Voice For Liberty

Tag: Cronyism

  • Taxers prefer Hugh Nicks for Sedgwick County Commission

    Taxers prefer Hugh Nicks for Sedgwick County Commission

    Those who supported higher sales taxes in Wichita also support one Sedgwick County Commission District 4 Republican candidate exclusively.

    In 2014 the Wichita Metro Chamber of Commerce, now known as the Wichita Regional Chamber of Commerce, managed a campaign to persuade voters to institute a sales tax in the City of Wichita. The sales tax was to be one cent per dollar for five years, estimated to raise about $400 million in total. Of that, $250 million was to pay for enhancing the ASR water supply project, $80 million for job creation, and lesser amounts for bus transit and street repair.

    The sales tax failed to pass, with 62 percent of voters saying no. Since then, the wisdom of voters in rejecting the tax has become evident. For example, the city has developed a plan to provide the same benefits for water supply for over $100 million less.

    During the 2014 campaign the sales tax boosters raised campaign money through an organization named Yes Wichita Inc. Over one hundred people and companies contributed $321,527 in cash, and the Chamber of Commerce added $50,818 as an in-kind contribution.

    These people and companies contributed money to persuade voters to raise taxes in Wichita. In some cases, a lot of money: $100,818 from the Wichita Chamber of Commerce, $40,000 from Intrust Bank, and $25,000 from Westar Energy.

    Some of these people and companies have also contributed to a candidate for the Sedgwick County Commission District 4 Republican primary election. I examined campaign finance reports for matches. It isn’t an exact science. The data is not filed in a way that can be readily analyzed by a computer in a spreadsheet or database. Sometimes donations are made in a company name, and sometimes by owners or executives of the same company. There are spelling errors and variations in how company names are reported. So I may have failed to notice matches, and there is a small chance that I made erroneous matches.

    Based on my research, I found that all the pro-tax people and companies who also contributed to Sedgwick County Commission District 4 Republican candidates had one thing in common: They contributed to Hugh Nicks exclusively. His opponent, Richard Ranzau, received no contributions from the pro-tax people and companies, based on my analysis.

    Separately, the Wichita Regional Chamber of Commerce PAC has spent $45,148 on political candidates through August 1 of this year. Of that, $36,665 was spent in favor of one candidate, Hugh Nicks. That’s 81.2 percent spent on one candidate from an organization that contributed $100,818 towards higher taxes. (See Wichita Chamber PAC spends heavily for Hugh Nicks.)

    What does this mean: Those who want higher sales taxes in Wichita contribute to Hugh Nicks for Sedgwick County Commission, and he alone? It is a coincidence, mere serendipity?

    In his campaign literature, Hugh Nicks says “Taxes Are High Enough.”

    But the evidence is clear: Those who want higher taxes prefer Hugh Nicks.

    —

    Following, a table showing the commonality between contributors to the Yes Wichita sales tax campaign in 2014 and Hugh Nicks. Click for a larger version.

  • For Hugh Nicks, a return to the backroom deal?

    For Hugh Nicks, a return to the backroom deal?

    Remarks from a candidate for Sedgwick County Commission call for presenting a unified front to the public.

    Speaking to the Wichita Pachyderm Club, Sedgwick County Commission candidate Hugh Nicks called for leadership to end what he called “divisive behavior:” “We can’t have — we can’t have the kind of divisive behavior that we have going on right now — we just — it’s just not — it’s just not acceptable.”

    His opponent in the August Republican Party primary election is Richard Ranzau, who currently holds the office.

    The “divisive behavior” that Nicks objects to takes several forms, but it’s clear he thinks that the Sedgwick County Commission should present a united front: The commission should have a plan that’s agreed to, and if commissioners don’t follow the plan, there should be consequences. At least that’s the moral of a story he told members of guests of the Wichita Pachyderm Club.

    That attitude is problematic. Especially so because the Sedgwick County Commission is different from a legislature. At the commission, there is no opportunity for interested parties — lobbyists and regular people — to testify before a committee as legislation is being developed. At the commission, there is no committee mark-up process in which the text of a bill is crafted and finalized. There is no committee vote that decides whether to recommend the bill to the entire legislative body.

    So there really isn’t much debate or disagreement in public at the Sedgwick County Commission meetings. And when there is, it may be squelched. Last year a commissioner attempted to offer two amendments to a proposal. He was trying to generate a consensus. But the majority of commissioners wouldn’t have it, and the vote happened without considering the amendments. (See For Sedgwick County Commission, too much debate.)

    It’s important that there be discussion in public, even if “divisive.” The prelude to the Kansas Open Meetings Act gives a reason why: “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.” 1

    When things are not done in view of the public, we call them backroom deals, with all the well-deserved negative connotations. Here’s an example, from 2012: Sedgwick County staff and several commissioners worked out a deal to sell an unused radio tower for $280,000. Commissioners Ranzau and Peterjohn thought there should be an auction. There was an auction, and the county received net proceeds of $553,872. 2

    There is already too much suspicion that backroom deals are common at the county and City of Wichita. The more important and “divisive” a matter is, the more discussion it deserves in public.

    But that isn’t the attitude of candidate Nicks when he said, “It’d be like a business: I mean, if in our business when we had closed door meetings when, when we argue about how we move forward, in our, in our business, we didn’t go out in front of our employees afterwards and act the same way that we did back behind closed doors. It just doesn’t work. And if we went and acted that way in front of our customers, if we did, we wouldn’t have any customers.”

    Business and government are different things. A business is accountable only to its owners and shareholders, and also to the public by acting lawfully. Other than this, a business can do what it wants. It may make decisions using any means its owners tolerate. 3

    Government, however, is different. It should be accountable to the people. Sometimes — frequently — that requires “divisive” discussion and debate. And the more important the matter, the more discussion and debate — transparency — is needed.

    It’s a lot easier on commissioners if the attitude is “go along to get along.” That attitude has led to a faltering Wichita economy as majorities of members of the Wichita City Council and Sedgwick County Commission have avoided debate and gone along with the advice of staff and economic development regimes. I think this is the strategy of Hugh Nicks, should he be elected to the commission.

    It might be tempting to dismiss these remarks as having been made by an uninformed candidate. But Nicks says he has been running since October 2017 so that he can learn about the issues. 4

    Following are excerpts of remarks of Hugh Nicks and Richard Ranzau at the Wichita Pachyderm Club, June 8, 2018.

    Hugh Nicks:

    In the area — in the area of leadership, uh, it always starts at the top. Yeah, it doesn’t matter what organization it is, it always starts at the top. I’ll give you just a couple of examples. Uh, when I first started out as a young guy, and I was coaching, I worked for a guy Lafayette Norwood. Maybe some of you know that name. Uh, he was the first black basketball coach — the city league’s first black coach in the city of Wichita, actually. And I worked for the man for two years and learned some hard lessons from him because he wanted to fire me a couple times.

    Yeah, he wanted to fire me because one day I decided I’d run some drills that he would not have agreed upon and when we got back in the locker room and got all the kids checked out, he came and said, “I believe I’m gonna fire you.” I said, “I need that job.” It pays 6,200 dollars a year. I already said that. He said, “Well I saw what you were doing down at the other end of the court. It’s not what we agreed on. And uh, so, when we have a plan, we leave this, this office, then you’re gonna do what you’re supposed to do, and you’re not gonna counter anything that I say out on that floor because we’re a team and we’re gonna move forward.”

    Uh, so that — that was one of my first lessons that I learned with regard to leadership. But I, I think it starts at the top, so here’s what I see at the county: Um, you know, we can’t have — we can’t have the kind of divisive behavior that we have going on right now — we just — it’s just not — it’s just not acceptable.

    Now, it’s alright to disagree in my view. I mean, I’m probably one of the — one of the guys that disagree with and vehemently if I have a strong opinion. But it’s not done in public. You just — you just — you just can’t do that. So, if you want to have an argument with me and go back behind closed doors and have it all day long, that’s alright with me. But when we come out and we’re in front of a staff, then were gonna act differently, and we’re certainly gonna act differently in front of our constituents — in front of, in front of the, the people that we represent. It’d be like a business: I mean, if in our business when we had closed door meetings when, when we argue about how we move forward, in our, in our business, we didn’t go out in front of our employees afterwards and act the same way that we did back behind closed doors. It just doesn’t work. And if we went and acted that way in front of our customers, if we did, we wouldn’t have any customers.

    So I’m a proponent, and trying to answer that question from back there in, in terms of leadership style, that we need a different leadership style in the county. Now Richard’s probably gonna take exception with that because he fights for what he believes in and I understand that. But it’s a matter of the way we go about it in my view, uh, and everything starts at the top. I mean, it starts at the top and works its way down, uh, that’s — that’s how I view that.

    —
    Notes

    1. Kansas Statutes Annotated 75-4317. Available at https://www.ksrevisor.org/statutes/chapters/ch75/075_043_0017.html. ↩
    2. As a result of system upgrades, the county no longer needs a radio tower located near 77th Street North and Interstate 135. Pixius Communications, LLC made an offer to purchase the tower and the five acre tower site for $280,000. The county proceeded making arrangements for the sale, preparing a sales agreement contract between Sedgwick County and Pixius with a sales price of $280,000, along with several other legal documents necessary to support the sale. … But commissioners Richard Ranzau and Karl Peterjohn felt that the best way to sell the tower was through an auction. … The result of the auction? A Florida company offered $610,000. After a sales commission ($55,000) and half of closing costs ($1,128), the county will net $553,872. That’s almost twice the price the county manager and two commissioners were willing to sell the tower for. See Weeks, Bob. Sedgwick County tower sale was not in citizens’ best interest. Available at https://wichitaliberty.org/sedgwick-county-government/sedgwick-county-tower-sale-was-not-in-citizens-best-interest/. ↩
    3. It’s true that some government officials say we must run government like a business. They usually mean that until they are held to the standards of accountability the private sector faces. Then, things are different. Accountability is avoided. (The non-discussion of expenses of the Intrust Bank Arena is an example of evading business-type accountability by members of the Sedgwick County Commission. See Intrust Bank Arena loss for 2017 is $4,222,182.) ↩
    4. “You may wonder why I’m announcing so early, since the Republican Primary for the County Commission seat isn’t until August 2018. The reason is simple. I like to do my homework. I want to learn about the way Sedgwick County governs, and the rationale behind the decisions that have been made. I want to learn about the issues that are most important to the people in the 4th District. I think serving as County Commissioner is too important to take an on-the-job-training approach, and I don’t want to be on a learning curve at the taxpayers’ expense.” Nicks4commissioner.com. News. October 19, 2017. Available at http://www.nicks4commissioner.com/news.html. . ↩
  • In Wichita, spending semi-secret

    In Wichita, spending semi-secret

    The Wichita City Council authorized the spending of a lot of money without discussion.

    At its March 27, 2018 meeting, the Wichita City Council passed a resolution authorizing the spending of funds for the River Vista development on the west bank of the Arkansas River in downtown.

    The agenda packet for the meeting gave the details: “The overall project budget is $7,862,999 with STAR Bonds financing $4,750,000 of the costs and the City financing $1,050,000. The balance of the project costs will be assessed against the Improvement District.”

    (STAR bonds are a mechanism whereby future sales tax revenue is routed to the project developer, rather than paying for the cost of state and Sedgwick County government. The “Improvement District” is the development itself, and the “City” is, of course, the taxpayers of Wichita.)

    All this was approved by the city council at its meeting on July 21, 2015, under the item “Amendment to Amended and Restated Development Agreement – River Vista, L.L.C. (West Bank Apartments) and issuance of Sales Tax Special Obligation Revenue (STAR) Bonds (District VI).” It appeared on the March 27, 2018 agenda so that a resolution formalizing the arrangement could be passed.

    Was the council’s action of public business and interest? The city council didn’t think so. The item was passed as part of the meeting’s consent agenda. This is a bundle of agenda items that are voted on in bulk, with one single vote, unless a council member requests an item be “pulled” for discussion and possibly a separate vote. If no council member asks to pull an item, there is no discussion.

    No one asked to “pull” this agenda item for a discussion and vote.

    Generally, items on consent agendas are not controversial, at least according to the city’s reasoning. I suppose that applies to this item, as the spending was approved in the past.

    It might have been useful, however, to remind Wichitans of the taxpayer-supplied subsidy going to this project. Just so we’re reminded now and then of where our money is going.

    But: The principals of the apartment project are frequent seekers of taxpayer subsidy, and likely plan to ask for more — much more — in the future. Some are also big funders of campaigns, in particular that of Wichita Mayor Jeff Longwell. We call this cronyism.

    So the consent agenda provides a handy place to pass laws without discussing them, hoping that no one will notice. Semi-secret.

    As it turns out, the Wichita Business Journal noticed this item and wrote the article West bank Arkansas River upgrades on City Council agenda. The article starts with “Wichita’s City Council on Tuesday is scheduled to discuss …” But because of the consent agenda and no council member believing the spending deserved attention, that discussion never happened.

  • Naftzger Park private use plans unsettled

    Naftzger Park private use plans unsettled

    An important detail regarding Naftzger Park in downtown Wichita is unsettled, and Wichitans have reason to be wary.

    In the developer agreement regarding Naftzger Park passed on December 19, 2017, there was this: “The City and the Board will cooperate with Developers, upon Developers’ request, to create an Annual Master Calendar of private and public events for the Park, with the expectation that the Developers will have the use of the Park for certain private events.” 1 (In this agreement, “Board” refers to the Board of Park Commissioners of the City of Wichita, Kansas.)

    Recently I asked the city if this master calendar had been created, or if there was a framework for determining how many private events can be held. According to the city, decisions are ongoing, and “According to Park & Recreation officials, what can be shared now is that the City will create and maintain a master calendar of events and programming. The developer will share in the programming responsibility and host several events throughout the year. Collaborating will ensure that the park is programmed well and active.”

    Wichitans should not take comfort in learning this. We can easily imagine where the developer will want to have private events often, especially if homeless people continue using the park as a gathering spot, as is their right. “TGIF kickoff, tonight at Naftzger Park! Drinks and hot hors d’oeuvre! $15 to enter, free to residents of Lofts at Spaghetti Works and partners at Martin Pringle.”

    Could this happen? How often could this happen? These are open questions, and we’re being asked to trust that city bureaucrats will negotiate a good deal for the entire city.

    A panoramic view of Naftzger Park at winter’s end. Click for larger.

    We shouldn’t trust the city to get a good deal for the average Wichitan. Even if the city strikes a deal that looks good, we should not trust the city to enforce the deal. Here’s an example to illustrate why.

    In 2012 the city negotiated a deal with a private developer regarding an apartment development. As part of the deal, the city negotiated a provision that requires the apartment developer to pay “Additional Annual Rent” if certain conditions were met. To the casual observer, that might seem like a magnanimous gesture by the apartment developer. It made it look like the city was been a tough negotiator, hammering out a good deal for the city, letting citizens profit along with the apartment developer.

    But the list of costs the developer could deduct before determining “additional annual rent” was broad, including the ability to contribute to reserve funds that would be owned by the developer. At the time, I observed, “We can be sure that if this project was ever in the position where it looked like it might have to remit ‘Additional Annual Rent’ to the city, contributions to these reserve funds would rise. Then, no funds paid to the city.” 2

    As it turns out, the city did not enforce this agreement. It didn’t even ask for the information needed. Last year I became aware that the city did not ask for, and the developers did not produce, annual reports. 3

    So might it happen that the private developments adjacent to Naftzger Park treat the park as their own? Recall that these developers have taken advantage of nearly every available program to fund their private developments. 4 Included in the list of benefits is a new benefit the city has offered only once before, to my knowledge: The city is paying the developer for parking spaces, on the theory they will be available to the public when the development does not need them.

    Many of these benefits to the developer appeared only after the Wichita city manager said the development would not proceed, as the Wichita Eagle reported: “Plans to tear up and rebuild Naftzger Park downtown have been shelved indefinitely, after developers who own neighboring property pulled out of working with the city, Wichita City Manager Robert Layton said Friday [November 17, 2017].” 5 Somehow the deal was quickly revived, with even more taxpayer-funded benefits to the developer.

    Should Wichitans trust the city to negotiate a good deal, and if it does, to enforce it? In my experience, the answer is no.

    —
    Notes

    1. DEVELOPMENT AGREEMENT between the CITY OF WICHITA, KANSAS, BOARD OF PARK COMMISSIONERS OF THE CITY OF WICHITA, KANSAS, SENECA PROPERTY, LLC, and SUNFLOWER WICHITA, LLC Dated as of January 19, 2018. Section 3.12. In the agenda packet for the December 19, 2017 Wichita city council meeting. ↩
    2. Weeks, Bob. Wichita WaterWalk apartment deal not good for citizens. Available at https://wichitaliberty.org/wichita-government/wichita-waterwalk-apartment-deal-not-good-for-citizens/. ↩
    3. Weeks, Bob. Wichita WaterWalk contract not followed, again. Available at https://wichitaliberty.org/wichita-government/wichita-waterwalk-contract-not-followed/. ↩
    4. Weeks, Bob. Naftzger Park project details. Available at https://wichitaliberty.org/wichita-government/naftzger-park-project-details/. ↩
    5. Lefler, Dion. Naftzger Park won’t be torn down, rebuilt after Spaghetti Works developer pulls out. Wichita Eagle, November 17, 2017. Available at http://www.kansas.com/news/politics-government/article185304103.html. ↩
  • Sedgwick County’s David Dennis on economic development

    Sedgwick County’s David Dennis on economic development

    Following the Wichita Mayor, the Chair of the Sedgwick County Commission speaks on economic development.

    Last week Sedgwick County Commissioner David Dennis penned a column for the Wichita Eagle praising the county’s efforts in economic development. 1 Dennis is also chair of the commission this year.

    In his column, the commissioner wrote: “Economic development is a key topic for the Board of County Commissioners and for me in particular. Right now we have a lot of momentum to make our community a more attractive place for people and businesses.”

    This emphasis on the word “momentum” seems to be a fad among Wichita’s government leaders. More about this later.

    Dennis also wrote: “Traditional governmental incentives are a thing of the past. There are no more blank checks from Sedgwick County for businesses.”

    Except: The county participates in incentive programs that allow companies like Spirit to escape paying taxes, and when you don’t have to pay taxes, that’s the same economic effect as someone giving you cash to pay those taxes. Spirit Aerosystems will receive Industrial Revenue Bonds, which are not a loan of money to Spirit, but allow the company to avoid paying property taxes and sales taxes. 2 3 These incentives are a cost to the county and other units of government, and are as good as cash to Spirit. (For this and many other projects the county is not involved in the approval of the IRB program, but it doesn’t object, and it sees its tacit approval as part of its partnership with the City of Wichita.)

    Besides this, the county engages in traditional incentives — almost like a blank check — but disguises them. In this case, for example, the county is contributing $7 million towards the construction of a building exclusively for Spirit’s use. How will the county pay for that? The memorandum that the county agreed to states: “The county participation of $7 million US is anticipated to be available cash.” 4

    You might be wondering if the county is treating this contribution as an investment that a business would make, where it would earn back its investment plus a profit by collecting rent from Spirit. After all, county leaders tell us they want to operate government like a business.

    But, you’d be wrong if you thought that. The memorandum specifies the rent as $1 per year. Not $1 per square foot per year, but $1 per year for the entire building. Furthermore, at the end of 20 years, Spirit will have the option to purchase the property for $1.

    There’s really no way to characterize this transaction other than as a multi-million giveaway to Spirit. Not directly as a blank check or cash, but in a roundabout way that costs the county and benefits Spirit in the same way as cash.

    I can understand how Dennis and others like Wichita Mayor Jeff Longwell want to convince the public that they are no longer dishing out cash. Often, the public doesn’t like that. So instead they do the same thing in roundabout ways like leasing a building for $1 per year or paying millions in cash for a “parking easement” for which the city has no real use. 5 Chairman Dennis and others hope you won’t notice, but these leaders would be more credible if they didn’t try to obfuscate the truth.

    Sedgwick County jobs. Click for larger.
    Sedgwick County jobs, change from prior year. Click for larger.
    At the end of his column, Dennis wrote: “There is a lot of momentum and forward movement in our community right now and I’m encouraged to see what we can achieve as a team.”

    There’s that word again: momentum. Coincidently, shortly after this column was published, the Bureau of Labor Statistics published an update to the Quarterly Census of Employment and Wages. It shows the number of jobs in Sedgwick County declining. This update was released after Dennis wrote his column, but as can be seen from the nearby charts, the slowdown in Sedgwick County jobs and the Wichita-area economy is not a new trend.

    If Dennis really believes our economy has “momentum and forward movement,” it is my sincere hope that he is simply uninformed or misinformed about these statistics. Because if he is aware, we can only conclude that he is something else that is worse than being merely ignorant.

    —
    Notes

    1. David Dennis. Sedgwick County part of drive to strengthen area workforce. Wichita Eagle, March 5, 2018. Available at http://www.kansas.com/opinion/opn-columns-blogs/article203559734.html. ↩
    2. Weeks, Bob. Industrial revenue bonds in Kansas. Available at https://wichitaliberty.org/kansas-government/industrial-revenue-bonds-kansas/. ↩
    3. Weeks, Bob. Spirit expands in Wichita. Available at https://wichitaliberty.org/wichita-government/spirit-expands-wichita/. ↩
    4. Sedgwick County. RESOLUTION AUTHORIZING THE EXECUTION OF A MEMORANDUM OF UNDERSTANDING WITH THE CITY OF WICHITA AND SPIRIT AEROSYSTEMS, INC. RELATING TO PROJECT ECLIPSE. Available at https://sedgwickcounty.legistar.com/LegislationDetail.aspx?ID=3290907&GUID=E732A9A2-C01A-4ACE-B134-C15E551F989F. ↩
    5. Weeks, Bob. More Cargill incentives from Wichita detailed. Available at https://wichitaliberty.org/wichita-government/cargill-incentives-from-wichita-detailed/. ↩
  • Naftzger Park concerts and parties?

    Naftzger Park concerts and parties?

    In Wichita, a space for outdoor concerts may be created across the street from where amplified concerts are banned.

    Amplified music is banned in Gallery Alley, but concerts and parties are proposed in Naftzger Park.
    One of the City of Wichita’s stated purposes for the redesign of Naftzger Park in downtown Wichita is to, “create a continuous flex space for multi-use; i.e. Tai Chai, as well as other passive use activities including but not limited to weddings, concerts, performances, films, special celebrations and parties as well as quiet contemplation.” 1

    There may be a problem, however. Directly across the street from Naftzger Park lies Gallery Alley. This is a new development whereby an alley was converted to a space for events, like concerts. Not long after the alley’s first events, the Wichita Eagle reported this:

    But it was too much for the neighbors, according to Jason Gregory, executive vice president of Downtown Wichita.

    “It’s just the amplified sound — we’re just trying to be respectful to those buildings there, that have a mix of uses,” Gregory said. “There’s residences there, and obviously when you get high-bass subwoofers, you’re basically hearing that through the building.” 2

    Now, right across the street from Gallery Alley, directly across St. Francis from residences at the former Eaton Hotel, directly across Douglas from the Zelman Lofts, and catty-corner from the Lofts at St. Francis, the city proposes creating an outdoor space for — get ready: Concerts and parties.

    By the way, the proposed use of the parking lot that abuts Naftzger Park is a “high-end mixed-use development” possibly including a hotel. I don’t know if this use is consistent with parties and concerts in its front yard.

    —
    Notes

    1. Request for Qualifications No. — FP740043. Available at https://drive.google.com/file/d/0B97azj3TSm9MQ1ZVcXVsNVQ2dkE/view. ↩
    2. Riedl, Matt. Bummer, no more crowd-surfing in downtown Wichita alley. Wichita Eagle, June 20, 2017. Available at http://www.kansas.com/entertainment/ent-columns-blogs/keeper-of-the-plans/article157094874.html. ↩
  • Wichita WaterWalk contract not followed, again

    Wichita WaterWalk contract not followed, again

    Wichita city hall failed to uphold the terms of a development agreement from five years ago, not monitoring contracts that protect the public interest.

    Two weeks ago a Wichita Eagle article reported on a 2002 public-private partnership that called for the private-sector company to submit an annual report to the city. But the company did not submit the reports, and the city didn’t ask for them. The city did after the Eagle inquired. 1

    Much of the Eagle article described why current city officials were not aware of the 2002 agreement: “Due largely to turnover on the city staff and term limits on the City Council, top officials at City Hall were unaware of the contract provisions until The Eagle inquired about them. … No city official who played a major role in the 2002 contract is still actively involved in government.”

    The article quoted Mayor Jeff Longwell as “interested in WaterWalk fulfilling any contractual agreement they have in place (with the city), even if that contract was made 20 years prior to my time.”

    Now we know that the city did not enforce a similar agreement with the same WaterWalk developer made while Longwell was a council member. The city manager who oversaw the agreement is still manager.

    WaterWalk additional rent calculation, excerpt. Click for larger.
    We don’t have to look as far back in history as 2002 to find an agreement the city did not enforce, one where the city was not protecting the interest of taxpayers. In 2012 the city entered into a same or similar agreement in the same WaterWalk development with the same developer, Jack P. Deboer. It also called for the city to potentially earn payments, called “additional annual rent.” It also called for reports to be made, although the exact language used is “provide that calculation.” 2

    I asked for the annual reports on July 10. Three days later I received a message indicating the documents would be ready on July 19. On that day they arrived. Like those provided to the Eagle, they were heavily redacted and showed that no additional rent was due the city.

    Upon further inquiry, it is clear that these reports were not filed with the city on an annual basis, but were created only after I asked for them. 3

    Calculations use incorrect formula

    The 2012 agreement specified that the WaterWalk developer would be able to annually deduct 20 percent of the construction costs as “development cost return.” But, in the calculations provided to me by the city, 17 percent is used instead. 4

    WaterWalk additional rent calculation, excerpt. Click for larger.

    The city excused this error as being in favor of the city, and no additional rent was due in any case.

    Redacted, not really

    As shown in the examples above, the documents provided to me were heavily redacted, with nearly all numbers obscured. The illustrations show the appearance of the pdf document when opened in Acrobat reader or another pdf reader.

    But a simple copy and paste into another application like Microsoft Word revealed the blacked-out numbers. The procedure used by the city didn’t really redact the numbers. It appears that someone used the Acrobat drawing tools to draw thick black lines over the numbers, which isn’t effective. Acrobat offers a set of redaction tools specifically designed for removing sensitive content from pdfs, and the city should have used this method. 5

    When I reported this finding to the city, Elder replied: “We would ask that you respect the privacy of this information as well as the City’s obligations under the Kansas Open Records Act at K.S.A. 45-221(b), included below, which strictly prohibits the release of the financial information of a taxpayer, and not disclose the financial information.” 6

    I don’t believe that the Kansas Open Records Act prohibits the disclosure of this information, and it is in the public interest that these numbers are available. At the moment, I am inclined to respect the city’s request.

    Again

    Here is another example of the city and its private-sector partners failing to observe a contract. The city did not monitor its agreements to protect the public interest, and this agreement is recent enough that remoteness in time is not an excuse.

    Were the 2002 and 2012 development agreements wise for the city? At the time of the 2012 deal, I wrote this: 7

    [There] is a provision that requires the apartment developer to pay “Additional Annual Rent.” Under this concept, each year the apartment developer will calculate “Adjusted Net Cash Flow” and remit 25 percent of that to the city.

    To the casual observer, this seems like a magnanimous gesture by the apartment developer. It makes it look like the city has been a tough negotiator, hammering out a good deal for the city, letting citizens profit along with the apartment developer.

    But the definition of cash flow includes a comprehensive list of expenses the may be deducted, including the cost of repaying any loans. There’s also an allowable expense called “Tenant Development Cost Return,” which is the apartment developer’s profit. The agreement defines this profit as 20 percent, and it’s deducted as part of the computation of “Adjusted Net Cash Flow.”

    If there is ever any money left over after the dedication of all these expenses and profit margin, I will be surprised. Shocked, even. Here’s one reason why. One of the allowable deductions that goes into the computation of “Adjusted Net Cash Flow” is, according to city documents: “Amounts paid into any capital, furniture, fixture, equipment or other reserve.” There’s no restriction as to how much can be funneled into these reserve accounts. We can be sure that if this project was ever in the position where it looked like it might have to remit “Additional Annual Rent” to the city, contributions to these reserve funds would rise. Then, no funds paid to the city.

    This is an example of the city appearing to be concerned for the welfare of taxpayers. In reality, this concept of “Additional Annual Rent” is worse than meaningless. It borders on deception.

    Beyond this, we now know that neither the city nor the WaterWalk developer followed the terms of the deal. The annual reports were not supplied by the company, and they were not requested by the city. As it turns out the annual reports purport to show that the city was owed no money under the profit sharing agreement.

    But that’s not the point. The issue is that the city did not enforce a simple aspect of the agreement, and the private-sector company felt it did not need to comply. Taxpayers were not protected, and we’re left wondering whether these agreements were really meant to be followed.

    —
    Notes

    1. Lefler, Dion. WaterWalk profit-sharing: 15 years, zero dollars for Wichita. Wichita Eagle, July 8, 2017. Available at http://www.kansas.com/news/politics-government/article160147944.html. ↩
    2. “As Additional Annual Rent Tenant shall pay a sum equal to twenty-five percent (25%) of the Adjusted Net Cash Flow commencing with the first day the Tenant Improvements open for business. The Tenant shall calculate Adjusted Net Cash Flow for each Current Year within forty-five (45) days after the end of the Current Year (or portion thereof) and provide that calculation, and pay to the Landlord the Additional Annual Rent, within sixty (60) days after the end of the Current Year. Additional Annual Rent shall continue until this Lease expires. Adjusted Net Cash Flow is Gross Revenues less Total Expenses, less the total amount of capital expenses for furniture, fixtures, and equipment for the Tenant Improvements in excess of the aggregate amount expended from any reserve during such year.” Amendments to WaterWalk Developer Agreements. August 21, 2012. Available at https://drive.google.com/file/d/0B97azj3TSm9Mdm1tWjlQbVAzemM/view?usp=sharing. ↩
    3. Email from city development analyst Mark Elder, July 21, 2017. “The annual report for this project was requested in the same time frame as the reports provided for Gander Mountain however, the documents were provided to the City within the last week.” ↩
    4. Wichita City Council agenda packet for August 21, 2012. Waterwalk Ground Lease, Section 16.08. “Tenant Development Cost Return, defined as, on an annual basis, twenty percent (20%) of the total Construction Costs for all Tenant Improvements paid by Tenant, Developer, or permitted assignees and sublessees. As further clarification, the amount determined to be twenty percent (20%) of the total Construction Costs for all Tenant Improvements may be included in the calculation of the Total Expenses each year during the Term of this Lease.” ↩
    5. Adobe.com. Removing sensitive content from PDFs. Available at https://helpx.adobe.com/acrobat/using/removing-sensitive-content-pdfs.html. ↩
    6. “Except to the extent disclosure is otherwise required by law or as appropriate during the course of an administrative proceeding or on appeal from agency action, a public agency or officer shall not disclose financial information of a taxpayer which may be required or requested by a county appraiser or the director of property valuation to assist in the determination of the value of the taxpayer’s property for ad valorem taxation purposes; or any financial information of a personal nature required or requested by a public agency or officer, including a name, job description or title revealing the salary or other compensation of officers, employees or applicants for employment with a firm, corporation or agency, except a public agency. Nothing contained herein shall be construed to prohibit the publication of statistics, so classified as to prevent identification of particular reports or returns and the items thereof.” ↩
    7. Weeks, Bob. Wichita WaterWalk apartment deal not good for citizens. https://wichitaliberty.org/wichita-government/wichita-waterwalk-apartment-deal-not-good-for-citizens/. ↩
  • Wichita WaterWalk agreement not followed

    Wichita WaterWalk agreement not followed

    Does the City of Wichita enforce its public-private partnership agreements? In some cases the city doesn’t even ask for the information that is needed for enforcement.

    A Wichita Eagle article reports on a 2002 public-private partnership that called for the private-sector company to submit an annual report to the city. But the company did not submit the reports, and the city didn’t ask for them. The city did after the Eagle inquired. 1

    The deal involves the city leasing land to a private developer for a project now known as WaterWalk. Part of the deal called for the city to possibly receive annual payments in a form of profit-sharing. Annual reports to the city were to provide figures from which the city’s payment would be calculated.

    There is an important issue here apart from the wisdom of striking the initial deal in 2002. That is, neither the city nor the company followed the terms of the deal. The annual reports were not supplied by the company, and they were not requested by the city, according to Eagle reporting. As it turns out the annual reports purport to show that the city was owed no money under the profit sharing agreement.

    But that’s not the point. The issue is that the city did not enforce a simple aspect of the agreement, and the private-sector company felt it did not need to comply.

    Some of the Eagle article is devoted to explaining that the deal was struck some years ago, and: “No city official who played a major role in the 2002 contract is still actively involved in government.”

    I’m sure we will hear that excuse from current city council members and bureaucrats, that all this happened before our time. Anyone taking cover using that excuse deserves to be terminated immediately.

    We should not accept this or any excuse. This is because in 2012 the city entered into a same or similar agreement in the same WaterWalk development with the same developer, Jack P. Deboer. It also called for the city to potentially earn payments, called “additional annual rent.” It also called for reports to be made, although the exact language used is “provide that calculation.” 2

    I wonder: When city staff drafted the new agreement in 2012, and when the council deliberated the agreement, did anyone wonder how the 2002 agreement worked out? Did anyone wonder if the city earned any payments from that deal? The 2012 agreement was controversial, at least to some. I and others spoke to the council expressing our concerns. 3

    I also wonder: Has the developer filed the annual reports from the 2012 agreement? I’ve asked the city.

    Here is the article I filed in 2012: Wichita WaterWalk apartment deal not good for citizens.

    —
    Notes

    1. Lefler, Dion. WaterWalk profit-sharing: 15 years, zero dollars for Wichita. Wichita Eagle, July 8, 2017. Available at http://www.kansas.com/news/politics-government/article160147944.html. ↩
    2. “As Additional Annual Rent Tenant shall pay a sum equal to twenty-five percent (25%) of the Adjusted Net Cash Flow commencing with the first day the Tenant Improvements open for business. The Tenant shall calculate Adjusted Net Cash Flow for each Current Year within forty-five (45) days after the end of the Current Year (or portion thereof) and provide that calculation, and pay to the Landlord the Additional Annual Rent, within sixty (60) days after the end of the Current Year. Additional Annual Rent shall continue until this Lease expires. Adjusted Net Cash Flow is Gross Revenues less Total Expenses, less the total amount of capital expenses for furniture, fixtures, and equipment for the Tenant Improvements in excess of the aggregate amount expended from any reserve during such year.” Amendments to WaterWalk Developer Agreements. August 21, 2012. Available at https://drive.google.com/file/d/0B97azj3TSm9Mdm1tWjlQbVAzemM/view?usp=sharing. ↩
    3. Wichita City Council. Minutes of August 21, 2012 meeting. Available at http://wichitaks.granicus.com/MinutesViewer.php?view_id=2&clip_id=1843. ↩
  • WichitaLiberty.TV: Dr. James Otteson on capitalism

    WichitaLiberty.TV: Dr. James Otteson on capitalism

    In this episode of WichitaLiberty.TV: Dr. James Otteson is executive director of the BB&T Center for the Study of Capitalism, the Thomas W. Smith Presidential Chair in Business Ethics, and Professor of Economics at Wake Forest University in Winston-Salem, North Carolina. He was in Wichita to speak at the Bastiat Society and stopped by the WichitaLiberty.TV studios to discuss capitalism. Thank you to Raul Brito and the Bastiat Society for making him available. View below, or click here to view at YouTube. Episode 140, broadcast February 26, 2017.

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