for this sort of thing - I counted about 45 people, though some were clearly with the URA or Buncher. It also seemed that the audience was overwhelmingly opposed to the proposal. There were jokes made during the presentation about creating open community space that might be used to protest against The Buncher Company, and there was a distinct lack of applause at the end of the presentation. This chilly attitude can't all be attributed to simple love of the Terminal Building; Buncher is a company with a history of powerful political connections and was featured in the PG's Pay to Play feature on government corruption.

 Still, I must admit to being rather pleasantly surprised by the proposal, though this is not to say there isn't room for cynicism.

Buncher first set out to describe the history of the area. In the 1850's development in what is now downtown and Lawrenceville began to run together in the flat area of land known as the Strip. Back then, of course, Lawrenceville was home to the Allegheny Arsenal which directly or indirectly supported most of the business in that area. Until the early part of the 20th Century, the Strip was a hodgepodge of heavy and light industry, housing and open fields. Then in the 20th century, a rail yard was developed to supply the growing number of wholesalers and other industry that were occupying the Strip. In 1929 a section of this rail yard was used to construct the Terminal Building. At first it was shorter than it is now, but in 1930 it was expanded to slightly over its length today. Then a very small potion was removed in the 1980's to facilitate truck traffic. The Terminal Building was first used to unload whole rail cars. But after the 1936 flood, much of the rail yard was damaged and market forces and the depression were conspiring to make trucks the dominant mode of transportation. This led to additional changes to the building: most notably, the installation of modern truck docks on the river side of the building. Throughout this talk, Bucher was very keen to note the amount of change that the building and surrounding area had already undergone.

So what is the proposal?

Buncher owns the open lots surrounding the Terminal Building on the river side. In addition, they own the lots farther up the street toward the Heinz History Center and the area under under the 16th Street Bridge. They want to transform that area into a set of apartment buildings, office space and retail shops. The idea is to take advantage of the river views for residents and office workers. I take it that something like a more ambitious version of the nearby Cork Factory Lofts development is what is hoped for. That project rehabilitated the impressive cork factory into apartments and condos and then put a parking garage, retail space and a (now failed) grocery store.

So the open lots would be developed into office and retail space and would use the already existing draw of the Strip District to bring customers toward the new retail space being planned. Further, the business and restaurants in the Strip would be conveniently located for all of the new residents and office workers along the river.

The sticking point in this plan is the Terminal Building. Its unbroken length acts as barrier to the Allegheny from the Strip and vice versa. Further, if the development goes through, the Terminal Building's current use (absent the public market) wouldn't really be viable. The truck traffic and attendant lading just doesn't have a place in a public space like that. These issues are compounded by the fact that the terminal building is in terrible shape. The brick work needs to be rehabilitated, rotting doors and structural integrity are also a concern.

Buncher argues that this stands as a significant obstacle to maintaining the status quo. The building is currently owned by the city and rented out at fairly cheap rates. I have heard (at the Radical Middle post linked above) the figure $4 per sq ft mentioned as the current rate, but I really have no way of knowing how competitive that is. Buncher claims that those rates do not allow for the rehab of the building and act as a rent subsidy that is being extracted from the building itself in the failure to do proper maintenance. On top of all this, the building is currently unsuited to many uses. It has no heating or cooling and no plumbing along the bulk of its length. Indeed, next time you are in the Public Market take notice of the extensive plumbing and duct work that was installed to make it usable.

So Buncher's agreement with the URA is that development of the site be contingent on the integration of the terminal building. The city will sell the building to Buncher with the requirement that it restore it and install the necessary utilities to make it an attractive retail and office space.

But, Buncher thinks that development won't be possible unless the building is altered to allow pedestrian and vehicle access. They argue that, as it stands, it won't facilitate the movement of people between the Allegheny and the Strip. This means that one of the major draws is defeated because people won't be able to move from shopping in the Strip to the new retail space and the new residents and office workers won't be able to access the restaurants and bars of the Strip. They propose as the solution to this the demolition of one third of the building.

About one city block would be removed to allow for 17th Street to be extended to the Allegheny. This street would abut parking lots and an open public plaza. The alternative to demolition that is being considered, but didn't really come up in the meeting, is to allow road and pedestrian access ways through the building itself - by tunneling through it. This option wasn't really mentioned so much as dismissed. Buncher thought that this option would destroy the most significant aspect of the building - its unbroken length.

After the presentation there were only two questions. One was on parking. The more substantive question, however, concerned the Public Market. As mentioned above, the cheap rents levied by the city constitute a subsidy on whatever happens to occupy that space. Now while you may not have much concern for truck lading operations getting a city subsidy, the Pittsburgh Public Market is a different story. By charging low rents and bringing together like minded businesses to build a customer base, the Public Market functions as an incubator for small business.This is the place where entrepreneurs can test the waters and build a customer loyalty before expanding into a store-front. There is every reason for these people to get a subsidy since this has the potential to expand the tax base down the road when these businesses become more successful and start expanding and hiring.

It seems clear that Buncher has no interest in continuing the current arrangement. Their goal is to raise rents and property value throughout the area. As such they don't want to end up subsidizing the Public Market. Incubating small business does nothing for Buncher as they won't see the returns on that investment in increased tax revenue like the city can.

In fact, this seems to me to be a far more interesting issue than the shortening and restoration of the building. The Public Market is a relatively new business that seems to be doing very well. Given the kind of thing it represents and its potential to flourish in the environment created by this new development, there is every reason for the URA to demand that Buncher lease space to the Public Market at a lower rate. To not do this is to engage in a rather perverse form of imminent domain. Small businesses will essentially have their, albeit small, store-fronts taken from under them so that space can be given to a developer who will double the rent. I would hope to see a group of those who support the Pittsburgh Public Market come together to ask Buncher and the City to modify this proposal to include such a provision.

And this isn't the only reason for some cynicism!

First, I can't help but point out that Right by Nature, the anchor for the Cork Factory Lofts, recently went out of business in the area immediately adjacent, and most similar to, the proposed development. If a fairly small organic grocery store can't be sustained in an area next to a brand-new apartment complex and large contingent of weekly food shoppers, I don't know how the proposed development is going to support the amount of retail that is slated for it. Indeed Right by Nature sat next to Benkovitz Seafood, so the obstacles to accessing it from normal Strip District shopping were not nearly as great as the new development will entail. There may be one caveat to this though. I went to Right by Nature a few times - it wasn't very good. Maybe they just went out of business because they were kind of a crappy grocery store?

Second, Buncher, conspicuously, did not offer a very detailed economic rationale for its claim that the Terminal Building couldn't support itself in this new environment. In fact, the demolition of its western portion frees up a large piece of real estate which Buncher will no-doubt use to build some other part of this development. Understood this way, Buncher looks less like someone who is willing to take a liability off of the city's hands to preserve it while transforming it (if that is even possible), and more like a company getting a very nice piece of real estate simply handed to them to develop. It would be nice to see an audit of this project. Such an audit might begin by analyzing the costs to the city of rehabilitating the building and the increases in rent that could be demanded from such an effort. It might also ask how much revenue would be gained by a development occupying the land where the western portion once stood. This could be done with an eye to seeing how much that would offset the costs of transforming the rest of the Terminal Building. Further, it should include projections detailing the expected tax revenue increase that the proposed development brings in.
I won't hold my breath on anything like this being published.

Still, all told, this is an exciting opportunity for Pittsburgh. I have long thought that this city does far too little with its river fronts and it is good to see that they are being developed. Also, as much as I like the Terminal Building, it is in really poor shape and it would be great to see it repaired, spruced up and made accessible to everyone.

Thursday, August 11, 2011

Ravenstahl was right and Shields worries me.

It isn't often that I have cause to praise the Mayor of our fair city, but you should give credit where it is due. Ravenstahl was right to prevent the gas drilling amendment to our City's Charter from appearing on the November ballot.

Still the reason the Mayor is right on this issue has very little to do with the major reason he cites in his letter. Ravenstahl argues that amending the City Charter in this way will effectively prevent the industry from investing in our city. This argument, however, is a red herring because there is currently no plans to drill for shale gas within the city limits and it is unlikely that there will ever be. Now it is true that there have been some purchases by the industry of gas rights within the city limits -notably Lawrencville- but I have heard many claim that these sales were more about showing company shareholders that rights were obtained, rather than reflecting any real desire to drill in the city.

On top of this, as Ravenstahl's letter makes clear, there is already an identical ordinance on the books. In other words, the city is already hostile to gas drilling so Ravenstahl's claim that this will prevent industry from investing couldn't be further from the truth. The industry is already prevented from 'investing' in the city - they can't drill here!

So what does the mayor get right? Its this...

"This bill was rushed through with little time for public discussion, legal analysis and consideration of its impacts"

He is right! This bill was rushed through at the behest of Doug Shields. Now I like Doug Shields. From the very limited encounters I have had with him, he seems very bright and very sincere in his concerns and his dedication to the city of Pittsburgh. However, Shields also seems to have a real penchant for the dramatic. He could be accused, at times, of grandstanding and of using the legislative process as a tool for sending a message rather than crafting good law.

The fact is that Shields just lost an election for Magisterial District Judge that he seemed certain that he would win. Indeed he didn't run for reelection on council precisely because he was aiming for the position of judge. His council seat was won by Corey O'Conner in the same election.  So it will be goodbye to Shields come January. Now Shields seems to be angling for a job with an environmental group and burnishing his reputation as champion of environmental causes by putting this issue on the ballot in November.

Further, after Council's August recess they will be dealing with budget issues until the new year. There will be little opportunity during that time for anything else and so this might have been Shields' last chance to showcase his causes before he loses his seat.

So, Ravenstahl is right to point out that this looks like a rushed piece of legislation that hasn't undergone the kind of scrutiny needed for the serious changes it aims to bring about. Indeed I wonder why the language is identical at all. This makes it look especially hasty.

But there is another aspect to this issue that seems to have gone largely unnoticed. Lets looks more carefully at the text of the law itself.

2.      Corporations in violation of the prohibition against natural gas extraction, or seeking to engage in natural gas extraction shall not have the rights of "persons" afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.  
3.       Corporations engaged in the extraction of natural gas shall not possess the authority or power to enforce State or federal preemptive law against the people of the City of Pittsburgh, or to challenge or overturn municipal ordinances or Charter provisions adopted by the City Council of Pittsburgh.  
Obviously, the law Shields has written and which council passed contains some very disturbing language. I am no legal scholar but, it appears blatantly illegal for council to try and strip away the rights afforded to corporations by the constitutions of the United States and Pennsylvania. Pittsburgh is a part of the US and the State of Pennsylvania it cannot pick and choose which of the legal protections afforded by those documents it is going to allow to people. There is a word for this sort of thing! I do find it especially disturbing that that this bill passed unanimously!

OK so a city council crafts some overly broad legislation that probably won't hold up in a court challenge, what so bad about that? Doesn't this happen all the time?

The problem is that this language was written by a man who wanted to be a Judge. This is truly frightening! The language of this law shows contempt for the legal protections given by the constitution. Indeed, Shields ran on a platform which denied that legal expertise was needed for the position of Judge. But this shows just how essential that kind of training, and the respect for the law it aims to instill, actually is.

This matters because it seems that Shields is far too willing to put the law aside and do what he thinks is right. While this can be an admirable trait, its not something we should want in a Judge. If Shields is willing to play fast and loose with the law because of his strong dislike for the shale drilling industry, there is no reason to think that his passions over other issues won't result in a similar willingness to discard what is legal in preference for what he thinks is right. The result would be anything but dispassionate justice.