Gallagher can’t use his garage, but the law denies property owners due process of the law.

By Seth Richardson

Colorado Springs City Councilman Tom Gallagher thinks the police department may be harassing him because of his advocacy for pay cuts for city employees. He objects to the police preventing him from using a detached garage at his rental house for parking because it was alleged to have been used as an illegal meth lab.

Gallagher is probably wrong on both accounts, but not for the reasons that come immediately to mind. In this case, the CSPD has done nothing wrong. The garage was placarded as “unlawful to occupy” in March of 2008, presumably before Gallagher moved in to the house, so he can’t say he didn’t have due notice.

The police were simply obeying Colorado law, amended in 2009, that requires illegal drug labs to be vacated and cleaned up before they can be occupied. The concerns are legitimate, and the risks of cross contamination and physical harm to anyone occupying a contaminated structure are very real.

The real problem is that the law imposes substantial burdens on the owners of properties where illicit drug labs are found without providing adequate due process.

The biggest problem with the law, C.R.S. 25-18.5-101 et. seq., is that it gives the police far too much discretion in declaring a property to be an illegal drug laboratory, which the law defines as  “the areas where controlled substances, as defined by section 18-18-102, C.R.S., have been manufactured, processed, cooked, disposed of, used, or stored and all proximate areas that are likely to be contaminated as a result of such manufacturing, processing, cooking, disposal, use, or storing.”

The law also says, “Upon notification from a peace officer that chemicals, equipment, or supplies indicative of an illegal drug laboratory are located on a property…the owner of any contaminated property shall meet the cleanup standards for property established by the board…” It goes much further and can require the owner to evict anyone living in the house immediately and seal it up and not allow anyone not “trained or certified to handle contaminated property pursuant to board rules or federal law.” There is no requirement that the police or the health department actually determine that the structure is contaminated, all they have to do is find precursor chemicals stored there and notify the owner of “probable” contamination.

This law gives the police over-broad authority to determine if an illicit drug lab exists and to invoke a presumption that it’s contaminated, thereby burdening the property owner with the expenses for testing and ejecting the occupants without any notice. The El Paso County health department acknowledges that “most owners forego the expense of sampling and testing and simply accept that a cleanup will be required.”

This does not provide adequate due process to a property owner, and it gives police officers, who are not qualified to assess or determine the degree of contamination that might be present, the authority to eject someone from their home based solely on the existence of chemicals or equipment in the home, whether or not the home is factually contaminated. That would properly be determined by the local health department.

Here’s an example of how police authority might be abused. Pseudoephedrine tablets (otherwise known as Sudafed, an over-the-counter decongestant) are a precursor chemical for manufacturing meth. Suppose for a moment that a renter obtains a thousand tablets of Sudafed and puts them in the bathroom, but never actually cooks any meth, and may not in fact have any intention of cooking meth.

The law is so broadly written that a dishonest police officer can harass the owner of the house by declaring the house a “meth lab” because a “controlled substance” has been “stored” there. With this simple declaration, the owner is then required to do elaborate testing to prove a lack of contamination without any police proof of actual contamination, or at the very least file an expensive civil lawsuit to overturn the officer’s “determination.”

Why might the police do this? Well, they might view the property owner as being “uncooperative” with their efforts to clean up the neighborhood by driving all the alleged meth addicts out by having them evicted. By threatening to declare his rental property to be a meth lab, even if it isn’t actually contaminated, they can achieve their goal more easily.

This is merely an example and is in no way intended to suggest that the CSPD has or will engage in any such malfeasance, but the principles of law at issue require that police not be given the sort of latitude to depart from the Constitution that this law allows. Citizens have a right to demand that their laws to constrain the ability of the police to abuse their authority.

Now, it is perfectly reasonable to say that actual meth lab contamination is very dangerous, and the state has a significant police-power interest in regulation contaminated structure and even in prohibiting entry to such places. However, the burden of proof for a substantial regulatory action like ejecting someone from their home and prohibiting them from using and enjoying their personal property is far too low in this case.

Mere assumptions on the part of police officers are just not good enough. For a property to be an actual public nuisance in the traditional sense, the police or health authorities have to have probable cause to enter the residence for an inspection (let’s use a “hoarder” as an example), then they have to inspect the residence and make a determination based on evidence that the property is actually unfit for human habitation, and then they have to get a court order to demand cleanup or eject the tenant.

They cannot simply go in and say “we believe this property is contaminated, now get out!” They have to provide proof that the property actually is a public health nuisance, not place the burden on the property owner to prove that it is not.

This state law, while filled with good intentions, is on the road to the customary destination of all well-intentioned but ill-considered laws and needs to be challenged to raise the bar and require the state to provide due process for a homeowner, which means a court hearing at which the government has to prove that the property is actually contaminated.

But for now, Gallagher is stuck, and if he wants to complain, he should complain to his landlord, who is the one who is responsible for cleaning up the property, if it’s actually contaminated, that is.

Proposed state senate bill 107 assigns free speech control to the Ute Tribes.

By Seth Richardson

Colorado state Senator Suzanne Williams, D-Aurora, wants to give control over the free speech and expression of school districts to the Colorado Commission of Indian Affairs in the name of political correctness and “a healthy dialog about their heritage.” Williams, who is one-quarter Comanche, is trying to require that all school districts that use Indian mascots, which includes a “name, symbol, or image that depicts or refers to an American Indian tribe, individual, custom or tradition,” submit the mascot to the Colorado Commission of Indian Affairs for “approval” of the mascot. The Bill also imposes a one-thousand dollar per month fine upon any district that uses an Indian mascot without Commission approval.

The Colorado Commission of Indian Affairs is made up of eleven people; five state officers, two members of the Southern Ute tribe, two members of the Ute Mountain Ute tribe, and two at-large members appointed by the Commission. Its current mandate is to coordinate intergovernmental dealings between tribal governments and the State, to provide technical assistance to the state in dealing with the needs of Indians in Colorado, to review legislation and federal issues affecting Indians in Colorado, and generally to be the point of contact between the tribes and the state.

The Bill would add to that the power to decide whether a school district is allowed to use an Indian mascot.

Racial stereotypes and oppression of Indian peoples have been a sad truth in this nation almost from its beginnings. The current political climate disfavors unflattering Indian stereotypes, and many sports teams and other groups who in the past used bigoted and racist mascots that demeaned Indians have seen the light of diversity and tolerance and have voluntarily changed their mascots as a sign of respect for their fellow citizens.

This drive to eliminate stereotypes, bigotry and racism from the halls of government has extended even to renaming geographical features like “Squaw Mountain” which are considered derogatory.

There’s nothing wrong, and much right about raised social consciousness and a determination not to perpetuate derogatory stereotypes and bigotry.  Such “healthy dialogs about … heritage” in society help to foster tolerance and amity between different groups, which is part of the “Great Melting Pot” concept of our society. But a state law assigning the power to control or suppress “healthy dialogs” by giving over control to the putatively offended group is not the way to accomplish the legitimate goal of fostering tolerance for all races and ethnicities, nor is imposing free-speech fines on school districts.

There are some groups who do not wish to assimilate into the amorphous whole called America, which wish is a fundamental right protected by the First Amendment’s Freedom of Association Clause. This is particularly true of American Indian tribes, who by law are both citizens of the United States, and citizens of their tribes, which are recognized in our laws as “sovereign domestic dependent nations,” and which have sovereignty and control over their people and their lands, subject to some oversight by the federal government.

This unique relationship between the United States and the Indian Nations is a part of our history that cannot be ignored, but at the same time, the sovereignty of the United States, and its political subdivisions, are equal in status, and the rights of its citizens may not be infringed by the sovereign Indian Nations laws, practices or beliefs. This sovereignty does not extend past the boundary of their lands, or to the rights of non-Indians to speak freely, even if their speech is biased and bigoted.

The difficulty with this bill is that it in effect gives the Ute tribes the power of censorship over the use of names, symbols, or images that depict or refer to an American Indian tribe, individual, custom or tradition. This is an extremely broad censorial power over the right of free speech and expression by U.S. citizens being granted to the citizens of sovereign domestic dependent nations. It’s scope is limited in this Bill only to public schools, but once established as a precedent, expansion of this assumed authority to control the use of Indian cultural references will certainly spread, and that cannot be permitted under our Constitution.

A similar sort of demand for exclusive use of ethnic/religious terms is seen today in Malaysia, where violence has erupted between Muslims and Catholics over the use of the word “Allah” by a Catholic newspaper. The Malaysian Home Ministry had declared the word to be reserved only for use by Muslims, but the Malaysian Supreme Court held that the Herald, Malaysia’s only Catholic newspaper, could use the word as a generic reference for “God” in its publications.

This ruling ignited sectarian violence in Malaysia. The Associated Press reports that, “Since Jan. 8, there have been assaults on 11 churches, a Sikh temple, a mosque and two Muslim prayer rooms by assailants mostly using firebombs. Only one attack did serious damage and no injuries have been reported.”

This is not the first time that Indian Nations have attempted to use the law to prevent non-Indians from “appropriating” Indian culture, nor will it be the last. One example is an ongoing dispute over public use of Devil’s Tower National Monument, which Indians in the area consider a sacred site. The National Park Service has been trying to persuade non-Indians to avoid climbing the butte during June which is a time of religious significance to the tribes. What the NPS has not done, and cannot do under the Establishment Clause, is prohibit non-Indian use of the National Monument based on Indian cultural or religious preferences and practices. Doing so would violate the Establishment Clause by favoring Indian religion over other religions. This same principle applies to all similar attempts to restrict cultural or religious practices exclusively for the use of one group. Holding a “sweat lodge,” while it may be a religious practice for Indians, is not reserved for Indians, and anyone can hold one.

However politically-correct and reasonable it may be to respect Indian traditions and sensibilities, the First Amendment protects the rights of all citizens to express themselves freely, even if such speech and expression is insulting, derogatory or bigoted. We cannot condone or permit violence in the appropriation of any word, cultural reference or even cultural practice by anyone. Nor can we condone or permit such appropriations.

It is a dangerous precedent for the State to establish a system whereby the rights of American citizens are subject to the prior approval of the citizens of the Indian Nations. Such acts do not advance comity and cooperation, they further polarize our opinions. Shall we, using Senator Williams’ logic, also forbid the Indian Nations from using any references to non-Indian culture? Of course not, and any such suggestion would be seen as preposterous on its face. What’s sauce for the goose is sauce for the gander.

Moreover, it’s flatly unconstitutional for the state to engage in prior restraint of speech and subject speech and expression to governmental pre-approval, which is looked upon quite dimly by the Supreme Court.

While it is true that school districts operate under the general oversight of the State Board of Education, which may establish educational standards and other general controls, local school boards have wide discretion to operate their schools as they see fit, in response to the desires and needs of the residents of the district. This includes naming schools and sports teams.

It is not for the State Board of Education to delegate authority to approve or disapprove the name or mascot of a public school to a commission that has a vested interest in co-opting any references to Indians for the exclusive use of Indians.

It is for the citizens of the school district to decide what image they wish their sports teams to portray, and how they wish to exercise their free speech rights. If they choose to do so in a derogatory manner, then it is up to the rest of us to put social pressure on them to respect their fellow citizens of Indian heritage, just as it would be our responsibility if a sports team were named using some other derogatory racial insult. We must trust our fellow citizens to act like adults and respect their fellow citizens. We need not government intruding on the First Amendment to protect us from our own social mores.

It is not within the rights of the Indian Nations to censor the free speech or expression of American citizens or to reserve by force of law the use of any name, term or reference to Indians or their culture, or indeed their cultural practices. Such things are in the public domain, and must remain there.

© 2010 Altnews

When columnist Dave Sirota accuses Democrats of zombi-Reaganism, you know things are about to get ugly

By Seth Richardson

The day after Scott Brown’s amazing upset in Massachusetts, Glen Beck told listeners that the war for the Democratic party has begun. He predicted that within days, the Progressives and the Democrats would be at one anothers throats in a frenzy of political bloodletting that is likely to determine the future of politics in the United States. Beck was right. Even Dave Sirota knows something is terribly wrong in Washington.

In Saturday’s Gazette, the staunchly left-leaning Sirota accuses the Democrats of getting into bed with the corpse of Ronald Reagan to forge an unholy alliance between Democrats and Big Business. Sirota says, “Republicans aren’t responsible for the revival of Reaganism. Democrats are.” He also characterizes the Democrats’ new worldview as “odious.” And you know what? He’s mostly correct.

But it’s not zombie-Reaganism that’s being created, it’s Liberal Fascism, and it’s nearly identical to what Mussolini and Adolph Hitler did to Italy and Germany just prior to WWII.  And it’s not coming from the Democrats, it’s coming from the crypto-Progressives in both the Republican and Democrat parties, and the not-so-crypto-Progressive in the White House. And that ought to scare the pants off of everyone.

Sirota says, “In 2009, Democrats made clear that their idea of government is radically different from the one embedded in their legacy and campaign promises. They unleashed what The Nation’s Chris Hayes calls “corporatism” — an agenda that fuses public and private sectors, replacing Rooseveltian regulations and LBJ-esque social safety nets with taxpayer-funded bribes of rapacious business interests.”

Yup, that’s what they are doing, Dave, but it’s not the Democrats doing it, it’s the Progressives.

Like Hitler did in pre-war Germany, the Progressives are promising “rapacious business interests” that they will be allowed to continue their corporate existence, keep their part of the pie, and keep making a profit, so long as, but only so long as they use their corporate power to support the Progressive political agenda of the Obama administration. If they balk at the Progressive agenda however, they will be taken over or destroyed by abusive regulation. Already General Electric has knelt and kissed the feet of the Progressives, and other industry giants are in line behind them applying the lip balm they are going to desperately need.

Obama minion and “Regulatory Czar” Cass Sunstein holds the big stick of government regulatory agencies like the EPA, which has already threatened to emasculate Congress and take control of our economy in the name of an “endangerment finding”  that carbon dioxide is a hazardous chemical.

And then there’s Barney Frank, the stick the banking industry has been facing for some time now. Frank is a tool of the Progressives just like Obama or Hillary Clinton. Now Frank wants to “abolish” Fannie Mae and Freddie Mac, the government loan agencies that Frank himself drove into economic collapse through mismanagement, bald-faced lies to the public, and political pandering, and replace them with “a whole new system of housing finance.” Watch Barney’s other hand carefully, because he’s not going to propose anything that limits government power or involvement in the housing mortgage markets, he’s going to be a good Progressive and use this “crisis,” which he is largely responsible for creating in the first place, to enhance government control of all housing in the United States. Including your mortgage, if he’s able.

Defections of Democrats from Progressive radicalism make Progressives insane with fury, and you can depend upon Progressives like Obama, Hillary Clinton, Nancy Pelosi and Harry Reid to pull out all the stops and, as Saul Alinsky said good radicals should do when balked, “put the pedal to the metal.”

In his book “Liberal Fascism,” Jonah Goldberg exhaustively analyzes the way that Liberal Fascism, which we can call in the present context simply “Progressivism,” seeks to control society not just through regulation, but through co-opting of major industry. Goldberg points out the startling similarities between Hitler’s “Volksgemeinschaft” (People’s Community) in 1930s Germany and Obama’s “green revolution.” In both cases, through takeovers (like GM) and threats of takeovers (like Krupp Steel in Germany), and by carrot-and-stick financial incentives combined with massive regulation, Hitler and Obama both seek to coerce big business go along with the desired political agenda. Goldberg’s proofs are too voluminous to relate here, so I strongly recommend that you go out and buy a copy of “Liberal Fascism” today, because it will make clear what’s happening to our country, and what the dangers are.

Suffice it to say for the moment that when Dave Sirota sees specters of Reaganism infecting the Democrat Party, there’s something really, really wrong with the Democrat Party. And what’s wrong is Progressivism, which, like a zombie, is turning on its host, intent on devouring the heart and soul of not just the Democrats, but everyone else it touches, and which if allowed to do so will turn us all into Progressive zombies and “fundamentally transform” the United States of America into something entirely horrific and unrecognizable.

And it’s not zombie-Reganism that’s being forwarded, because Reagan was an advocate of smaller, not larger government, and lower, not higher taxes, and less, not more control of business by government. Progressives, on the other hand, want government to run everything. They just co-opt big business to that goal temporarily because it’s a convenient way to reduce opposition to the ultimate goal of the Universal Nanny State. Once that goal is achieved, however, nobody is safe.

You can depend on the Progressives to turn on the turncoat Democrats and try to consume their brains, and in the end, either they will win, and the political landscape will be much different, and the battle lines clearly drawn, or the Democrats will reject the radicalism and Liberal Fascism of Progressivism and return to their own roots, which have been for more than 200 years honorable and honest intentions to care for the people of this nation as their defenders and representatives, not as their rulers and masters. Whatever the differences between Republicans and Democrats, we have been able to peacefully coexist for a long time, and we need to band together now to defeat the much greater threat to our liberty and prosperity that is Progressivism.

Once the cancer of Progressivism infected the Democrats, the only hope for America is that we can come together to kill it and prevent it from metastasizing. It’s been a slowly-growing cancer that began in 1912, with Woodrow Wilson, and it’s now about to kill it’s host and take on a zombie-like life of its own if we don’t put a stop to it.

If the Progressives win, then the real battle begins, the guns-and-bullets battle for the very survival of the Republic. Pray that doesn’t come to pass.

© 2010 Altnews

Let’s get constructive in the debate about interpreting Issue 300

By Seth Richardson

The City Council has asked for more public input on how the City should interpret Issue 300 to make it work, so here’s my input. I decided rather than write more about principles, I’d write some policy instead. That way nobody can say I didn’t participate.

If you like this draft, or parts of it, contact the Council and express yourself. Send them a printout or a link to this article. If you have a better idea, then provide your own suggestions. This is a first draft that I put together today, and I’ll likely be fine-tuning it a bit, so please use the comments section to point out any egregious errors you might find or give me any suggestions of what I might add or change.

Pay particular attention to the actual ordinance, which begins after all the “whereas” clauses.

The first meeting between Douglas Bruce and the City will be Wednesday afternoon, so there’s no time to waste.

ORDINANCE NO. 10-_______

AN ORDINANCE ADDING A NEW ARTICLE 10 (INITIATED ORDINANCE PERTAINING TO ENTERPRISES) OF CHAPTER 14 (MUNICIPAL ENTERPRISES) OF THE CODE OF THE CITY OF COLORADO SPRINGS 2001, AS AMENDED, PERTAINING TO ENTERPRISES

WHEREAS, at the November 3, 2009 Coordinated Election the electorate of the City of Colorado Springs approved an initiated ordinance, “Issue 300″; and

WHEREAS, Issue 300 pertains to enterprises that operate as municipal-owned businesses; and

WHEREAS, City Council has received information concerning Issue 300 from its author and sponsors and from members of the public through presentations at City Council meetings, telephone calls, e-mails, letters, and media coverage; and

WHEREAS, this information gave insight into these individuals’ beliefs concerning the meaning and effect of Issue 300; and

WHEREAS, there was no unanimous public agreement on the meaning and effect of Issue 300; and

WHEREAS, it was not the stated or evident intent of the proponents of Issue 300 to prevent or prohibit the creation or operation of city-owned enterprises pursuant to Article X, Section 20 of the Colorado Constitution; and

WHEREAS, City Council concludes that the voters intended for enterprises to function in substantially the same manner as for-profit businesses and did not intend for the City to subsidize the enterprises in any manner; and

WHEREAS, the evident intent of the citizens of Colorado Springs in making Issue 300 law is to prevent the City of Colorado Springs from using its enterprise powers to generate a net increase in general government revenues through the imposition of fees charged by an enterprise, rather than collecting such fees solely to defray the costs of providing the goods and services for which the enterprise was created; and

WHEREAS: The Colorado Supreme Court has ruled that a fee is not designed to raise revenues to defray the general expenses of government, but rather is a charge imposed upon persons or property for the purpose of defraying the cost of a particular governmental service; and

WHEREAS: The Colorado Supreme Court has ruled that the collection and transfer to general revenue purposes by government of revenues collected as fees for the purposes of defraying the costs of a specific good or service in excess of the actual costs of providing that good or service makes the revenue a tax, not a fee; and

WHEREAS, Article X, Section 20 of the Colorado Constitution, known as the Taxpayer Bill of Rights (TABOR) prohibits the imposition of any new tax without an affirmative vote of the people; and

WHEREAS, the Attorney General states in a formal legal opinion (AG Alpha No. HE CU AGAUN, December 22, 1995), “The term “business” as used in TABOR refers not solely to the identity of the customer, but also to the nature of the entity, the type of activity engaged in, and to whether the economic transactions involved of the sort clearly undertaken for the purpose of gain or profit within the private sector. Specifically, to meet the “business” requirement, such an enterprise must be an independent, self-supporting government-owned business that receives income, fees, and revenue in return for the provision of goods and services. The very concept of an enterprise under TABOR envisions an entity that is owned by the government institution, but is financially distinct from it. The financial affairs of the enterprise must be those of a self-supporting business-like activity that provides goods and services for a fee. Second, to be considered a “business” the enterprise must engage in the kind of activity that is commonly carried on for profit outside the government. In this respect, the activities engaged in between the enterprise and the [enterprise’s owner] must bear the indicia of arms-length, market exchanges and goods and services must be provided at a market-rate sufficient for the independent operation of the enterprise. [An] enterprise could provide its services … so long as the enterprise is operated as a self-supporting business activity and the transactions between the enterprise and [the enterprise’s owner] are market exchanges taking place in a competitive, arms-length manner. This requirement is necessary to eliminate the concern that such a transaction is merely a subterfuge designed to circumvent the debt limitation provisions of TABOR. Moreover, where an enterprise is also providing market driven services to the public, as here, there is a greater likelihood that the enterprise meets TABOR restrictions. This is both a legal and fact-based assessment”; and

WHEREAS, Issue 300 requires the phase out of payments from an enterprise to the City over a period not to exceed eight (8) years, and effectively prohibits payments from an enterprise to the City after the phase out period; and

WHEREAS, Issue 300 requires that the savings realized from the phase out of payments from an enterprise to the City be passed on to customers as reductions on each customer bill; and

WHEREAS, Issue 300 expressly prohibits enterprises and the City from providing loans, gifts, and subsidies to each other; and

WHEREAS, when strictly construed according to the plain language, the prohibition on gifts, loans or subsidies prohibits an enterprise from providing essential utilities and services to the city, or to another enterprise free of charge; and

WHEREAS, the exchange of consideration to avoid a subsidy or gift could be construed as a payment according to a strict interpretation of the plain language of Issue 300; and

WHEREAS, savings from the phase out of enterprise payments to the City may not necessarily result in a reduction in customer bills because other financial factors may require fees, rates, and charges to be increased more than the savings realized from the phase out of payments to the City; and

WHEREAS, the constraints of Issue 300 place impossible conditions upon the City and its enterprises and causes an absurd result that the city-owned public utilities enterprise cannot make use of city-owned infrastructure, services or assets without paying for such use, while at the same time the enterprise is forbidden to pay for such use under a strict interpretation of the plain language of Issue 300; and

WHEREAS, city-owned enterprises are a fiscally-sound and efficient way to provide certain services and amenities to the citizens of Colorado Springs at low cost and without general tax implications, which is a benefit to the citizens; and

WHEREAS, transfer of city-owned assets, real estate, and infrastructure to an enterprise comprises a gift, which is prohibited by Issue 300; and

WHEREAS, without the benefit of defined terms in the text of Issue 300, the prohibition of payments mandated in the first sentence of Issue 300 conflicts with the prohibition against the provision of gifts and subsidies between an enterprise and the City mandated in the second sentence of Issue 300; and

WHEREAS this conflict between the two sentences of Issue 300 can be resolved by defining the terms used in the text of Issue 300; and

WHEREAS, Issue 300 contains words and phrases that conflict with the City Charter, including but not limited to §§ 3-10(d), 6-40(b), 7-30(c), 7-90,13-80, and 13-90; and

WHEREAS, the Colorado Court of Appeals in Vail Associates v. Bd. Of Assessment Appeals, 765 P.2d 593 (Colo. App. 1988) and the Colorado Supreme Court in Flanders v. City of Pueblo, 114 Colo. 1, 160 P.2d 9~0 (1945) upheld a city council’s obligation to ensure that ordinances conform to its city charter and upheld a city’s authority to harmonize conflicting provisions; and

WHEREAS, because Issue 300 is subject to multiple interpretations and conflicts with the City Charter, it is necessary to define terms to implement the intent of the voters, to give meaning to Issue 300 as a whole, and to construe Issue 300 to harmonize its provisions with the City Charter; and

WHEREAS: it is the intent of the City Council to honor to the fullest extent possible the purpose and intent of Issue 300 and TABOR, and at the same time adhere to its fiduciary duty and obligation to the citizens of Colorado Springs to provide government services and amenities at a reasonable cost and protect the title to and value of city-owned assets.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLORADO SPRINGS:

Section 1. That a new Article 10 (Initiated Ordinance Pertaining to Enterprises) of Chapter 14 (Municipal Enterprises) of the Code of the City of Colorado Springs 2001, as amended, is hereby created to read as follows:

SECTION:

14.10.101: Legislative Declaration

14.10.102: Initiated Ordinance

14.10.103: Definitions

14.10.104: General

14.10.101: LEGISLATIVE DECLARATION:

At the November 3, 2009, Coordinated Election, the voters of Colorado Springs approved an initiated ordinance, “Issue 300.” The initiated ordinance presented to the voters did not define terms or give guidance for its implementation. The wording of Issue 300 is susceptible to more than one meaning. City Council has considered evidence pertaining to the effect and meaning of Issue 300 from it author, its proponents, and members of the public. However, in accord with Colo. Const. Art. XX, § 6, Charter §§ 1-30(a) and 3-130, City Code § 1.1.104 and well-settled case law, it falls to the City Council to enact legislation to implement and further the purposes of Issue 300 absent defined words and phrases in the initiated ordinance presented to the voters. To that end, the City Council hereby implements the intent of the voters by giving meaning to Issue 300 as a whole and construing Issue 300 to harmonize its provisions with the City Charter and to provide certain rules and principles for the operation of City enterprises.

14.10.102: ISSUE 300:

“Excluding sales and use taxes forwarded from enterprise customers, all enterprise payments to the city shall phase out in eight or fewer equal yearly steps starting in January, 2010, with all yearly savings passed on as reductions to each customer bill in dollar amounts as equal as possible. Hereafter, all loans, gifts, and subsidies between an enterprise and the city or another enterprise are prohibited.”

14.10.103: DEFINITIONS:

The following definitions apply to this Article:

“ALL YEARLY SAVINGS PASSED ON AS REDUCTIONS TO EACH CUSTOMER BILL IN DOLLAR AMOUNTS AS EQUAL AS POSSIBLE” means enterprise fees, rates, and charges as established in the regular course of business, including any savings resulting from the phase out of enterprise payments to the City.

ASSET means a tangible or intangible asset regardless of whether the asset provides direct or measurable benefits to the City or the enterprise. “Asset” includes, but is not limited to: (i) cash and other funds; (ii) services, including studies and reports, provided by consultants, (iii) police and fire services consumed or made available, (iv) street and traffic services consumed or made available, (v) all other City services used, consumed or made available, (vi) memberships in organizations that provide technical advice and services, (vii) real estate, and (viii) any other asset that confers value or is intended to confer value.

CITY means the municipal government of the City of Colorado Springs, Colorado. For purposes of this article only, “City” does not include enterprises of the City.

CONSIDERATION means anything of value, and includes any direct or indirect service, benefit, cash, or other tangible or intangible asset, regardless of whether or how the service, benefit, or other tangible or intangible asset can be measured.

ENTERPRISE means a business function that (i) qualifies as an “enterprise” under Colo. Const. art. X, § 20(2)(d), (ii) qualifies under Charter § 7-90(b)(5), and (iii) is classified as an enterprise by the City. Enterprise includes the municipal enterprises, Colorado Springs Utilities, and the Memorial Health System.

GIFT means a benefit or a transfer of an asset without consideration. “Gift” includes the transfer of funds made solely because an enterprise is exempt from the obligation to pay taxes. “Gift” does not include a transfer of funds if the funds are held in a fiduciary capacity. “Gift” does not include the transfer of funds to the general revenues of the City of the remaining surplus of the net earnings of Colorado Springs Utilities if the transfer is authorized in the annual budget and appropriation ordinance adopted by City Council, as provided in Charter § 6-40(b), provided that such surplus net earnings are not substantial in amount and are accrued in the normal course of business as unanticipated and unintentional surpluses caused by conditions or events beyond the control of the enterprise. “Gift” does not include a transfer of funds to satisfy an obligation existing as of the date Issue 300 became effective, or a transfer of funds required by law. “Gift” does not include a transfer of funds for the purpose of making an investment, or a transfer of funds that represents a return on an investment.

LOAN means the undertaking of a financial obligation of the City by an enterprise, or the undertaking of a financial obligation of an enterprise by the City.

Except as otherwise stated herein, PAYMENT means any money transferred from an enterprise to the city, including money transferred to the city as reimbursement for any goods or services provided by the city that creates an increase in the net annual revenues of the city, or which is in excess of the fair-market value of the goods or services or the amount charged to private customers of the same class and kind for publicly-available goods or services offered by the City and received by the enterprise. “Payment” also means any money transferred from an enterprise to the city which is ultimately used to defray the general expenses of government other than small amounts of incidental, unintentional, inadvertent surplus revenues collected in the ordinary course of business as the result of unforeseen circumstances by the Colorado Springs Utilities Enterprise. “Payment” does not mean money transferred between an enterprise and the city, or between enterprises, or between an enterprise and a private vendor that is the result of a market-based, fair-market-value arms-length commercial transaction that provides value for value in the exchange of money for services or goods in accordance with the provisions of this section.

SUBSIDY means the transfer of money from the city to an enterprise, or between enterprises, for the purpose of enabling an enterprise to sell one or more of their products or services at a price below their costs of production. “Subsidy” does not mean the use by an enterprise of common public services and facilities including but not limited to streets, sewers, gas lines, storm sewers, electrical grid infrastructure, police and fire protection, public streets or other services, assets or facilities that are also available to the general public without the payment of a special fee. “Subsidy” does not mean the use by an enterprise of city-owned equipment where such use is deemed to be the most economical and cost-effective way of providing services to the general public. Subject to the other provisions of this section, “Subsidy” does not mean the transfer of money from the city to an enterprise that in annual aggregate does not exceed 10 percent of the enterprise’s annual revenues.

14.10.104: GENERAL:

A. This Article 10 applies to the City, all municipal enterprises, Colorado Springs Utilities, and Memorial Health System.

B. In valuing consideration, relevant factors shall include only the competitive, free-market fair-market value of such consideration.

C. Issue 300 shall not be read to conflict with Charter § 3-10(d) or to prohibit the payment of fair-market reimbursement to the City Attorney, City Clerk, City Treasurer, and City Auditor for specific and documented services provided to an enterprise, provided that the use of such services shall not be mandatory, and shall be restricted to services provided regarding the relationship between the enterprise and the City. Accounting, legal and audit services for internal operations and control within an enterprise shall be subject to the provisions of paragraph H below. Under no circumstances shall the expenses of the City incurred for oversight, supervision or external audit of any enterprise be charged to or paid for by the enterprise. External oversight, supervision, accounting, recording or other City Clerk services, and legal review and oversight of enterprises are general expenses of the City and the costs of all external oversight and supervision activities of an enterprise by the City shall not be deemed to be a reimbursable expense of an enterprise.

D. Issue 300 shall not be read to conflict with Charter § 6-40(b) or to prohibit the appropriation of any remaining surplus of the net earnings of Colorado Springs Utilities to the general revenues of the City by City Council in its annual budget and appropriation ordinance, provided that such surplus net earnings do not meet the definition of “payment.”

E. Issue 300 shall not be read to conflict with Charter § 7-30(c) or to prohibit City Council from apportioning its budget among the City’s general fund, Colorado Springs Utilities, and Memorial Health System based upon a reasonable allocation method as City Council may determine, provided that no aggregate apportionment or transfer of revenues from any city fund or account to any enterprise may exceed 10 percent of the enterprise’s annual revenues, in accordance with the definition of “enterprise” found in Article X, Section 10 of the Colorado Constitution.

F. Issue 300 shall not be read to conflict with Charter § 7-90 or to prohibit the City from creating or maintaining enterprise operations in accordance with law.

G. Issue 300 shall not be read to conflict with Charter §§ 13-80 and 13-9.0 or to prohibit the City Attorney and the City Attorney’s Assistants from serving as the legal advisor to the City and the enterprises in matters pertaining to legal advice or services regarding the relationship between the enterprise and the City, including but not limited to personnel, payroll, audits, Workman’s Compensation, health insurance, pensions and contracts requiring obligations of the City at no cost to the enterprise. An enterprise making use of the City Attorney or the City Attorney’s Assistants for the purposes of obtaining legal advice on any other matter shall reimburse the City for such legal counsel at its fair market value. Enterprises are encouraged to obtain legal advice on routine business matters from private vendors as stated in paragraph H below.

H. Issue 300 shall be read in all possible and reasonable cases to prudently create market-based competitive business incentives and authority for enterprises to select vendors for services and goods from whichever source, public or private, provides the best service for the lowest price. In considering vendors for services and goods, enterprises shall make decisions based on good business judgment and according to the enterprise’s fiduciary duty to serve the public in the most efficient and economical manner, and consistent with best management practices for private businesses of a similar nature. To this end, except as provided herein, no enterprise shall designate, nor shall the City require the use of any sole-source provider for any services or goods obtained by an enterprise, with the sole exception of services from publicly-available public utilities including but not limited to electricity, water, sewer and natural gas, that are publicly-owned and operated as monopolies in the area in which the enterprise operates. In all other areas, and wherever competitive commercial services are available, including but not limited to telecommunications services, they shall be obtained from among the various public and private vendors serving the particular need based on a decision by the enterprise, in its sole discretion, that comprises best management practices for private business and industry and best serves the public interest and the purposes of TABOR. Whenever it is reasonable and prudent to do so, enterprises shall engage in competitive bidding for services and goods in order to obtain the best goods and services at the lowest possible cost to fee-paying customers.

I. All enterprises shall operate only in the public interest, and all fees for services or goods provided shall at all times be the lowest possible fee that provides sufficient revenue so that the enterprise can offer excellent service to its customers consistent with the best management practices for similar private industry and business. In no case shall any fee or charge by an enterprise be more than is reasonably necessary to defray the actual costs of the services and goods provided, subject to best management practices for private industry and business and subject to the acquisition of reasonable cash reserves for the purposes of necessary maintenance, repair, and expansion of the enterprise’s operations and infrastructure and unanticipated emergency situations.

Section 2. This ordinance shall be in full force and effect from and after its passage and publication as provided by Charter.

Section 3. Council deems it appropriate that this ordinance be published by title and summary prepared by the City Clerk and that this ordinance shall be available for inspection and acquisition in the office of the City Clerk. Introduced, read, passed on first reading and ordered published this __ day of ____________, 2010.

This post is NOT copyrighted and the content is hereby released into the public domain.

Obamacare will start the clock ticking on the tolling of the bell for you

By Seth Richardson

In 1984, Democrat Governor Dick Lamm made his Orwellian “we have a duty to die” comment. His actual statement was “We’ve got a duty to die and get out of the way with all of our machines and artificial hearts and everything else like that and let the other society, our kids, build a reasonable life.”

Lamm’s philosophy has been resurrected today in the Obamacare debate. There is substantial truth in the claim that Obamacare will at the very least create de  facto, if not de jure “death panels.” This is because any socialized medical care system must perforce ration medical care, because with government-controlled and funded medical care there is simply never enough to go around at any sort of reasonable cost to the economy.

The calculus of who lives and who dies is a cruel one, because the non-productive always, inevitably, lose out. Under Obamacare this will occur through expedients of government-run medical panels recommending things like “women under 40 don’t need mammograms” and other policy-enabling medical decisions by Progressive lap-dog government experts about what comprises “reasonable and necessary” medical care. These decisions will, and indeed are right now being made by Progressive government lackeys in the Obama administration.

If some government-run medical panel says that regular colonoscopies for men aren’t “medically necessary” until men reach age 65, rather than the current recommendation that men over 50 get them, this medical recommendation will become public policy for government-run health care, including Medicare and Medicaid…and Obamacare. And since the ultimate goal of Obamacare, as stated by Obama himself before the election, is transition to a single-payer, government-run, mandatory, socialized universal health care that, like Canada’s did, prohibits private practitioners from providing out-of-network care to those who can afford it, public policy will dictate who gets and does not get “medically necessary” health care.

And what happens if you delay such medical screening for another 15 years? More men will die of colon cancer that was not detected early enough, which, like the recent guidance on mammograms, is the actual cost-cutting goal. This is what makes government-run medical recommendation panels into Obama Death Panels. They don’t decide on a case-by-case basis. Grandma will not have to stand before them and plead for her life. Instead, as faceless, inaccessible government bureaucrats, they will set broad government policy about the provision of medical services that are deemed to be “medically necessary” and they will allow people to die wholesale because diagnosis and treatment are delayed beyond the point of no return. And as faceless Progressive bureaucrats looking at balance sheets, they will never have to see the effects of their handiwork.

In Socialism, like Progressivism, because the individual and his rights are devalued and the system places greater value on the collective will and good, each person is necessarily forced into involuntary servitude to the State and is compelled to produce according to his ability. This system prohibits suicide because the individual is but a tool of the collective, and the tool must not be allowed to dull its own edge or impair its own usefulness to the needs of the collective. On the other hand, Socialism has no problem with destroying damaged tools once they have outlived their usefulness. This is why all socialized health care systems in existence ration medical care to the elderly, either overtly or covertly.

Socialists and Progressives use a cruel calculation of one’s economic value to the collective, based in how much work can be extracted. When the costs of supporting the worker unit exceed the costs of keeping it alive, they cuts their losses and find a way to dispose of the useless trash. How quickly or brutally slowly this happens depends on how close to full State Socialism the particular culture is. Under Stalinism, where data was kept on individual worker production, and when an individual worker’s productivity fell beneath an established standard, no mercy was shown and they were shipped off to the Gulags of Siberia to work on projects like the Road of Bones until they died, whereupon their corpses were buried where they fell.

Under Democratic Socialism such as the UK, France, or Canada, it’s more subtle, and the State allows the person to die slowly, and sometimes painfully, by reluctantly denying life-saving medical treatments on the excuse that it’s too expensive for society to provide, while simultaneously denying the sick the right to pay for their own medical care because that would be unfair to the other slaves. Government then laments their loss and exhorts the rest of its slaves to work harder, so that even more of the gross national product of the nation can be sucked down the socialized medicine toilet that still lines them up to wait for days, weeks or years for the inadequate treatment they might or might not receive.

That is precisely where we are headed under Progressivism and Obamacare.

No person should ever surrender themselves to involuntary servitude, and while death is the ultimate expression of liberty, as Patrick Henry said, it’s not for the government to decide when one must die. Nor should anyone submit to government murder through bureaucratic regulation or an infringement of the individual right to obtain the very best health care one can afford merely because the government deems your ability to obtain it to be unfair to others.

Don’t think for a moment that Barak Obama, Harry Reid, Nancy Pelosi and their minions are not making these calculations right now, however abstractly or covertly, because they are, and if they succeed, you too will one day exceed the cost/benefit calculus, and the bell will toll for you, whether you’re ready or not.

© 2010 Altnews

Colorado Springs has been illegally collecting taxes from utilities customers for more than a decade.

By Seth Richardson

The City Council, desperate to cling to any source of revenue it can, is renaming the infamous Colorado Springs Utilities Enterprise payment in lieu of taxes (PILT) as “surplus earnings” in an egregious attempt to preserve an illegal $26 million slush-fund.

PILT is a real problem for the Council. It is, and has always been, a way to divert utilities fees into the general fund, which is a patent fraud on ratepayers and is flatly illegal. Since the November vote, the Council has been wrangling with the added problem of Issue 300 and its prohibition on “payments” or “gifts” from an enterprise to the city.

The city staff now it thinks it has the solution: The William Jefferson Clinton Method of Redefinition of Commonly-Used Words. In this case, it’s not the definition of “is” at the bar, it’s the definition of excess fees collected by the CSU, ostensibly for the purposes of defraying the costs of providing utilities services to ratepayers, that are actually funneled to the general fund.

The Council will consider a new ordinance that defines the various terms and words associated with Issue 300, now Ordinance 300.2, on Tuesday, January 12, 2010, at 1 p.m. Be there.

In bringing the issue of “surplus earnings” to the attention of your humble correspondent, the City is now in the unfortunate position of having their arguments in favor of slush-funding $26 million in wrongfully-collected utilities fees destroyed by the Colorado Supreme Court.

The Council has not admitted the PILT fraud, but it has admitted that PILT violates Issue 300:

“A PILT is a payment that is made solely because taxes are not paid and is a transfer of funds made without consideration… Because a transfer of funds as a “payment in lieu of taxes,” or “PILT”, is made without consideration, that payment is a gift and is precluded under Issue 300.2.”

This is great, but in reality the City has been violating TABOR for more than a decade. The shenanigans began because the City Charter authorizes the Council to transfer “surplus earnings” from the CSU into the general fund. But when TABOR was enacted, this Charter provision became a ticking time-bomb for the City, which is about to blow up in their faces.

The City broke the law when it began collecting fees from ratepayers that were directed to the general fund through PILT. Now that PILT has been invalidated by Issue 300, it’s trying to return to the original City Charter language to preserve the slush-fund.

The proposed ordinance defines “gifts” as applied to Issue 300, and excludes “surplus earnings” from that definition, which ends up revealing the true TABOR fraud:

“”Gift” does not include the transfer of the remaining surplus of the net earnings of Colorado Springs Utilities to the general revenues of the City if the transfer is authorized in the annual budget and appropriation ordinance adopted by City Council.”

This City Charter “surplus earnings” transfer provision is called a “pour-over provision,” which means that any fees collected in excess of that actually required to defray the costs of the services provided “pour over” into the general fund. And the general fund is used to defray general expenses of government, not specific expenses of a service that a fee is established to serve.

This is an acceptable practice so long as the pour-over amounts are relatively small and are incidental to the legitimate collection of a service fee. For example, if CSU customers pay their bills and the expenses of the utility are less than anticipated, a reasonable amount of excess revenue can flow to the general fund, but it has to be unintentional over-collection and the amount must be small.

The problem with $26 million in pour-over is that the Colorado Supreme Court has ruled that such pour-over provisions, when they result in substantial amounts of money flowing into the general fund, particularly if the legislative justification for the excess fee collection explicitly states that it’s not collected for the purpose of defraying the costs of providing the service, makes a “fee” into a “tax.”

And there is nothing clearer than the intent of the Council to over-collect utilities fees to provide PILT income for the general fund.

In 1989, the Colorado Supreme Court said:

“The transfer of a substantial amount of money generated by [a] fee [intended to defray the costs of providing a specific service] to some other city fund would be tantamount to requiring the class of persons responsible for the fee–[in this case Utilities ratepayers]– to bear a disproportionate share of the burden of providing revenues to defray general governmental expenses unrelated to the purpose for which the fee is imposed. The effect of such a transfer would be to render the … fee the functional equivalent  of a tax. Bloom v. City of Fort Collins 784 P.2d 304 (1989)“

In this case, the transfer of $26 million in fees from the CSU enterprise to the general fund every year produces precisely the result the Court held in Bloom would invalidate the fee and turn it into a tax.

Therefore, because such pour-overs are in fact taxes, a TABOR vote is required to levy them.

And this legal precedent applies even without the enactment of Issue 300.

The City of Colorado Springs has been improperly and illegally collecting excess fees and transferring them to the general fund at least since TABOR was enacted and it started deliberately funding the general fund on the backs of ratepayers.

Pity nobody noticed before now.

© 2010 Altnews

Disparity in student discipline according to race is not proof of racial bias.

By Seth Richardson

In Tuesday’s Denver Post, a front-page story points out “racial gaps” in student suspensions in Colorado schools. Reporter Burt Hubbard writes that “while black students make up just 5.9 percent of the student population, they were the subject of 12.7 percent of the discipline cases, up from 11.7 percent five years ago.” The implication of the story is that there may be a problem with racial bias in the administration of discipline to black students.

The problem with this analysis is that it looks only at the gross rate and number of suspensions and not at any data that might prove that student discipline is racially-based. Hubbard writes, “Among the difficulties in addressing the gap is determining whether black students are suspended for different offenses at varying rates compared with other races. While the most common offenses for discipline for “disobedient” or “detrimental” behavior, both more subjective offenses than weapons possession, for example, the state does not require school districts to submit racial breakdowns for each offense.”

And therein lies the problem. Because data on the race of each individual student suspended is not kept, it is impossible to compare discipline given to one race of students for a given type of offense with that given to another race of students, which is the only way to come to valid conclusions about potential administrative bias.

NAACP Aurora branch president Dr. Levester Lyons is quoted as saying, “That doesn’t mean that the Aurora Public School District doesn’t have issues they need to address internally, such as increasing diversity among its staff and evaluating instructors, staff and administrators who have a history of disproportionately disciplining African-American students.” But Lyons cites no evidence that African-American students are being improperly disciplined in Aurora, he merely makes an unsupported inference that because African-American students are represented in disciplinary actions at a higher rate than other ethnic groups, this points to some impropriety in discipline.

But without knowing a disciplined student’s race it is impossible to say whether black students are being suspended because they are black, or they are being legitimately suspended because as a group, they engage in behavior that subjects a student to suspension more often than other racial groups.

The only way to discover the truth is for the state to require that the student’s ethnicity be recorded whenever a student is disciplined. Combined with analysis of the nature of the conduct the student was suspended for, some insights into whether student discipline is being meted out without racial bias might be possible.

But with the current data it is simply impossible to draw any rational conclusions about the causes of the racial disparity in student discipline. We should not jump to conclusions and accuse school administrators of racial bias without clear indications that it’s occurring.

It is entirely possible, for example, that social behavior patterns among different student racial groups is responsible for the disparity in suspensions, not any sort of racial bias or prejudice in the administration of student discipline.

This is not to say that a student’s race is the proximate cause of the greater likelihood of suspension, but rather it’s a recognition that there may be differences in social behavior patterns among ethnic groups.

We must be careful not to stereotype by race, but neither should we ignore sociological effects and cultural behavior patterns that may (or may not) have an effect on student behavior in trying to discern why one racial group is suspended at a higher rate than other racial groups.

Clearly, more study is called for, and this issue provides a good reason for the state legislature to address the need for better data collection, which will allow researchers to properly examine the issue and come to valid scientific conclusions.

© 2010 Altnews

President Obama’s amending of a Reagan Executive Order doesn’t mean the end of the world.

By Seth Richardson

Conspiracy theorists are all atwitter (literally) over Executive Order 13524, issued by President Obama on December 16. Among the some 40,000 Google hits ranting about the end of our government and Constitution, Examiner.com blogger Franke Schein, whose bio says that he “is a published writer, and well traveled adventurer with a street level perspective of life within the cosmic wilderness called America,” claims that,

“Executive Order #12425 allows INTERPOL the absolute authority to investigate, charge, and imprison, and extradite Americans—without having to adhere to the same constitutional laws that American law enforcement agencies are required to abide by. Additionally, the International Criminal Police Organization is authorized to conduct covert surveillance and investigations on American soil—with full immunities from US law. Laws such as the Freedom of Information Act, Congressional oversight, Constitutional protections, and without oversight from the FBI who is charged with the responsibility of internal national Security.”

This, of course, is utter nonsense and Schein doesn’t begin to understand what he’s talking about. Explaining why this is nonsense is a bit complex, so bear with me. One needs to actually read the documents involved to know exactly what the impact of this Executive Order is.

President Obama’s Executive Order 13524 amends Executive Order 12425, issued by President Reagan in 1983. This Executive Order had already been amended once before by President Clinton in Executive Order 12971 in 1995.

All three Executive Orders apply to Public Law 79-291, enacted in 1945 to provide “privileges and immunities” to “international organizations.” Such designated organizations today include INTERPOL, the International Union for Conservation of Nature and Natural Resources, Organization of American States, International Committee of the Red Cross, and the European Central Bank, among a host of others, specifically including the United Nations, which was a large part of the impetus to pass the law.

Kevin M. Whiteley, in an article in the Washington University Global Studies Law Review, describes the genesis of the law:

“Thirty years earlier, at the conclusion of World War II … absolute immunity was still the predominant theory to which the United States and the international community adhered. This period also saw an increased presence and participation of international organizations in international affairs. In order to address a perceived lack of protection for these newly emerging bodies, Congress passed the International Organizations Immunities Act (IOIA) in 1945. The central function of the IOIA was to grant international organizations “privileges and immunities of a governmental nature.”

By conferring these privileges and immunities upon recognized international organizations, the United States accomplished several important goals. Such legislation served the self-interest of the United States and satisfied a likely condition precedent to the establishment of the headquarters of the United Nations in the United States. Moreover, enactment of a law immunizing international organizations brought the United States in line with other nations’ actions to address the same problems.”

Whether one agrees that inviting the UN to U.S. soil was a good idea or not, what the law does is grant a limited form of the sort of diplomatic immunity enjoyed by foreign governments and their ambassadors and employees to designated international organizations. The law primarily addresses taxation, both of the property of the organizations and of their employees, including U.S. citizens who may work for them, and immigration regulations. Much of the law addresses the IRS code and regulates how things like Social Security and other withholding taxes are handled for employees, and prohibiting import and customs duties on the personal baggage and effects of officers and employees of such organizations.

But there are other sections that regulate how the U.S. handles the “sovereignty” of the property and assets of international organizations. Specifically, Section 2 provides the same protections against civil lawsuits enjoyed by foreign governments, limits searches of their properties and archives, and regulates treatment of their staff as if they were representatives of foreign governments. The rules and regulations about dealing with representatives of foreign governments are exceeding complex, and this law merely extends some of those protections to officers and employees of designated international organizations. In no way does it authorize any such organization to break any law or supersede the U.S. Constitution and it’s protections of U.S. citizens.

What the original Executive Order issued by President Reagan did in 1983 was to designate INTERPOL as a recognized international organization pursuant to his executive authority, as authorized by P.L. 79-291, but in so doing, Regan limited certain of the privileges and immunities that INTERPOL would enjoy under the law, including immunity from search and seizure provided by Section 2 (c). At the time, and up until 2004, INTERPOL had no permanent offices in the United States, so the issue was largely moot.

Section 2 (c), says, “Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.”

Admittedly this is a very broad protection for an organization to enjoy in the U.S., and it’s one that domestic organizations do not enjoy, but this is hardly new. The law has been in effect since 1945, and that provision has applied to every designated international organization (including the United Nations) except INTERPOL since President Reagan issued his Executive Order in 1983.

In 1995, President Clinton amended Reagan’s order to extend the privileges and immunities extended to all other international organizations regarding customs duties, IRS taxes, foreign agent registration requirements and treatment of their official communications to the “foreign government” standards to INTERPOL by removing references to Section 2 (d).

What President Obama did by further amending Regan’s order was to eliminate all of the other restrictions on INTERPOL enjoying all of the provisions of Public Law 79-291 that Reagan had put in place. This action in no way expands the powers of INTERPOL or makes U.S. citizens subject to plenary jurisdiction of INTERPOL or anyone else. Moreover, provisions in the law permit either the President or the Secretary of State to revoke the designation of any international organization under the law should the organization abuse the privileges and immunities offered. The amendment of the Regan order can be amended again at any time by the President to limit the applicability of the law to any such organization at his will.

So, contrary to conspiracy theory hysterics, the simple fact is that INTERPOL now enjoys the same limited immunities and privileges that all of the approximately 75 other designated international organizations enjoy, and have enjoyed as the result of an Act of Congress since 1945.

While Section 2 (c) does provide some immunities that are of concern, these immunities are of concern not just as applied to INTERPOL, but as applied to every designated international organization. If there is a debate to be had, it’s whether or not Public Law 79-291 should provide such absolute immunity from lawful, court-approved search and seizure for any organization operating within the United States, international or otherwise.

Rather than concocting wild theories about how U.S. citizens are now at the mercy of INTERPOL, which is flatly untrue, we should be asking Congress to review the law and decide if the “inviolable” immunity from lawful search and seizure pursuant to a warrant of international organizations is appropriate. Of course, as Mr. Whiteley points out in his paper, the reason such immunities are offered is because other countries offer the same sort of privileges and immunities to U.S. organizations operating in their countries.

That is a matter of some concern, to be sure, but panic is not called for, and it’s going to be lost in the hysteria of the blogosphere if someone doesn’t apply some common sense.

© 2010 Altnews

Federal “Race to the Top” grant competition enhances federalization of local schools

By Seth Richardson

The  U.S. Department of Education’s “Race to the Top” grant competition is another step in the not-so-stealthy program to take over public education and administer it at the federal level. Starting with Jimmy Carter, who birthed the bloated bureaucracy, big-government advocates have been relentlessly working towards full federal control of education, despite attempts to deconstruct the unconstitutional intrusion on state sovereignty and parent’s rights by Ronald Reagan and other liberty-minded fiscal conservatives over the years.

Crypto-Progressive George Bush the Younger, whose favorite political theorist was Progressive architect Woodrow Wilson and who never met a big-government bureaucracy he didn’t like, shoved the plan far down the slope with the No Child Left Behind Act, and Progressive/Liberal/Socialist (take your pick) President Barak Obama is continuing the slide towards full federal control of education.

As a part of the Obama administration’s inflationary American Reinvestment and Recovery Act fiat-money exercise in fiscal insanity, the DOE is dangling 4 billion dollars in front of state educators in an attempt to further enhance the framework of federal education control. The competitive grant program provides a long laundry list of requirements and criteria upon which a state application will be judged, and upon which awards, if any, will be based.

Among other attempts to commit states to centralized control, key to the effort is “standardization” of everything from teacher education to student testing and evaluation. One particularly troubling aspect is the criteria that encourages “a commitment to adopting a common set of high-quality standards, evidenced by … [a] State’s participation in a consortium of States that… [i]s working toward jointly developing and adopting a common set of K-12 standards… that are… internationally benchmarked… and [i]ncludes a significant number of States.”

Why we would want to benchmark our children’s education to international standards that consist mostly of Socialist propaganda is something we might want to discuss. Why we would want to jointly adopt common standards with other states is another question that leads inexorably to the conclusion that Obama’s One World Government may be preceded by his One Nation Government wherein state sovereignty ceases to exist.

But nobody can accuse Obama or his cohorts of being stupid. The forces of Progressivism, Liberalism, and Socialism have been working on this educational agenda for more than a hundred years now. Neo-Marxists and radical Liberals and Progressives, who infest the National Education Association and nearly every school district in the country understand that the route to collectivism and control lies in the minds of our children, and that control of their education by the State, by which I mean the Collectivist State, not the State of Colorado, is essential to indoctrinating and raising up generations of dependent-class Proletarians who are pliable and compliant with Socialist, Liberal and Progressive ideology.

And because states are loathe to give up any chance they have at recovering some of the wasted tax dollars they send to Washington, dangling money before educators is like tossing a bucket of swill into the feeding trough at a pig farm, and Colorado is no exception in the swinish rush to the federal trough. That’s unfortunate, because Colorado should take the lead in rejecting Congressional swill-pandering and standing firmly on the solid ground of state sovereignty.

There’s nothing wrong with improving education, but not every effort to improve education is worthy of consideration, particularly when the sub rosa agenda is a nefarious one that leads to the surrender of local control over our children’s education. Colorado must not participate in programs that enhance federalization of our education system and should flatly reject the offer to grunt and squeal at the federal trough. Instead, we must insist that the federal government respect the Constitution and Colorado’s sovereign right to educate her children as the People of Colorado see fit, not as the bureaucrats in Washington require.

Keep in mind that the purpose of the grant program is not only to bind states to educational “reform” through the “cooperative agreements” criteria, it’s to get states to do the scut-work of creating the framework that the Department of Education will eventually implement through regulation to imprison the states and their educational systems to federal servitude. By participating in this “race,” Colorado is facilitating the federal government in exceeding its constitutional limitations and authority, and is helping to forge the very fetters that will bind our children’s educational future to the visions of Progressivism, Liberalism, and Socialism that the Administration has in mind.

There’s a better idea though, one that’s been floated in Washington since Jimmy Carter created the Department of Education; eliminate it as a flatly unconstitutional intrusion upon state sovereignty. An added benefit of eliminating the department is that tax money we send to Washington to fund it can remain in Colorado and be used to actually serve the educational needs of our children without having the federal government skim some off the top, give most of it away to other, more compliant states, and then send a pittance back to us. It’s our money, and we should keep it right here in Colorado.

CATO Institute scholars Veronique de Rugy and Marie Gryphon wrote in their 2004 paper “Elimination Lost: What happened to abolishing the Department of Education?”:

“As recently as 1996, the Republican party sought to abolish the Department of Education as an inappropriate intrusion into state, local and family affairs. The GOP platform that year was clear: “The Federal government has no constitutional authority to be involved in school curricula or to control jobs in the market place. This is why we will abolish the Department of Education.”

While the Republican congresses of the mid-1990s are most famous for their efforts to eliminate the department, their goal was not a new one. Conservatives had talked about eliminating the department since its creation by President Carter. President Reagan made a campaign pledge to eliminate it, and renewed his promise in his first State of the Union address in January 1982: “The budget plan I submit to you on Feb. 8 will realize major savings by dismantling the Department of Education.”

It’s high time we demanded that our state legislators support such efforts, and it’s long past time to demand that our federal representatives get on with slaughtering this pig.

In a Denver Post article, Molson Coors chairman Pete Coors and Steve Shuck, chairman of The Shuck Corporation in Colorado Springs, write:

“Colorado is applying for millions in federal funds to be used to transform our state’s education system. Who can dispute the need to do so?”

However well intentioned the sentiment of improving education, what Mr. Coors and Mr. Shuck don’t appear to see the danger of allowing the federal government to take control of public education.

If Colorado’s education system is broken, then it’s up to Coloradoans to fix it, and we’re perfectly capable of doing so on our own. Debilitating dependency on federal largesse does not solve anything, certainly not Colorado’s educational problems. This grant program, even if Colorado competes successfully, will provide only $60 - 175 million in grants, which is a drop in the bucket compared to the more than $5 billion Colorado spends on public education every year. And it’s not about federal money that will improve education, it’s about committing the state to policies and programs that comply with federal educational goals, not necessarily the legitimate needs of the children of Colorado. And ultimately, our children will be paying for the grants the feds hand out, because there’s no such thing as a free lunch. Shall we sell our children’s minds and liberty, not to mention their economic future, down the river at such a cheap price?

Coors and Shuck go on to say:

“When the interests of our kids, families, communities and businesses are on the line, we must subordinate our personal, historical agendas to the securing of their futures. The interests of our kids must trump partisan politics.”

Indeed. Which is why Colorado must reject further pandering to Liberal/Progressive/Socialist political agendas and overweening federal interference in the education of our children and save them from proletarian dependence on the federal government for their educational needs.

Education is a local matter, let’s keep it that way.

© 2009 Altnews

A primer on Payments in Lieu of Taxes and why they exist — Part 1

By Seth Richardson

Payments in lieu of taxes (PILT), sometimes known as PILOT, is a concept for revenue sharing that originated between governmental entities and emerged decades ago as states began to understand that federal lands within their states were exempt from property taxation under the Supremacy Clause of the Constitution. In the beginning, states and local political subdivisions were often burdened with providing services such as law enforcement, roads, bridges and firefighting to federally-owned lands while at the same time being unable to collect tax revenues to pay for those services. This placed an undue burden on local taxpayers, often a crippling one, particularly in the western states where in some places, more than 85 percent of the land in some states, and many counties, is owned by the federal government. Indeed, nearly one-third of all of the land in the U.S. is owned by the federal government, with the vast majority in the western states.

This inequity was formally recognized by Congress in 1997 with the enactment of Public Law 97-258, when formal payments to state and local jurisdictions adversely affected by federal ownership of lands exempt from local taxation were authorized.

More recently, the concept of PILT has been expanded by state and local jurisdictions in an attempt to generate revenues from other tax-exempt entities and organizations, including public colleges and charitable institutions. The theory is that private non-taxable organizations such as charitable foundations that are tax-exempt under federal law, and property within one political subdivision (state, county, city) that is owned by another political subdivision and is therefore immune from taxation by the containing entity, still enjoy the benefits of services offered by the containing entity, but because no taxes are paid, it is felt by some that this is an unfair tax burden upon the taxpayers of the containing entity. An example is Washington, D.C., where half or more of the land is tax-exempt, but where city services such as law enforcement and firefighting, among others, must nonetheless be provided to all residents, even when they are on federal property.

There is nothing inherently wrong with payments in lieu of taxes, particularly between one government entity and another, since they are statutorily prohibited from taxing one another, because equity demands that local taxpayers should not have to shoulder the entire burden of providing basic services like sewers and water to tax-exempt governmental agencies from which local taxpayers receive no concomitant benefits.

But the PILT concept, like many good ideas, has metastasized into a cancer of ever-growing proportions as financially-strapped municipalities and politicians search for revenue sources to prop up dwindling sales tax revenues.

The best thing about a PILT is that it’s entirely voluntary, at least so far. This means that while some landowner otherwise exempt from taxation may agree to pay money to the local government to help defray the costs of providing public services, PILTs are not, so far, a tax-equivalent mandatory exaction.

This is not to say that cities, counties and states do not have considerable powers they can bring to bear on non-profits and other tax-exempt private organizations in order to “persuade” (read: coerce) them to agree to a PILT. Author Mark Murphy writing for the American Federation of State, County and Municipal Employees (AFSCME), the nation’s largest public employee union, wrote:

“Local officials sometimes force the issue with nonprofits that have not contributed by halting or slowing building permits or zoning approvals, by proposing to levy some alternate tax on nonprofits or even by challenging the organization’s tax-exempt status. The result is usually a negotiated settlement that allows the jurisdiction to collect some revenue while at the same time letting the tax-exempt organization project a positive image in the community and avoid an alternative that could be worse. That was the case in Baltimore, Md., last year, where 16 of the city’s largest nonprofit organizations agreed to contribute $20 million to the city over 4 years, after the mayor dropped a proposed energy use tax on nonprofit organizations within the city. Several Pennsylvania cities and counties mounted legal challenges to local nonprofit organizations’ tax-exempt status in the early 1990s. Many of these attempts were successful in collecting PILOT payments even after they lost initial challenges in court.”

Murphy goes on to recommend ways that public employees can work to enhance government revenues (and thereby preserve public-sector jobs) through public employee activism to encourage (read: coerce) PILTs from local non-profit organizations.

The problem with PILTs in this context is that the reason that such organizations are tax exempt in the first place is that they generally offer services to the community that the government would otherwise have to pay for itself, so the taxes are foregone precisely because of the greater fiscal benefits that the community realizes by having non-profits serving the community.

The National Society of Fund Raising Executives (NSFRE) published a position paper on PILTs in 1997 saying:

“These actions are motivated by a thirst for property tax revenues with no regard to the fact that, for over 400 years, western societies have exempted not-for-profit organizations from taxation because of “community benefit.” Not only do those living in the communities served by not-for profit organizations benefit from their presence, the not-for-profits work to preserve America’s voluntary philanthropic tradition. Studies continually reaffirm the finding that not-for-profit organizations deliver programs more cost-effectively and with better quality than government efforts.

In 1994, 10 million people were employed in the not-for-profit sector with an annual payroll of $144 billion. This is 10.6 percent of the total workforce. In addition, volunteers provided the full-time employee equivalent of 5.46 million people. If the services provided by these volunteers alone were not available, the government would have to pay over $49 billion to provide the same level of service.”

On the other hand, some organizations voluntarily make PILTs as a goodwill gesture to the communities they serve. An example is Harvard University, which paid the city of Cambridge $1.6 million and paid Boston $40 million in 2001 for their tax-exempt campuses.

But the key here is voluntariness. So long as local tax-exempt organizations can afford to contribute towards the municipal services they receive, fine. But as the NSFRE points out, the very reason they are tax exempt in the first place is that they provide far more by way of benefits than they consume in public resources. Even the Congress and the Supreme Court recognize this beneficial relationship, as the NSFRE paper points out. The failure to recognize the benefits such non-profits offer by bureaucrats, politicians and public employee unions is a case of not seeing the forest for the trees.

There is little argument that PILTs between different political subdivisions to offset the impacts of services provided to non-taxable government entities are inherently unfair or unreasonable. However, the essential component of the entire PILT concept, at least as originally conceived, is that the tax-exempt status of one jurisdiction’s property causes an unfair economic drain on the taxpayers of the other jurisdiction without any realized benefits, which therefore ought result in some compensation for those costs.

When the taxpayers of Colorado Springs have to pay for public services rendered to El Paso County government, from which the city taxpayers receive little or no benefit, then a PILT from the County to the City is likely to be appropriate and reasonable.

But when it comes to PILT payments from one municipal department or enterprise to another, such as from the Colorado Springs Utilities Enterprise to the city’s General Fund, that’s something else entirely… it’s a TABOR-evading fraud on the taxpayers… as I will discuss in Part 2 of this examination of Colorado Springs payments in lieu of taxes, coming soon to this column.

Councilman Sean Paige salvos in the debate about the Templeton Gap floodway.

By Seth Richardson

“It’s better to be the burr under the saddle than the horse,” said the late but notable Boulder political gadfly Ricky Weiser on the many occasions she was asked why she preferred to attend virtually every meeting of the Boulder City Council and Boulder County Commissioners for something like 40 years as a citizen, rather than seeking election to public office.

Sage advice I think for our much respected and revered local gadfly and columnist-cum-Councilman Sean Paige, who seems to be in something of a snit over my column criticizing the Council’s position on the T-Gap floodway levee improvements.

I think he’s taking the criticism too personally, but for better or for worse, Paige has volunteered to govern and having done so, he’s also volunteered to suffer the saddle-galls that are part of the job.

Unlike most elected officials however, Paige has his own virtual printing press, Local Liberty Online, a sterling source for information on the outrages and abuses of government. Which makes his salvo at The Broadside somewhat puzzling, but an excellent excuse to further the debate.

To be fair, Paige is not responsible for the Stormwater Enterprise situation, it had its genesis long before he joined the council, and he’s been handed the short end of the stick by the voters. But it seems from his column that he’d rather blame Douglas Bruce for the woes of the Council than accept the fact that Douglas Bruce didn’t enact anything, the voters of Colorado Springs did.

In his Page by Paige column at Local Liberty Online, he takes me to task for my suggestion that a simple solution to the T-Gap floodway issue is to propose a Special Improvement District. He says,

“Why floodway residents would listen to what we “incompetents” on Council have to say about the need for a special district is a mystery. These folks voted in the majority to end the stormwater enterprise, and free themselves from the “rain tax,” only weeks ago. That they would turn around and support a mill-levy increase next year (a new “rain tax”), on advice from their allegedly-inept City Council, is doubtful. But maybe Seth can take on the task of selling the concept, in between blog posts. Why it’s Council’s job to promote the virtues of the district is unclear, since a majority on Council (including me) opposed Issue 300, anticipating that it would have nasty consequences. I’m not going to spend next year cleaning-up after Doug Bruce. I have my hands full now, trying to comply with his incomprehensible ballot language.”

First, let me say that my criticism of the Council is not directed at any particular individual, and certainly not at Paige, but rather at the institutionalized arrogance and corruption that’s been in place for some years now that led to the creation of the Stormwater Enterprise in the first place.

I was not in this neck of the woods when that happened, but I’ve seen it before and I recognize the symptoms of government corruption and arrogance when I see them, having come from Boulder County, where one perforce lives under the oppressive and disdainful arrogance of government bureaucrats and elected officials on a daily basis. It’s why I left and I don’t want to see it institutionalized here. And I’m gratified that someone like Douglas Bruce is willing to beard the lion in its den and work to shut such charades down. I’m also gratified that the citizens of Colorado Springs are not the deluded, dependency culture Liberals and Progressives that infest Boulder County like pine beetles ravaging the forest.

Coming from that environment, it was easy to see that the Stormwater Enterprise was set up as a way to weasel around the limitations of TABOR and give the Council the ability to raise funds without a vote of the people. The whole Stormwater Enterprise scheme was specifically concocted to end-run TABOR by redefining infrastructure improvements and maintenance that have customarily and historically been paid for by taxes as “services” paid for by mandatory fees instead, thus freeing the city from having to ask permission to soak the taxpayers for more money. This is not true of every city enterprise, but it’s certainly true of the Stormwater Enterprise, and the People decided that this charade could not be allowed to continue, so the People (not Doug Bruce) revoked that authority. That leaves Paige and his fellow Councilpersons with a conundrum and a mess to clean up, but that’s what they get paid the not-so-big bucks to do, and nobody’s chained them to the dais.

This is not to say that the money and infrastructure improvements for stormwater flow are not necessary, they certainly are in some cases, or that they not reasonable, because certainly the T-Gap project is completely reasonable. Moreover, with some $15 million in cash in the enterprise’s coffers, which will perforce revert to the city when the enterprise itself is dismantled, there will be at least some money available in the immediate future to continue necessary projects. Council will have to find a new funding source, of course, which will depend on the trust of the community to approve new taxes to fund the work.

The problem is one of credibility and accountability on the part of the Council. Their predecessors tried to concoct a scheme to frustrate TABOR, and the people of Colorado Springs called shenanigans on them and shut them down. That’s their sovereign right.

It’s certainly not fair to blame Paige for the problem, or for the fact that Issue 300 destroyed the Stormwater Enterprise much more suddenly than is prudent. In this I agree with him. Even I clearly understand that there are legitimate needs when it comes to stormwater improvements. But that’s how things stand, and griping about it profits no one.

But my criticism of the council stands as it regards the Templeton Gap Floodway project specifically, which is what I was writing about, not all of the rest of the now-defunct Stormwater Enterprise projects, which, as I have written previously, will need to be dealt with one way or another.

Now let me address some of the questions Sean raises in his column. To begin with, in my view, the best reason why the floodway residents would listen to a proposal for a special improvement district is because, as I pointed out, it’s going to cost residents, by the City’s own estimates, some $3,000,000 per year, every year, from now until their mortgages are paid off, to buy federal flood insurance if they don’t. On the other hand, if they do listen and approve the new mill levy, they pay much less overall, and they only have to pay for the improvements once.

Did I live in the area, I’d certainly vote for a ballot issue that promises to save me having to pay hundreds of dollars every year into the foreseeable future in exchange for paying a small mill levy over a fixed period to fix the levee. Any sensible person can analyze the costs and come up with a perfectly rational conclusion that ends in a voluntary mill-levy increase for the residents of the flood hazard area.

And to refute one of his other arguments, while he is correct that some stormwater projects must justifiably be paid for by all taxpayers, so a plan has to be worked out to pass a ballot issue to fund them, in the case of the T-Gap levee it’s only the residents of the high hazard flood areas that are affected by the FEMA flood insurance requirement, so it’s perfectly reasonable to cut this project out of the herd and fund it separately using a special improvement district. And it’s appropriate that it be done immediately because unlike a speculative 1 percent risk of a “100 year flood” in any given year that many projects are built to protect against, the residents in the area of the T-Gap levee have a 100 percent chance of being required to buy flood insurance if their mortgage is backed by the federal government, and when FEMA will drop the hammer on them is just a matter of time.

As for why the city should take on the task of convincing residents its in their best interests to do so, well, not to put too fine a point on it, but that’s the Council’s job. I’m afraid that cleaning up after what a majority of the voting citizens of the city (not Doug Bruce) voted to do is exactly what the Council is obligated to do, whether they like it or not.

Plan A didn’t work out. That doesn’t mean that the Council can simply give up and walk away from the problems. It means that they must come up with Plan B, and try harder to convince the taxpayers that the problem is real and the need for more tax money is legitimate.

And for goodness sake, it’s time to start being open, honest and forthright about it, because Council credibility is on a par with that of Boss Tweed and Tammany Hall  at the moment.

Paige concludes by writing:

“Unlike Richardson, I have a responsibility to consider this bigger picture when taking a position on the stormwater issue. It isn’t just a theoretical blogging exercise for me anymore. No one was as angry about the way the stormwater enterprise was created than I was. But that doesn’t justify shutting it down in a sloppy, wasteful, short-sighted way.”

Maybe not, Sean, but that’s what happened, and now it’s time to  work the problem, which is all I’m suggesting. You want a “holistic” solution to the various other stormwater and drainage problems, fine, work one out. I’ll be happy to offer suggestions. Just don’t try to evade TABOR with the new plan. Suck it up and ask permission, like Council was supposed to have done in the first place.

But there’s still no reason that the Templeton Gap levee can’t be fixed by getting the people who will be directly impacted economically to approve a mill-levy increase starting right now! Why wait? What’s the deadline for certifying the levee? Won’t working towards a Special Improvement District keep the feds happy for a while, as funding is being sought? Be creative and positive rather than dog-in-the-manger and negative.

What the taxpayers ordered the Council to dismantle was the Stormwater Enterprise and its autonomous authority to levy “fees,” they did not order the Council to abandon all necessary stormwater infrastructure projects.

Nor did they demand or require that payments already made to the enterprise be refunded.

Mr. Bruce seems to believe that the shut-down of the Stormwater Enterprise requires that the assets be sold and fees collected be refunded, but that requirement appears nowhere in the ordinance or the ballot issue.

Everything the Stormwater Enterprise acquired, purchased or collected in fees prior to the new ordinance was acquired lawfully and in accordance with the laws governing municipal enterprises, that much the courts have confirmed. It can’t collect any more fees, nor can it do “free” work on city-owned property, nor can it give “gifts” or payments to the city. But it can simply disappear, leaving the city in possession of the assets, which can be redirected to a new city  “Stormwater Division” that will carry on the necessary work, but with a taxpayer-approved funding mechanism in place of the fee-collection system.

All the People actually did in dissolving the Stormwater Enterprise was to revoke the autonomous fee-collection authority of the Enterprise itself and thereby implicitly require that the Council ask for the taxpayer’s permission to levy new taxes to pay for stormwater improvements. They didn’t say that they wouldn’t be willing to pay for the needed projects, or that they wanted refunds.

The People, I think, are not opposed to paying the necessary taxes to keep the city operating properly, they are just opposed to shenanigans, fear-mongering, lies and being treated like they are children by the people they elect to serve them.

© 2009 Altnews

Is anyone alive today going to see the end of the era of oil?

By Seth Richardson

One of the questions regarding the global warming debate routinely asks “how is fossil fuel use sustainable?” The answer is short and sweet: “It isn’t, in the long term.” But the long term is a very long time, meaning centuries and perhaps millennia. Nothing much is going to change in our lifetimes, that is an economic certainty.

Supply and demand is the ultimate arbiter of the value of any resource. When the supply runs out, demand will naturally shift to a different resource. When it comes to fossil fuels however, there is little evidence that the supply is going to run out any time soon. That fact alone will overcome any attempts to phase out fossil fuel use worldwide.

Keep in mind that every time someone predicts we have reached “peak oil,” some oil company finds yet another massive reserve of oil, usually on the narrowest of fringes of the 70 percent of the planet that has yet to be geophysically explored for oil and gas. As drilling technology improves, deeper and deeper coastal resources will be discovered and will become available for exploitation. Add to that the massive amount of natural gas that is as yet untapped, and the time-frame for running out of fossil fuels expands geometrically.

And then there’s sea-bed methane nodules. There’s enough methane slush on the sea floor to power our economy for hundreds upon hundreds of years. We have only to develop the technology to harvest it, which will occur if and when the cheaper drilled-oil and gas reserves become too expensive to exploit.

Physics is immutable, and there is no energy source that has the energy density, storability, and portability of fossil fuels. Not sunlight, not wind, not wave power, nothing. While nuclear energy exceeds the energy density of oil, it is not portable. Envirowhackos insist that not only are we running out of oil (which is not true) but that continuing to use oil is poisoning the planet and causing global warming that will kill us all, so we must immediately (and according to the pundits in Copenhagen that means by the end of next week) “fundamentally transform” how our society operates, if there is any hope of avoiding imminent catastrophe.

Please excuse me for a moment while I process a flashback to the 1970s, when the then-young broken-record sounding envirowhackos predicted that the planet, as of ten years ago, would be a Venus-like hell of boiling lead and corrosive atmosphere. Evidently something went wrong with those prognostications, just as the wheels are now coming off the current crop of environmental divinator’s prognostications.

The hysterical, overblown “greenhouse effect” rhetoric of the 1970s is now being dutifully recycled in an attempt to once again frighten the public into beggaring the economy in the name of environmental protection. Please excuse me again if I say “Fool me once, shame on you, fool me twice, shame on me.” The lies perpetrated by the environmental leftists in the 1970s (some of whom now advise the President today) are precisely why I, and so many others, are not as credulous as we once were. “Earth Day” has come and gone as the public has become much more sophisticated and well-informed on the mendacious political and economic agendas of climate-alarmists.

The environwhackos are again trying to claim that we must, simply must fundamentally transform our society immediately, by force if necessary, to avoid yet another phantasmagorical threat to planetary survival. The problem is that their goals are as unachievable today as they were in the 1970s, even if the threat is real (which it’s not).

The very simple fact is that the entire planet’s economy and social structure is founded upon the use of oil and natural gas and it is simply not economically or socially possible to dispense with their use in any time frame less than a century, or perhaps two centuries. Nor is there any real need to rush into anything, since all the dire prognostications point to problems centuries in the future which may or more likely cannot be prevented by anything we do in the next 100 years.

The damage is done, claim some climatologists, who correctly point out that the CO2 in the atmosphere today will be there for hundreds of years, even if we end technology and all hold our breaths till we all drop dead tomorrow. So, if the damage is already in the pipeline, there’s no need to rush into anything or beggar our economy by imposing unrealistic, impossible-to-achieve, nation-destroying panic-based treaties or legislation, is there? We have plenty of time to calmly and carefully expand the science and have open public discussions that are based on science, truth, and reason, not hysterics, political manipulation and greed.

Literally all of our technological infrastructure is dependent upon fossil fuels, and will remain dependent on fossil fuels for the next couple of generations no matter what, because the investment in changing over to “renewable” energy sources, in realistic terms, requires it.

Attempting to legislate the planet away from fossil fuels can only and inevitably result in the brutal, deliberate torture and death of hundreds of millions of mostly poor people. Every time we increase the cost of energy, poor people suffer first and foremost. If there is any “social justice” to be had, the place to start is by keeping energy costs as low as humanly possible for as long as humanly possible, because every price increase first impacts the poor.

The economic facts are simple: We are not going off the fossil fuel standard any time soon. Not in our lifetimes and not in our children’s or grandchildren’s lifetimes. There is simply too much infrastructure to change over and the costs are simply too great, both monetarily and socio-politically for any society to even credibly attempt to abandon fossil fuels. People are not going to tolerate being forced back into wattle-and-daub mud huts in order to pander to the eco-guilt of a few clinically deluded ignoramuses or the power-and-control pretensions of a few pathologically insane Liberal/Progressive megalomaniacs like Barak Obama and the extremely dangerous ideologues with whom he’s surrounded himself.

When the real effects of Cap and Trade begin to hit home with the middle-class and poor, the political pendulum will reverse course and crush without a shred of mercy those who are trying to kill the poor with kindness to the planet. And that’s a good thing. Those who deliberately devalue human life in order to achieve either political power or ecological rectitude need to be crushed utterly, because they are evil.

This does not mean that we should not continue the measured, prudent, gradual process of developing renewable sources of energy without undue expense or environmental impact (and yes, “green” power has environmental impacts), so that the need for fossil fuels will diminish naturally over time, a long, long time. It does mean that we, the People, cannot and will not allow politicians and those with vested economic interests in a “green economy” to either control us or deprive us, any of us, even the poorest of us, of the economic and social benefits of an advanced technological society. Let Al Gore wear a hair shirt and live in a cave whilst eating nuts and berries if he’s so environmentally conscious.

Changes in social habit patterns and development will continue to make inroads on the fossil fuel infrastructure, and common-sense market-based iterations such as more energy-efficient houses and businesses will make more and more economic sense as the technology to achieve real energy savings continues to advance, as it only can when the technological society in which such invention flourishes is allowed to operate free of unreasonable eco-guilt-based regulation. Eventually, as society evolves and infrastructure is replaced by more efficient, less-polluting, non-fossil-fuel technology, a better balance will be achieved.

But this is not the sort of societal change that can or should be mandated by government. All government mandates do is increase energy costs and negatively affect the very free-market economies that will eventually cause the change-over through market-based incentives.

Nor is it going to happen in a short time span. This is a generational problem that will require generations to change. Ignore the panicked cries of the eco-loons, the earth abides, and we will improvise, adapt and overcome any environmental changes that might occur in the meantime, because that is what human beings do.

© 2009 Altnews

Let’s try thinking out of the box to get the Templeton Gap floodway project done.

By Seth Richardson

A poverty of imagination, or deliberate dog-in-the-mangerism seems to be infecting city government, what with the failure of Issue 2a and 2b and the success of Issue 300.

The long-awaited demise of the Stormwater Enterprise has resulted in some blow-back regarding the Templeton Gap Floodway. The project to improve the levees to protect some 3000 properties was estimated to cost about $4.2 million, but with the dissolution of the Stormwater Enterprise, the improvements will likely not be made, according to Councilman Scott Hente, whose district includes the floodway. City spokesperson Mary Scott said, “It’s likely that project is not going to be done.”

If true, it’ll be because of ineptitude, incompetence and lack of imagination on the part of the city, not because the project has no other source of funding.

The Federal Emergency Management Agency, as a part of its map modernization program, requires that all levees be certified, and analysis suggests that the T-Gap levee is too low to contain 100-year flood flows, so it must be raised in order to meet FEMA standards.

Nothing in federal law requires that the levee be improved, or that it exist at all. It was built in 1949, in response to several flooding incidents in the 1900s. The primary financial import of not certifying the levee is that homeowners in the area protected by the levee who have federally-backed mortgages (and nobody has said how many properties this includes) will be required to buy federal flood insurance. The City estimates that this might cost residents and business owners in the area as much as $3 million per year in insurance premiums.

This is a significant amount, but the question that’s been begged since the beginning of this project is why this is a city-wide problem and not a local issue? Why should all taxpayers in the city fund floodway improvements to benefit 3000 property owners merely so that they do not have to protect their own property by buying flood insurance?

Logically, this situation is ripe for a Templeton Gap Floodway Improvement District, which would extract taxes from those residents whose homes are threatened, rather than having everyone else pay for it.

Given the fact that the estimated cost of the improvements is only $4.5 million, and the estimated annual cost of flood insurance is $3 million, it’s clearly in the best interests of the residents of the area involved to vote to approve such a special taxing district to improve their levee. A mere two years of flood insurance premiums would more than cover the costs of the improvements. Spread that obligation out over say 20 years, and authorizing a tax in order to avoid much higher flood insurance costs makes perfect sense.

The City should immediately draft a ballot issue for the next election creating this new district and placing a mill-levy on the properties within it. But at the same time, it should engage in some serious advertising to the residents to demonstrate the economics of failing to pass the ballot issue. The benefit of this sort of a solution is that only the people who benefit from the improvements pay for the improvements, the money is dedicated to that specific project, and the consequences of not approving the ballot issue are a significantly larger economic burden on property owners on an ongoing basis, year after year.

Those facts would seem to indicate that such a ballot issue would be a slam-dunk for the City. So why hasn’t this been proposed already?

What seems to be happening is the typical “doom-and-gloom” tactics of saying “well, you nitwits trashed the Stormwater Enterprise, so we’re just not going to think out of the box and you are going to suffer the consequences of not letting us do it our way.”

The good news is that the residents of the affected area don’t have to wait for the city to do what the city is supposed to do, they can get together and draft a ballot issue themselves, and save themselves a lot of money in the future.

One has to wonder why a journalist and a bunch of ordinary citizens can come up with a viable idea to resolve the problem within a few minutes of discussion in the comments section of a news story, and yet our highly-paid City Manager cannot? It appears that the dogs in the manger are too busy snarling and snapping at the public to actually do their jobs.

© 2009 Altnews

When does a student cease to be a student and become a fully-vested adult?

By Seth Richardson

Unfortunately, Erica Corder has lost her appeal to the United States Supreme Court. But she didn’t lose her case on the merits, she lost as a result of legal technicalities and because her attorneys failed to make the right arguments.

To recap, Corder departed from her approved valedictory speech at her 2006 graduation ceremony at Lewis Palmer High School in Monument. Instead of the approved speech, she spoke about Jesus, which infuriated the school administrators. After the graduation ceremony was complete, Corder was escorted to the Vice-Principal’s office, where she was told she would not be receiving her diploma, and was required to meet with the Principal, Mark Brewer. She and her parents met with him on May 30, 2006, where Brewer told her that if she did not publicly apologize for her speech, she would not receive her diploma. Corder wrote an explanation, not an apology, but was forced by Brewer to add the sentence, “”I realize that, had I asked ahead of time, I would not have been allowed to say what I did.”

Corder sued the school district on a number of grounds, and lost at every level. But she shouldn’t have lost, and here’s why: At the time that Brewer coerced Corder into making an apology, Brewer had no legal authority to discipline Corder because she was no longer a student. Therefore, Brewer’s threat to withhold her diploma was an unlawful denial of Corder’s right to receive documentation of her successful (and exemplary) completion of the public school curriculum. Corder should have refused to make an apology and sued Brewer and the school district for refusing to issue her diploma. She didn’t, and that’s ultimately why she lost the case.

What happened is that Principal Brewer, pissed-off at the breach of trust and decorum, which is understandable, tried to engage in one last, desperate act of educational discipline against a former student. His dog-in-the-manger, authoritarian behavior has cost the taxpayers of the district many thousands of dollars in legal expenses, for no better reason than an institutional pique over a harmless act of defiance by a graduating valedictorian.

The attorneys for the district argued that Corder’s religious statements had the “imprimatur” of the school district merely because the graduation ceremony was orchestrated and supervised by the school, and the courts agreed that this justified the disciplinary action by Brewer. This is legalistic pettifoggery and rank idiocy, and the courts involved bought into it, no doubt to bolster the power of principals at the expense of the civil rights of students. The notion that a rational, reasonable adult attending a high school graduation would mistake the obviously personal religious statement Corder made as some sort of state-sponsored official proclamation is utterly asinine.

Here’s what Corder said:

“We are all capable of standing firm and expressing our own beliefs, which is why I need to tell you about someone who loves you more than you could ever imagine. He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in heaven. His name is Jesus Christ. If you don’t already know Him personally I encourage you to find out more about the sacrifice He made for you so that you now have the opportunity to live in eternity with Him.”

Anybody think this represents official school policy?  Anyone? Me neither.

But all this is pretty much surplusage, because the case was actually dismissed on the grounds of “mootness” and because Corder failed to present a proper Due Process claim at trial. The District Court ruled that because Corder has graduated, the school district “can no longer impinge on Plaintiff’s freedom of speech and religion. Accordingly, Plaintiff’s claims for declaratory or injunctive relief based on such conduct are moot.”

As for Corder’s complaint that the school coerced and compelled her to issue an apology against her will, the District court said, “Since Plaintiff does not assert a due process claim, I see no constitutional implication from the school allegedly using the diploma as leverage for the apology.”

In other words, the District court was able to dodge the most important question, that of compelled speech, because Corder’s attorneys failed to properly raise the issue of due process.

But due process is precisely what this case is about.

This is a serious issue. School administrators across the country use this coercive tactic of threatening to withhold diplomas in order to punish misbehavior by graduating seniors and theoretically coerce good behavior at graduation. The core legal issue is whether school administrators have, or should have, any such after-the-fact legal authority over newly-minted adult high school graduates. The desire on the part of the school administration to hold a club over the heads of graduating students, as a means of preventing disruptive or inappropriate behavior is understandable, but the ends do not justify the means. Constitutional rights are more important than proper decorum at a graduation ceremony.

The root question is when does a student cease to be a student? When, exactly, did Corder become a “former student” and therefore an adult citizen fully vested with civil rights and no longer under the dominion, control or disciplinary authority of the school? This question is a critical one because it determines where the authority of the school to threaten to withhold a diploma ends, and where a high school graduate’s right to demand that a diploma she has earned through meeting the scholastic requirements be given her begins.

Federal District Court Judge Walker D. Miller completely ignored this critical aspect of the case, and wrote,

“As discussed, the school district was within its legal authority to exert editorial control over school-sponsored speech at the graduation and to insist on an apology and clarification for Plaintiff’s conduct in evading such efforts at control and thereby associating the school with a position other than neutrality on religion.”

The issue of “editorial control” aside, Miller builds his ruling on the legally unsubstantiated premise that the school had authority to “insist on an apology” from Corder. No, sorry, the school had no such authority because at the time that the school insisted on an apology, using an unlawful threat to withhold her diploma, Corder was absolutely not a student any longer, since the meeting took place days after the ceremony. Moreover, claims that the school might be held liable for sponsoring “religious speech” for Corder’s acts are legally invalid, since Colorado has a law that explicitly states that schools are not to be held liable for the exercises of free speech by students.

The sad fact is that the only hold that Brewer had over Corder was her diploma, and he was intent on humbling her for her temerity and defiance, so he abused his authority, and cost the taxpayers a bundle in the process.

Does the fact that the school has not yet handed her a piece of paper mean that she remains under the dominion and control of the school and has not graduated? If so, then what of the graduate who does not attend the ceremony whose diploma is mailed to him? Is he a student until the Post Office delivers his diploma? Could Brewer legally deny her a diploma forever if she had refused to accede to his coercion? I think not. It defies common sense and justice to even contemplate granting school principals such plenary authority to determine who may or may not receive a diploma.

I think that a high school student graduates and ceases to be a student upon the successful completion of the required curriculum and the end of the instructional period, not whenever the school principal decides to confer a diploma upon the student. A diploma is earned through scholastic achievement and may not be arbitrarily and capriciously withheld by a school administrator out of pique or anger over a bit of harmless defiance of custom.

Most certainly a school principal has absolutely no authority to coerce a free adult into making an apology once the authority to impose discipline upon a student has been rendered moot by her completion of the educational program and graduation. If Corder’s complaint is rendered moot by her graduation, as the court held, then Brewer’s authority to discipline her is likewise rendered moot.

What’s sauce for the goose is sauce for the gander.

© 2009 Altnews

Colorado Springs has obligations, both legal and contractual, to deal with stormwater issues that must be met, so get on with it already!

By Seth Richardson

Gadfly Dave Hughes, in one of his comments on Douglas Bruce’s guest column in the Gazette on November 23rd, said, “Not ONE of those commenting, including Sean Paige, points the the BASIC REASON the Stormwater Fee was imposed, AND the need to ‘phase it out’ rather than just stop collecting now.”

He’s right. But neither has the Council, and therein lies the root of the problem.

The crippling of the enterprise systems is a response to arrogant and incompetent governance by the Council, but it’s going to have unintended consequences for the public that need to be addressed with alacrity.

The problem is that the City Council, Mayor and City Manger abused their “enterprise” discretion and misused the concept to generate “fee” funded income to the General Fund from government services and utilities that have traditionally been paid for through taxation and are not properly supposed to be profit-making branches of government. They did this mendaciously and dishonestly. This angered the public, as well it should have. The stormwater charade was just the straw that broke the camel’s back.

And, like all laws that constrain government, a law was enacted to constrain their ability to do this, and it’s entirely the City Council’s own fault that it happened. But that doesn’t resolve the very real problems with stormwater flow, intergovernmental agreements and the Clean Water Act. Colorado Springs has obligations to its neighbors and the federal government regarding water flow and the Clean Water Act, and the government will have to continue to meet those obligations.

What this means is that City Council needs to get off its collective butt and start the campaign for a tax to meet those obligations. Council members need to simply give up the idea that they can somehow salvage the enterprise systems as a funding mechanism, because they can’t.

As Bruce says, “As of Nov. 16th, the stormwater enterprise (and all others) must cease gifts or subsidies to the city, like free work on city-owned infrastructure, or paying bills the city owes the federal government. It cannot bill fees for what it can no longer do.”

Completing stormwater improvements underway involves doing “free” work on city-owned infrastructure, which is a gift or subsidy to the city, in that the city itself does not pay fair market value for the work, as it would if it had to directly hire private contractors to do the work. That work was being paid for directly by fees collected by the enterprise from landowners. Bruce is correct in saying that enterprises, which despite the legal fiction are still legally branches of municipal government, cannot collect fees if they are forbidden to do work that comprises a gift or subsidy to the city. That provision is in effect right now.

On the other hand, the City can (and indeed must) still fund the stormwater projects by appropriating funds from the General Fund, or by asking voters to approve a tax to fund such construction, just as it would if it hired an independent contractor to do the work. Remember, Issue 300 only bans gifts from an enterprise to the city, and it only phases out payments of money from an enterprise to the general fund.

Of course, the whole point of the Stormwater Enterprise was to give it independent fee collection authority to fund the contracts that the enterprise managers made with private companies to actually do the work. But now that this fee-collection and free-work authority has been revoked, the Stormwater Enterprise is a completely redundant and pointless waste of taxpayer money. All the functions of the Stormwater Enterprise should, and arguably must, be transferred back to the city’s engineering and contract staff, where it should have been in the first place, and all the employees who work for the Stormwater Enterprise who are performing duplicate functions that can be done by city employees should be laid off as redundant, including the CEO and other administrators. Administration of the stormwater improvement projects should be done by the City Manager. That’s what she’s paid rather a lot of money to do, after all.

It appears that all other enterprises will also have to be legally dismantled as well. Issue 300 effectively bans all fees collected by any enterprise, and all work done by any enterprise, since anything an enterprise does could be construed to be a “gift” or “subsidy” to the city if city property is utilized and the costs of providing that service is not paid for out of the city coffers. Therefore, all enterprises will simply have to be dismantled in the technical, legal sense, and the fee-setting authority returned to the Council for what will simply become services the city provides, like libraries, building permits, and electricity.

This is not be a bad thing, because it returns the Council to its proper place as overseers of the city’s operations and services and makes them directly accountable to the taxpayers. The inability of taxpayers to directly hold the enterprises accountable through recall is one of the things that drove Issue 300 to victory.

There is also an interesting question as to whether Issue 300 also bans “payments in lieu of taxes.” Arguably, it does, as Mr. Bruce seems to point out in his column when he says, “The first sentence phases out over a maximum of eight years “all enterprise payments to the city.” It covers payment of money from Utilities and other enterprises, and cash reimbursements for city services to enterprises.” While this clearly eliminates the practice of the city billing an enterprise for “shared services” like accounting, the PILT program is somewhat less clear, given that PILTs have their own statutory basis, which may exempt them from the language of Issue 300. That’ll have to be discussed with the lawyers, but in my judgement PILTs are also banned.

In any event, City Council is seeing its enterprise cash cows being slaughtered, and is imprudently balking and trying to weasel its way out of the handcuffs it placed on itself. Council needs to get over it and move on with the process of asking for a tax to fund the stormwater projects in process and those improvements that are required as a part of intergovernmental agreements and federal law. It also needs to get on with legally dismantling the enterprise systems and returning their functions to the fold of city government.

In order to accomplish this necessary task, the Council is going to have to humble itself before the People and admit that it was wrong to try to raise slush-fund revenues by misusing the enterprise authority it once had. Council is going to have to bend to the will of the people and actually do their job as TABOR demands, and ask permission to impose a necessary and reasonable tax to fund necessary and reasonable government services.

This is the one thing that the Council seems completely unable to do. It’s as if they are two-year-olds balking at being told to eat their peas. Rather than choke them down and get on with life, they are going to have a temper tantrum of monumental proportions while trying every possible excuse they can think of, rational or otherwise, to avoid the inevitable. It’s simply astonishing how arrogant the Council and City Manager can be, however. Progressivism has infected even Colorado Springs, and our elected officials evidently actually believe that they are smarter and wiser than the public is. Well, when that happens, it’s time to take them down a peg or two, which is what Mr. Bruce and the voters have done.

Dear Council: Quit acting like two-year-olds, start acting like adults, and get on with the job of asking the public for the necessary funding by carefully explaining why you need it!

That’s all that TABOR requires. Just ask. Tell taxpayers the truth about why you need the money, give us the correct, complete and honest information about the necessity of the project and how much it’s going to cost, and then sit humbly by and wait for us to decide if we want to pay for it. If we don’t, then get over it and move on.

Pretty simple really.

© 2009 Altnews

Colorado Springs Utilities “Payment in Lieu of Taxes” is a fraud on the public.

By Seth Richardson

In 1912, amateur archeologist and fraudster Charles Dawson perpetrated one of the most infamous scientific frauds in history, one that endured for 41 years. His presentation of bone fragments dubbed “Piltdown Man” (Eoanthropus dawsoni) was thought at the time to be a major advancement in paleontological knowledge. Turns out it was nothing more than a fraud that deeply embarrassed the scientific community.

Colorado Springs has its own embarrassing 17-year long PILT fraud that’s still in progress, but it’s time to reveal it for what it is and rectify the situation.

PILTs, or “payments in lieu of taxes” are an accounting technique that allows government to move money from profit-making government enterprises to other government units or to its own general fund without actually imposing a tax on the government-owned enterprise. This is a necessary accounting fiction because Separation of Powers Doctrine considerations prohibit one level or department of government from levying a tax on another level or department of government. This is why the federal government has to tax taxpayers directly, rather than simply levying a tax on the state itself, and why El Paso County can’t send a bill to the federal government for property tax on National Forest lands.

PILTs are often used as an appropriate way to compensate various government sub-units for the financial effects of a profit-making enterprise operated by another unit, such as convention centers, zoos, museums, sports stadiums and the like. But all these revenue-generating enterprises have one thing in common, and it is that commonality that makes PILT payments both legal and just; they are all profit-making enterprises that generate revenue through the sale of tickets or services to citizens and commercial interests who are free to choose NOT to utilize the publicly-owned venue, thereby avoiding the fees charged by the facility.

Convention centers are prime examples of publicly-owned facilities that commercial interests use for profit-making activities. It is fully appropriate that the managers of the venue charge a fair-market price for the use of the facilities, both to maintain them and so as not to unfairly compete with the private sector, and it is appropriate for some of the profits from operating the venue to be directed to the government’s general fund, for the benefit of the citizens. This is an appropriate use of PILT policies.

The fraud that Colorado Springs is perpetrating, however, is an utterly inappropriate and fraudulent use of PILT policies.

Colorado Springs residents voted in 1924 to establish the Colorado Springs Utilities to provide water, sewer, electricity and gas service. Below is the mission of the CSU, according to its own website:

“To turn a phrase from Abraham Lincoln, in 1924 the residents of Colorado Springs voted to create a four-service utility of the people, by the people and for the people. Since then, as a municipal utility, our focus has been on the basics - providing exceptional customer service while keeping costs low.” (emphasis mine)

This statement was true from 1924 to 1992, when Colorado Springs Utilities were operated as a standard municipal utility, under the supervision and guidance of the City Council. In 1992 however, the City Council created a Utilities Board to oversee and operate the Utilities as a “separate municipal enterprise.” That’s when the game of “Three-card Monte” began.

The Utilities Board, you see, is not a separate political body elected by the People and accountable to them, whose fiduciary duty it is to serve only the utilities needs and interests of the rate payers, it’s comprised of the members of the City Council, who use the Utilities to generate an invisible tax that the public has not ratified.

The primary policy stated by the Utilities Board (City Council) is “to provide safe, reliable, competitively-priced electric, natural gas, water and wastewater services to the citizen owners and customers of Colorado Springs Utilities.” (emphasis mine)

But this “Ends” differs significantly from the ends described by the website, and authorized by the People when they voted to acquire the utilities in 1924, which is to provide “the basics,” which consists of “exceptional customer service” at “low costs.”

The People of Colorado Springs did not vote in 1924 to acquire these public utilities so that they would be charged “competitively-priced” services, they purchased the infrastructure so that they would be charge the lowest possible rates consistent with exceptional customer service. There’s a huge difference in those two goals.

By changing the goal of the Utilities to “competitively-priced” services, the City Council, wearing it’s Utilities Board hat, created a self-justification for charging rate payers MORE than they would otherwise be paying based on how “competitive” the rates are with other commercial, for-profit utilities providers like Xcel Energy in other cities.

Sure, CSU can afford to (and must by policy) charge somewhat less than the highest-priced utilities, in order to keep the lumpen proletariat thinking they are getting a good deal, but the question is are the People getting the very BEST deal that they possibly can on their utilities services, which was the intent of the People in acquiring the utilities in the first place.

The answer is absolutely not, and PILTs, profit-making and slush funds are the reason why.

Utilities Board Policy 2.1.1. (click on the “Utility Board Policies” tab to the left to download the complete PDF file) says, “Combined rates for the four core services will rank at least among the lowest 20th percentile of identified economic competitor cities.”

Note that this policy does not state that “the combined rates shall be the minimum possible rates for the four core services provided, consistent with the necessary and proper operations and maintenance of the facilities.”

Instead, it allows the Utilities to set the rates based on selected “economic competitor cities.” This allows the city, wearing it’s utilities hat, to cherry-pick which cities it uses for comparison, so as to hornswoggle and hoodwink the public into thinking that it is getting a good deal on services. Moreover, it allows the city to actually INCREASE rates if necessary to keep the rates hovering right at that “20th percentile” level. And by choosing cities for comparison with relatively high utility costs, the Board can fudge the numbers and in doing so actually make a de facto profit on the Utilities.

Quite a lot of profit, actually. The Colorado Springs Utilities budgeted nearly $26 million in PILT payments for 2009, and another $25.2 million is budgeted for 2010. This isn’t chump-change we’re talking about. This is a high-stakes shell-game indeed.

And guess what the Utilities Board (City Council) does with that profit (which is claimed as an EXPENSE on the Utilities balance sheet)? It pseudo-taxes it by charging PILTs against the Utilities balance sheet directing the money into the General Fund, on the specious, noxious and fraudulent excuse that if the Utilities was actually a private, profit-making enterprise, it would be compelled to pay taxes on its income.

But the Utilities is NOT a private, profit-making enterprise, it’s entirely owned by the People of Colorado Springs, and it’s not supposed to be making “profits,” nor is it supposed to be paying pseudo-taxes in the form of PILTs to the city’s General Fund.

It is supposed to be collecting the absolute minimum amount from rate payers that it possibly can, consistent with good management, operation, maintenance and improvement of the infrastructure of the various utilities. It’s supposed to be putting an adequate, but not excessive amount of money away into a “rainy day” fund to pay for things like sewage spills (and associated lawsuit settlements) and power-line collapses or damage. It’s supposed to be exercising a fiduciary duty to the People to collect only what it reasonably needs and spend only what it reasonably must to provide “the basics” to citizens, with “excellent customer service.” No more, no less. Period.

If there are excess funds flowing into the CSU, those funds should be going right back into either improving utilities infrastructure or lowering utilities rates for rate payers, or into actual refunds to rate payers, rather than being funneled by the Utilities Board (City Council) into the city’s General Fund.

The CSU PILT policies are like a wormhole in the time-space continuum that allows one to bypass the distance between here and Alpha Centauri. Actually, it’s more like a literal wormhole in the fabric of our laws that allows the city to tunnel right past TABOR and raise General Fund revenues by increasing utility rates without having to call it a “tax.”

It’s a fraudulent shell-game and nothing more. And it’s an improper exercise of PILT authority because unlike a convention center or even the airport, nobody can avoid paying utilities fees if they live in the city.

Rate payers should be getting not just “competitive” utility rates, but rather they should be getting the lowest possible utility rates, because that’s precisely why they bought the utilities in the first place.

It’s time to shut down this immoral and illegal game of Three-card Monte that the City Council (Utilities Board) has been playing since 1992.

Decision to keep cave closed because of Native American religious objections is unlawful

By Seth Richardson

The Mystery Cavern at the Garden of the Gods, sealed up in 1935, must be reopened for archeological examination and documentation. The actions of the Colorado Springs Parks and Recreation Advisory Board in denying access to credentialed archeologists based on objections by Ute tribal historian Alden Naranjo of the Southern Ute Indian Tribe is a violation of the First Amendment’s Establishment Clause, which prohibits government “establishment” of religion.

There may be legitimate reasons for keeping the cavern sealed, including preservation of archeological resources or safety, but the Board used as its excuse the one reason that it is legally forbidden to use: Religion.

According to the article in the Gazette by reporter Dave Phillips, Colorado Springs agreed in the 1990s that no archeological digs would take place in the Garden of the Gods without tribal approval because the Ute Tribe claims that the park has “spiritual significance.” While we all should respect the places of “spiritual significance” that any religious group cares about, such respect should not, and indeed cannot be established as a law or policy by any governmental unit without violating the First Amendment.

A similar controversy exists in Wyoming, at Devil’s Tower National Monument. Native American Indians object to climbers scaling the basalt volcano core because they feel the place has spiritual significance. They have attempted for years to persuade the National Park Service to ban climbing entirely, or at least ban it during “sacred” periods when Indians worship there, out of respect for Native American Indian tradition and religious practice.

The best the National Park Service has been able to do, on advice from the United States Attorney, is to post a “voluntary” climbing ban in June, a time of sacred significance, that asks, but does not require that climbers respect Indian traditions and religious observances. No mandatory ban can be enacted because this would, as the actions of the Board do in this case, violate the Constitutional ban on government either advancing or inhibiting religion.

The relevant United States Supreme Court case is  Lemon v. Kurtzman, 403 U.S. 602, decided in 1971. In this case, the Court lays out a tripartite test of government actions to determine if the action violates the Establishment Clause of the First Amendment.

The first prong of the tests asks, “Does the government’s action have a secular legislative purpose?”

The second prong of the test asks, “Does the government’s action have the primary effect of either advancing or inhibiting religion?”

The third prong of the test asks, “Does the government’s action result in an ‘excessive entanglement’ of government in religion?”

In the case of the Garden of the Gods Mystery Cavern, the advisory board’s decision facially violates the first and second prongs of the Lemon test.

According to the article, the board stated that it would approve the request for archeological examination of the cave “if there were no objections from the Ute tribe.” But because the reason that the city made the agreement to ask permission from the Ute Tribe is based upon the Tribe’s claim that the park has “spiritual significance,” this causes the boards deference to the Tribe to be based upon prohibited religious criteria, which makes the board’s action an unlawful and unconstitutional decision that has no legitimate “secular purpose” and which has the primary effect of advancing the interests of Native American Indian religion over the legitimate, secular need for proper archeological examination and documentation of the site.

The fact is that the very agreement signed by the city with the Ute Tribe in the 1990s is itself very likely invalid because it has the practical and primary effect of advancing Ute tribal religious interests over the secular needs and rights of the owners of the site, the People of Colorado Springs.

However “spiritually significant” any publicly-owned property is to some group of religious people, such considerations cannot, by law, be part of the decision making process of a public board considering limiting access to the property by the public.

The board must reevaluate its decision and permit the archeological investigation, as it said it would, and it must, according to the Supreme Court and the Lemon Test, disregard any religious claims that would interfere with the right of the public to use and enjoy its public property. If the board does not reverse its decision, the city will likely face yet another expensive lawsuit, which it will certainly lose.

This does not mean, however, that qualified archeologists or historians from the Ute Tribe should be excluded from the excavation. They should absolutely be included, so that cultural artifacts associated with their Tribe can be properly analyzed and preserved, and so that their cultural history can be added to the knowledge gained by opening and examining the cavern.

And once the archeological dig has been completed and documented, the cavern should be sealed again in order to protect it from vandalism and theft, which is a legitimate secular government purpose.

But to deny the public the ability to document and know both its own and its Native American Indian cultural heritage based on allegations of “spiritual significance” is most definitely not a legitimate government action.

© 2009 Altnews

Here’s one way the city can fund parks and recreation without a new tax

By Seth Richardson

Brown grass, dead soccer field turf, closed swimming pools and recreation centers, defunded museums… all dire consequences of the ongoing mistrust of Colorado Springs city government on the part of the People.

The defeat of the property tax increase was a stunning blow to the egos of the Council and a clear repudiation for business as usual, and the chickens are now headed for the roost as the Council buckles down to the task of actually balancing the budget (as opposed to the election campaign scare-tactics they’ve been engaged in).

The biggest problem with municipal bureaucracies (other than being stuffed with featherbedding bureaucrats interested only in protecting their own turf and paychecks as outlined in a previous column) is the lack of innovative thinking on the part of both hired bureaucrats and elected officials. Government is notorious for adhering to the “Not Invented Here” syndrome that causes government bureaucrats to reject any sort of market-based solution to anything because the bureaucrats didn’t think of it. This propensity to reject perfectly useful ideas based on the NIH paradigm is as predictable as the City Manager’s protectionism and self-interested rejection of pay cuts for all city employees.

The anodyne to such bureaucratic bungling and obfuscation is, happily, the Internet. Not only does it provide a potential solution to the parks and recreation funding conundrum, it also provides the venue whereby the People can bypass the bureaucrats and clamor for a good idea to be implemented without regard to who thought it up.

So, here’s the plan: The problem with parks and recreation funding is that people don’t trust that the City will use the taxes they pay to actually serve their parks and recreation needs. The practice of putting tax money into the General Fund and having the Council dispense it only works if the Council acts in ethical ways in accordance with their duty as public servants and allocates tax money in ways that the People find beneficial. The Colorado Springs City Council has abused its discretion in that regard to the point the public doesn’t trust them any more, and that’s a shame.

One of the problems with parks and recreation facilities is that people tend to use the facilities they live close to, or that provide services and amenities that they prefer. So, they tend to object to funding “someone else’s” park or swimming pool.

So, the free-market solution is to provide a way for people to support “their” parks and swimming pools and be certain that the money they are putting into the amenity is actually spent on something they actually use and enjoy.

An easy way to fund parks and recreation and help restore confidence in the Council is to set up a system that allows individuals to easily donate to their favorite park or recreational venue and that both guarantees and actually shows them that their money is being spent only on that venue. Earmarking donations is a way to stimulate people to support the facilities they use, and the Internet provides an easy way to accomplish this.

The City of Colorado Springs should set up an e-commerce website for Parks and Recreation funding. Each park or recreational facility should have its own web page that shows the park, the anticipated maintenance and operations budget, the amount donated and other information to persuade users to voluntarily donate money to keep it open and maintained. A “Donate” button would allow patrons to donate anything from fifty cents to a million dollars directly to a fund for that individual venue. The amount in the fund would appear on the page, and the operating budget would be subtracted from that amount to show whether there is a deficit or surplus for that park or pool.

An ordinance would be passed making it a legal requirement that funds donated for a specific venue be spent only on that venue, and that excess donations above operating costs would have to be sequestered and used only for improvements to that particular venue, not diverted to other financial needs.

In addition, the web page for each venue would have schedules and requests for volunteer assistance for maintenance, trash pickup, grass mowing and other community-building participatory events that would not only help create a sense of community and participation for users, but would reduce the operating costs. People could use the same site to “donate” their services by signing up on a calendar to perform maintenance or provide supplies or equipment (like lawnmowers, trash trucks, or other maintenance equipment), and companies could be solicited to “adopt” a park or pool and provide either charitable donations or manpower/equipment on a scheduled basis in return for on-screen recognition and even perhaps on-site recognition much like the “adopt a highway” signs one sees. Signs should be posted at each park advertising the website and asking for donations, and kiosks for cash donations on-site should be strongly considered. The city should undertake an advertising campaign to persuade voters to donate to parks and recreation, rather than trying to cling to power and control as they are wont to do.

This plan not only provides a funding and support mechanism for parks and recreation, it also gives the city a very good read on which parks and recreational venues are used and valued by the community. If a particular park languishes, and no one evinces any interest in supporting or donating towards its maintenance, then the city should begin a process of reviewing the venue with an eye towards selling it to private interests for development.

This “use it or lose it” plan would divest the city of recreational resources that are of little value to the public, and the public itself dictates which resources it values through its donations and participation in maintaining it.

Now, some will inevitably argue that parks and pools in poor areas will languish because the people cannot afford to donate as much as those in wealthy neighborhoods. This is a legitimate concern, which is why the process of deciding which parks and recreational resources are unnecessary must not be based on income alone, but also on other criteria such as not how much is donated, but how many people donated to the venue. Thus, a park in a rich neighborhood that gets five one thousand dollar donations should not be viewed as any more inherently valuable than one that gets a thousand one dollar donations.

One caveat: The NIH syndrome will likely encourage the city to try to develop this system “in-house,” or request some sort of custom-designed e-commerce system from a vendor that will purport to achieve every possible need the city can anticipate. This urge should be strongly resisted.

There are hundreds of e-commerce packages already on the market that can be easily adapted to this proposal, and the city should not spend more than about $5,000 at most to develop the basic site that would allow people to donate to their favorite park. All the additional features should be secondary to creating a site that lists every park and recreational venue and provides a “Donate” button and payment acceptance system within the next three months.

Once that basic system, using off-the-shelf e-commerce software/hosting has been created, additional features can be added as necessary. But it’s imperative that the city think out of the box on this and not try to overengineer what can be a quick, simple and effective way to obtain funding for parks and recreation.

© 2009 Altnews

Keeping the bureaucrats who run the city directly accountable to the public is essential

By Seth Richardson

It’s an axiom that municipal government is always and forever bloated with featherbedding bureaucrats. There has never been a city, in the entire existence of mankind, that did not have legions of useless Peter Principle bureaucrats stuffed in every corner of City Hall enjoying fat salaries and doing little at the public’s expense. There has never been a city that could not usefully afford to fire at least half of the bureaucrats who burden the public purse. There has never been a city, including Colorado Springs, where the public would not benefit substantially from removing layers of bureaucratic waste and devolving the truly necessary duties (and commensurate pay) onto the people who actually do the work that the public needs to have done.

In case you don’t know what a “Peter Principle” bureaucrat is, it derives from the 1969 book “The Peter Principle”, written by Dr. Laurence J. Peter and Raymond Hull. The primary axiom of the book is “In a Hierarchy Every Employee Tends to Rise to His Level of Incompetence.” What this means, briefly, is that a person will rise to the level within the hierarchy where he does his job just well enough not to get fired or demoted, but not well enough to be advanced to the next level, which leaves the individual stuck in a position that he cannot excel at because of his own incompetence, doing only as much actual work as will keep him from being fired, and forces the actual work of the company to be performed by those below him, who have not yet risen to their level of incompetence. Take the master machinist, who is highly competent and qualified to machine any part you can imagine. Because he’s good at his job, in an ordinary hierarchy, he deserves advancement and will be promoted to Shop Steward. Problem is he may be a lousy people person and therefore an incompetent Shop Steward, but not incompetent enough to be fired or demoted, so he has risen to his level of incompetence, and will remain there forever, while other, younger, less skilled machinists take over his workload, to the detriment of the company.

Nowhere is this principle more thoroughly demonstrated than in city government, where shovel-leaning Peter Principle supervisors and bureaucrats are the stuff of legend.

Because the city need not compete in the marketplace, because it gets its income from taxation and produces absolutely nothing and only consumes resources, which frees it from any motivation to maximize fiscal responsibility and economy, it inevitably becomes stuffed with Peter Principle bureaucrats whose primary interest is in protecting their own sinecure and salary. At least in a private company, such waste eventually affects the bottom line, and redundant, incompetent employees can be fired. But in municipalities, bureaucratic bloat is always rampant and nearly impossible to prevent, and from time to time the taxpayers have to take direct control and cut away the fat. For Colorado Springs, now is a golden moment to do so.

The first sign of unnecessary bureaucratic bloat in any city is the hiring of a City Manager. City managers are professional bureaucrats purported to be “experts” at municipal administration who have, at the core, no greater interest than to justify their position by convincing elected officials and taxpayers that more and more money is needed in order to keep the city functioning properly. The hiring of a City Manager is the first step on the inevitable slide down the slippery slope of municipal waste, fraud and corruption because it insulates the elected officials from direct accountability for the day-to-day operations of the city, and therefore it isolates the citizens themselves from effective representative oversight of their municipal employees. So long as the Mayor and Council have the plausible deniability of saying “Well, the City Manager, who is an expert, says we have to do this…” the public has little choice but to accept whatever the City Manager foists off on them because they cannot themselves recall the City Manager, nor is the Council obligated to fire her, even when she is demonstrably fiscally irresponsible, at the public’s request.

In a “strong Mayor” system, the Mayor is the “city manager” and is elected (and paid) to be an experienced executive and manager who is responsible for the necessary executive decisions required to keep the city running properly and efficiently. This places the executive responsibility and liability where it belongs, upon the elected official who is directly responsible to the People, and who can be unelected if he or she fails to properly manage the city in accordance with the will of the citizens. This is what Colorado Springs needs, a well-paid, well-qualified Mayor who is the factual “the buck stops here” administrator of the city, and is directly subject to the will of the People if he or she fails to manage efficiently and properly.

But when a City Manager is injected into the equation, everything changes, and the person who actually runs the city is no longer directly responsible to the People, she is responsible only to the Council, and as long as she can convince the Council that she knows what’s best, her position is secure, which is all she’s really interested in achieving. And given the level of expertise of Colorado Spring’s part-time City Council and Mayor, it’s evidently not very difficult to persuade them that taxes need to be raised and the city payroll must not be cut. That’s evidence enough of the failure of the City Manager model to justify changing it.

The idea of a City Manager who cuts employees, finds economies, minimizes bureaucratic and wasteful supervision, and reduces the size of city government is an oxymoron to the entire concept of City Managers.

Think about it for a moment. If a City Manager was doing her job as the public interest demands, she’d be cutting jobs, salaries and budgets to the bone and would be slave-driving city employees to make them work harder for less money and she would be eliminating wasteful and redundant positions by the dozen, to eliminate every possible Peter Principle bureaucrat and shovel-leaning employee on payroll. She’d be telling the council that the “enterprise” systems are a wasteful, redundant and fraudulent system that costs the taxpayers more than minimally necessary. She’d be telling the council that her job is to come in, ruthlessly slash budgets and maximize efficiency and job performance, and then leave, cutting her own budget.

That’s what the public interest requires of its City Manager.

But no City Manager on the planet has any interest in doing what the public interest requires, because it is in the best economic interests of the City Manager to make both the public and the Council believe that she is indispensable, and that the city is so complex and difficult to manage that only a highly-paid, elite, professional bureaucrat like her can possibly do the job, and that without her the city will fall to ruin and riot. It’s in her interests to lie, mumble and obfuscate and persuade the credulous on the Council that city bureaucracy must grow ever larger and larger, and that more and more money and staff are required to deal with the complex and arcane “needs” of the city. To a City Manager, the public are a bunch of drooling idiots who have no idea what’s best for them or what it costs to care for them, who can and should be soaked for whatever she thinks will best justify her position and salary.

This motivation should be painfully obvious to anyone with half a brain. City Managers aren’t about managing the city, they are about managing their careers, which requires that they make themselves indispensable to the city bureaucracy by withholding information and expertise from the elected officials, who, by hiring a City Manager, abdicate the responsibility that THEY accepted to actually make the hard decisions and serve the public when they were elected. When the City Manager becomes the gatekeeper of information, and the acknowledged “expert” in managing the city, she has gained inestimable power and control, and will not relinquish it voluntarily, ever.

The entire concept of City Managers is a Progressive concept that holds that the administration and operations of government ought not be vested in elected officials or political appointees, who should be left to discussing politics and policy, but rather administration should be dealt with only by the intellectually elite professional bureaucrats of the world, who are “above” political issues and are all so very much smarter and wiser than we, the lumpen Proletariat. This has been the course of Progressivism since Woodrow Wilson, and the creeping cancer it comprises is now found everywhere, including the City Manager’s office.

I’ll have more to say about Woodrow Wilson and the Progressives in the future, but for now suffice it to say that the City Manager model of municipal organization and operation is highly detrimental to the taxpayer’s wallet, and should be dispensed with forthwith and permanently. Doing so, and placing the executive authority, and the executive liability for proper administration in the hands of the Mayor, who is himself subject to ratification or rejection by the People, is the best way to run Colorado Springs.

Or the United States.

© 2009 Altnews