If Governor Cuomo signs an executive order this month declaring the MTA in a “state of emergency,” it’ll mark the 50th time he’s renewed the status over the past four years. The order allows the MTA to bypass legal and oversight requirements to sign contracts for repairs, and do so without board oversight.
“I’m wondering what the emergency is now?” MTA board member Andrew Albert said.
When the governor signed the executive order the first time on June 29th, 2017, the subways were in disarray. Delays, signal problems, train car breakdowns, and an A train derailment all snarled the daily commute. The final straw for the governor was two derailments at Penn Station that year.
“Standard practices have failed us,” Cuomo said at the time. “We need a new approach, a new culture, new methods to quickly and dramatically make progress.”
As emergency track work got underway at Penn Station, the governor dubbed the expected inconvenience to Long Island Railroad commuters a “summer of hell,” even though good planning made sure it never really was the bad after all.
The governor also used the executive order to push through the Subway Action Plan, which addressed some of the subway’s problems, like clogged drains and trash on the tracks. The improvements to subway performance were later credited mainly to then-NYC Transit president Andy Byford, who identified basic operational issues, like broken signal timers, which led to sped up trains and improved service, not Cuomo’s plan.
In 2019, the MTA used Cuomo’s emergency order when the MTA approved nearly $18 million worth of signalling contracts, a program the MTA board didn’t get a chance to vet.
MTA board members don’t have the authority to do anything about the executive order, which means the MTA can approve contracts for projects without their oversight. Board member Norman Brown said Cuomo already had enormous sway over the MTA, even before he issued the order.
“I am unsure why emergency powers continue to be necessary and could possibly make any difference given the Governor’s complete control of the MTA,” Brown wrote in an email.
Last month, the good government group Reinvent Albany penned a letter to state lawmakers, who have the authority to vote down the executive order, noting that $467 million worth of contracts have been issued since the governor signed it in 2017 — contracts that didn’t get oversight from the MTA board and included many “non-competitive contracts.”
“Simply there is no justification anymore,” said Rachael Fauss, Senior Research Analyst with Reinvent Albany. “The justification, even at the time [it was issued] was dubious because, yes, the MTA has had major problems over the past decade, but not everything has to be addressed through rushed emergency processes. This is what capital plans are for.”
Several state lawmakers contacted for this story didn’t respond to requests for comment about whether they’d call on the governor to stop renewing the MTA’s executive order.
Separately, state lawmakers are calling on Cuomo to stop renewing executive orders that declare a state of emergency due to COVID. This comes as restrictions around the state are lifted due to increased vaccination rates, and decreasing COVID trends. Under these orders, the MTA has been able to hold its monthly board meeting remotely, and it’s condensed from two days into one, raising concerns among watchdogs about the amount of public discussion regarding MTA business.
Still, some MTA board members trust that if Cuomo needs to renew the order, he would.
“If he believes both eradicating COVID and creating a safer environment in the subway together equate to a “state of emergency,” then he should extend his order,” MTA board member Neal Zuckerman wrote in an email. “Governor Cuomo has clearly shown a great commitment to transportation infrastructure across the City and State. My estimate is that he is using all the tools he has available to drive the necessary transformation of the MTA.”
The governor’s office hasn’t said specifically if the MTA’s state of emergency will be renewed for a fiftieth time, but said it’s reviewing the order.
“The MTA state of emergency order has been helpful to make sure that important signaling upgrade work continued during the COVID pandemic in 2020 while still following accepted and transparent contracting practices, and we are currently reviewing the order’s continued necessity,” Shams Tarek, a spokesperson from Governor Cuomo’s office, wrote in a statement.
In the last week of the legislative session this year, the Governor attempted to cement even more power over the MTA. He submitted a bill to separate the job of CEO and board chair, and give himself the ability to appoint both, without Senate approval. The Senate declined to pass the bill. Cuomo later sent back another bill that restored that oversight ability of the Senate, but it didn’t arrive in time for a vote.