Public-Private Partnership

NEW YORK CITY’S INVENTIVENESS THEN AND NOW:

The Creation of a Novel but Failed Public-Private Partnership [PPP]
Giving Rise to an Open and Free “Park Education Campus” [PEC] for New Yorkers

In the mid-1800s, a group of New York City industrialists had a self-adulatory yet civic-minded ambition: to curate New York City’s prominence on the world stage by showcasing their enviable arts and science collections while preparing the influx of immigrants for citizenry and work. The planning for Olmstead’s and Vaux’s pastoral and building-free “central” park was well underway. Andrew Greene, then-President of New York City’s Board of Education, envisioned a park as an education and cultural center, while the industrialists foresaw a park as a central gathering fire-free zone where their wealth could safely be exhibited. An education and cultural center park would require short term and long-term-financing – it would need the “public’s” tax dollars and the “private’s” possessions. Green’s vision was adopted in the form of a “park education campus” [PEC] through an untested and novel “public-private partnership. [PPP].

 

THE LEGITIMIZATION OF A MID-19th CENTURY PPP/PEC:

In the 21st Century — Success or Failure; Fix or Dismantle?

A. PPP Built On Sand Through False Pledges And Mistrust

The Greene PPP/PEC vision was made ready for carrying out before a legal structure was put in place, Greene and the PPP/PEC Founders had persuaded City politicians to do what was necessary to initiate the construction of two launching projects [2LPs]; namely, the American Museum of Natural History [AMNH] and The Metropolitan Museum of Art [MMA]. And, in the murky waters of “codifying” the legitimacy of Greene’s and the industrialists’ speculative PPP/PEC was the tumultuous era of quid quo pro [QPQ] accords.

In its early stage, QPQ is a “concept” and merely grants a favor or advantage in exchange for something else. This was the “sand” on which the 2LPs’ Founders and City politicians casually agreed to commit New York City taxpayers’ dollars and park land. The “foundation” was to come; to wit, when QPQ moved into its “contract” stage – where parties agree to conditions and a “reciprocal exchange or consideration.” [see the Quid Pro Quo differences explained.] An “exchange” or “consideration” is vital to creating a valid and binding “contract.” Without terms of exchange – i.e., “consideration” – there is no contract. As will be discussed below, without free access and instruction, the PPP/PEC structure does not provide “consideration” for New Yorkers and without “consideration” the PPP/PEC contract is void.

B. Designing The PPP/PEC’s Legitimacy

Rooting the PPP/PEC in laws and contracts was an essential first step to legitimization. But the 2LPs’ Founders were wary of local government. New York City’s Tammany administration was fraught with corruption. To avoid being dissuaded, the 2LPs Founders [1] organized a “Committee of 50” from within their ranks, [2] actualized Andrew Greene, and [3] called on New York State legislators to enact the laws necessary to legitimize the PPP. Engaging the State was a conscious decision to derail local control. [For a discussion of this era, see Section B in LIST OF REFERENCES – PPP]

C. The PPP’s Core “Exchange” Or “Consideration” New Yorkers Were To Receive To Move The QPQ From “Concept” To “Contract”

The PPP venture was codified in a series of New York State legislative enactments and located New Yorkers’ “consideration” in the following ways:

1. Terms such as “popular instruction,” “recreation” and “amusement,” were used as “terms of art” to define the “instruction consideration” New Yorkers were to receive from each private partner.
2. Provisions such as “free to the public” and “free to the general public” defined the “free access consideration” New Yorkers were to receive from each private partner.
3. Other provisions such as “museums”, “libraries” and “exhibition halls” are to be “open and free to the public and private schools of said city”, and “[a]ll professors and teachers of the public schools of the City of New York, or other institutions of learning in said city in which instruction is given free of charge, shall be admitted … free of any charge therefor” located the “education consideration” to New Yorkers of the legislation’s beneficiary – New York City.

In addition, because trans-continental and trans-national transportation were not yet ubiquitous, “public” and “general public” equated to residents of the five boroughs of New York City. Also, the PPP financial subsidies were written to be borne solely by the taxpayers of New York City, thereby demonstrating that New York City residents were the PPP/PEC’s audience and the beneficiaries of its intention [see PUBLIC-PRIVATE PARTNERSHIP, FINANCIAL ANALYSIS and LAWS.].

At the core of the PPP plan, and as was provided for in the Lease Agreement between the 2LPs’ Founders and the City of New York, was the following quid pro quo “consideration” serving to move the PPP/PEC QPQ from “concept” to “contract”:

The “private” – the 2LPs institutions – would be advantaged as follows:

• Rent-free occupancy in City-owned building[s], on designated public park land, designed and constructed using direct taxpayer dollars or indirect taxpayer subsidies, through the issuance of favorably rated bond issues, as an example.
  • The initial 2LPs’ Lease Agreements did not provide for annual operating subsidies. However, Chapter 419 of the Laws of the State of New York of 1892 and Chapter 270 of the Laws of the State of New York of 1892 provided for maintenance costs for the MMA and AMNH, respectively.

The “public” – to be ensured by New York City’s City Council and Mayoral administrations –New Yorkers would be advantaged as follows:

• Open and free access to the exhibition halls of the 2LPs as provided for by the admission provision in law.
• Open and free access to instruction and recreation, as provided for in the incorporating purpose in law.
  • [See especially SUMMARY, page 5, of the Green letter to the Founders of the American Museum of Natural History described in “Free Public Education…” in LIST OF REFERENCES  and Incorporating vs. Original Purpose chart for each institution in PEC INSTITUTIONS]

As the roster of PEC institutions grew, the enacting New York State legislation included provisions for free access to each of the newly founded institutions or group of institutions – unlike the 2LPs’ incorporation legislation where those terms were first codified in Lease Agreements. In essence, the 2LPs clearly acted as examples of “concept” to “contract” QPQ, with the “exchange” or “consideration” articulated in the institution’s legislative enactment.

D. A Call Out To The New York City Council And The Adams’ Administration To Act To Correct A Failed PPP/PEC Venture Or To Dismantle It And Start Anew

For too long, only the public partner [residents and taxpayers of New York City] have complied with the PPP plan. In what can only be described as a “breach of the public trust,” the private partner [misguided, uninformed and/or malfeasant custodians of cultural institutions with sanction from misguided, uninformed and/or malfeasant City politicians] denied “free” rights to the PPP’s public partner even as City politicians funnel approximately $1 BILLION in annual taxpayer subsidies to the reneging private partner [see FINANCIAL ANALYSIS].

Without the benefit of a forensic review and codification of controlling laws and contracts, an allegation of overt malfeasance regarding the City’s and PPP/PEC institutions’ custodians in the carrying out of the PEC/PPP’s legal and contractual structure could be premature.
Nonetheless, inasmuch as the City entered Agreements with the PPP/PEC institutions which seemingly disavow controlling laws, the City’s failure in not conducting a forensic review of the speculative PEC/PPP venture breaches the public trust. As glaring examples:

1. Many of the Amended or new Agreements with the City have been amended to [a] be in violation of provisions of controlling New York State laws regarding New Yorkers’ “free” rights or to [b] diminish New Yorkers’ rights provided for in prior Lease or License Agreements, despite New Yorkers’ $1 BILLION annual subsidies [see F.21.a-m In LIST OF REFERENCES– PPP, LAWS and FINANCIAL ANALYSIS.]
2. For years, New York Botanical Garden [NYBG] has been actively campaigning to repeal the admission provisions of Chapter 285 of the Laws of 1891 as amended by Chapter 465 of the Laws of 1994 by removing State authority over NYBG’s admission provisions. Former Governor Andrew Cuomo’s June 2, 2020 VETO MESSAGE – No. 148 quashed NYBG’s efforts as spelled out in NY State Senate Bill S4449. In the wake of Cuomo’s VETO, State Senator Alessandra Biaggi and Assemblywoman Nathalia Fernandez introduced Senate Bill S8038 and Assembly Bill A8562, respectively, in an effort to contravene Cuomo’s VETO.

   Knowing the justification behind Cuomo’s VETO cries out for dissemination to New Yorkers, the Adams’ Administration, members of the City Council and State Legislators, because it makes even more appalling NYBG’s end-run to evade Cuomo’s VETO by proposing new legislation.

   Former Governor Cuomo’s VETO asserted as follows:

   “Given the unique conditions on which the [NYBG] was established, particularly the premise that the park should be free and open to the public and a more than 100 year track record of limiting the [NYBG’s] authority to charge a fee, it is prudent to veto this bill until the Legislature can provide a finding that the authority to charge a fee in perpetuity is necessary to make the [NYBG] fiscally sound. The current bill lacks any meaningful analysis and therefore provides insufficient grounds to overturn the long-standing preference to keep this public park free and open to the public. Also, concerning is the lack of analysis to whether the [NYBG] has made the grounds free for primary and secondary schools, as is required by the law. Until it can be demonstrated that the NYBG has met its current obligation, it would be unsound to remove the free policy from state oversight.”

   In July 2022, Governor Hochul signed Senate Bill S8038 and Assembly Bill A8562. Read the JUSTIFICATION section in the Bill to learn the reasoning for Hochul’s approval while recognizing that the Bill is devoid of the facts of the history of “free access” and instruction as being “consideration” NYBG and the other PPP/PEC institutions is to provide to New Yorkers in exchange for New Yorkers providing NYBG and the other PPP/PEC institutions $1 BILLION in annual “consideration” in the form of free rent, and capital and operating costs. In 2017 and 2018, New Yorkers’ consideration to NYBG amounted to $73.3 MILLION and $87.3 MILLION, respectively. In addition, because of free rent, NYBG amassed an investment and endowment portfolio $640.4 MILLION in 2017 to nd $678.8 MILLION in 2018. S8303 takes effect in 2025. It should be repealed and free admission provisions for all New Yorkers should revert back to Chapter 285 of the Laws of 1891.

   • New Yorkers must act now to STOP elected politicians from parlaying our free rights for votes. [see SIGN FA’S PETITION NOW!]

3. New York City’s Office of Corporation Counsel filed an Amicus Brief in 2014 before the New York Appellate Court making it clear that an individual New Yorker would lack “standing” [defined as not having the “legal right to initiate a lawsuit”] or have a “private right of action” [for which there are standards in law] against either the City or any of the PPP/PEC institutions, and litigatory challenges in these regards would fail. Additionally, Counsel advised that a controlling 1893 New York State law providing more generous “free” access rights to New Yorkers was an “appropriation act that merely provided a means of public funding to promote the Museum’s operations” and not a “private right of action. “Counsel’s “appropriation” comment begs further scrutiny.

   The 1893 legislation provided for an annual appropriation. Copies of succeeding annual appropriation legislation was not produced in response to FA’s Freedom of Information Law [FOIL] requests. It could be asserted that since 1894, the MMA’s admission provisions reverted to its 1878 Lease Agreement and if so, has been operating in violation of the Lease Agreement by [1] opening on Sundays and [2] not providing free admission during all operating hours to professors and teachers of New York City’s schools or institutions where instruction is given free of charge [see “MMA’s Admission Policy Breaches …” section of the MMA’s PEC INSTITUTION page.]

   In addition, Corporation Counsel did not report to the Court that in any event any “maintenance of buildings, instruments and equipment” appropriation to the MMA is limited to $95,000 annually despite the MMA receiving MILLIONS OF DOLLARS annually for decades. [see New York City Administrative Code Chapter 4 – EXPENSE BUDGET: Section 5-509, 2.d. and “Direct and Indirect Subsidies …” section of the MMA’s PEC INSTITUION page.]

4. New York City’s Department of Parks [DPR] owns New York City’s four zoos; namely, the Bronx Zoo [BZ], Central Park Zoo [CPZ], Prospect Park Zoo [PPZ] and Queens [Flushing Meadows Park] Zoo [QZ] and the New York Aquarium [NYA]. However, the BZ and NYA are overseen by New York City’s Department of Cultural Affairs [DCA]. DPR contracts with the New York Zoological Society [NYZS], doing business as the Wildlife Conservation Society [WCS] to manage and operate PPZ, CPZ and QZ [see HISTORY OF NYZS-WCS.] New York State law provides for New Yorkers’ free admission to each of the NYZS-WCS venues three days in a week.Yet the Commissioner of the DPR, an appointed official by an elected official, authorizes the charging of admission fees in each venue in violation of New York State law and to the economic and cultural harm of New Yorkers. [see PEC INSTITUTIONS]

As was said earlier, the park education campus/public-private partnership was first and foremost a self-adulatory venture with a sprinkle of civic-mindedness. Free access and an education purpose were tolerated asides for public funding. Today, the PPP/PEC institutions tout being tourist attractions with global purposes and blatantly shirk their obligation to the “consideration” owed New Yorkers to validate the underlying PPP/PEC contract, to wit, free access and instruction to New Yorkers and our schools. The PPP/PEC enterprise is at best a failed experiment and at worst, a money sink hole that should be capped and bankrupted. The New York City Council and the Adams’ Administration, in collaboration with New York State legislators, should take the necessary steps to right this failed experiment or dismantle it and start anew.

New Yorkers are on notice that if we want our legislated rights enforced — as the City grants, and the PPP/PEC institutions accept, our $1 BILLION, we must TAKE ACTION!