Monitor's biennial report a masterwork of misdirection

June 27, 2014 — Yesterday evening, Jim Johnson, the Monitor in the Westchester case, issued his biennial report (six months after it was due). The report was a masterpiece of misdirection.

The most critical of Westchester’s obligations under the consent decree are those set out in paragraph 7(j) of the decree. The County is required to take legal action against those of its towns and villages that retain barriers to fair housing choice. See Cheating On Every Level, pp. 14-33. Remarkably, these paragraph 7(j) obligations are not mentioned even once in the entire 70-page biennial report. The tactic is Orwellian: there are obligations that are inconvenient to discuss…so just make them disappear. 

Similarly, the report fails to discuss at all Westchester’s performance of its obligation to have as a goal in all of its housing policies and program the end of residential segregation throughout the County (one of Westchester’s paragraph 31 obligations).

The report does not meet the requirement of paragraph 15 that the Monitor directly answer the question of “whether the County has taken all possible actions to meet its obligations…including, but not limited to…promoting inclusionary and other appropriate zoning by municipalities by offering incentives, and, if necessary, taking legal action” (emphasis added).

In the report, Mr. Johnson confirms his previous approval of, and continues to approve, sites that either fail to affirmatively further fair housing (“AFFH”) or that are counter to the goal of AFFH.  In an apparent attempt to excuse siting that even he would describe as suboptimal, he states at page 20 of the report that, “Although the Settlement points toward an equitable distribution of affordable AFFH Units throughout the County, it does not require developers to build units in particular locations.” This statement is extraordinarily misleading.

The Monitor leaves out the fact that an implementation plan was supposed to have the County develop the means by which to maximize housing on census blocks with the lowest concentrations of African-Americans and Latinos.” Consent Decree, ¶ 22(f). He also leaves out the fact that all of the units were supposed to be built pursuant to an Implementation Plan (“IP”) that accomplished the objectives and terms of the Consent Decree to affirmatively further fair housing and that he was supposed to impose a proper IP when the County failed (in 2010) to do so (Consent Decree, ¶ 20(d); see also Cheating On Every Level, pp. 6-12).

But what about the Monitor’s plan to question County officials under oath?

The Monitor correctly points to some of the many false and inflammatory statements that the County Executive has made in an effort to undermine the Consent Decree. But his response brings to mind former U.S. Senator Howard Baker, who, coincidentally, passed away on the same day that the biennial report was issued.

Baker is now most remembered as the Republican Senator who, in the course of the 1973 Senate hearings on Watergate, framed the question as, “What did the President know and when did he know it?” The problem, of course, was what may have had the appearance of probing was actually Baker’s attempt to delay action: the evidence already in hand demonstrated clearly that President Nixon had committed high crimes and misdemeanors (Baker, it was later revealed, worked in coordination with the White House).

Here, the Monitor seeks to take depositions to “assess the County’s efforts to comply” with its Consent Decree obligations. But the statements the County Executive has made are themselves conclusive evidence of the County’s intention never to comply with core Consent Decree obligations (as is the incontrovertible fact that the County has failed to take legal action against any municipality, no matter how egregious that municipality’s barriers to fair housing choice).

In short, on the basis of evidence clear to all, the Monitor ought to have been asking the Court to hold Westchester in contempt for its brazen and ongoing violations of the Consent Decree. No request of that sort is contained in the report, and Mr. Johnson instead gives the misimpression that further fact-finding is necessary before it would be appropriate for the Court to punish the County and to issue supplemental remedial orders.

Five years on

It is nearly five years since Judge Cote entered a historic housing desegregation order to resolve the False Claims Act case that the Anti-Discrimination Center brought against Westchester, and the promise of that order has ben squandered. The prospect for concrete action to make significant structural change to existing ultra-White residential neighborhoods (the point of the order) is as far away as ever.