National Park Service: What Do Gambling and Secrecy Have to Do with a Public Charity that Operates on Federal Land?

Tuesday, October 12, 2010

What Do Gambling and Secrecy Have to Do with a Public Charity that Operates on Federal Land?

On September 23, 2010, the Pennsylvania Gaming Control Board (PGCB) granted SugarHouse Casino - Philadelphia's first and only casino - its official authorization to operate slots and table games.

On October 10, 2010, Paul Davies, Deputy Editorial Page Editor of The Philadelphia Inquirer wrote,

"Casinos prey on those desperate for a miracle...It will be Rendell's legacy that the city he helped save as mayor will now see many lives destroyed by all the social ills that are sure to follow gambling in Philadelphia."

While the purpose of this blog entry is not to weigh in on the casino debate in Philadelphia, it is nonetheless important to learn what back room deals may have been made in Harrisburg to leverage casino operations to fund the Independence Visitor Center Corporation, a public taxpayer supported charity, that runs the Independence Visitor Center. (The land on which the Independence Visitor Center (IVC) is built, as well as the building itself, are owned by the federal government and administered by Independence National Historical Park, a unit of the National Park Service.)

William W. Moore, former President and CEO of the Independence Visitor Center Corporation (IVCC), wrote to Governor Edward Rendell about the IVCC and legalized gambling and casino operators. In the July 9, 2004 letter, Mr. Moore wrote the following,

"Congratulations on the historic legislation allowing slot machine installation in Pennsylvania. That was a long and difficult battle, but in the end residents and visitors to the Commonwealth all come out as winners. You may recall in a meeting in late 2003 discussing ways that we could leverage casino operations to help support the Independence Visitor Center operations. With the legislation successfully passed, I would like to renew those discussions...To secure our long-term future and provide sustainable, consistent funding I would like you to consider taking a renewed look at how we might achieve financial support for the Visitor Center operations either directly or indirectly from the licensing, permitting or operations of our new casino operators."

Casino operations are predicated upon having winners and losers, and as such, Mr. Moore's argument that "in the end residents and visitors to the Commonwealth all come out as winners" is absurd.

That said, Mr. Moore made a reference to an attachment in his July 9, 2004 letter to Governor Rendell. Under the Pennsylvania Right to Know Law, Jon Bari, President of The Constitutional Walking Tour, requested a copy of Mr. Moore's attachment, but the Office of the Governor has refused to provide this six and half year old letter because it is allegedly "confidential proprietary information."

The Constitutional appealed the denial of the Office of the Governor, and the Pennsylvania Office of Open Records has ordered the Office of the Governor to provide us with various records including the July 9, 2004 attachment. See Final Determination, Jonathan Bari and The Constitutional Walking Tour of Philadelphia vs. the Office of the Governor, Docket No.: AP 2010·0733, September 13, 2010 ("Final Determination").

Despite the legally binding Final Determination, the Office of the Governor has yet to provide these records.

To the contrary, on or before October 13, 2010, Governor Rendell will likely have filed a lawsuit in Commonwealth Court to block the release of the records of the Independence Visitor Center Corp. October 13th is the legal deadline by which the Office of the Governor has to file suit, and to that end, they have already advised the Office of Open Records (OOR) that they will file suit if the OOR does not reconsider the Final Determination (the OOR denied the Governor's request for reconsideration). Here is what the Governor's office wrote (note that the Office of the Governor will be "compelled" to sue, but somehow not "compelled" to release the records).

"The Office [of the Governor] has 30 days to appeal the September 13, 2010 Final Determination to Commonwealth Court of Pennsylvania, with the final date for filing being October 13, 2010. Therefore, if this Motion for Reconsideration is not timely granted by the OOR, the Office will be compelled to file an appeal with Commonwealth Court by that date. Under Pa. R.A.P 1701(b)(3), a government unit such as OOR may grant reconsideration within the applicable appeal period. However, a motion for reconsideration does not act as a stay of the appeal period. Moore v. Moore, 535 Pa. 18,634 A.2d 163 (1993)."

This further demonstrates how the Independence Visitor Center Corp. - a taxpayer supported public trust and public charity - and the IVCC's attorneys continue to be tone deaf to the needs of public charities to be transparent in their operations.

---------------------------

Exhibits:

Letter from William W. Moore, former President and CEO of the Independence Visitor Center Corporation, to Governor Edward Rendell about securing funding for the IVCC from legalized gambling and casino operators, July 9, 2004.

Final Determination, Jonathan Bari and The Constitutional Walking Tour of Philadelphia vs. the Office of the Governor, Pennsylvania Office of Open Records, Docket No.: AP 2010·0733, September 13, 2010.

Background on The Constitutional’s disputes with the NPS and Independence Visitor Center

The Constitutional Walking Tour of Philadelphia (“The Constitutional”) offers guided walking tours of the Independence National Historical Park area by providing a primary overview of Independence Park and visiting more than 20 of Independence Park’s most historic sites including the Liberty Bell, Independence Hall, Carpenters’ Hall, Declaration House, etc.

From 2005 to 2010, the Independence Visitor Center Corporation sold tickets for The Constitutional’s various tours only at the IVC’s main information and sales desk. The IVCC has received a 20.0% (twenty percent) sales commission on each ticket that it has sold for The Constitutional (ranging on average in gross price from $12.50 to $17.50). Since 2005, The Constitutional has requested to also license a dedicated ticket sales booth from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms commensurate with Ride the Ducks and Philadelphia Trolley Works, for example. Additionally, since 2005, The Constitutional has requested to also license marketing opportunities and commercial use authorizations from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms.

The Independence Visitor Center (“IVC”) is owned and operated by the United States of America - National Park Service (“NPS”), which then sub-contracts with the Independence Visitor Center Corporation (“IVCC”), a taxpayer supported public charity, to manage the IVC.

The IVCC and NPS have preferenced third parties including Ride the Ducks and Philadelphia Trolley Works, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The National Park Service has enabled the creation of this unfair business environment. The National Park Service and the IVCC have ignored and circumvented Federal management and concessions laws for the sale of goods and services at Independence National Historical Park that require open, transparent, competitive and appealable processes awarding concessions contracts for the sale of goods and services including tours.

To facilitate the administration of the National Park Service System, the Secretary of the Department of the Interior, acting through the NPS, is authorized under the National Park Service Organic Act (“Organic Act”) to carry out twelve categories of activities, none of which include transferring administrative responsibility to a private party [i.e., IVCC] or engaging in cooperative administration with a private party [i.e., IVCC]. 16 U.S.C. § 1a-2(a)–(l). Rather than grant the NPS discretion in its dealings with park concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the National Parks Omnibus Management Act of 1998 (“Management Act”), which governs all national park public accommodations, facilities, and services. 16 U.S.C. § 5951 et seq.; see also 36 C.F.R. Part 51.2 (“policy underlying concessions contracts”). The safeguards are not limited to nationwide policy: Congress also manages the parks with significant visitor traffic on a park-by-park basis. See, e.g., 16 U.S.C. §§ 21–40c (Yellowstone), §§ 91–110d (Mount Rainier), §§ 212–218a (Abraham Lincoln’s Birthplace), and §§ 410z–410z-5 (Boston National). One of the dozens of national parks managed by specific statutes is Independence National Historical Park (“INHP”). 16 U.S.C. §407m–407s. As such, compliance here going forward would require the NPS, first, to reassume from the private IVCC the NPS’s duties “to administer, operate, manage, lease, and maintain” properties at INHP pursuant to 16 U.S.C. § 407s; second, to award “all proposed concessions contracts … through a competitive selection process” pursuant to 16 U.S.C. § 5952; and, third, to issue commercial use authorizations in a rational manner pursuant to a reasonable interpretation of 16 U.S.C. § 5966(c).

The IVCC and NPS have arbitrarily and randomly selected business partners in a non-competitive and clandestine manner; as such, the actions of the NPS and IVCC have from an economics perspective stifled competition, innovation and consumer choice. Ultimately the IVCC’s actions have enabled prices to increase for its preferred vendors to strengthen the for-profits’ financial performance. Visitors to Philadelphia will be better served when the IVCC’s management, manners and methods are fundamentally changed. This would include having the National Park Service abide by Federal concessions management laws. Specifically, this will entail only having the NPS award concessions sales contracts and not having the IVCC involved in any of the selecting, awarding, contracting and managing of Independence Park’s third party concessions, including inside the Independence Visitor Center. This is the model that is practiced in virtually every other of the 390 (three hundred ninety) National Park Service units across the United States (in 49 states) including at Yosemite, Yellowstone, Statue of Liberty, etc. Additionally, visitors and all stakeholders will be better served once the operation of the taxpayer funded IVCC is totally transparent and accountable. While part of the issue centers on a publicly funded charity competing against the private sector (i.e., by offering guided tours and services), it more so has to do with the manner in which the IVCC and NPS operate and discriminate against third party concessionaires, tour operators and vendors in a random and arbitrary fashion (i.e., with the licensing and leasing ticket sales kiosks by the IVCC to third party companies, for example).