Ending Cost Overruns and Project Delays Forever: If You Think it Can’t Be Done, Think Again

Is there a way to end cost overruns and construction delays forever? CEO Barry LePatner gives his expertise on how to eliminate both cost overruns and construction delays on your next project.

One of the most entrenched beliefs embedded in the construction industry is that cost overruns are an accepted part of most, if not all projects. Recent industry studies seem to prove that the larger the scope of the project the more likely that massive budget overruns are to be anticipated. Read the full article on page 28 of this month’s The Voice Magazine from CURT: http://flip.matrixgroupinc.net/curt/2020/issue04/#page=28

On Construction Post-COVID, Win the Future or Get Swallowed by the Past

Is your organization ready to embrace the post-COVID-19 future, or will it get swallowed by the past? CEO Barry LePatner delves into what is expected for the real estate, design and construction community following the COVID-19 crisis and the new opportunities expected to arise.

The coronavirus has created a crisis where most real estate, design and construction firms have been primarily focused on short-term efforts to keep their businesses alive. But to fully prepare for the months and years ahead, firms need to position their organizations for a time when the crisis has passed, when the U.S. will be embarking on a 30-year, $35 trillion construction boom.

Read the full story here: https://commercialobserver.com/2020/11/covid-construction-new-techniques-legal/

Barry B. LePatner in the News

Barry B. LePatner was recently quoted in a Forbes magazine article citing 5 predictions for the real estate industry once the post-Covid moratorium ends.

Here Are The Top 5 Predictions For Real Estate Once The Pandemic Subsides

FORBES | Apr 27, 2020 | Lisa Chamoff, Contributor | Real Estate * It’s no secret that the real estate market has a long road of recovery ahead. As the day-to-day work of showing properties and building homes has slowed to a crawl, agents and others in the industry have started to look to the future and make predictions about the lingering effects the COVID-19 pandemic will have on the industry.

Here are the top five top predictions for real estate once the pandemic subsides.

Buyers will upsize

“Microapartments” were supposed to be the wave of the future, but city dwellers who have been cooped up in one or two rooms will likely be looking to spread out (and the owners of larger spreads have already decamped to their vacation homes).

“I think that the desire for larger apartments will come back into style and many will be looking to size up — whether sizing up in square footage, light, outdoor space, view, or amenities,” says Ian Slater, a broker with Compass in Manhattan. “The concept of a ‘microapartment’ being enough in New York City likely will become a very challenged notion. New York may for a time, not be thought of as ’everyone’s living room’: buyers will want their own living room!”

Boutique buildings, townhouses and technology will win out

While the pandemic has promoted some to wonder whether the trend toward urban living will ebb, most agents don’t think that will stop people from investing in real estate in large metropolitan areas (it certainly hasn’t stopped Amazon AMZN CEO and billionaire Jeff Bezos, who recently purchased another condo in a Manhattan building where he has nearly $100 million invested).

“New York City has experienced soaring housing and living costs, and was losing population before the pandemic, which has heightened concerns for future pandemics, and for some whether to remain,” says David Stern, president of real estate due diligence firm Townhouse Partners. “However, while suburbs are less dense than cities thereby reducing contact, they have fewer hospitals and resources for treatment. Singapore and Hong Kong are denser than New York, yet they were able to contain the pandemic more effectively. Nevertheless, the pandemic may result in those previously planning to relocate making the change sooner. … In addition, the related job losses are expected to decrease rents, along with stricter home buying standards from lenders, as city housing stock tends more toward rental than ownership.”

Agents think that boutique buildings will win out over large developments and townhouses will become more prized.

“I certainly think this is good for townhouse living because you don’t have the same issues you have in an apartment building such as sharing an elevator, not having access to your gym, and you have private outdoor space,” says Lisa Lippman, an agent with Brown Harris Stevens.

The adoption of touchless technology, including remote access for locks and thermostats, will become standard, Stern says, and multifamily building owners and managers will see challenges.

“Markets will vary as to how well multi-family owners can absorb losses, with lower income tenants less able to recover,” Stern says. “Owners will likely have to absorb more maintenance costs due to enhanced cleaning and increased wear and tear of residents working from or staying home.”

Outdoor space and home offices will become a hot commodity

Balconies, terraces and private roof decks are already prized amenities for any prospective buyer, but they will become even more in demand in the coming months.

“Being stuck inside, I think people may realize what is important to them in a home and in their space,” Lippman says. “People will consider what it would be like to reside in this space without being able to leave now. Outdoor space may become more important, I’ve talked to clients who have told me how grateful they are for theirs right now.”

Home office space will also become a more standard offering. Stern notes that for multi-family projects in the planning stages, developers are reconsidering layouts to accommodate tenants working from home.

Construction prices will rise

Before the pandemic, the construction industry was already facing a shortage of skilled workers, with many professionals leaving during the Great Recession and construction booming across the country.

Barry LePatner, the Founder of New York City-based construction law firm LePatner & Associates, and the founder of business advisory group Insights+, predicts that when the moratorium on construction ends and builders are ready to get back to work, we can expect delays in the permitting process and increased costs as the supply chain slowly recovers and superintendents get up to speed on how to keep workers safe.

“Will construction workers remain distancing?” LePatner says. “Will there have to be someone on site to take people’s temperatures if someone gets sick? Even when the moratorium on construction ends and there's a desire to go back to work, that doesn't mean it’s going to happen with a degree of promptness.”

There will also be the challenge of new constraints on construction lending and the slowdown of land acquisitions following a likely recession.

The supply chain will shift

More than 30 percent of construction materials come from overseas, according to LePatner, from countries such as China, Italy, Brazil and India, which are facing their own challenges with COVID-19.

“Many of those suppliers are going to build it up in the U.S., but it’s going to take years,” LePatner says.

A Video that Recalls When Contractors Risked Their Lives to Build Great Things

There once was a Great Depression in this nation where 25% of our workers were unemployed and despair gripped all awaiting a time when the economy would improve and fear for the future was no longer the “new normal” for those times.

In the midst of those difficult times two different megaprojects were created to provide jobs and hope to our city and the entire nation. One was the creation and development of Rockefeller Center in the heart of New York City. The project employed 40,000 skilled workers and opened after years of construction in 1933. See https://www.rockefellercenter.com/art-and-history/history/

Another major project, the construction of the Chrysler Building, similarly was hailed as a singular project of great value to those seeking optimism for the future of our nation. This project began before erection of the Empire State Building commenced. Standing 1,046 feet in height it was the tallest building ever constructed, only to be eclipsed shortly thereafter by the Empire State Building.

But to appreciate a small but significant moment in history, and in no small part as a tribute to the value of the construction workers who build these majestic structures, I wanted to share this six minute video that will enhance your own appreciation of what it has taken to make these and many other, more humble, buildings an amazing part of our world.

Take a look at this video and know that there are millions of similar people out there in our world today who put themselves in peril or give selflessly to make us safe or to enhance the lives we lead.

Construction Survival: What to do when clients stop paying your invoices

In these turbulent times, when our clients face uncertainty about current and future projects, each of us needs a business plan for maintaining relationships with these clients that will foster good will to secure payment of outstanding invoices and project you as one who will be there for your client in tough times such as these.

Today, the attached article I authored, appeared in Real Estate Weekly. Entitled, "Construction Survival: What to do when clients stop paying your invoices”, this article provides timely and incisive advice on how to secure payment from clients though they themselves may be under financial pressures.

Real Estate Weekly | April 23, 2020
By Barry B. LePatner, Esq.

It is months now into the Covid-19 pandemic. You are the principal of an architectural, engineering, or construction firm. You may be a supplier, vendor, or trucker that provides products and materials for many construction projects.

In every one of these businesses, a look down at your accounts receivable reveals that many of your clients have chosen — or been forced — to defer paying for your outstanding invoices.

The lack of fresh funds to run your business is jeopardizing both the principals of your firm and the loyal employees who continue to work from home. 

What are the implications for your business if this cash shortfall continues for a few more weeks or the next two months? What steps can\must you take to reverse this course of events?

Before we get to the direct responses to these important questions, it is important to recognize that most small- to medium-sized real estate, design, and construction businesses have several things in common: (1) they are not well capitalized and operate their businesses anticipating a regular course of collections each month to pay staff and all other operating expenses; (2) there is little recourse to borrowing beyond their existing lines of credit and the shortfall in current and future collections will give pause to lenders to extend more credit; and (3) furloughing and\or dismissing employees risks problems in future staffing were the current moratorium on construction to end in the very near future.

Through no fault of their own, many of these firms will be unable to stay operational without governmental assistance. However, as currently structured, the recent laws put into effect by Congress will not meet the full impact of the losses to be incurred if the moratorium, as all expert health officials indicate, proceeds into the summer months.

Critical Steps to Business Survival

To help ensure your business remains operational until the moratorium is lifted and clients and their projects recommence work, you should be actively taking the following measures:

• Stay in constant communication with the principals of your clients. Everything in the real estate and construction world is based on personal relationships. Enduring this crisis will depend on you understanding this precept.

• Emphasize to your clients during these discussions that:

  • You highly value their business;

  • You have always been there for them during the course of your relationship;

  • You want to be ready to service their projects or interests immediately upon notice that work is to recommence;

  • Payment by your client of the outstanding invoices is essential for you to stay in business so that your team can be kept together during these difficult times and be there when your client will most need them; and

  • Repeat these points both orally and in writing.

• Possible responses to these efforts will likely include:

  • “We don’t presently have the funds to pay you.”

  • “We value your services and will continue to keep you current as you provide your services."

  • “We are all in the same circumstances and when we can pay you, we will.”

  • “Don’t call, we will get back to you at a later date.”

• You should become familiar with all financial assistance programs being offered to small- and medium-sized businesses. The Small Business Association has emergency loan assistance programs for firms in distress. All firms should consider applying for the recently-enacted assistance loans, part of which may be forgiven in return for keeping workers on your staff for several months.

When payment is not forthcoming, you will need to decide how you will respond. In some circumstances, where the client is truly unable to pay you, you should turn to your contract and identify all the remedies at your disposal.

These include, among others, pursuing mechanics lien claims, terminating the contract, or pursuing legal action. The latter is costly, will certainly end the relationship with that client, and will most certainly only serve to “kick the can down the proverbial road” for years to come. This is why maintaining an excellent relationship with each client, acknowledging their circumstances but urging recognition of your distress, is critical.

Keep in mind that once the Covid-19 emergency is over, it will be time to renew those relationships that are the lifeblood of the industry. Good clients will work with you to see you through these difficult times if you remain in close communication.

Having taken the constructive steps described above will enable each firm to maximize its chances of keeping a steady cash flow during the crisis and will strengthen the relationship once business returns to the new normal.

For many of us, “sheltering in place” has been our main activity for the past month. It has reordered our lives, changed how we conduct business, impacted how we stay in touch with family and friends. The Covid epidemic has also created great concerns about whether and how soon our nation, our states, our cities and communities will return to their “new normal” routines.

I have been spending considerable time reporting on the real estate and construction industry, an important segment of our nation’s economy that spends $1.5 trillion annually, most of which has come to a halt. In interviews with the media or in blogs to clients I have stressed that there will be long term impacts to the industry that will need to come to grips with resourcing products routinely purchased overseas that will now need to be purchased domestically at higher cost; the loss of tens of thousands of small to medium sized contractors, suppliers and vendors of products and materials; and a severe shortage of skilled workers. I have made it clear to all that these impacts will disrupt the construction world over the next two years.

For an overview of how and when our nation will be addressing the many disruptive aspects of society, business and the medical responses being applied to gain control over the ongoing epidemic click here for the New York Times article "The Coronavirus in America: The Year Ahead"

“The next two years will proceed in fits and starts, experts said. As more immune people get back to work, more of the economy will recover. But if too many people get infected at once, new lockdowns will become inevitable. To avoid that, widespread testing will be imperative.

Dr. Fauci has said “the virus will tell us” when it’s safe.”

In Search of Leaders Willing to Govern Honestly and Committed to Telling the Truth

It is now more than two months after the long awaited release of the Mueller Report, an investigation that covered two years, interviews with 500 or so witnesses (but not the President who was the subject of the issues involved) and led to the indictment for criminal acts of 36 people including guilty pleas and jail terms from the likes of Michael Flynn, the President’s personal attorney, Michael Cohen, and the conviction of Paul Manafort, Trump’s campaign manager.

Yet, despite an exhaustive 448-page report authored by a former Director of the FBI, polls indicate that most Americans have clear opinions about its findings. For Trump and his supporters, it was a clear vindication — “NO OBSTRUCTION, NO COLLUSION!” echoed repeatedly from Trump and his minions in the GOP, followed by a “Case Closed” set of Tweets. There was no question that the President was satisfied that the whole thing was a pure waste of time. This conclusion was echoed by Fox News, who Sen. Elizabeth Warren, went on to describe as a "hate-for-profit-racket”.

To be clear, except for many talking heads on CNN and MSNBC and hordes of “Never Trumpers”, most Americans have largely failed to read the Mueller Report. It is fact-filled with details (many of which are blacked out for the seeming fact that the Report references many individuals likely to be indicted once the ongoing federal investigations in the Virginia and New York federal courts are concluded.

But if there was a good reason to endure reading these 400+ pages, they were wiped away by the television appearances of Bill Barr, the Attorney General that President Trump always desired. Barr announced his own interpretation within days after receiving the Report: there was nothing in the Report pointing to any evidence of obstruction or conspiracy.

One month after Mr. Barr’s performance — which totally contradicted specific statements and findings of the Report, Mr. Mueller appeared before the media to state (1) yes, there was Russian interference in the 2016 election that was aimed at helping Trump; and (2) some legal gobbledygook that totally failed to state what Mueller should have made clear and what more than 1,000 former federal prosecutors tweeted to all who would listen.

There is more than enough evidence to indict President Trump who would have been charged with obstruction if he were any other American.

It is a startling fact that some of the most highly respected former federal prosecutors felt compelled to conclude that Mueller could not utter those precise words that are supported by the facts he produced in his report. You can hear from 11 of these experienced prosecutors, appointed by both Republican and Democratic presidents, in their own words:

https://twitter.com/protctdemocracy/status/1134089330576777216?s=17

As Gail Collins opined in a recent NYTimes column, "Mueller argues that he can’t report on what his facts mean because the president has immunity from prosecution."

Okay, we all get it that there is a Justice Department opinion letter that Mueller says precluded him from indicting a president even though he identified enough criminal acts that would have sent you or me up the river for a dozen or so years. But, the least that Mueller could have done was what Leon Jaworski, the independent prosecutor in the Watergate investigation did under similar circumstances: he named President Nixon as an unindicted co-conspirator along with his complicit White House advisors.

As Collins noted, "If you believe Trump committed a crime, even if you can’t indict him now, why not say so? Otherwise, what was the point of the investigation? All Mueller was asked to do was to describe what he found and give his conclusions; then the Justice Department and Congress could do what they wanted.”

Walter Dellinger, an acting solicitor general in the Clinton administration, tweeted: “Everyone agrees a president can be indicted once he is out of office. That (in addition to impeachment) is a reason to gather the evidence now while documents are available and memories fresh.”

We are truly living in an Alice in Wonderland world where the crazy Queen of Hearts is following the even crazier rabbit leading us all down a hole to who knows where. I am left with an empty hole in my psyche that is in search for the right person to rise up in these trying times and show us a path to restoring the norms of democracy, the respect that is due for all of our citizens, rich and poor, the restoration of the rule of law to all and a belief that the longstanding relationships with our tried and true allies and neighbors must be restored to regain a sense of who we truly are as a nation.

During the ten days I spent with Marla on a trip to Europe we saw how the leaders in those nations are also torn apart by the problems of migration; how they have been ravaged repeatedly by the disruptive forces of the far right who have attacked political leaders of the center and left. I watched foreign news reports on how a broken and battered UK Parliament has, after three years of trying to deal with the madness of Brexit, is this close to being led by a prominent and outspoken anti-Semitic leader of the far right. And how Donald Trump tried to interfere with that nation’s politics on a trip to London where he announced that Boris Johnson -- someone who is known mostly for his own spate of outrageous lies to the British people — would make a great Prime Minister.

These are dangerous times where — it is sad to say — the lunatics appear to be in charge. Our nation is led by a president that Bill Maher refers to as “Brokahontas Donald Trump “, alluding to his history of bankrupting three casinos, one airline, the Plaza Hotel and fraudulently concocting a University with his name on it. We are also led by a Vice President who calls his wife “Mother”; and by a Secretary of State, Mike Pompeo, who recently got up in front of an international group of world leaders and said that the good news about global warming is how many new oil fields will be discovered in Alaska once the polar ice cap has melted. Yikes, it is scary that each of these statements is true.

Rule of Law Part II: How Do We Factor in the Mueller Report?

This past January I wrote a blog post that focused on how the concept of the “rule of law” was critical to our nation’s underlying democratic ethos. In that article I cited to one of our founders, James Madison, who expressed this idea for us in Federalist Paper No. 51 (1788) when he wrote:

“If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

It is important to learn whether our nation will see how effectively the rule of law is functioning following the issuance of the Mueller Report last month. It will be critical to test if Madison’s and the founders' concept of the separation of powers will continue to ensure that no one person stands above the law. Also, will we determine if the Houses of Congress still retain some level of control or oversight over the actions of the Executive branch.

The larger questions that loom for our nation can sometimes be lost in all the rhetoric that has followed publication of the [partially redacted] Mueller Report. While some reveled in the release of the four page summary issued by Attorney General William Barr and his assertions that Mueller had exonerated the President of all collusion with the Russian government to interfere in the 2016 presidential election as well as had no hand in any obstruction of justice, any careful review of the Report’s nearly 400 pages provides ample evidence that Trump campaign officials did little to dissuade Russian emissaries sent directly from Vladimir Putin from offering all kinds of assistance. Nor can any fair reading of the document ignore the numerous efforts cited by Mueller of Donald Trump to shut down the entire investigation.

As far back as June 2017, one of Mueller’s fiercest critics, the Wall Street Journal, categorically stated that “Russian meddling in U.S. elections is a serious matter and Americans need to know what happened,” they wrote. “If Mr. Trump or key associates canoodled with the Russians to steal an election, then he must face the likely consequence of impeachment.” But, more than any other conclusion that can be drawn from a fair reading of the Mueller Report is the fact the lack of criminality cited was not the result of a lack of trying by Trump; it was the fact that he went about trying to do so in such an incompetent manner that was compounded by the more astounding fact that so many around him willfully chose to ignore his numerous efforts to commit obstruction of justice.

NYTimes conservative columnist Bret Stephens cited just how well the rule of law operated to prevent these crimes of Trump from falling directly under the federal criminal codes that define such conduct:

“If his own staff hadn’t blocked him from firing Mueller, he would have done so. If Don Jr. had been delivered a crate full of stolen Clinton documents at that Trump Tower meeting with a shady Russian lawyer, he would have taken it. If this newspaper hadn’t exposed Paul Manafort for taking illicit cash from Ukraine’s president, he might well have wound up as a senior U.S. official vulnerable to Russian blackmail. If the Senate hadn’t blocked Trump from easing sanctions on Russia, or public opinion hadn’t revolted over his performance at Helsinki, he would have cozied up to Vladimir Putin.”

Mueller carefully drew the line that Trump did not cross — but not for lack of trying. Mueller is known for his scrupulous interpretation of the law. He has acted accordingly by stating in his Report that these series of actions of obstruction more properly should be pursued by the House of Representatives, the arm of government charged with ensuring that no President subverts the law while in office.

What is important to recognize is that Mueller believes he was fully and faithfully following the rule of law in recognizing that, based on the federal criminal codes, Trump and his minions did act in a fashion that evinced the elements of collusion with a host of Russians. But, and this is critical for each and every one who recognizes the importance of the laws that make up our democracy, what Mueller included in his Report was a direction to Congress to continue his investigation. This was because he believed a prior opinion from the Justice Department precluded him from indicting a sitting President.

It will be helpful to recall that the President was clearly identified as Individual #1 in the indictment of Michael Cohen for the illegal campaign contributions that Trump authorized to keep his out-of-wedlock affairs with Stormy Daniels and Stephanie Clifford from being made public in the weeks before the 2016 election. Mueller clearly believes that proceeding against the President while he is in office was prohibited by a Department of Justice legal opinion that precludes bringing a criminal proceeding against a sitting President.

Despite this DOJ legal opinion Trump and his counsel know that at least one criminal case awaits him the very day he leaves office. And, as Mueller has pointed out, there are another fourteen investigations he referred to other federal district courts that await future indictments of those in and around the Trump family. During his two-year investigation the Special Prosecutor brought criminal proceedings against thirty-six individuals, secured two convictions, and garnered guilty pleas and cooperating agreements from a number of other Trump insiders and campaign officials.

So, for today, the rule of law is alive and well. The Mueller Report has laid out a clear path for Congress to follow a host of findings that will determine the next series of events to take place over the next year or two. And, yes, these matters always seem to take much longer than most people believe they should. But we need to remember that the Watergate hearings, the ultimate test of the rule of law, took four years from the time a special counsel was appointed.

The question for our nation is best stated by Charles Blow, columnist for the NYTimes who stated the issue as follows:

“As Thomas Paine wrote over two hundred fifty years ago, “In America the law is king.” For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”

“Who,” writes Blow, “will we let be king in this country, the president or the law?”

Please let me hear from you on this subject as we all have a vested interest in making sure that nobody forgets or ignores the importance of the foundations of democracy that gave us the rule of law, and that no man is above the law.

Why “Huggy-Kissy” Behavior Has Morphed in the #MeToo Era into “Creepy Feely”

When the candidates are lined up for political debates that start in two months you know that all sorts of issues will surface designed to let the proverbial fur begin to fly. So it is when the #MeToo movement meets the old style glad hand world of a politician such as Joe Biden – Democrats begin to do what they do best: turn on each other.

This past week, even before he had a chance to enter the fray, former VP Joe Biden, found himself facing charges that his well-known “touchy feely” style of politics became intermingled with allegations from several women from his past campaigns. Women across the country argued that what may have been acceptable in past generations did not excuse the failure of men today to understand what was never acceptable from their standpoint.

Initial responses reported women who outright condemned his behaviors followed by a chorus of women with a less negative viewpoint.

“Men were acculturated to behave in ways that ignored the sensibilities of women, and that is no longer acceptable,” Laura Petiford wrote. “I … struggle to understand how it is helpful to render men like Mr. Biden ‘unfit’ because of behaviors that were so deeply woven into the social fabric of this country that we are only now beginning to address them contextually.”

Susannah Sard wrote, “Sometimes we need to relax.” Eileen West wrote: “Joe Biden has plenty to answer for, especially his treatment of Anita Hill. Let his challengers question him on that, rather than being distracted by the media frenzy of the day.”

One person, who has supported a political competitor to Biden, acknowledges that she is speaking because Biden is considering entering the primaries; the other says that if Biden really respects women, he should not run and clear the field for the capable women candidates.

A kind of demand for a balanced perspective came from Theda Skocpol, a Harvard political scientist who stated: “Wait a minute: Is this what gender equality really means? Is this the kind of society we want to live in — where right-wingers can do any vicious thing they want to anyone and shrug it off, while people on the center-left are supposed to expel from public life anyone who says a single wrong word or has done something benignly intended in the past that now does not fit changed norms?

Questions we need to raise:

• How should we fairly look at a situation that confronts older men who have, in years past, adopted a manner that likely made women uncomfortable even though the man in question never understood how unwelcome his behavior was?
• How do we educate men about oafish and highly distasteful behaviors that may have been given a shrug of the shoulders in days of old but is now frequently being cited by women as outside established boundaries of comportment?
• Are we going to put otherwise admirable and respected men quietly – or, as in the case of former Senator Al Franken – not so quietly out to pasture as proverbial dinosaurs of our #MeToo time?
• Is this a debate that tries to draw a line between over exuberant affection vs. creepiness?
• How will conversations between men and women (need to) change and will new customs define those boundaries for generations to come?

I would like to believe that Biden and men of my generation – men that may have never previously given much thought that certain behaviors made women uncomfortable – are beginning to make themselves aware that such behaviors are no longer acceptable. I even believe that every woman who comes forward asserting that a man made an uncomfortable or unrequested touching of her body deserves to be heeded and an apology from the man in question should be forthcoming.

But what we need is a recognition that situations that do not involve claims of sexual harassment or male job empowerment should not become a basis for automatic disqualification of such men for future jobs at the grocery store or in politics. We are going to need a great deal of discussion between men and women in this area and I am in favor of men paying increasing attention to behaviors that are unacceptable. But women also must play a part in the quiet re-education of men on a subject of importance that will require a large adjustment on the part of many men.

Considerations on the phrase of the year

As many of you know, each year I try to identify a word or phrase that I deem to be most descriptive of the moment in which we find ourselves. It is an exercise I do at the end of each year to try to help me understand where our nation lies in the larger spectrum of history and where we, individually can begin to put this moment in time in some kind of perspective.

In past years, some of these words included “relevant”, by which I discussed how so many events were swirling around us that we needed to find some anchor or ethos to give us some guidance during difficult moments. One year my word was “meaningful” and I went to great pains with some friends and family members to explain that we all needed to perform truly valuable deeds, big and small, that return us to the basics of our existence and showed our inner civility in times of #MeToo, wanton illegal gun attacks on our schools and churches and other events that have eroded our own sense of right and wrong.

So, with a great deal of thought based on the events of our nation over the past year, I pondered a number of words and phrases that I thought were most appropriate to the year ahead. As I wrote in my final blog post of 2018, the past year was inexorably linked to 1968 – some 50 years earlier – that threw our nation into a different kind of tailspin.

After much reflection I hereby announce that the phrase of the coming year is: [drum roll] rule of law.

The rule of law is defined by the Oxford English Dictionary as:

"The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes".

The phrase dates to the Magna Carta signed by King John in England in 1215. The king deemed it necessary to issue this pronouncement when a group of barons, powerful noblemen who supported the king in exchange for estates of land, demanded that the king sign the charter to recognize their rights. That document was written to ensure that the life, liberty, or property of free subjects of the king could not be arbitrarily taken away. Instead, the lawful judgment of the subject’s peers or the law of the land had to be followed.

So, what does this ancient document have to do with the year 2019? Quite a lot, it seems. The construct behind the phrase “rule of law” recognizes that a person’s fate should not be in the hands of a single individual—whether a king, a dictator or the president of the United States. Magna Carta planted the seeds for the concept of due process as it developed first in England, and then in the United States. Due process means that everyone is entitled to a fair and impartial hearing to determine their legal rights.

James Madison expressed this idea for us in Federalist Paper No. 51 (1788) when he wrote:

“If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The framers of the U.S. Constitution addressed this problem by dividing power among the different branches of government (legislative, executive, and judicial). This framework for government, known as the separation of powers, ensures that no one person is able to gain absolute power and stand above the law. Each branch of our government has some level of control or oversight over the actions of the other branches.

When we talk about the rule of law, “we must understand that we are talking about a law that promotes freedom, that promotes justice, that promotes equality.” said former U.S. Supreme Court Justice Anthony Kennedy, who suggested in his writings that the rule of law has taken on special meaning for the people of the United States, based on our history of looking to the law to fulfill the promises of freedom, justice, and equality set forth in our nation’s founding documents.

One of my favorite movies is the adaptation of the story of Sir Thomas More whose life was memorialized in the Robert Bolt film, “A Man for All Seasons”. In the movie, Sir Thomas, played brilliantly by Paul Schofield, is faced with the mandate of the king that all citizens of the realm must swear an oath permitting the king to divorce his wife (against the dictates of the Catholic Church) and marry his lover, Anne Boleyn. More, facing false charges at his upcoming trial, learns from Richard Rich, his former protégé, that he will testify against More.

More’s son-in-law, Roper, demands that Sir Thomas find a reason to arrest Rich and charge him even though he hasn't broken any law. More explains to Roper, that he would give the benefit of law to the Devil, rather than arrest Rich on false charges.

MORE:  And go he should, if he was the Devil himself, until he broke the law!

ROPER:  So now you'd give the Devil benefit of law!

MORE:  Yes. What would you do? Cut a great road through the law to get after the Devil?

ROPER:  I’d cut down every law in England to do that!

MORE:  Oh? And when the last law was down, and the Devil turned ‘round on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down -- and you're just the man to do it -- d'you really think you could stand upright in the winds that would blow then? Yes. I'd give the Devil benefit of law, for my own safety's sake.

We should not doubt – nor let others convince us – that these are ordinary times. We are in the midst of a constitutional crisis that will determine the future direction of our nation and the future of each of its 323 million citizens. We need to raise the critical questions as to whether our constitution is the essential wisdom that governs us or whether a cult of personality shall be permitted to subsume those fundamental rights that we have fought so hard to preserve.

The rule of law was essential to the ethos of England from the time of the Magna Carta. It was deemed at the heart of the Founding Fathers belief that our nation be governed as one derived from man’s laws. It was essential to the constructs underlying our union when spoken so ably by Abraham Lincoln as he worked to keep our nation together after secession of the southern states. And, it was essential to the protection of our democracy in the dark days of Watergate that led to the disgrace and resignation of President Richard Nixon in 1974.

Today, we are as steadfastly in need of reliance on the rule of law as ever before in our history. We are a nation of laws. And it will be the laws that stand mightily to oppose any individual’s belief – whatever his place in our society -- that he or she is above the law.

Wishing each of you a prosperous and healthy new year.

The more things change.....

As we close out the final days of 2018, it is important we stop and understand what this year has meant to the citizens of our nation. To do so, I decided to look at not only the events of 2018 but to use this opportunity to look back fifty years to see the incredible events of that year.

In her exceedingly well-reviewed new book, These Truths: A History of the United States, award-winning historian, Jill Lepore, notes that the US was designed around three principles or truths: political equality, natural rights and popular sovereignty. The Founders believed we could establish good government “from reflection and choice” as opposed to being “forever destined to depend, for their political constitutional protection, on accident and force.” She tells a story of repeated torment and betrayal offset by decency and great innovation. Of a nation that has repeatedly departed from its founding truths but always, even in the worst of times, returned to them.

So, it is with this idea in mind, worthwhile to review the events of the past year and those of 1968 to determine our nation’s ability to recover from prior departures from a failure of “reflection and choice” to return to times where decency and innovation restored our commitment to these ideals. Here is what happened as these two years — fifty years apart — ensued:

1968

In the midst of the Vietnam war where over 54,000 American lives were lost, the year saw a beleaguered President Lyndon Johnson be challenged first by Sen. Eugene McCarthy then, in March the announcement that Johnson’s former Attorney General, Robert F. Kennedy, announce his own run only to lead, two weeks later, to the surprise announcement by the President that he would not run for re-election.

Two stunning events happened shortly thereafter. On April 4 while preparing to give a speech in Memphis Tennessee, Martin Luther King Jr was assassinated, triggering riots by blacks in US cities. Only two months later, on June 5, Robert Kennedy is shot and killed in Los Angeles immediately after winning the California Democratic primary. The August Democratic convention in Chicago turns into a riotous event. The uprising in Chicago saw the National Guard called out and the arrest of 150. To many, this event signaled a national uprising against the belief that governments could be trusted to do the right thing.

The Democrats’ selection of Vice President Hubert Humphrey was seen by more progressive Democrats as a desire of the establishment to maintain the status quo. To young people, it was seen as a commitment to keep the war in Vietnam going on while more young men were being cut down month after month. The GOP candidate Richard M. Nixon. Nixon’s “law and order” campaign leads to his election, barely, while third party candidate, George Wallace secures 19% of the vote and wins five states.

One of the most striking but little recognized events of that year was the request by US Supreme Court Chief Justice Earl Warren secretly signaled to President Johnson his intention to resign by the end of the year, anticipating that Nixon might win the election.. Incredibly, Johnson chose not to appoint a liberal replacement to carry on the leftward leaning of the Warren Court. As a result, with the election of Nixon, he makes the appointment of Warren Burger, starting a five decade process of tilting the Court to a right wing orientation that continues to this very day.

Later in the year, three astronauts flew for the first time around the moon and returned safely leading to the first landing on the moon a year later. But, the nation was left to deal with the residue of the disruptive events that shattered a belief that we could establish good government “from reflection and choice”, two concepts that few Americans could associate with the events of 1968.

2018

Fifty years later, our nation is still challenged by events that divide us along lines of gender, race, religion and ethnicity. According to a new NBC\Wall St Journal poll out this month, Americans, just before the stock market collapse of the past two months, cited that the improving economic outlook was the key public event of 2018, Running closely with this finding was the realization that the American people viewed the year of the Parkland shootings and the mass slayings at the Pittsburgh synagogue as either the first or second most significant event of the year.

It was a year where the separation of migrant families and the number of immigrants seeking asylum was deemed in the poll almost as significant to Americans as the spate of terrible hurricanes and fires that damaged major parts of our nation — both attributable to aspects of climate change. Uncertainties over the outcome of the tariff wars and trade negotiations was followed by the Mueller investigation and the advent of the #MeToo movement to expose sexual harassment.

On the political platform, in a review of the Trump presidency, Michelle Goldberg, columnist of the NYTimes wrote that this was “The Year Justice Caught Up with Trumpworld”. She noted that “things many of us have taken for granted have been called into question, including the endurance of liberal democracy, the political salience of truth and the assumption that it would be a big scandal if a president were caught directing illegal payoffs to a pornographic film actress. Often it feels like in American politics, none of the old rules still apply.”

But the larger question is whether our nation, in 2019 is on a path to returning to its founding truths, returning slowly to a centrist government that is what most Americans believe governs best or will continue to be one of bitter divisiveness that turns citizen against citizen.

But, she also notes, that in 2018 this was a year when, perhaps, things may have started to begin sounding normal again. When the year started out Michael Cohen was still the loyal fixer for Donald Trump; Paul Manafort was still sleeping in his own bed waiting for a pardon from Trump; Special Counsel Mueller’s team had not yet sent a person to prison; Scott Pruitt, head of the EPA, was still indulging in enormous acts of corruption, Rob Porter, the presidential assistant, despite being accused previously of abuse by two ex-wives, was still in the White House, Gen. John Kelly was the new Chief of Staff trying to rein in Trump’s tweets, Steve Brannon had still not had his private sell out of Trump aired in Michael Wolfe’s book “Fire and Fury” and Gen. Jim Mattis had not resigned in protest as a result of a quixotic decision of the president to withdraw troops from Syria and Iraq.

The last twelve months has turned all this upside down and more. But the larger question is whether our nation, in 2019 is on a path to returning to its founding truths, returning slowly to a centrist government that is what most Americans believe governs best or will continue to be one of bitter divisiveness that turns citizen against citizen instead of rallying together to challenge the larger important issues of political unity, equal rights for all, and addressing the issues of our perilous infrastructure, climate change and permissive laws that permit our sickest citizens to use assault weapons on the best and most innocent of us.

Here’s hoping for a healthy and optimistic year ahead to each and every one of you.

Your Apps Know Where You Were Last Night, and They’re Not Keeping It Secret

When I was a college junior I took a course on Constitutional Law which introduced me to the idea of the "right to privacy". You see, I did not then know that there was no such right written into the US Constitution. I did not know that this idea, from a constitutional standpoint, was only created in 1961 and did not get support from the US Supreme Court until 1965. I learned that as early as 1928 then Supreme Court Justice Louis Brandeis stated that “the right to be left alone” was formed out of the freedom of conscience idea in the First Amendment; that it was formed from the Fourth Amendment’s right to be secure in one’s person; and was based on the Fifth Amendment’s right to refuse self-incrimination.

Today, we seem to take this right for granted. It is the basis for Roe v. Wade which is applied to a woman’s right to privacy as regards abortion rights. It is the basis for a case decided by the Supreme Court in 2003 that eliminated sodomy laws granting privacy rights to the LGBTQ community. It is the basis for the Supreme Court’s decision in 1967 (Katz v. US) granting protection of our telephone conversations that might be tapped by governmental agencies. And this is where technology has been slowly eroding the right to privacy.

Despite a federal Privacy Act of 1974, governing collection and use of personal information, we have seen how Edward Snowden disseminated secrets of the National Security Agency’s surveillance program (which allowed this agency to collect data stored on servers from Internet providers like Microsoft, Google, Facebook et without a warrant). Once Snowden revealed this fact, all the companies fought and won the battle requiring the US Government to be totally transparent in any request for personal data about us on these software servers.

Yet, as shown on the article published today in the NYTimes, we remain at even greater risk of all details of our lives from the very software companies who fought to preserve their rights from government intrusion. Ironically, it is our consent to the apps on our phones and IPads that permit these vendors to track our wanderings where we unwillingly provide the most intimate details of our lives: when we go to the pharmacy, where we practice yoga, if we attended the inauguration of a President, or where we met someone or did something that we hoped would never see the light of day. As the New York Times article shows those free apps are not really free after all. That’s because they sell our location information and make lots of money for their creators off the data given to other companies who analyze it and use it for their own purposes.

“Google and Facebook, which dominate the mobile ad market, also lead in location based advertising. Both companies collect the data from their own apps. They say they don’t sell it but keep it for themselves to personalize their services, sell targeted ads across the internet and track whether the ads lead to sales at brick-and-mortar stores. Google, which also receives precise location information from apps that use its ad services, said it modified that data to make it less exact.”

So we all have to start thinking about whether BIG Brother is here at last or whether we wish to push back and preserve the areas of our privacy that remain important to us. Can we forego getting weather information for the precise area in which we are standing from The Weather Channel app? Do you need Waze to stay on at all times when that enables you to be tracked 24 hours per day? How about Uber, Lyft, Via et al?

It is time to go to the Privacy sections of your phones and tablets and retake control of your own life’s facts. We are not yet ready for a full-throated takeover by Big Brother just yet.

Bob Herbert Interview with Barry LePatner on CUNY TV: Barry LePatner on the Polarization of Our Nation

Last nite, my interview with Bob Herbert, former columnist of the NYTimes aired on CUNY TV. Bob last interviewed me a year ago to assess the nation’s infrastructure scene and we held a wide ranging discussion about the perilous state of our roads, bridges, dams and other critical facilities.

This year Bob asked me to again appear on his program and we talked about a wide range of topics addressing the how and why our political world is so polarized and what that means for the near and far time future. As Bob stated in his introduction:

“America was once the envy of the world in terms of our standard of living; our vast, high-quality transportation networks; our unparalleled systems of public and higher education; and our commitment to freedom and democracy. It didn’t matter whether Democrats or Republicans were in power, there were norms and principles and ideals to which nearly all of us subscribed. That all seems a long time ago. What happened? How did it happen? And where are we now headed? I talk about this with my guest, Barry LePatner, an expert on infrastructure and development, and a veteran analyst of power, politics and government in the United States.”

The National Transportation Safety Board and the American Society of Civil Engineers Must Begin to Demand: NO MORE FRACTURE CRITICAL BRIDGES

In 2010, while doing research for Too Big to Fall: America’s Failing Infrastructure and the Way Forward, my research led me beyond the scary fact that since 1989 over 600 bridges in our nation had failed from an engineering standpoint. At that time, the American Society of Structural Engineers was pleased to report that about 11% of all the 600,000 bridges in the nation were rated “structurally deficient”, i.e. had such serious cracks, corrosion and conditions such as frozen bearings that local authorities were instructed by the federal government to close one or more lanes to ensure these bridges could – in their weakened condition – support the weight of the vehicles traveling over them each day.

Nowhere in the literature of the ASCE or local or federal government files was any reference to the 18,000 bridges designed in the late 1960s and into the 1970s that were built as “fracture critical”. These bridges, such as the recently demised old Tappan Zee Bridge over New York State’s Hudson River, the ill-fated I-35W that ran across the Mississippi River in Minneapolis and the tragic I-5 that ran across the Skagit River in the State of Washington, were built without redundancy. In other words, from an engineering standpoint, if one member of the bridge failed for any reason the bridge lacked the normal ability to transfer loads to other supporting parts of the bridge to prevent an outright collapse.

That our federal government ever approved bridges to be designed and built without “belts and suspenders” is startling in its own right. That the government permitted these dangerous facilities which transported millions of Americans across their spans each day into the 21st Century is to invite repeated tragedy. And that is precisely what happened for the I-35W which collapsed in 2007, killing 13 people and injuring another 145; that is exactly what happened in May 2013. See, https://gizmodo.com/new-analysis-confirms-why-the-skagit-river-bridge-colla-1785842162

A preliminary report by the National Transportation Safety Board attributed the failure to the bridge’s so-called “fracture-critical” design, whereby a small crack in just one essential part can trigger a chain reaction of even more failures. So when I secured data from a secret source within the Federal Highway Administration showing that the nation had nearly 8,000 bridges that were BOTH structurally deficient and fracture critical, I was attempting to highlight a critical failure of our federal and state leaders to address a most perilous condition in our bridge infrastructure system.

So, one can ask, how could our governmental authorities charged with building new bridge structures ever again permit engineers to design any new bridges using a fracture critical design? Hasn’t anyone learned this one lesson that without structural redundancy a failure of even one part of a bridge is a direct invitation to a collapse?

Then, this past March, we turned on our TVs only to see another unfolding of tragedy in Miami when an overpass over a crowded highway near Florida International University collapse while the prefabricated overpass was being put in place. Within hours, I was asked to give both TV and radio interviews to explain how this could happen and what the aftermath of this tragedy meant to the nation. From a review of certain plans of the bridge provided by a friendly engineer who quickly reviewed the drawings with me it became clear: this collapse was likely fostered by a potpourri of design and construction errors including one error that was unimaginable: as the installation of the overpass was being placed and contractors were tightening or loosening steel rods to address cracks that had already sent warning signals that something was amiss, how could the authorities have permitted vehicular traffic to flow beneath the overpass?

In addition, it has subsequently been determined that the overpass was designed as a fracture critical structure. Thus, when a section of the overpass no longer supported the intended weight of the bridge there were no other support members to handle the failed load to prevent a total collapse of the structure to the street below. Shades of the I-35W and I-5 bridges only recently examined as of the same ilk.

As long as the Federal government chooses to ignore the inherent perils of leaving these types of bridges to remain as structural hand grenades for an unsuspecting public to stumble upon we are exposed to dangers all across the nation. My website, SaveOurBridges.com shows that there are nearly 160 such dangerous bridges – each one both structurally deficient and fracture critical – in each of the 50 states.

Finally, when will the ASCE amend their Infrastructure Report Card to acknowledge these dangers? How can the engineers who design and maintain these bridges – and who are fully conversant with the dangers of every fracture critical bridge – deign to give a grade of C+ to our bridges and never mention the words “fracture critical’ in their report? https://www.infrastructurereportcard.org/cat-item/bridges/ ? How can they provide a glossary of terms addressing the problems of infrastructure without providing a definition and discussion of these fracture critical bridges? Maybe only having 8,000 of them is not of sufficient caliber to warrant discussion.

In ancient Greek mythology, the gods detested any time when man exhibited what they called hubris, i.e. a total lack of humility where a man took on the attitude of a god. Inevitably, the story would arouse the ire of one or more gods who sent down a messenger from the heavens to teach the man a lesson that he was human and not a god. The messenger they sent: you guessed it, Tragedy.

---

Cracks Where FIU Bridge Buckled May Have Signaled 'Imminent Failure'

MIAMIHERALD.COM

Published May 07, 2018 04:53 PM Updated May 09, 2018 03:08 PM
By Andres Viglucci, Nicholas Nehamas and Jenny Staletovich

Cracks were discovered in the Florida International University bridge 10 days before it was raised into the air above busy Tamiami Trail. The bridge collapsed on March 15, killing six people. -Florida International University

A key concrete support truss in the doomed Florida International University pedestrian bridge developed worrisome cracks 10 days before the structure was lifted into place over the Tamiami Trail, photographs and an internal email unintentionally released by the school show.

The documents, released in response to public records requests from the Miami Herald, show that FIU's construction and engineering team discovered potentially problematic cracks in the bridge earlier than officials have previously acknowledged.

The cracks were found in late February at the base of a diagonal support member at the north end of the span. Independent engineers have identified that as the point where the structure shattered on March 15 while under construction, sending the 950-ton bridge crashing onto the roadway below and claiming six lives.

Three independent engineers who examined the photos, records and bridge blueprints at the Herald's request concurred the cracks were a red flag signaling potentially critical structural problems. Outside experts have zeroed in on that truss member, identified in plans as No. 11, as being "under-designed" -- that is, not strong enough to withstand the pressure from the weight of the bridge it was supposed to hold up.

The location and diagonal shape of the cracks shown in the FIU team's photos support that theory, the engineers said. They said the cracks should have prompted work on the bridge to stop for an in-depth review that likely would have resulted in the truss connection being re-engineered and significantly reinforced.

"Knowing the stresses that member was under and what happened, that crack was something that in hindsight should have been investigated," said David Beck, a New Hampshire engineer who helped uncover mistakes in Boston's $10.8 billion Big Dig project.

Linwood Howell, a senior engineer at a Texas firm that specializes in bridge design and inspection, said the cracks were signs of the structure's "imminent failure."

"There's nothing they could have done short of starting over and redesigning the structure," said Howell, whose firm conducts bridge inspections for the state of Texas.

A dashcam video shows the FIU pedestrian bridge falling on Thursday, March 15, 2018. McClatchy@o2webdev via Instagram

A third engineer consulted by the Herald concurred with the first two but asked not to be named.

A fourth bridge engineer, Ralph Verrastro of Naples, said the cracks did not appear significant to him.

"The photos don't clearly provide any clues to me related to ultimate failure," Verrastro said in an email. "I would assume these cracks would have been repaired by epoxy injection before the bridge was moved."

Because FIU and state transportation officials continue to withhold other critical records under instructions from the National Transportation Safety Board, it's hard to say what the FIU team's response to the cracks was.

In a Feb. 28 memo, Jose Morales, a consulting engineer for FIU, notes one crack in particular "merits special attention." Morales urges that the bridge engineer of record be consulted "to provide a response." That engineer of record is W. Denney Pate of FIGG Bridge Group, which designed the bridge. The memo was sent to a project manager at Munilla Construction Management, the bridge project's builder, and copied to Alberto Delgado, a construction project manager at FIU, and other members of the project team.

NTSB, which is investigating the bridge collapse, has told FIU and the Florida Department of Transportation not to release records dated after Feb. 19, so there are no available public records to document any response from FIGG or other team members to Morales' memo. The Herald has sued to obtain subsequent records related to the bridge collapse. The bridge collapse is also the subject of a Miami-Dade police homicide investigation and families of some of the victims have filed lawsuits.

The Feb. 28 memo and the attached photos of cracking were released in error, an FIU attorney, Eric Isicoff, said Monday. After the Herald contacted FIU for comment on the cracks, Isicoff demanded reporters delete any copies of the documents from their computers.

"Any hard copies that have been made also should be destroyed," Isicoff wrote.

Cracks such as the one pictured above may have been a sign of "imminent failure" of the Florida International University bridge that collapsed March 15, claiming six lives. Engineers had discovered the cracks days before the bridge was lifted into place.Florida International University

Mark Caramanica, an attorney at Thomas & LoCicero representing the Herald in its public records requests to FIU, said the Herald has no obligation to comply.

"The Herald has a First Amendment right to publish this information, and the public has a right to know what may have led to this terrible event," he said.

The cracks documented in the Feb. 28 memo were discovered while the span was still resting on the ground, after the removal of temporary shoring that provided support while it was built by the side of the Trail.

Beck and Howell said that's potentially telling because the span at that point was resting only on a support on either end, mimicking the way it would stand once installed over the roadway. The cracks thus could have been a sign of shearing pressure -- a sideways stress -- that the No. 11 truss could not handle once under the full load it was meant to carry.

Both Beck and Howell, echoing other outside engineers who have analyzed publicly available blueprints, records, photos and videos, believe the connection between the No. 11 truss and the bridge deck -- the place where the cracking occurred -- was poorly designed, lacking sufficient steel and concrete to bear the enormous load placed on it. All the engineers emphasize that a clear-cut cause for the collapse may not be established until the NTSB publishes its conclusions, and that their analysis could change based on new information.

Ten days after the Feb. 28 memo, the bridge's main span, fabricated by the side of the road, was lifted into place by two special transporters. That means FIU's engineers and contractors had either done something to address the cracks or concluded they were not an issue, the outside engineers said.

The FIU-Sweetwater UniversityCity Bridge collapsed on a busy road March 15, killing six people and injuring several more. -Pedro Portal Miami Herald

Concrete cracking in construction is common, and records show FIU bridge team members were expecting some cracking as they prepared the bridge span and moved it into place.

In fact, some minor cracking was discovered even earlier, other released records show, but dismissed as inconsequential -- a conclusion the independent engineers agree with.

But three days after the bridge was lifted into place, Pate called an FDOT official to report that cracking had been found at the north end of the bridge, records released by the agency immediately after the collapse show. In a recorded phone message, Pate said the cracks did not represent a safety hazard but should be repaired. It's quite possible that the cracks Pate reported were the same ones in the photos and memo from Feb. 28, Howell said.

The cracks might have become worse after the bridge was moved and set in place, resting atop a pylon at either end. That would especially be the case if the No. 11 truss, the last diagonal piece at the north end, was beginning to fail under the full load of the bridge, he said.

FILE from March 10, 2018: Early morning view of the main span of the FIU-Sweetwater UniversityCity Pedestrian Bridge as it was lifted from its temporary supports, rotated 90 degrees across an eight-lane thoroughfare and lowered into its permanent Pedro Portalpportal@elnuevoherald.com

The cracks were discussed at a meeting of project team members the morning of the collapse, though no safety concerns were raised, FDOT said. The bridge collapsed while crews were atop the walkway's canopy, adjusting the tension on steel support rods inside the No. 11 truss member as traffic continued to flow on the open road below.

“Whether the crews were tightening or loosening the rods has not been disclosed, but could be critical in explaining the cause of the collapse. Because the truss-type design of the bridge means there is no redundant support, the failure of a single structural piece can bring the entire overpass down under its own weight, experts say.”

One early report, by U.S. Sen. Marco Rubio, had the crews tightening the rods in an effort to close the cracks, leading to speculation that over-tightening could have caused the truss to shatter.

But other experts, citing released bridge plans, say they were more likely loosening the rods. The rods were apparently a modification to the plans, added to the bridge design after FDOT asked FIU to move the entire bridge 11 feet north to accommodate a future lane for transit.

The move forced a change in the carefully calibrated plan for moving the bridge into place. It put the north end of the main span well off the edge of the roadway on a canal bank. Because a transport machine could not traverse that roadway edge, the point where it would lift the structure was moved toward the center of the bridge. That means the end would sag when lifted. To prevent that, the rods were added to provide extra compressive support.

The rods were tightened before the bridge was lifted off the ground. The plans called for them to be loosened after the bridge was in place because that extra compression was no longer needed. That's the operation some experts believe was underway when the bridge plummeted to the ground.

Pictured is the blue SUV driven by 18-year-old Florida International University student Alexa Duran when she was killed by a 174-foot walkway being constructed near FIU during a bridge collapse on March 15, 2018. Richard ‘Richie’ Humble, a 19-year-old FIU student who escaped the vehicle alive, filed a civil lawsuit claiming the firms involved in the bridge’s construction acted negligently and should have re-routed traffic. -Sebastian Ballestas sballestas@miamiherald.com

The cracks in the Feb. 28 document were discovered after the rods were tightened, or stressed, in preparation for the lift. In the accompanying memo, Morales, an engineer with FIU consultant Bolton Perez & Associates, asked MCM and Pate to "determine if these were expected during the bridge stressing," and singled out one crack that "due to the size" needed "special attention."

Citing the cracks and his own calculations showing that the No. 11 truss was crushingly overstressed, Howell speculated that either operation -- tightening or loosening -- could have been enough to shatter the connection.

"Since it was right on the brink of failure, anytime you disturb it -- boom -- it goes," Howell said. "It just needed a little push to go over the edge."

A sufficiently attentive engineer, knowing what kind of load the No. 11 member was supposed to carry, should have exercised great caution and ordered a thorough review, preferably by an independent engineer not involved in the project to ensure objectivity, Howell said.

Given the bridge was moved into place soon after and subsequently fell, he assumes that did not happen.

"The cracks are telling them that the connection is failing, but they're not seeing it," Howell said. "When it's your design, you rationalize your way around it."

Aerial footage shows what the scene at the FIU pedestrian bridge collapse looks like the morning after on March 16, 2018. -Pedro Portal Miami Herald

Seeking a line between government's right to retain information (it deems secret) and those times that transparency is what is best for its citizens

We all can agree that there are secrets best kept by government from the public for a multitude of reasons. For one thing, we will all agree that issues affecting national security, such as secret weapons, tactics to be used in the event of attack on our shores, etc., must be given protection from our enemies who could use that information to our detriment. There are incidents in our history, such as the full investigation into who killed John F. Kennedy which arguably, if they contain sensitive information, could fall into that category that the public is best not given the full and true picture.

However, I am not sure about total secrecy on such issues as whether we have aliens from another planet amidst us should be kept secret, but after several viewings of Men in Black and learning that some very famous people on the planet may well be amongst that non-human species, I can understand why facts about UFOs could be validly withheld from general knowledge.

But when it comes to facts about our infrastructure and the potentially perilous conditions of our bridges, roads, dams and electric grid I have gained too much information as a result of authoring “Too Big to Fall: America’s Failing Infrastructure and the Way Forward” to allow any claim by government that withholding such information from the public is a good thing. So this recent article authored by a very respected journalist identifies the spurious efforts of the New Jersey Transit folks to disclose information on which rail bridges may be in critical need of attention has brought this issue to the forefront. I wish to share my concern with each of you.

A NJ Transit passenger train passes over the train bridge at the Garfield Train Station

“Tens of thousands of NJ Transit commuters cross them on trains every day. But the statewide public transportation agency, which maintains hundreds of rail bridges, won't share any information with the public that would reveal whether they're safe or not.”

It seems that the journalist, Curtis Tate, who has written extensively on infrastructure issues for many years, sought to identify whether the NJ Transit officials have categorized railway bridges under its jurisdiction and showing signs of excessive corrosion and wear and tear associated with other structurally deficient bridges around the nation, was rebuffed repeatedly by the authorities. When he finally asked why they would not furnish the condition reports in their files that would validate serious concern for the bridges these railroads use for the travelling public, Tate was summarily told that:

"NJ Transit is in possession of documents containing information which, if disclosed, would jeopardize the safety and security of NJ Transit bridges," the denial letter said.

A further request to the NJ Attorney General’s office got a similar refusal and the statement that the documents "contain sensitive technical...information regarding the structural integrity of nearly six hundred bridges" maintained by the agency. Think about that: although New Jersey has hundreds, if not thousands of the nation’s approximately 55,000 structurally deficient bridges and these are widely known to the general public who seek this information, learning which rail bridges are in danger of collapse, bridges that carry a million passengers a year, is a secret only to be shared by those with Top Secret clearances.

When Curtis spoke with me for his article I pointed out that on the fifth anniversary of the collapse on August 1, 2007 of the I-35W in Minneapolis which killed 13 people and injured another 145, I published a Google map at www.SaveOurBridges.com that permitted every citizen who entered a zip code to see all the structurally deficient\fracture critical bridges (those in danger of imminent collapse) in that area. This website has been quoted publicly on many of the TV and radio stations with whom I have interviewed over the past ten years AND NO GOVERNMENTAL AUTHORITY HAS EVER ASKED ME TO TAKE IT DOWN for any reason, let alone national security reasons. Why then, I asked, could any transportation agency seek to preclude this acknowledgement of pending disaster from the questioning press or the public whom it serves?

We truly deserve better from our public officials. I hope that journalists such as Curtis Tate continue that fight. I hope he convinces his publishers to take this battle to court as an affront to our first amendment rights. And I hope that one day, the sunlight of transparency will shine brightly on our state and federal government leaders who, for the past four decades, have failed to exhibit the political will and the political leadership to make repairs to our imperiled infrastructure a primary mission before further disasters occur. I hope we all win that ultimate victory.

As always, please let me have your thoughts and ideas in response to this issue.

Construction Corruption in NYC

Throughout my forty year career in the design and construction community I have been called upon often by owners how best to address the 900 lb. gorilla that hovers over the industry: the existence and persistence of corruption in how buildings are designed and constructed.

Make no mistake about the nature of the problem. There have been regular reports that corruption is not solely limited to the construction world’s tendency among some to hide the true cost of construction; to create two sets of books for a project and make sure the owner only sees the set with higher costs; and the use of many workers who are shown as needed for a project who are, in fact, no-shows and reap unwarranted profits for construction executives.

But the problem often extends to complicit architects, interior designers, commercial real estate brokers and project managers all have been caught up by prosecutors in New York City for their roles in leading to bilking corporations, institutions and developers — as well as private owners — of hundreds of millions of dollars.

The article, "The anatomy of construction corruption: How bribery and overbilling schemes have become commonplace in the world of real estate’s middlemen", that recently appeared in The Real Deal, and which liberally quoted me on the subject, highlights the latest round up of contractors who were prosecuted for such heinous behavior. [https://therealdeal.com/issues_articles/the-anatomy-of-construction-corruption/]. Ultimately, we find that fines and penalties are imposed to recoup the monies wrongfully taken from their clients. Occasionally, a few executives of these companies are jailed. But, curiously, most of the largest culprits have paid their fines only to see their businesses continue to grow and prosper and treat their wrongdoing as a cost of doing business.

Inevitably, if our city, state and federal governments want to eliminate this kind of behavior our officials will need to become more serious about ending this type of unacceptable behavior. Setting boundaries going forward should include automatic jail sentences for those within each company who play a role in the setting of these payments and subcontractors who are complicit must also be penalized.

Finally, there should be one, two or five year suspensions of the licenses given to contractors to conduct business to emphasize the seriousness of this type of behavior. That will send the true level of the message we need to end this kind of virulent behavior for all time.

As always, please let me have your comments.

Trump’s infrastructure plan is “dead on arrival”: Barry LePatner

Following the recent derailment of an Amtrak commuter train north of Seattle, the producers of MSNBC reached out to me and asked me to join Ali Velshi and Stephanie Ruhle to discuss this disaster and the subject of our nation’s infrastructure. The five minute interview is shown by clicking on the image above.

MSNBC has highlighted the interview by citing my statement that the soon to be revealed Trump infrastructure plan is “dead on arrival”. I believe there will be little likelihood that the members of Congress can support a plan to improve our perilous infrastructure by adding $200 billion more to the nation’s deficit which just experienced an increase in the national debt of $1.5 trillion from the newly-passed tax plan of the GOP. Moreover, the infrastructure plan is heavily weighted to require states to make up a large portion of the $800 billion to be raised by outside equity and state contributions. This would only be possible by increases in state taxes – taxes that are not always deductible by its citizens under the new tax law.

For those of you who wrote about not receiving the video of my recent interview with Bob Herbert, former op-ed columnist for the NYTimes as shown on CUNY-TV, here is the link of that discussion about our nation’s infrastructure. https://www.youtube.com/watch?v=MkidnPrKzEs

Please share your comments and let me extend my warmest wishes to all for the upcoming holidays and the New Year

Taxing the American Dream

What does it mean when the best of our next and future generations will be deprived of gaining a hope for securing a masters degree or going for an advanced science degree or seeking a medical school education which will be much needed skills in the years ahead?

The American education system has been the gold standard for training our – and the world’s – future leaders in science, government, teaching and a host of other fields that are central to maintaining our exceptionalism. However, the new tax legislation under final consideration by the U.S. Congress appears to be a direct assault on any hopes of keeping that reputation alive for the future.

In his recent article for Medium, Graham Glusman of Columbia University notes that “college access has expanded dramatically in the past 75 years, enabling students from middle and low-income families to attend college.

This has largely been the result of federal programs and scholarships that were designed to do just that, such as the Pell Grant. In 1976, there were 1.9 million Pell Grant recipients, receiving $6.2 billion worth of financial aid. In 2012, that number had increased to 9.4 million recipients, who received nearly $40 billion in aid. As a result of heightened accessibility, the United States is one of the most educated countries in the world, which has had a reciprocal effect on Americans’ incomes and on the economy at large. On average, people with a bachelor’s degree make 66 percent more than those without them.”

The current tax proposal before Congress represents an assault on securing greater accessibility for undergrads. Worse, it is an outright effort to make it nearly impossible for graduate students from lower and middle income families from seeking advanced degrees – masters, doctoral and professional – by taxing their tuition waivers. Consider the following example cited in the article:

“if a student seeking a medical degree and making $2,000 a year part time at a coffee shop also received $30,000 a year from a university to help with tuition, that student’s taxable income would be $32,000. The absurdity of the proposal is that a student, who presumably takes on a job to help pay for basic necessities like food, heating, and rent, would have to pay taxes as if their earned income were 16 times higher than it actually is."

“In 2017, the federal tax on $32,000 was $2,763.75, more money than the student actually made at the coffee shop in the first place. What makes this plan so nonsensical is that the student never actually sees the $30,000 waiver; it is immediately deducted from their tuition, the rest of which they are still required to pay. So not only would students who received such waivers be in immediate debt simply for attending graduate programs, they would still have to pay the rest of the tuition that their waiver didn’t cover.”

What is the purpose of tax legislation that is punitive to those trying to gain a brighter future for themselves through education? What does it mean when the best of our next and future generations will be deprived of gaining a hope for securing a masters degree or going for an advanced science degree or seeking a medical school education which will be much needed skills in the years ahead?

Is this the kind of country that America should hold itself out as offering to its citizens? Do the voters even understand that their children and grandchildren’s opportunities have been frustrated by tax legislation that makes it near impossible for them to secure what used to be an inalienable right for all?

Please let me have your comments on this latest development. More importantly, reach out and let your Congressperson know that this is downright foolish as well as unfair.