At Independence National Historical Park ("INHP"), the First Continental Congress, "justly alarmed at [the] arbitrary proceeding of parliament and administration," began their formal protests against King George III with a Declaration of Rights & Grievances, leading to The Declaration of Independence and the Constitution of the United States. Independence National Historical Park is America’s Birthplace. The Bill of Rights was adopted in 1791 at what is now INHP, giving INHP a particularly strong association with the right of freedom of speech and the right to petition the government. It is ironic that the National Park Service and the Federally-funded Independence Visitor Center Corporation ("IVCC") have worked in concert with one another to silence their critics through pretextual confidentiality agreements. Moreover, trying to silence The Constitutional shocked the conscience since the NPS's and IVCC's actions represented a very high level of abuse of power in which the NPS and its agent, the IVCC, acted randomly and arbitrarily, against The Constitutional.
The Constitutional Walking Tour's recent termination of its business operations at the Independence Visitor Center ("IVC") was the unfortunate consequence of years of failed good faith efforts by The Constitutional to have equitable visibility and accessibility both inside and outside the Independence Visitor Center ("IVC") due to the mismanagement and egregious behavior of the Independence Visitor Center Corporation and the National Park Service.
Background
Since 2005, The Constitutional has requested to license for a fee a dedicated ticket sales concession booth from the National Park Service and the 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/secure written permissions (i.e. commercial use authorizations, special use permit, memorandum of understanding, etc.) from the National Park Service and the IVCC on fair, reasonable and non-discriminatory terms commensurate with other third parties including Ride the Ducks, Philadelphia Trolley Works and Lights of Liberty, for example. However, each request by The Constitutional was either ignored or rebuffed by the NPS and the IVCC.
On May 31, 2008, The Constitutional again approached the Independence Visitor Center Corporation and the National Park Service to license a dedicated ticket sales booth inside the IVC, along the lines of the ticket sales booths operated by Ride the Ducks and Philadelphia Trolley Works. For the first time in approximately fifteen separate requests, the IVCC responded affirmatively and indicated that a ticket concession booth license agreement ("License Agreement") would be sent to The Constitutional.
On or about June 10, 2008, substantive discussions and negotiations commenced between The Constitutional (through Jonathan and Leslie Bari) and IVCC (through Christine Keates, IVCC's General Manager, at the request of William Moore, IVCC's former President and CEO) over licensing a ticket sales concession booth inside of the Independence Visitor Center, with the IVCC and its agents representing their desire to reach such a concession agreement. On June 14, 2008, Mr. Moore approved the location of said ticket sales booth for The Constitutional that was agreed upon in meetings and discussions between the Baris and the Ms. Keates.
On June 27, 2008, the IVCC’s legal counsel at Ballard Spahr sent a 26-page draft short-term License Agreement to The Constitutional for a dedicated ticket sales booth that would run from July 1, 2008 to February 29, 2009. IVCC’s counsel curiously asked that The Constitutional propose what it would like to pay for the "License Fee, the Percentage Payment and the Percentage Payment Trigger Amount." This request for The Constitutional to name its own price demonstrated that no standard policy existed at the IVCC and NPS regarding License Agreements for concessions, since if any standards existed, the IVCC and NPS would have simply stated the price (franchise fee) required to lease a kiosk, like any reasonable landlord would do when leasing commercial space.
Curiously though, the IVCC at one point seemed to consider establishing a system that would have been standardized and equitable. On April 19, 2005, Mr. Moore wrote to Scott Lewis, General Manager of Ride the Ducks Philadelphia,
"There is the high likelihood that each of the tour operators are going to want the same type space [ticket sales booth] in the [Independence] Visitor Center when your group moves in the building . We are planning on a large area with equal spaces so we don’t have to deal with the equality issues between operators."However, as the so-called "standard policy" evolved by the NPS and IVCC, Mr. Moore wrote to the NPS’s Dennis Reidenbach and Steve Sitarski on July 5, 2007: "The installation of booths is not a one size fits all plan." (emphasis added)
Despite the lack of equitable and standardized processes, The Constitutional continued to attempt to work with the IVCC and NPS. On July 11, 2008, The Constitutional emailed its detailed comments, questions and proposals on the draft License Agreement to the IVCC’s counsel and to the IVCC's senior management; The Constitutional requested a conference call or meeting the following week so that the parties could work quickly to finalize the License Agreement for the remaining portion of the Summer 2008 tourist season. To this day, no response has been received from the IVCC and/or the NPS to The Constitutional's written comments, questions and proposals sent back on July 11, 2008.
Instead, on July 25, 2008, IVCC’s counsel sent The Constitutional an overly broad and onerous draft Confidentiality Agreement that would bind The Constitutional to not disclose an almost unbounded range of information in perpetuity even if no License Agreement was ever executed.
By way of example, the Confidentiality Agreement required by the IVCC and NPS of The Constitutional specifically prohibited the discussion or disclosure of almost anything pertaining to the IVCC including the following: "any information relating to IVCC," "any information relating to the Visitor Center," and "any information relating to any licensees, tenants or vendors at the Visitor Center." In other words, The Constitutional would not be able to discuss anything at all about a public building - the IVC - or for that matter, anything at all about the IVCC - a public charity, etc.
Moreover, the proposed Confidentiality Agreement also explicitly abrogated the IVCC's and NPS's duty of good faith and fair dealing inherent in all Pennsylvania contracts and the common law duty to negotiate in good faith created by IVCC’s representations of their intent.
On July 31, 2008, The Constitutional's counsel contacted the IVCC's counsel seeking to negotiate and clarify the Confidentiality Agreement by specifying exactly what information would be treated as confidential. Two weeks later, on August 8, 2008, an even more restrictive draft Confidentiality Agreement was forwarded to The Constitutional by the IVCC’s counsel, with the express proviso that the execution of the Confidentiality Agreement was a prerequisite to going forward with negotiations for a License Agreement. Over the following weeks, The Constitutional repeatedly attempted to establish more reasonable terms for the Confidentiality Agreement, even though the IVCC acknowledged that such a Confidentiality Agreement was not standard. The Constitutional also made another effort to establish a more reasonable Confidentiality Agreement on February 26, 2009.
Counsel for the IVCC had the audacity to reveal that a primary reason for the Confidentiality Agreement was to prevent “interference” by elected officials. That is to say, as a condition of negotiating access to public land under the jurisdiction and supervision of the NPS, The Constitutional was asked to forgo its ability to petition the representatives elected to oversee the NPS.
While a certain degree of confidentiality may be appropriate in some circumstances, the organization in question – the IVCC – is not a for-profit company like Google or Coca-Cola, for example, which has valid claims to protecting trade secrets (i.e., for algorithms, secret recipes). In contrast, the IVCC (a public charity supported with City, State and Federal tax dollars) operates public visitor centers, and the IVCC should not reasonably have any trade secrets (other than for example the names and addresses of individual citizen donors). Even the IVCC’s counsel at Ballard Spahr, Mark DePillis, Esq., has previously stated in writing, on August 29, 2008, “IVCC does not have ‘trade secrets’ per se…”(emphasis added).
Negotiation over the License Agreement for a ticket sales concession booth on Federal property at Independence National Historical Park has been stalled since July 11, 2008, continuing through to the present. Neither the IVCC nor the NPS responded or provided any comments whatsoever on the mark-ups and proposals regarding the License Agreement that The Constitutional sent to the IVCC and its counsel on July 11, 2008.
Role of the National Park Service
In total, the National Park Service has approximately 6,600 concession contracts and commercial use authorizations in place with third parties across the United States (including these in Philadelphia with Ride the Ducks, Philly Ducks, Penn Ducks, River Ducks, Philadelphia Trolley Works, Lights of Liberty, etc.). Of these 6,600, there are 6,000 Commercial Use Authorizations and 600 Concession Contracts across the NPS system. (Source: "Doing Business with the National Park Service Concession Program," National Park Service Commercial Services. Also specific to Philadelphia, the National Park Service funds the IVCC with $850,000.00 per year in federal appropriations.
On information and belief, none of the third party holders of the 6,600 written commercial agreements were required to sign a stand-alone, broad-based Confidentiality Agreement like the one that was presented to The Constitutional Walking Tour by the National Park Service and the Independence Visitor Center Corporation, and in the manner in which it was presented, just to discuss doing business with the National Park Service.
The Constitutional attempted to get guidance from INHP's Superintendent MacLeod by emailing her regarding the IVCC’s requirements for a confidentiality agreement on September 17, 2008, November 11, 2008, and then on January 9, 2009. MacLeod finally responded on February 3, 2009, writing, "Whether or not the Independence Visitor Center Corporation (IVCC) requires a Confidentiality Agreement in its arrangements with tour operators is an internal policy matter for the IVCC."
In this response that took five months to receive about a so-called standard policy, Ms. MacLeod misled The Constitutional by making it appear as if she had nothing to do with the IVCC's general business practices including the Confidentiality Agreement requirement when in fact Ms. MacLeod failed to disclose that she served on the Board of Directors of the IVCC. Ms. MacLeod therefore had a fiduciary duty to the IVCC, and she should have been very familiar with the "internal policy" of the IVCC, both as an IVCC Board member and as an NPS official charged with supervising the relationship with the IVCC.
Months later, on May 27, 2009, Mr. Reidenbach responded to The Constitutional's inquiries regarding the Confidentiality Agreement. Mr. Reidenbach wrote, "We have discussed this subject with them [IVCC], and they assure us that this requirement has been applied consistently to all businesses that rent a kiosk in the Visitor Center."
On June 5, 2009, Mr. Reidenbach wrote to United States Congressman Robert Brady about the issue of the Confidentiality Agreement, saying,
"Likewise, we cannot compel the IVCC to waive their requirement of a confidentiality agreement when it is not discriminatory but is a requirement for all vendors in the building. Doing so could jeopardize our outstanding relationships with similar organizations, for example the National Constitution Center, who could see this as the 'heavy hand of the federal government' exercising undue (and possibly illegal) influence in their internal affairs."In this response, Mr. Reidenbach misled The Constitutional and Congressman Brady by making it appear as if he had nothing to do with the IVCC's general business practices including the Confidentiality Agreement requirement when in fact Mr. Reidenbach failed to disclose that he served on the Board of Directors of the IVCC. Mr. Reidenbach therefore had a fiduciary duty to the IVCC, and he should have been very familiar with the "internal policy" of the IVCC, both as an IVCC Board member and as an NPS official charged with supervising the relationship with the IVCC.
Mr. Reidenbach's responses again showed that no "standard policy" ever existed for the IVCC and NPS, and, in fact, the policy was fluid and arbitrary designed to silence The Constitutional from its freedom of speech and freedom to petition the government. For example, on February 3, 2009, the confidentiality agreement policy supposedly applied to "tour operators;" on May 27, 2009, the policy supposedly applied to "all businesses that rent a kiosk; [in the IVC]" on June 5, 2009, the policy was now supposedly for "all vendors in the building. [IVC]" The bottom line is that this "standard policy" of the IVCC and NPS kept changing because there was in fact no standard policy.
In fact, in response to a Freedom of Information Act request filed by The Constitutional on April 23, 2009, Mr. Reidenbach wrote to The Constitutional on May 29, 2009, saying that no records existed indicating that any Confidentiality Agreement was required to do business at INHP:
"This is in response to your Freedom of Information Act (FOIA) request of May 26, 2009, in which you asked several questions on policy and guidance regarding confidentiality agreements. There are no written policies that guide its [NPS's] operation on handling confidential agreements here in the [NPS] Northeast Region nor does the NPS Regional Office have any correspondence or documentation with the Independence Visitor Center Corporation on the subject of its confidentiality policies. Therefore, there are no records responsive to your request."According to the National Park Service Management Policies 2006,
"All policy must be articulated in writing and must be approved by an NPS official who has been delegated authority to issue the policy. Policy must be published or otherwise made available to the public — particularly those whom it affects — and those who must implement it in the Washington office, regional offices, and parks.”The NPS clearly did not have an articulated and formal policy regarding Confidentiality Agreements at the IVC. As such, the actions of the NPS, were in violation of the NPS Management Policies 2006 since all policy was not articulated in writing, and the policy was not published or otherwise made available to the public or to The Constitutional. The lack of compliance with the NPS Management Policies along with the random and arbitrary acts by the NPS and IVCC against The Constitutional materially damaged The Constitutional and derogated the NPS values of fair treatment at INHP.
The NPS's Reidenbach and MacLeod knew or should have known that their actions violated clearly established Constitutional rights of due process, freedom of speech, and freedom to petition the government. In fact, CWT informed NPS officials on several occasions that The Constitutional believed that the Confidentiality Agreement was designed to "gag our constitutional rights of free speech and the freedom to petition the government."
This clear disregard for these Constitutional rights--included in the Bill of Rights, which became law at INHP--represented a distinct derogation of INHP's values, despite the explicit provision in Congressional Public Law 106-131, the Gateway [Independence] Visitor Center Authorization Act, "Nothing in this section authorizes the Secretary [of the Interior] or the [Independence Visitor Center] Corporation to take any actions in derogation of the preservation and protection of the values and resources of Independence National Historical Park. As such, the NPS is in clear violation of the NPS's enabling legislation to have the IVCC ;operate the Independence Visitor Center with unfettered discretion that resulted in random and arbitrary treatment.
During the entire time that the NPS and IVCC tried to require that The Constitutional sign a Confidentiality Agreement to restrict The Constitutional's freedom of speech and freedom to petition the government, the IVCC's operation of the Independence Visitor Center was governed by the NPS's Special Use Permit where the IVCC managed the IVC "subject to the supervision of the [NPS's] Superintendent" [MacLeod and her boss Reidenbach] and "consent of, the National Park Service." Further, during the entire time that the NPS and IVCC tried to require that The Constitutional sign a Confidentiality Agreement, NPS officials [MacLeod and Reidenbach] served on the Board of Directors of the IVCC.
Press
On June 9, 2009, the Philadelphia Daily News covered the matter of the IVCC's proposed Confidentiality Agreement, describing it as a "de facto gag order...."
The article described the Confidentiality Agreement, saying that it "forbids him [The Constitutional] to discuss, with pretty much everyone, everything they [IVCC and The Constitutional] discuss in the course of the entire transaction." The article continued:
"[IVCC] Attorney Mark DePillis [at Ballard Spahr], who declined comment for this column, wrote that the center wanted to work with Bari [of The Constitutional], 'but only if we can be assured of a level playing field, free from outside influence and interference, and free from the threat of public finger-pointing if we are unable to conclude a transaction.'"The IVCC continued this rationalizing and misleading of the press, as Ms. Keates was quoted:
"We have Jon’s [The Constitutional Walking Tour's] booth all ready. We would love him [Jon Bari, President, The Constitutional Walking Tour] to be our partner. We ask all our vendors to sign a confidentiality agreement before we enter negotiations."The Constitutional's attorney was quoted by the Daily News as saying, "It seems clear they [IVCC] want to shut Jon [Bari, of The Constitutional] up."
In short, the Daily News acknowledged the overly restrictive and burdensome terms of the IVCC's and NPS's required Confidentiality Agreement. In fact, the article concluded with a bold affirmation that condemns the absurdity of the Confidential Agreement: "If I were [Jonathan] Bari [of The Constitutional], I wouldn't sign it either."
NPS Officials Have Previously Been Found of Violating the First Amendment
In 1987, protesters were barred from Independence Mall during events honoring the Bicentennial of the Constitution of the United States. In response, the protesters took their case to Federal Court (Case: Pledge of Resistance, et al., (Plaintiffs) versus We the People 200, Inc., et al., (Defendants), Civil Action No. 87-3975, United States District Court for the Eastern District of Pennsylvania), citing a violation of Constitutional rights. A New York Times article on the We the People 200 Court case reported,
"A Federal district judge, declaring that the officials who control Independence Mall 'may not fully appreciate the reach of the First Amendment,' found today that they had violated the free-speech rights of protesters at a ceremony honoring the Constitution's bicentennial." (emphasis added)The Defendants -- the Regional Director of the U.S. [National] Park Service, the Superintendent of the Independence National Historical Park, the City of Philadelphia, the Police Commissioner of the City of Philadelphia, Robert Mitchell, Walter Donahue and Frank Friel -- were permanently enjoined individually on November 28, 1988 by Judge John P. Fullam, United States District Court for the Eastern District of Pennsylvania,
"a. from denying to Plaintiffs, or any other person permission to lawfully distribute leaflets and other printed matter or to wear, display or carry signs, placards, or insignia, by reason of the message contained therein and sought to be conveyed;"
"b. from preventing plaintiffs, individuals or groups from distributing literature, assembling or soliciting signatures in Independence National Historical Park or on streets, sidewalks, parks or other areas open to the public, so long as such activities do not involve breaches of the peace, and do not actually interfere with similar activity by others, or with public events in progress."
The Bottom Line
In 1787, the Founding Fathers at Independence Hall, which is the crown jewel of INHP, proudly proclaimed in the United States Constitution,
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."With these words our nation launched a great experiment in freedom and democracy within a representative form of government where the rule of law and not the proclivities of individuals would govern civil society. These principles enshrined in one of our nation’s founding documents have endured for over 200 years and serve as a beacon to the world. However, at INHP where these principles were forged, a gross violation of their spirit is occurring by the National Park Service and Independence Visitor Center Corporation.
Epilogue
On or about March 15, 2010, Jim Cuorato, President and CEO of the IVCC, informed Don Steinberg, a reporter from Philadelphia Magazine that the IVCC no longer was requiring a Confidentiality Agreement. However, the IVCC never informed The Constitutional of this change in the Independence Visitor Center Corporation's and National Park Service's "standard policy".
The narrative from the IVCC and NPS changed regarding whether the Confidentiality Agreement was standard, in part because the NPS and IVCC realized that their actions shocked the conscience with regard to stifling the freedom of speech, the freedom to petition the press, and the freedom to petition the government at America's Birthplace - Independence National Historical Park.
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Exhibits:
*Twenty-six page draft short-term License Agreement sent by IVCC counsel to The Constitutional, June 27, 2008.
*Email from Bill Moore, President and CEO of the IVCC, to Scott Lewis, General Manager of Ride the Ducks Philadelphia, April 19, 2005.
*Email from Bill Moore, President and CEO of the IVCC, to NPS officials Dennis Reidenbach and Steve Sitarski, July 5, 2007.
*Email to IVCC counsel with The Constitutional's comments, questions, and proposals on draft License Agreement, July 11, 2008.
*Email of the Confidentiality Agreement sent by IVCC counsel to The Constitutional, July 25, 2008.
*Email from The Constitutional to IVCC Counsel regarding Confidentiality Agreement, July 31, 2008.
*Revised Confidentiality Agreement sent to The Constitutional, August 8, 2008.
*Email from The Constitutional to IVCC counsel, September 1, 2008.
*Email from The Constitutional to IVCC counsel, February 26, 2009.
*Email from IVCC counsel to The Constitutional, August 29, 2008.
*Document: Doing Business with the National Park Service Concession Program.
*Email from The Constitutional to Cynthia MacLeod, Superintendent of Independence National Historical Park, September 17, 2008.
*Email from The Constitutional to Cynthia MacLeod, Superintendent of Independence National Historical Park, November 11, 2008.
*Email from The Constitutional to Cynthia MacLeod, Superintendent of Independence National Historical Park, January 9, 2009.
*Email from Cynthia MacLeod, Superintendent of Independence National Historical Park, to The Constitutional, February 3, 2009.
*Independence Visitor Center Corporation Board of Directors, 2009.
*National Park Service Management Policies, 2006.
*Emails between Dennis Reidenbach, National Park Service, to The Constitutional, May 2009.
*Letter from Dennis Reidenbach, National Park Service, to Congressman Robert Brady, June 5, 2009.
*The Constitutional's request for information under the Freedom of Information Act, April 23, 2009.
*Response of Dennis Reidenbach to The Constitutional's Freedom of Information Act Request, May 29, 2009.
*Public Law 106-131, The Gateway Visitor Center Authorization Act.
*Special Use Permits issued by NPS to the IVCC for the operation of the Independence Visitor Center.
*"For Visitor Center Kiosk Owner, Gag's No Joke." Philadelphia Daily News, June 9, 2009.
*William K. Stevens. "Judge Says U.S. Officials, Honoring Constitution, Violated Protesters' Rights." The New York Times, July 11, 1987.
*Pledge of Resistance, et al., (Plaintiffs) versus We the People 200, Inc., et al., (Defendants), Civil Action No. 87-3975, United States District Court for the Eastern District of Pennsylvania, Permanent Injunction, November 28, 1988.
