Statement on the DRPA and Independence Visitor Center Corp.

We applaud Governor Rendell, Governor Christie, John Estey, Chairman of the Delaware River Port Authority (DRPA), and the rest of the members of the Board of Commissioners of the DRPA in adopting resolutions for improvement, including abiding by both the Sunshine Act and Pennsylvania Right to Know Law.

Reform is a journey and not a destination. As such, reform has to continue going forward, and reform must include changes to the culture of the DRPA. The DRPA must prove to the taxpayers that the reforms adopted are not merely superficial concessions designed to quell a brief media uproar, enabling self-serving business interests to permeate its operations. Moreover, similar changes must occur at other taxpayer supported public trusts with commonalities to the DRPA.

For example, if Mr. Estey believes that the DRPA should adopt the Sunshine Act, abide by the Pennsylvania Right to Know Law, and conduct business in a transparent and fair manner, then the Independence Visitor Center Corporation (IVCC) should as well.

The Boards of Directors of DRPA and IVCC are both chaired by John Estey, Esq., senior partner at Ballard Spahr and Governor Rendell's former chief of staff. Both the DRPA and IVCC use Ballard Spahr as outside counsel; Ballard has billed DRPA almost $3.1 million in legal fees from 2000-2010.

Both DRPA and IVCC operate essential public facilities. Both the DRPA and IVCC have an insular culture that does the public’s business in private. Both the DRPA and IVCC are taxpayer supported public trusts that are rife with patronage. Both the DRPA and IVCC are stuck in a time warp because both the DRPA and IVCC have been quite clandestine in terms of their operations and corporate governance. Both the DRPA and IVCC are heavily influenced by Governor Rendell (Rendell personally appointed most of the Pennsylvania commissioners to DRPA and he appointed the "Governor's Representative" to the IVCC).

On information and belief, the DRPA gave the IVCC $1.8 million in 2010 in an economic development grant, although there is no information available as to the details of those funds from either the DRPA and IVCC.

Nonetheless, as reported in The Philadelphia Inquirer on August 20, 2010, Mr. Estey claims, "It's [IVCC] not a public entity [...]"

To the contrary, the IVCC is absolutely a public entity given the massive public funding which the IVCC receives, the federal land on which the Visitor Center stands, the federal employees stationed within, and the federal legislation that authorized its creation.

Both the DRPA and IVCC maintain a sense of entitlement, an attitude that they can do no wrong, that they answer to no one and are certainly in no way accountable to the public which funds them. Unless Mr. Estey and Governor Rendell (Mayor Nutter also serves on the Board of Directors of the Independence Visitor Center Corporation), extend the resolutions for the DRPA to other secretive public organizations, like the IVCC, the proposals for change will be exposed as political smoke screens, enabling business as usual to continue without restriction or public oversight.

Jon Bari
The Constitutional Walking Tour of Philadelphia

Exhibits
*Article published in The Philadelphia Inquirer: "Now, [John] Estey should get the Visitor Center to open up," 8/20/2010

*Letter from John Estey to Governors Christie and Rendell discussing proposed changes at the DRPA, 8/4/2010

*Letter from Jon Bari to Mayor Michael Nutter calling for transparency at the IVCC, 8/13/2010

*Letter from Jon Bari to Governor Rendell calling for transparency at the IVCC, 8/17/2010

National Park Service Concessions - Independence National Historical Park

The above video outlines the main challenges The Constitutional encounters at Independence National Historical Park due to the unfair regulatory practices in place there. The Constitutional is seeking equitable treatment from the National Park Service and Independence Visitor Center in Philadelphia, in terms of visibility and accessibility for the operations of its guided historical tour business, as compared with other tour operators.

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The exhibits below illustrate the landscape and floor plan of the Independence Visitor Center in Philadelphia, both inside and outside, and how the Independence Visitor Center Corporation and National Park Service have forced The Constitutional Walking Tour to be completely marginalized both and inside and outside of this 50,000+ square foot complex.

EXTERIOR:

• Exterior 1-Overview of the IVC exterior and surrounding area
• Exterior 2-Detailed look at the IVC exterior and the prominence competitors have over The Constitutional

INTERIOR:

• Interior 1-Overview of IVC interior with emphasis on north end, where tour operators are located
• Interior 2-Detailed look at the IVC interior and the limited space allotted to walking tours (Note: walking tours have since moved to the far north wall and have therefore been further marginalized)
• Interior 3-Detailed look at the IVC interior and the prominence competitors have over The Constitutional

Ride the Ducks Photo Concessions on National Park Service Property

The above video clearly shows concession sales occurring on sidewalks around the Independence Visitor Center, on National Park Service property. Despite awareness by involved parties, despite the fact that the opportunity to sell concessions has been denied to The Constitutional, Ride the Ducks regularly violates their Commercial Use Authorizations and engages in these prohibited activities with no consequences. This demonstrates the inconsistent, random and arbitrary standards in place at Independence National Historical Park.

What is Mayor Michael Nutter Hiding?

Mayor Nutter serves on the Board of Directors of the Independence Visitor Center Corporation, a private company, which runs the visitor centers at Independence Park, City Hall and Fairmount Park.

Under the Pennsylvania Right to Know Law, The Constitutional Walking Tour requested records regarding Mayor Nutter's role on the Board of Directors of the Independence Visitor Center.

The City of Philadelphia denied the release of the records.

The Constitutional appealed, and the PA Office of Open Records issued a legally binding Final Determination for the City to release the records stating, "If a public official [Mayor Nutter] serves on a private board in an official capacity, the public has a right to know the extent of that service and see records associated with it."

The City refused to release any records! Instead, the City is spending taxpayer dollars to sue The Constitutional to block the release of public documents despite the City hemorrhaging cash, raising taxes and cutting services.

The City is requiring my small business to allocate our scarce resources to fight the appeal. Mayor Nutter promised that transparency and accountability would govern his Administration. Now it looks like Mayor Nutter has something to hide.

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Exhibit:
PA Office of Open Records, Final Determination, Jonathan Bari and The Constitutional Walking Tour vs. City of Philadelphia, Docket No.: AP 2010-0157, 4/7/10;
"Minutes of a non profit organization on which the mayor sits in his official capacity as the mayor, record of the agency"

Rendell's Pork-Laden Politics at the Independence Visitor Center

In response to the Harrisburg Patriot-News July 13, 2010, editorial titled, "Pork barrel rolls right to Philadelphia":

Governor Rendell's new Pennsylvania State budget is packed with so much pork for Rendell's pet appropriations under the guise of the Redevelopment Assistance Capital Program. For example, when Pennsylvania is hemorrhaging cash, raising taxes and cutting services, Rendell has appropriated $5 million for the Independence Visitor Center in Philadelphia. This appropriation seems particularly bizarre given that this building, which is federally owned and funded, just opened in 2001.

Cronyism is commonplace with the Independence Visitor Center Corporation (IVCC), which operates the Independence Visitor Center in a clandestine manner better suited to the CIA than to a visitor center. In addition to the IVCC Board being chaired by Rendell’s former chief of staff, Rendell appoints a “Governor’s Representative” to the IVCC Board. However, the Governor’s office has denied Right to Know Law requests for further information on Rendell's role with the IVCC's Board. Additionally, Philadelphia’s Mayor Nutter himself serves on the IVCC’s Board. The City of Philadelphia has denied similar record requests for Mayor Nutter's involvement with the IVCC Board, and now both the City and IVCC have actually sued to block the release of information as ordered in a legally binding Final Determination by the Pennsylvania Office of Open Records.

Governor Rendell must insist that in exchange for $5 million to the Independence Visitor Center, the IVCC's Board must change to abide by both the Sunshine Act and the Right to Know Law. Alternatively, Rendell should compel his representative's resignation from the IVCC Board and yank the $5 million in funding.

Seeking Congressional Oversight on The National Park Service

It should not take four years and a team of lawyers for a small business to be able to compete on a level playing field in dealings with the National Park Service (NPS) at Independence National Historical Park and the Independence Visitor Center in Philadelphia, Pennsylvania. However, that is exactly the case for The Constitutional Walking Tour of Philadelphia. To that end, in this economic crisis when many companies in diverse industries are seeking a federal bailout, The Constitutional is simply seeking a federal breakthrough to ensure that it receives equitable treatment from the National Park Service and Independence Visitor Center in terms of visibility and accessibility for the operations of its guided historical tour business, as compared with other tour operators.

The Declaration of Tourism Independence

Overview
President-elect Obama called for a “new Declaration of Independence” when he was in Philadelphia on January 17, 2009 during his Whistle Stop Tour to Washington, D.C.,

“And yet while our problems may be new, what is required to overcome them is not. What is required is the same perseverance and idealism that our founders displayed. What is required is a new declaration of independence, not just in our nation, but in our own lives - from ideology and small thinking, prejudice and bigotry - an appeal not to our easy instincts but to our better angels.”[i]

THE DECLARATION OF TOURISM INDEPENDENCE
IN CONGRESS, March 12, 2009.

The Unanimous Declaration of THE CONSTITUTIONAL WALKING TOUR OF PHILADELPHIA,

When, in the course of an unprecedented economic crisis coupled with unfair, random, arbitrary and capricious actions by the National Park Service, it becomes necessary for one small business to dissolve the bonds which have had a material adverse effect on the overall visitor experience to America’s Birthplace at Independence National Historical Park (Independence Park) in Philadelphia for numerous reasons, including the National Park Service’s violations of the spirit of Independence Park’s enabling legislation[ii] and willful non-compliance with the Gateway [Independence] Visitor Center Authorization Act.[iii]

We hold these truths to be self-evident, that all tour operators are created equal, that these qualified tour operators should be endowed with certain unalienable rights, that among these are life, liberty, and the pursuit of operating a tour business on a level playing field free from the National Park Service’s random, arbitrary and capricious actions imposed under its wide and unchecked discretionary authority. It is the right of a tour operator which complements park relevance and enhances visitor experience to demand an immediate cessation of the intolerable acts of the National Park Service and the Independence Visitor Center.[iv] It is the vendor’s right, it is the entrepreneurs’ duty, to demand fair treatment including having the National Park Service authorize The Constitutional’s environmentally friendly walking tour to have accessibility and visibility to visitors, comparable to more favored vendors which receive such authorizations from the National Park Service. Such has been the patient sufferance of visitors; and such is now the necessity which constrains the vendors to alter their former systems – say goodbye to business as usual at Independence Park and the Independence Visitor Center, which has devolved into a Federally subsidized bus depot at the Visitor Center that preferences carbon emitting, for-profit motorized tours over The Constitutional’s green tours. The history of Independence Park is a history of the people protesting with a Declaration of Rights & Grievances against King George III over unfair taxation and unjust trade practices, leading to The Declaration of Independence, and the birth of the United States of America. To prove this, let facts be submitted to a candid world.

The evolution of Independence Park and the increase in popularity of heritage tourism at America’s Birthplace have combined to subject the discriminated vendors - Tour Operators like The Constitutional Walking Tour of Philadelphia - to the brink of shutting down, the evidence of which is stated below:

• For the National Park Service being willfully non-compliant with the 1999 Gateway Visitor Center Authorization, Public Law 106-131, for over nine years, by failing to execute a long-term detailed operating agreement with the Independence Visitor Center Corporation that would presumably set some formal ground rules for the equitable treatment and rights of vendors, including non-profit and for-profit entities that operate visitor and tour related services, at the Visitor Center.[v]
• For the National Park Service unfairly, arbitrarily and capriciously issuing written authorizations in the form of Commercial Use Authorizations (CUAs) and Special Use Permits to some “favored” third parties[vi] and not to other interested and qualified third parties such as The Constitutional Walking Tour which is complementary to the Park’s mission and visitor experience objectives, is appropriate for public use and enjoyment of the Park, is an environmentally friendly “green” tour, does not cause unacceptable impacts on the Park,[vii] and benefits the Independence Visitor Center (Visitor Center) and in turn the NPS financially from ticket sales for The Constitutional.
• For the National Park Service selectively enforcing rules and regulations including with existing Commercial Use Authorizations to preferred vendors who are given the CUAs.[viii]
• For the National Park Service issuing Commercial Use Authorizations to Ride the Ducks’ fictitious business entities such Philly Ducks, Penn Ducks and River Ducks to help Ride the Ducks circumvent the evident intent of City of Philadelphia’s laws.[ix]
• For the National Park Service and the Independence Visitor Center management randomly, arbitrarily and capriciously evicting The Constitutional from the Visitor Center in 2006 and 2007 with neither any notice nor cause following the Summer 2005 season when The Constitutional was the top selling tour at the Visitor Center sales desk.
• For the National Park Service enabling the Independence Visitor Center to require that The Constitutional sign a broad sweeping “gag order” masked as a confidentiality agreement as a required condition to negotiating a license agreement for a ticket booth comparable to what other motorized tour operators have licensed (the confidentiality terms were not a requirement of the other ticket booth licensees, and the non-disclosure terms would survive even if no license agreement was ever executed).
• For the National Park Service censoring The Constitutional’s popular marketing brochure called The Independent from being distributed on INHP grounds including at the Independence Visitor Center.
• For the National Park Service and the Visitor Center retaliating against The Constitutional in attempts to greater marginalize The Constitutional (The Constitutional’s historical sales from the Visitor Center declined approximately 77.0% from the 2005 summer tourist season to the 2008 summer tourist season, despite an overall growth in visitor traffic experienced in the Visitor Center, as reported by the NPS, and growth in The Constitutional’s other sales channels for its tour business).

The evolution of Independence Park and the increase in popularity of heritage tourism at America’s Birthplace have combined to subject the people - Visitors - to a lack of real consumer choice and artificially inflated prices, the evidence of which is stated below:

• For the National Park Service randomly, arbitrarily and capriciously giving preferential advantage to other non-motorized and motorized tours which have been granted special written authorizations and informal authorizations to conduct business practices that offer key competitive operational advantages.[x]
• For the National Park Service randomly, arbitrarily and capriciously preferencing tours which are not historically and/or contextually relevant to INHP, in addition to being detrimental to the visitor experience at Independence Park.
• For the National Park Service fostering a “polluted” environment that stifles innovation, limits consumer choice, and drives up tour prices – all adversely affecting the visitor experience.
• For the National Park Service fostering a polluted environment (air and noise) with motorized tour operators using various vehicles for their tours including World War II era DUKW (duck boat) amphibious vehicles, authentic London double decker buses and Victorian trolleys - These motorized vehicles provide tours on thematic vehicles having no contextual relevance to the historical interpretation of Independence National Historical Park (in the 1700s-1800s).

We, THE CONSTITUTIONAL WALKING TOUR, therefore do, in the name, and by the authority of the good people who visit America’s Birthplace and who attempt to operate a small business showcasing America’s Birthplace, solemnly publish and declare, that THE CONSTITUTIONAL will work to absolve the public from these problems by appealing to Congress and other government officials for long overdue oversight on the National Park Service. THE CONSTITUTIONAL pledges to act as the people’s most eco-friendly tour in Philadelphia from this day forward – Where Every Day is Independence Day!™

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Exhibits: 





[i] http://www.nytimes.com/2009/01/17/us/politics/17text-obama.html?ref=politics

[ii] “Independence National Historical Park Act of 1948” - U.S. Code, Title 16, Chapter 1, Subchapter LI. http://www4.law.cornell.edu/uscode/16/ch1schLI.html

[iii] Public Law 106-131, December 1999, http://www.theconstitutional.com/news/inhp/Gateway%20Visitor%20Center%20Authorization%20Act%2012-7-99.pdf

[iv] The Independence Visitor Center was built on land owned by the Federal government and administered by the National Park Service. The NPS has contracted with a private entity, Independence Visitor Center Corporation, to operate the facility, and the NPS has supported the Visitor Center with Federal appropriations of $6.4 million since 2001 that has primarily been disbursed with annual appropriations of $850,000.00. The Visitor Center is approximately 50,000 square feet in size, and is marketed as the “largest facility of its kind in the world.” The Visitor Center was designed and intended to serve as a tourism hub and the primary point of orientation and visitor services for the Park and surrounding environs. The Visitor Center is the only official on-site ticketing location for visitors to pick up tickets to Independence Hall. The Visitor Center promotes the notion that that visitors need to “Start at the Center” in order to experience the “best way to see Philly.” For details, see http://www.theconstitutional.com/news/inhp/INHP-Payments-to-IVCC.pdf

[v] In lieu of a long term detailed operating agreement, the NPS issued a bare-bones temporary Special Use Permit to the IVCC in November 2001 and then has extended it 20 separate times “to allow additional time to finalize a formal [management] Agreement.” What is also even more curious about the repeated renewals of the Special Use Permit is that according to all of the audited financial statements of the IVCC since at least 2003, the NPS and IVCC have “substantially established a management agreement” that “calls for the NPS to make an annual payment of $850,000.00 to IVCC in exchange for the services provided by the IVCC more fully described in the agreement.” While more than $6.4 million has been spent by the Federal government to fund the IVCC’s operations since 2001, the NPS and IVCC have not executed a management agreement, and the operating agreement, which is supposedly done, is confidential and not available for public inspection.

[vi] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.

[vii] Management Policies 2006, National Park Service, Section 10, page 144 - Commercial Visitor Services, ISBN 0-16-076874-8, http://www.nps.gov/policy/MP2006.pdf

[viii] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.

[ix] Section 1, Title 9, Chapter 9-400 Carriers, of The Philadelphia Code, Regulation of Businesses, Trades and Professions, as amended on January 24, 2006. and “When Ducks Act Like Hogs: Tour-Bus Quackery,” Ronnie Polaneczky, Philadelphia Daily News, March 25, 2009, http://www.theconstitutional.com/news/inhp/Daily%20News%20Article%20Ride%20the%20Ducks%203-25-08.pdf

[x] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.