National Park Service: National Park Service Erroneously Claimed in Federal Court Filings that National Park Service Officials Have Never Served on the Board of Directors of the Independence Visitor Center Corporation, a Private Corporation

Monday, November 14, 2011

National Park Service Erroneously Claimed in Federal Court Filings that National Park Service Officials Have Never Served on the Board of Directors of the Independence Visitor Center Corporation, a Private Corporation

The Paper Trail and Money Trail Show That Senior National Park Service Managers Have Served in Their Official Capacities on the Board of Directors of the Independence Visitor Center Corporation

On November 23, 2009, Michael Levy, Margaret Hutchinson, and Viveca Parker, the United States Attorneys representing the National Park Service ("NPS") defendants in the lawsuit brought by The Constitutional Walking Tour of Philadelphia ("The Constitutional"), erroneously argued in the NPS's Motion to Dismiss filed in the U.S. District Court for the Eastern District of Pennsylvania that NPS officials do not serve, and moreover have never served, on the Independence Visitor Center Corporation's ("IVCC") Board of Directors,

"Mr. [Dennis] Reidenbach and Ms. [Cynthia] MacLeod are not IVCC board members, and never have been, but they attend board meetings as representatives of the [Independence National Historical] Park and NPS. See current IVCC Board of Directors, and page 1 of June 18, 2009 minutes of Board meeting, attached hereto." (Defs. Reply, p. 9) (emphasis added)

This assertion made by the National Park Service, without reference to any affidavit, is false. A review of various documents from the Independence Visitor Center Corporation and National Park Service (i.e., tax filings, annual reports, grant awards) indicates that:

Dennis Reidenbach, Regional Director, NPS Northeast Region, served on the IVCC’s Board of Directors from 2005 to at least 2009 (Mr. Reidenbach was previously Superintendent, Independence National Historical Park ("INHP")).
Cynthia MacLeod, Superintendent, Independence National Historical Park, served on the IVCC’s Board of Directors from 2008 to at least 2009.
Mary Bomar, former Director of the National Park Service served on the IVCC’s Board of Directors from 2005 to at least 2008 (Ms. Bomar was previously Regional Director, NPS Northeast Region and former Superintendent, INHP).

Mr. Reidenbach and Ms. MacLeod are individual defendants in the lawsuit filed by The Constitutional against the Independence Visitor Center Corporation and National Park Service et al. Curiously, it appears that both Mr. Reidenbach and Ms. MacLeod were "removed" from the IVCC's Board of Directors sometime after The Constitutional filed its lawsuit in July 2009.

When the U.S. Attorneys filed the above Orwellian assertion that neither Mr. Reidenbach nor Ms. MacLeod ever served on the IVCC's Board of Directors, the U.S. Attorneys concurrently filed a document listing the members of the IVCC Board of Directors. This document ironically listed both Mr. Reidenbach and Ms. MacLeod as members of the IVCC's Board of Directors.

Additionally, by way of example, in the IVCC's 2006 IRS 990 Form filed with the Internal Revenue Service for the period of July 1, 2006 to June 30, 2007 and the IVCC's BCO-10 tax form filed with the Pennsylvania Bureau of Charitable Organizations for the fiscal year ending June 30, 2007, the IVCC submitted a document (similar to that filed by the U.S. Attorneys in November 2009), which by any plain reading also indicated that NPS senior management served in their official NPS capacities on the IVCC's Board of Directors.

The IVCC's 2006 IRS 990 Form included a list of the IVCC's Board of Directors which by any plain reading showed that Ms. Bomar and Mr. Reidenbach had each served on the IVCC's Board of Directors, and the 2006 IRS 990 Form was signed by the IVCC's William W. Moore, President and CEO, on May 12, 2008 with the following declaration,

"Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete Declaration of preparer (other than officer) is based on all information of which preparer has any knowledge".

Additionally, the IVCC's BCO-10 for the Fiscal Year Ending June 30, 2007 included a list of the IVCC's Board of Directors that showed that Ms. Bomar and Mr. Reidenbach had each served on the IVCC's Board of Directors, and this BCO-10 was signed by both the IVCC's William W. Moore, President and CEO, and by the IVCC's William B. Peterson, Treasurer, with the following declaration,

"I certify that the information provided in this registration, including all statements and documentation, is true and correct. I understand that the falsification of any statement or documentation is subject to criminal penalties for unsworn falsifications pursuant to 18 Pa. c.s. [Section] 4904."

With regard to the money trail, on February 3, 2011, the National Park Service issued a Notice of Intent to Award grant funding of $850,000.00 to the IVCC ("Notice"). This Notice included more evidence indicating the presence of NPS officials serving on the IVCC's Board of Directors. Specifically, the document which provided the Full Announcement for the Notice of Intent to Award stated in a section entitled National Park Service Involvement,

"NPS is responsible for the following: Serve on the [IVCC] board and attend board meetings...." (emphasis added)

This definitive statement - "Serve on the [IVCC] board and attend board meetings" - which is listed as the very first responsibility, the Motion to Dismiss document filed by the U.S. Attorneys in November 2009 (containing the list of the IVCC's Board of Directors listing NPS officials) as well as the IVCC's tax filings (containing the list of the IVCC's Board of Directors listing NPS officials), clearly demonstrate that, despite the Orwellian claims made by the U.S. Attorneys on behalf of the National Park Service, NPS officials have served in their official capacities on the IVCC's Board of Directors for many years.

Curiously, while all of the Independence Visitor Center Corporation's Annual Reports prior to 2009 (IVCC's 2008 Annual Report, IVCC's 2007 Annual Report, etc.) show NPS officials having served on the IVCC's Board of Directors, the IVCC's 2009 Annual Report deviates from all previous annual reports dating back to 2002-2003 in that the IVCC's 2009 Annual Report does not indicate any NPS officials serving on the IVCC's Board of Directors. It is well worth noting that the IVCC's 2009 Annual Report was published sometime in or around January 2010, about two months after the November 23, 2009 assertion made by the U.S. Attorneys in their Motion to Dismiss that NPS officials "are not IVCC board members, and never have been" on the Board of Directors of the Independence Visitor Center Corporation.

Involvement and Supervision by the National Park Service of the Independence Visitor Center Corporation's Operation of the Independence Visitor Center
The Independence Visitor Center (IVC) in Philadelphia is a Federal facility owned and operated by the United States of America - National Park Service, which has then sub-contracted with the IVCC, a taxpayer supported public charity, to manage the IVC. The IVC is located in Independence National Historical Park, a unit of the NPS. The IVCC has received $850,000.00 annually from the Federal government via the National Park Service for the operation of the IVC. It is believed that NPS has paid the IVCC more than $8.5 million total from 2001 to the present.

In addition to the NPS officials serving on the IVCC's Board of Directors and providing oversight in their fiduciary roles, from November 19, 2001 to April 26, 2010, 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" and "consent of, the National Park Service."

NPS officials have overseen the IVCC's management of the IVC with various administrative, operational and financial controls for the past decade dating back to 2001, including having served on the IVCC's Board of Directors.

NPS officials have attended meetings of the IVCC's Board of Directors and have received copies of the IVCC's Meeting Minutes in connection with their oversight of the IVCC and the IVC. However, in January 2010, in additional Orwellian fashion, Mr. Reidenbach and Ms. MacLeod denied a Freedom of Information Act ("FOIA") request for copies of the IVCC's Meeting Minutes that they received and which are in their possession. Mr. Reidenbach and Ms. MacLeod flatly denied the FOIA request because the IVCC regards the Meeting Minutes of its public charity as "confidential."

Over the previous 10 years, there were plenty of reasonable opportunities for the NPS and IVCC to correct any misinformation from the IVCC and NPS that NPS officials served on the IVCC's Board of Directors. However, it appears that it was only after the NPS's role on the IVCC's Board of Directors was argued in a Federal lawsuit against the NPS and IVCC that the NPS and IVCC elected to try and revise the historical role of the National Park Service's officials' who have served on the IVCC's Board of Directors.

Note:
The precise role of Ms. Bomar, Mr.Reidenbach and Ms. MacLeod in serving on the IVCC's Board of Directors -- as they quite obviously have done -- is not dispositive of Plaintiffs' (The Constitutional Walking Tour et al.) claims, and is, in any event, a factual matter to be determined in discovery and at trial.

Epilogue - March 1, 2012:
According to the IVCC's 2011 Annual Report, the NPS's Cynthia MacLeod is once again officially serving on the Board of Directors of the Independence Visitor Center Corporation after allegedly not serving on the IVCC's Board of Directors as per both the 2009 IVCC Annual Report and the 2010 IVCC Annual Report. The IVCC's 2011 Annual Report was published sometime on or around February 21, 2012, and this 2011 Annual Report has listed NPS's Cynthia MacLeod as serving on the Board of Directors of the Independence Visitor Center Corporation in her official capacity as Superintendent of Independence National Historical Park. The timing of this change is even more curious given that the Third Circuit had just denied The Constitutional Walking Tour's Petition for Rehearing En Banc on February 3, 2012. It should be noted that while The Constitutional's Federal case against the National Park Service, as well as Cynthia MacLeod, Dennis Reidenbach and Darla Sidles was dismissed by the Honorable C. Darnell Jones, II for lack of subject matter jurisdiction, there was never any finding of fact in Federal Court, including as to whether or not Reidenbach, MacLeod and/or Sidles ever served on the IVCC's Board of Directors in their official NPS management capacities.

Judge Jones dismissed without prejudice all of The Constitutional Walking Tour's claims against the Independence Visitor Center Corp. and remanded all of those claims against the Independence Visitor Center Corp. to be brought in the Philadelphia Court of Common Pleas.

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Exhibits:
* Federal Defendants' Motion for Leave, The Constitutional Guided Walking Tours, et al, v. Independence Visitor Center Corporation, et al, November 23, 2009.

* Notice of Intent to Award without full and open competition, National Park Service, grant funding of $850,000.00 to the Independence Visitor Center Corporation, February 3, 2011.

* Independence Visitor Center Corporation, 2006 IRS Form 990.

* Independence Visitor Center Corp. Charitable Organization Registration Statement - Form BCO-10 for the Fiscal Year Which Ended June 30, 2007.

* Independence Visitor Center Corporation, 2007 Annual Report.

* Independence Visitor Center Corporation, 2008 Annual Report.

* Independence Visitor Center Corporation, 2009 Annual Report.

* Independence Visitor Center Corporation, 2010 Annual Report.

* Independence Visitor Center Corporation, 2011 Annual Report.

* Special Use Permits issued by NPS to the IVCC for the operation of the Independence Visitor Center.

* Reidenbach, Dennis, Regional Director, NPS Northeast Region, letter to Jon Bari, The Constitutional Walking Tour, denying Freedom of Information Act Request for IVCC's Meeting Minutes, January 8, 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).