In December 2006, Senator Arlen Specter reached out to Dennis Reidenbach, Superintendent, Independence National Historical Park ("INHP"), and suggested a proposal to have INHP offer walking tour companies comparable accessibility and visibility to riding tour companies for visitors at the taxpayer funded Independence Visitor Center ("IVC"). Just days after Mr. Reidenbach received Senator Specter's proposal, Mr. Reidenbach appears to have summarily dismissed the proposal, even though he represented to Senator Specter that he "carefully reviewed" his proposal. Further, the Independence Visitor Center Corporation ("IVCC") adamantly lobbied the NPS in support of Mr. Reidenbach's rejection: "If we move an inch on this issue chaos will be the result" and we must "not offer or open the door an inch." In his rejection of Senator Specter's proposal which obfuscated the issues, Mr. Reidenbach said that he was "committed to working equally with all commercial tour operators", but that he was "not willing to open more space in the IVC to solicitation and ticket sales." That statement was untrue. Just six months after Mr. Reidenbach outrightly rejected Senator Specter's proposal to not open up any more space for ticket sales inside of the Independence Visitor Center, Philadelphia Trolley Works and Big Bus Company debuted a brand new ticket sales concessions booth inside the Independence Visitor Center. However, The Constitutional Walking Tour was not offered the same commercial opportunities and concessions contracts made available by the NPS and IVCC to The Constitutional's competitors.
Seeking Congressional Oversight
Dating back to 2006, The Constitutional Walking Tour has sought Congressional oversight in resolving the issues of unequal treatment of commercial operators at Independence National Historical Park ("INHP"), a unit of the National Park Service ("NPS"), and at the Independence Visitor Center. Despite the intervention of a former sitting United States Senator and a current member of the U.S. House of Representatives, the NPS and the IVCC have continued to behave in an indirect, deceptive and disingenuous manner.
On July 17, 2006, The Constitutional Walking Tour wrote to United States Senator Arlen Specter asking for his assistance in facilitating a resolution to issues of regulation and tour operations at the Independence Visitor Center.
On December 7, 2006, Senator Specter sent a letter to Dennis Reidenbach, Superintendent of Independence National Historical Park ("INHP"), expressing his hope for a resolution to the issues and suggesting the allocation of space for walking tour operators as a means of solving the problems related to tour operations:
"If three spots could be designated along the main entrance corridor inside the IVC (i.e. near the photo concession booth and theater entrance/exit), there could be an opportunity for walking tour operators to submit applications to occupy those spots...As it appears the Constitutional, as well as other tours which now must operate from the back of the building, offer valuable services to INHP visitors, it is my hope that interested parties can come to an agreement before the Spring 2007 tourist season on how to most prominently display to visitors their programmatic choices while in the park."On December 11, 2006, Mr. Reidenbach forwarded Senator Specter's letter to other NPS officials including Darla Sidles, INHP's Assistant/Deputy Superintendent, and Steve Sitarski, INHP's Chief of Interpretation and Visitor Services, instructing them to reject Senator Specter's proposal, draft a response letter to Senator Specter and work with the IVCC's President and CEO to do so:
"Please draft a letter back to Specter (coordinate with Jane [Cowley, INHP Public Affairs Officer]) saying no (in a nice way) to his suggestions but offering up all the assurances etc. Work with Bill [Moore, President and CEO of the IVCC] on the response also...." (emphasis added)On December 12, 2006, Mr. Moore wrote to the NPS’s Dennis Reidenbach, Steve Sitarski, and Jane Cowley (INHP's Public Affairs Officer, and to the IVCC’s Christine Keates (General Manager, IVCC), regarding the response to Senator Specter's letter. Mr. Moore said:
"The IVCC has made agreements with other operators and exhibitors to conduct operations in the facility within the building that are beneficial to both entities and are in line with our mission. The walking tour folks [The Constitutional] have always had the ability to approach us with the same notion. My strong belief is they have not for one simple reason - money - they really want to have the ability to promote their tour product for free in front of a captive audience that they did not invest in bringing to the city - then sale [sic] their tickets off set where little if any commissions get paid to the IVCC. If the Senator is successful in allowing the Tour folks to operate as they wish in the IVCC - no matter what end of the building - it opens the door for any tour operator to make the same claim - the NPS/IVCC partnership must have the right to manage the facility in ways that make sure we provide the services and information that visitors from around the world want..."
If we move an inch on this issue chaos will be the result, both in terms of how the building functions and the ability of the IVCC to support and grow its operations."These statements by Moore were untrue, disparaging and quite curious in terms of the content and tone of what exactly Mr. Moore was communicating to the NPS in his personal attacks on the Bari family which owned and operated The Constitutional. First, The Constitutional is consistent with INHP's enabling legislation, complements INHP's mission, values and visitor experience objectives, is appropriate for public use and enjoyment of INHP, is an environmentally friendly "green" tour, does not cause unacceptable impacts on INHP, and benefits the Independence Visitor Center and in turn the NPS financially from ticket sales for The Constitutional.
"The Bari's are smart and resourceful individuals, they will keep at this - it is important to maintain a consistent tone and not offer or open the door an inch. If that happens they will just push for more until they get what they actually are after which is free unfettered access to 2.5 million visitors in this building. If that happens they will just push for more until they get what they actually are after which is free unfettered access to 2.5 million visitors in this building." (emphasis added)
Second, The Constitutional had in fact made an agreement with the IVCC and NPS that was beneficial to all parties. Since 2005, The Constitutional has paid the IVCC a 20.0% (twenty percent) sales commission to the IVCC on all tickets sold at the IVC Main Information & Sales Desk for The Constitutional's tours. In Summer 2005, The Constitutional was the top selling attraction inside of the IVC before the IVCC and NPS set out on a mission to damage and destroy The Constitutional through their random and arbitrary actions and policies that were only applied to The Constitutional and not its competitors.
Moreover, since 2005, The Constitutional has also tried to license for a fee a dedicated ticket sales concessions booth inside of the IVC similar (staffed by The Constitutional's employees) on fair, reasonable and non-discriminatory terms to other third parties including Ride the Ducks and Philadelphia Trolley Works. However, all such requests were either rebuffed or ignored until Summer 2008, at which time The Constitutional was required to sign a stand-alone broad-based Confidentiality Agreement which was commercially unreasonable and not required of The Constitutional's competitors at INHP.
On December 12, 2006, Mr. Sitarski responded to Mr. Moore and Mr. Reidenbach:
"A few questions: Has the photo booth been permanently removed from the south end? I think that keeping the [photo sales] booth at that location [south end] compromises our position. Can the CWT still lease a space in the IVC to sell their tour tickets? Are tour tickets currently sold by your staff at the main info desk? As you already know, I strongly agree that we need to be consistent and limit commercial solicitation in the IVC."(emphasis added)Curiously, while Mr. Sitarski asked some cover your tracks questions of Mr. Moore, neither NPS's Mr. Sitarski, Mr. Reidenbach, nor Ms. Cowley ever questioned Mr. Moore about his curious comments regarding "If we move an inch on this issue chaos will be the result", and "The Bari's are smart and resourceful individuals, they will keep at this - it is important to maintain a consistent tone and not offer or open the door an inch."
On January 16, 2007, Mr. Reidenbach formally rejected Senator Specter's proposal:
"National Park Service policy on solicitation in parks is carefully designed to prevent aggressive solicitation that can impair the visitor experience. I feel strongly that IVC visitors should be provided with an unencumbered opportunity to reach the main information desk before being approached by sales people, so they can freely make informed program choices. While this has always been the park's policy, we began enforcing the policy more stringently in May 2006, requiring all tour operators to remain in the north half of the IVC for purposes of solicitation and meeting points for tours. To accomplish that goal, all commercial operators are restricted to the north side of the IVC."These statements by Mr. Reidenbach were untrue. One favored vendor, Historic Philadelphia Inc., d/b/a Once Upon a Nation, staged its tours in the South side of the Independence Visitor Center, "encumbering" visitors prior to their reaching the IVC Main Information & Sales Desk and enabling further advertisement and solicitation by this favored vendor for their tours and tour related services. Outside of the Independence Visitor Center, many tour operators, including Ride the Ducks, Big Bus Tours, Philadelphia Trolley Works and 76 Carriage Company, staged, marketed and sold tickets for their respective tours on NPS property in a manner that encumbered visitors prior to their reaching the IVC Main Information & Sales Desk, enabling further advertisement and solicitation by those favored vendors, but not by The Constitutional.
The statements by Mr. Reidenbach also contradict prior and later assertions that the IVCC, and not the NPS, is responsible for the operation of the Independence Visitor Center, particularly in the North side/end of the IVC.
In Mr. Reidenbach's January 16, 2007 rejection of Senator Specter's proposal, Mr. Reidenbach further represented to Senator Specter:
"I have therefore carefully reviewed your proposal... I am committed to working equally with all commercial tour operators in the historic area to make visiting Philadelphia a wonderful experience for our visitors, but I am not willing to open more space in the IVC to solicitation and ticket sales." (emphasis added)Based on Mr. Reidenbach's December 11, 2006 email to NPS staffers in which Mr. Reidenbach instructed his staff to work with the IVCC in writing a letter rejecting Senator Specter's proposal, it appears that Mr. Reidenbach did not "carefully review" Senator Specter's proposal as he had represented to the Senator on January 16, 2007. In fact, it appears that Mr. Reidenbach had immediately and outrightly rejected Senator Specter's proposal when he instructed his staff with the following guidance (just two business days after Senator Specter's letter was dated, December 7, 2006) - "saying no (in a nice way) to his suggestions but offering up all the assurances etc." As such, any of those "assurances" offered by Mr. Reidenbach seem to be just mere platitudes designed to obfuscate and mislead.
Upon information and belief, the NPS and IVCC did not adopt a policy towards The Constitutional’s competitors of “not offer[ing] or open[ing] the door an inch.” In fact, the doors to the Independence Visitor Center were swung wide open to The Constitutional’s competitors, and The Constitutional's competitors were offered commercial opportunities and concessions contracts not made available by the NPS and IVCC to The Constitutional.
Specifically, by June 2007, just six months after Mr. Reidenbach rejected Senator Specter's proposal to not open up any more space for ticket sales inside of the Independence Visitor Center, Philadelphia Trolley Works and Big Bus Company debuted a brand new ticket sales booth inside the Independence Visitor Center.
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." (emphasis added)The NPS clearly did not enforce a standard, articulated and formal policy regarding concessions contracts and commercial solicitation 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 by Mr. Reidenbach and his staff 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.
On June 20, 2007, Anne Pizzoli from Senator Specter’s office was so frustrated with the NPS’s conduct that she sent a letter on behalf of Senator Specter to Mr. Reidenbach’s then supervisor, Chrysandra Walter, Acting Northeast Regional Director, NPS, which discussed the IVCC’s and NPS’s disparate treatment of The Constitutional,
"At the April 2, 2007 meeting, [INHP] Superintendent [Dennis] Reidenbach agreed to revisit the request in my [Senator Specter's] December 7, 2006 letter to provide three designated staging locations for walking tours [inside of the Independence Visitor Center]. Also, at that meeting, Superintendent Reidenbach stated his support for The Constitutional Walking Tour and his commitment to working equally with all commercial tour operators. However, in spite of The Constitutional’s repeated requests to be issued a permit or agreement (i.e., Commercial Use Authorization, Cooperative Agreement, Special Use Permit, etc.) from INHP in order to conduct business inside the IVC and/or immediately adjacent to and outside of the IVC, similar to other third party businesses (Ride the Ducks, Big Bus, Pennsylvania General Store, Once Upon a Nation, IVC photo concession), INHP and the IVC have countered with a continually changing set of reasons, the most recent of which is about setting precedent."The National Park Service was not pleased by the June 20, 2007 letter from the Office of Senator Specter. On July 5, 2007, Mr. Sitarski wrote to Mr. Moore and copied Mr. Reidenbach,
"However, it seems as if INHP has continued to set precedent with other commercial interests. For example, as detailed in Footnote 1 on Page 2 of the May 10, 2007 correspondence from The Constitutional, it describes the four separate “Commercial Use Authorizations” which have been issued by INHP to Ride the Ducks and its three separate name entities, which do in fact appear to help circumvent the intention of the Philadelphia Code." (emphasis added)
"Unfortunately, Dennis received yet another letter about CWT [The Constitutional Walking Tour] from Senator Specter's office through the NPS Regional Director [Chrysandra Walter]... The saga continues." (emphasis added)
Congressman Robert Brady - Subjective and Disparate Treatment, Violating Values of Independence Park
On April 27, 2009, United States Congressman Robert Brady wrote to Mr. Reidenbach:
"I am writing to you today about my deep concerns regarding the actions of the National Park Service (NPS) and specifically what appears to be the subjective and disparate treatment of private vendors within Independence National Historical Park (INHP) in Philadelphia, including at the Independence Visitor Center (IVC) which is located within INHP… The lack of any transparent and fair “rules of the road” for vendors is not only causing some vendors to contemplate shutting their doors, including The Constitutional Walking Tour (“The Constitutional”), but more important is violating the very values and spirit of Independence National Historical Park and the principle of non-discriminatory treatment enshrined in the Constitution." (emphasis added)During the entire time that the NPS and IVCC refused to offer commercial opportunities including concessions contracts to The Constitutional on fair, reasonable and non-discriminatory terms, similar to Ride the Ducks, Philadelphia Trolley Works and Big Bus Company, the IVCC's operation of the Independence Visitor Center was governed by the NPS's Special Use Permit through which the IVCC managed the IVC "subject to the supervision of the [NPS's] Superintendent" [Cynthia MacLeod and her manager Reidenbach] and "consent of, the National Park Service." Further, during the entire time that the NPS and IVCC continually contradicted prior and later assertions that the IVCC, and not the NPS, is responsible for the operation of the Independence Visitor Center, in both the South side/end, but particularly in the North side/end, NPS officials [MacLeod and Reidenbach] served on the Board of Directors of the IVCC.
Epilogue - Gag Order to Prevent the Petitioning of the Government & Requesting Oversight
In spite of the various complaints from The Constitutional and other third tour operators regarding the IVCC's and NPS's operations, and in spite of the fact that the IVCC's operations have been taxpayer supported since 2001, including through an annual payment of $850,000.00 per year in Federal appropriations from the National Park Service, and that the IVCC regularly lobbies elected officials on a local, state and Federal level, the IVCC and NPS were very troubled that The Constitutional sought oversight on the IVCC and NPS from various elected officials. For example, on September 7, 2007, Mark DePillis, counsel for the Independence Visitor Center Corporation at Ballard Spahr, wrote to The Constitutional's counsel,
"It is no secret that your client has been engaged for many months in a campaign of complaints and political intimidation in an attempt to manipulate the policies of the NPS and IVCC to your client's economic benefit."Moreover, counsel for the IVCC later revealed that a primary reason for the Confidentiality Agreement requirement was to prevent "interference" by elected officials - namely the IVCC and NPS did want to hear from Senator Specter again. To that end, it is not surprising that both the IVCC and NPS tried to silence The Constitutional with a special Confidentiality Agreement requirement. In Summer 2008, the IVCC and NPS tried to gag The Constitutional with an an overly broad and onerous draft stand-alone Confidentiality Agreement that would bind The Constitutional to not disclose an almost unbounded range of information in perpetuity, including these punitive actions by the NPS and IVCC. Specifically, the Confidentiality Agreement 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 [Independence] Visitor Center," and "any information relating to any licensees, tenants or vendors at the Visitor Center."
This was just another glaring example of how the actions of the NPS and IVCC shocked the conscience since their tactics 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, all the while, NPS and IVCC misled and obfuscated Congress about the mismanagement of Independence National Historical Park, including at the Independence Visitor Center.
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Exhibits:
*Letter from The Constitutional Walking Tour to Senator Arlen Specter, July 17, 2006.
*Letter from Senator Specter to Dennis Reidenbach, December 7, 2006.
*Email communications between Dennis Reidenbach, Bill Moore, and other officials at the IVCC and NPS regarding Senator Specter's letter, December 11-12, 2006.
*Letter from Dennis Reidenbach to Senator Specter, January 16, 2007.
*Image of the Philadelphia Trolley Works ticket sale booth inside the IVC.
*National Park Service Management Policies, 2006.
*Letter from Senator Specter's office to Chrysandra Walter, Acting Northeast Regional Director of the NPS, June 20, 2007.
*Email from Steve Sitarski, Chief of Interpretation and Visitor Services for INHP, to Bill Moore and Dennis Reidenbach, July 5, 2007.
Letter from United States Congressman Robert Brady to DOI Secretary Ken Salazar and NPS's Dennis Reidenbach, April 27, 2009.
*Special Use Permits issued by the NPS to the IVCC for the operation of the Independence Visitor Center.
*IVCC Board of Directors.
*Letter from the IVCC's counsel to The Constitutional's counsel, September 7, 2007.
*Email of the Confidentiality Agreement sent by the IVCC's counsel to The Constitutional, July 25, 2008.
