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.

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