Public Scare Tactics: Jackson Doubles Down on Terrorism, "Irreparable Harm" Looms
By Sam Allard
on Mon, Jan 9, 2017 at 4:15 PM
The embarrassing powder-keg spectacle of the Public Square controversy continues its sold-out run: Last week, while Scene's eyes were turned briefly elsewhere, letters changed hands, legislation was promised, and official voices were raised, all in connection to the looming $12 million debt that the Federal Transit Administration (FTA) has demanded be repaid by the Greater Cleveland Regional Transit Authority (RTA) before Jan. 19.
You're invited to check your calendar and verify that Jan. 19 is indeed 10 days away.
Instead of the obvious solution — opening Superior Avenue to buses — Mayor Frank Jackson has doubled down on his preferred rhetoric (the threat of terrorism), accused both RTA's Joe Calabrese and the FTA of failing to negotiate in good faith and of failing, in FTA's case, to abide by its own safety mandates. He also accused the media, in a testy press conference held on the Friday before New Year's Eve, of misinterpreting his stance, which he said has been consistent.
Since its first discussions with RTA after the Republican National Convention, the city has always wanted two things, Jackson said: (1) a demonstration by RTA of the operational and financial burden caused by Superior Avenue's closure through Public Square, and (2) a safety plan which addresses terrorism.
"We don't want RTA to be fined $12 million," Jackson said, "but I don't want 20, 30, 40, 50 people to be run over by a vehicle in Public Square."
RTA doesn't want to be fined $12 million either, and though Jackson said that it was Calabrese who called him, "out of the blue" the day before the Nov. 15 press conference announcing the closure to align himself with the Mayor, RTA has now quietly abandoned Jackson's vision and talking points in light of the FTA debt.
RTA general counsel Sheryl King Benford sent a letter to the city on Dec. 27 advising that the city, not RTA, would be required to pay back the FTA money, or else reimburse RTA for the cost.
"The breach was triggered by the City of Cleveland's continued decision that the exclusive bus lanes on Superior Avenue through Public Square remain closed to GCRTA bus traffic," Benford wrote.
@Fritzland30 that funding was part of the HealthLine in 2008. We’re ready to resume ops thru Public Sq as soon as we are permitted by city.
Furthermore, wrote Benford, the payment of $12 million would be much more than a "burden"; indeed, she said paying the debt would lead to "irreparable harm" for the cash-strapped RTA.
But Jackson continues to cling to the belief that a traffic study will persuade FTA that the $12 million debt need not be collected. As before, Jackson said that the intention is to show how traffic might be mitigated using things like dedicated lanes and traffic signal prioritization elsewhere in the downtown transit zone.
The FTA has shown no inclination that it will entertain such a study. In its Dec. 20 letter, the agency made clear that due to the city's unwillingness to change its position and open the Square (as it is legally obligated to do under the stipulations of the 2004 federal grant) it must initiate debt collection.
In one of his more far-fetched allegations in the press conference above, Jackson hinted (~28:55) that FTA is merely raising the specter of the $12 million debt as a kind of diversionary tactic, to distract from the the fact that it hasn't fulfilled certain safety obligations. Jackson referenced federal safety mandates continually, if obscurely, throughout the press conference.
Jackson, suggested, furthermore, that the $12 million debt collection was not only "irresponsible" (because: terrorism) but without cause.
"Any of you ever been sued?" Jackson asked the small gathering of reporters. "Any of you ever been told you owed money but not been told what you owed money for? What specific thing has the RTA or the City of Cleveland done that we are in breach of? Tell us what the breach is!"
FTA already has told them, and in quite specific terms.
In its August 10 letter, FTA warned RTA that "a permanent closure of Superior Avenue through Public Square would constitute a breach of the [Full Funding Grant Agreement.]" In an October letter, FTA reiterated that point and "stated specifically" that RTA would owe the $12 million debt "arising from the breach."
The breach is literally the closure of Superior Avenue. Nothing more needs to be divined or analyzed.
The Dec. 20 letter gave RTA 30 days to pay the debt in full or request a review of the validity of the amount, a dispute which would require "factual information, arguments, citation to authority," etc.
Instead, Jackson wants to present the FTA with a study. The firm Parsons-Brinckerhoff is now being paid $60,000 by RTA to conduct it. Representatives will assess traffic flow on Public Square Jan. 10-12 and will submit findings to FTA on or by January 18, one day before the $12 million bill is due.
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Sam Allard / Scene
Transit advocates on Public Square Saturday. (Councilman Zack Reed and ATU Local 268 Prez Ron Jackson front and center.)
Cleveland.com's Content VP Chris Quinn, on WCPN's Reporter's Roundtable Friday morning, held up the traffic study as the ultimate determinant of Public Square's fate:
"The fact is, nothing has really happened," said Quinn in the program's first segment. "There is a study outstanding that will be finished in two weeks that will pretty much dictate what happens next."
Quinn speculated that the idea of a full $12 million repayment was "kind of silly" because a settlement would likely be reached, but that there was another factor to consider.
"There is one wrinkle that keeps not getting addressed," he said. "For the city, it's a non-starter. The Mayor [in the above press conference] said again that there is a Federal statute that requires the FTA to do a safety assessment of the Square. And in light of the fact that big vehicles have killed people in France and Germany and what happened at OSU, he wants that study done. He said it's very prescribed steps. Now, I'm not a lawyer. I don't know if the law actually requires that, but the FTA really hasn't addressed it, and until the FTA either does that study or shows that the city's misinterpreting the law, even if the study shows that this is damaging to RTA, he's not going to open it."
Based on our reporting, we've found no federal statute meeting the above description. In fact, based on Jackson's own correspondence, the "mandate" to which he has continually referred might actually be a piece of the United States Code which deals with the creation of a national public transportation safety plan.
In an October letter from Jackson to the RTA, he references "49 U.S.C. Section 5392"and "49 U.S.C. Section 5329." The former turns out to be a typo. The latter is indeed the relevant section: It stipulates, in (d)(1)(b), that transit agencies establish safety plans which include "methods for identifying and evaluating safety risks throughout all elements of the public transportation system; (d)(1)(c) says that safety plans must also include "strategies to minimize the exposure of the public, personnel, and property to hazards and unsafe conditions."
These seem to be the "mandates" that Jackson is talking about, though the city's media liaison has said that this information is not public. The mandates say nothing about what the FTA must do. They concern the obligations of states and/or public transit agencies. They say nothing about specific projects. They certainly say nothing about terrorism.
The October letter from Jackson also referenced the FTA Safety Management Systems Framework, but again: this is merely the basis of the FTA's safety plan, one intended to "improve public transportation safety and provide transit agencies with a structure for understanding and addressing safety risks." It does not impose hard and fast obligations upon the FTA itself. And it does not mention terrorism once.
The FTA told Scene that it does not have any specific requirements for transit agencies regarding terrorism preparedness or mitigation.
"Terrorism is an issue covered by the Transportation Security Administration, not FTA," a spokesperson said.
As such, it's still unclear what Jackson is talking about. But it's troubling that he continues to stand so firm on this wobbly, speculative safety message when a person has already died due (at least in part) to Superior Avenues's closure.
When Jackson was asked about the woman who was hit by a bus turning left around the Square, Jackson said, out of respect for the family, that he wouldn't even attempt to have a conversation to mitigate the family's sorrow.
"What I will say, however," he said, "is that we're reviewing that to see whether or not there were some other circumstances that caused that to happen, as opposed to just making a left-hand turn."
The larger question for citizens, the local media, and City Council is whether or not the Mayor even has the authority to unilaterally close the Square. The city has said that Jackson has the authority to close streets, as he oversees the department of Public Works.
But late last week, the local advocacy group Clevelanders for Public Transit released a statement asserting that the Mayor doesnot have that authority.
The 2004 interagency agreement between the City and RTA, the one which preceded the Federal Grant for the Euclid Corridor, is now codified in city ordinance 893-03. Its says that "the provisions of this agreement may be modified or amended only after receipt of legislative authorization of Cleveland City Council and the GCRTA Board of Trustees consenting to such modification or amendment and in conformity with the Charter of the CITY and the bylaws of GCRTA."
In other words, City Council action would have been required to close the Square. Clevelanders for Public Transit urged city council to "immediately assert their legislative authority," to override Mayor Jackson and restore transit access to Superior Avenue.
But City Council might be embroiled in arguments about another piece of legislation. Last week, Councilman Zack Reed said he intended to introduce legislation to restrict the city from paying any portion of the $12 million federal debt.
"There are a number of things that we could use this $12 million for instead of paying for something that the taxpayers have not even had a conversation for," Reed told the Plain Dealer. "The public should not be on the hook for something they did not make a decision for."
Council President Kevin Kelley told Scene Friday that he's not aware of Council ever having enacted legislation like it before. "Generally we authorize spending money," he said, "not the opposite." He said he was concerned that the stated goals of the legislation might be beside the point, given that the timeline for getting the legislation through council was longer than the schedule for the debt collection. On the subject of Council's authority on the Square, Kelley admitted that he'd have to do more research.
"There's a lot to learn," Kelley said, "a lot of information to be processed and considered together."