Kangaroo Kourt Removes Berger from Office

In an unprecedented display of hubris by the New Hanover County Commissioners, led by recently installed Chairman Woody White, an antiquated common law procedure known as amotion and described by White as a "quasi-judicial" process was employed yesterday to forcefully remove Commissioner Brian Berger from office.

For full disclosure, the writer of this blog had a conversation with Commissioner Berger within the last two months urging him to step down on his own, for his own benefit. However, it is our contention that such a decision is his alone; that is until the next election, of which the decision belongs to the voters of New Hanover County. The precedent set by the commissioners yesterday dangerously removes the electoral power of the people, and demonstrates that elected officials can be forced out of office by other elected officials holding the same office, due to arbitrary disagreements, hearsay, and personal vendetta.

The intention of this writing is to protest the amotion procedure as it was employed by the commissioners, led by Chairman Woody White; Tom Wolfe, who holds office as an appointee, and was not elected by the voters; and Beth Dawson, who freely admits that most everything they accuse him of happened before she was even in office. It is not our intention or purpose to defend or debate the merits of Berger's tenure, or whether he should remain on the board, because as previously stated, we believe he should have resigned on his own. However, the manner in which he was removed is an egregious display of elected government power run amok.

It should also be stated that Commissioner Jonathan Barfield should be commended for his position and comments regarding the hearing. Barfield stated early in the hearing that he disagreed with the process, that he would have no part of it, and that it sets a dangerous precedent. He illustrated that he was "washing his hands" of the whole affair, and held fast to his concern as he joined Berger in voting against the motion to remove Berger by amotion.

For the specifics of why exactly this hearing was nothing more than arrogance on display, and a gross misapplication of justice, consider these items:

• The very people bringing the "charges" against Berger that he is unfit to serve and should therefore be forcefully removed from office, are the very same who served as both judge and jury during the hearing. Chairman White led the witch hunt against Berger, and also decided how and what evidence would be admitted and considered, and all of the procedural rules of the hearing. This would be the equivalent of a judge suing someone in court, and then taking his seat as the sitting judge in the case.

• This was considered a quasi-judicial hearing. The Legal Dictionary defines a quasi-judicial hearing as "The action taken and discretion exercised by public administrative agencies or bodies that are obliged to investigate or ascertain facts and draw conclusions from them as the foundation for official actions." http://legal-dictionary.thefreedictionary.com/Quasi-Judicial Basic jurisprudence dictates that one is considered innocent until proven guilty, which puts the burden of proof on those bringing the charges. In this case however, the very body bringing the charges, is the body deciding the case, and therefore the burden is on the defendant, Commissioner Berger, to prove a negative, an insurmountable task. 

• When Berger's attorney, Mr. Anglin, contested the evidence pertaining to Berger's travel records as possibly inaccurate, he was told that he could basically consider that evidence moot, because it wouldn't make a difference in the outcome either way. This commentary basically proves that the outcome was pre-determined, in contrast to that in a legal case, where all evidence must be considered, and one piece of evidence has the ability to sway a jury one way or the other. 

• The county attorney, who works at the pleasure of the board, served as the prosecutor in the hearing. This completes the deck being stacked against Berger in every way possible. Berger, as a citizen of the United States, is afforded the right to a fair and impartial trial - as a quasi-judicial proceeding, one would assume that basic American jurisprudence would be in effect - not a Soviet-style witch-hunt.

• When Mr. Anglin protested the merits of the hearing as being unfair, Chairman White smugly disagreed, stating that Berger had every opportunity to present any evidence he wished, and to deny any or all of the accusations against him. White, who himself is an attorney, did not seem to comprehend the fact that no amount of evidence or denial of charges could overcome the fact that the party bringing the charges is the same party deciding the case. 

• The evidentiary record was rife with hearsay. Stories of trembling, sobbing women subject to the many harsh abuses of Commissioner Berger on a daily basis saturated the case against him - however, when the opportunity arose for these victims to come forth and address their subjugator directly, oddly there were none to do so. County Clerk Sheila Schult testified that Berger's emails were demanding and far more frequent in their requests for information than that of a typical commissioner. However, when asked if she was every physically threatened or harmed in any way by Berger, she stated under oath that she had not been. 

• During the county attorney's closing argument, she referred to Berger's many "violations", although Berger has not been convicted of any crime, and has not violated anything - other than the arbitrary conditions imposed by Chairman White and his two cohorts, Commissioners Dawson and Wolfe. 

Many more points could be made regarding the absurdity of this proceeding. This should be taken very seriously by the voters of New Hanover County as an extremely offensive act, undermining their American right to choose their officials. Even those ready for Berger to leave, should be insulted that they will not have the ability to let their frustration be heard on election day in voting him out of office. 

Berger's attorney has stated that they will appeal in an actual court of law, in which one would hope enough common sense and reason still exists to nullify the injustice done to Berger through the amotion process. 

Regardless, voters will still eventually have their way in deciding the political fates of White, Wolfe, and Dawson, who hoped to pull off their little ruse riding on the wave of Berger dissent in the community - however, a backlash seems to be brewing resulting in outrage over their egregious grab of power that they do not possess. 

Wilmington Council Declares War on Citizens

UPDATE: Wednesday evening, WWAY featured an interview with City Clerk Penny Spicer-Sidbury in which she stated that if only petition organizers had approached her for help in the beginning, the nullifying issues could have been addressed. This is patently false, as petition co-organizer Josh Fulton inquired of her help in the beginning, and was subsequently turned down, by both her office, and that of the City Attorney.

In a move saddled with unprecedented hubris, the pomposity and arrogance of the Wilmington City Council was on full display Tuesday night, as members declared the petition against a taxpayer-funded stadium "invalid"; and also voted in favor of moving forward with a bond referendum for the stadium, that would equate to the giving away of tax dollars wholesale to private interests.

Several citizens addressed the council with well-spoken honesty and truth pleading with them to simply represent those whom they were elected to serve. The only scientific poll conducted to date reveals that over 80% of Wilmington citizens do not want to be taxed to pay for a baseball stadium for private interest.

Mandalay Baseball recently insulted the City of Wilmington and its citizens with a proposal that included the levying of $50,000/day fines against city taxpayers if the stadium wasn't built for them by a certain date. Instead of defending the citizens and the city they were elected to serve, the council shrugged off the proposal, and kept chugging forward with the attempt to strike a deal with Mandalay, despite the increasing numbers of citizens rising up and standing against any continued negotiations with the group.

The petition against a taxpayer-funded stadium contained almost 4,000 signatures of Wilmington voters who stand in solidarity against a tax-funded stadium. On Tuesday night, Penny Spicer-Sidbury, Clerk for the city, declared the petition "invalid" and with the wave of their collective hand, council adopted this opinion without discussion.

The wave of the hand represents a perfect metaphor for how the council views those that they serve and their opinions. With one dismissing gesture, the council has told an enormous majority of voters that their opinions and wishes mean nothing, and that the seven members of council know better, are more important, and will pursue their own ends no matter what the wishes of the public happen to be.

Section 3 of the Constitution of the State of North Carolina clearly tells us how our form of government is to operate:

The people of this State  have the inherent, sole, and exclusive right of regulating the
internal government...

However, that is not the case here. The wishes of the people are duly noted, and the city council is knowingly and arrogantly ignoring them.

One would have to wonder at some point why exactly are the members of council dogmatically pursuing such a horrible plan that the people want no part of? The actions of this city council are tantamount to an open declaration of war on the very citizens that elected them, and who they are sworn to serve.

A taxpayer-funded stadium, and the 30 years of debt that accompanies it is clearly something taxpayers of all stripes do not desire, and is not in their best interest. However, such an ill-conceived plan is certainly in the best interest of Mandalay Baseball and the Atlanta Braves, as they will receive a facility for a minimal investment, saddled with others' investment, of which they will receive no return.

So why is our elected city council loyally answering and obeying the wishes of outsiders; private conglomerates who have no interests here, who pay no local taxes, and who have done nothing for this city - save dictating the terms of this deal to an obedient city council hellbent on satisfying their every whim? What is in it on a personal level for each and every council member to neglect their offices and pursue that which they are being warned by voters not to pursue?

This council is an embarrassment to this community, and has willingly abandoned their sworn duty in order to appease wealthy private interests who are here for the sole reason of soaking our taxpayers dry to seed an investment that they themselves realize is too risky for the private sector. Any honest community leader would have told them to take a hike months ago. A council member that possesses a shred of integrity would have declared any further negotiations an insult to those they serve. But unfortunately for the people of Wilmington, they have no such member of their city council.

DISCLAIMER FOR THE FOLLOWING: Recently, talks have centered around the idea that Wilmington would own the stadium from the outset, instead of the initial proposal that had Mandalay and the Braves owning it for 30 years. The rest of this article pertains to the original scenario, which could still be in play. If the city owns the stadium from the beginning, the following would not apply.

As if this wasn't enough, council decided to continue the pursuit of a bond referendum to pay for the stadium, which will not be owned by the city. In this unprecedented move, the bond, if approved by voters, would equate to the transfer of public tax dollars to a private organization, an action that is most certainly illegal.

EconomyWatch.com defines municipal bonds as

...debt instruments that are issued by public entities, such as municipalities, cities, states or counties, to fund their capital expenditures. The capital expenditure of public entities includes costs associated with the construction of schools, bridges, highways and other public interest projects.

How is a private stadium a public capital expenditure? In short, it isn't.

Again, the State Constitution has this to say in Article V Sec. 14:

Notwithstanding Section 4 of this Article, the General Assembly may enact general laws authorizing any county, city, or town to define territorial areas in the county, city, or town and borrow money to be used to finance public improvements associated with private development projects within the territorial areas, as provided in this section.

It doesn't say that the city can borrow money to give away to private interests - only to provide public improvements associated with such ventures.

Section 4 of the same Article states:

Authorized purposes; two-thirds limitation. The General Assembly shall have no power to authorize any county, city or town, special district, or other unit of local government to contract debts secured by a pledge of its faith and credit unless approved by a majority of the qualified voters of the unit who vote thereon, except for the following purposes:

(a) to fund or refund a valid existing debt;
(b) to supply an unforseen deficiency in the revenue;
(c) to borrow in anticipation of the collection of taxes due and payable within the current fiscal year to an amount not exceeding 50 per cent of such taxes;
(d) to suppress riots or insurrections;
(e) to meet emergencies immediately threatening the public health or safety, as conclusively determined in writing by the Governor;
(f) for purposes authorized by general laws uniformly applicable throughout the State, to the extent of two-thirds of the amount by which the unit's outstanding indebtedness shall have been reduced during the next preceding fiscal year.

Since a private baseball stadium doesn't fall under one of the listed contingencies; and since sections of the State Constitution cannot conflict with one another, it would appear that this pursuit is unconstitutional.

The question that remains, is what are we as voters and citizens going to do about it?

Petitions Submitted; PR Battle Begins - O'Grady Swings and Misses

The group leading the effort in opposing a taxpayer-funded baseball stadium in Wilmington, led by co-organizers Josh Fulton and Ben McCoy, turned in around 4,000 completed petition signatures to the City Clerk on Thursday, marking the end of a long process of gathering support against the effort to secure tax dollars for a stadium led by Mandalay,  the Atlanta Braves, and the Flywheel/Trask (FT) conglomerate.

Within hours, the effort to discredit and skew the facts about the petition effort began, led by Wilmington City Councilman Kevin O'Grady.

Click here to watch O'Grady's comments

O' Grady's comments were a tacit declaration of war on Wilmington citizens, who are clearly against the idea of handing over their tax dollars to private enterprise to build a baseball stadium. 8 out of 10 citizens approached with the petition enthusiastically signed it, and wanted their voice to be heard on the issue. Many just believed that they should have a say in the matter, and that it should go to a voter referendum, instead of city council shoving it down their throats.

But that's not how Councilman Kevin O'Grady sees it. If he decides he wants to spend tens of millions of tax dollars on a bad project, then how dare any citizen speak up and say otherwise.

O'Grady also tells us that those in favor of the petition are forcing the city to spend money to verify it. County Board of Elections estimates that the entire process would cost no more than $50K, including an election. This is far less than $60-$80 million for a stadium, and is unfortunately the only way to stop it, since those elected on council are not representing the will of the people. City Council has had ample opportunity to assure the public a voice in this matter, and to put the issue to a public vote. They have chosen not to however, because they do not agree with the sentiments of the public, and want to have their way, rather than those they are elected to represent. Any costs associated could have been easily avoided by a city willing to serve the public - as they are chartered to do.

There is also a fear campaign being waged. O'Grady and Mayor Saffo are out there telling the public that the language of the petition affects much more than just the proposed stadium. They have said that if this petition passes, that funding will have to be cut from Legion Stadium, since it is a stadium for the "purposes of professional sports and other events", which is the language from the petition ordinance.

There are several problems with this however.

Besides the fact that it was never the intention of the petition to target anything other than the construction of a new stadium with tax dollars; and the fact that the city chose to ignore multiple attempts to work amicably together on drafting language mutually agreeable, several technical and legal issues still stand in the way of the idea that Legion would have to be defunded.

ISSUE #1: According to city documents, the city is under contractual obligation through an interlocal agreement with New Hanover County to fund the operations and debt cost of Legion Stadium. The petition ordinance says nothing about breaching any existing contracts or interlocal agreements - in fact, doing such would probably be a violation of the law.

Interlocal Agreement: Click Here

ISSUE #2: The City of Wilmington is obligated to pay debt on Legion Stadium. City documents reveal that the city still has several years of debt to pay along with the county on the stadium. It would be impossible for an ordinance of any kind - petition-generated or not - to nullify that debt obligation. This debt is held by the banks, who have every legal ground to hold the city financially responsible for that existing debt. Furthermore, the city has a fiduciary duty to pay its agreed debts.

If cities could simply nullify debt obligations through ordinances, then there would be debt-free cities all over the US! Simply put, the city is on the hook for the money it borrowed and agreed to pay back for Legion Stadium. Cancelling this debt through an ordinance would be impossible.

Legion Debt Agreement: Click Here

ISSUE #3: One prime consideration, that has played a vital role in many court case verdicts, and even interpretation of the Constitution and the Bill of Rights, is the idea of the spirit vs. the letter of the law. There is no doubt that the spirit of the law in this regard is to target a yet to be built, minor league baseball stadium for private enterprise with tax dollars. This would invariably be considered should the law ever be interpreted by a judge.

Again, it is imperative to state that although concerns about the impact this ordinance would have to functions such as Legion Stadium have been overblown and completely misrepresented, it is important to consider the facts as they are surrounding the issue and the reality of the fact that ordinances cannot nullify prior fiduciary obligations. It is believed however, that these views expressed by certain members of the City Council are not true concerns, but cheap scare tactics employed out of the desperation they feel to rule unhindered; the entitlement they ascribe themselves; and the will to spend tax dollars frivolously without incurring any resistance from the public.

Encouraging, and Discouraging Numbers on Unemployment

The good news is that unemployment in New Hanover County is down .9% over the last year.

The bad news is that unemployment in Wilmington is about 1.5% higher than in the unincorporated area and beach towns combined.

How is this possible?  Let's take a look.

Unemployment in Wimington is 9.2%; and 8.5% in the county as a whole.

The Wilmington population is about 106k; the population for the county is 203k, meaning that Wilmington is 52% of the total population of the county.

So, let's get out our thinking hats to figure out how much higher unemployment is in Wilmington than in the unincorporated area and beach towns.

The equation would be:  .52 (Wilmington pop. as % of NHC) * 9.2 (Wilmington unemployment rate) + .48 (nonWilmington population as % of NHC) * x (unknown unemployment rate in nonWilmington NHC area) = 8.5 (total county unemployment)

Solving for x gives us about 7.7%, meaning that the unemployment rate inside NHC but outside Wilmington is a full 1.5% lower than inside the city of Wilmington.

WHAT THE HELL IS GOING ON INSIDE WILMINGTON TO RAISE THE UNEMPLOYMENT RATE SO MUCH!!!????

Oh, wait a second.  I know.

"Private" Stadium Plan Completely Hoses Taxpayers

Haven't signed the petition against tax dollars being used for the stadium? Need to turn in your petitions? Click here: http://Stadium.WilmingtonRants.com

As is typical with large, high profile public projects, last night's presentation to the Wilmington City Council clearly demonstrated that the highest priority concerning the baseball stadium project is exactly how many palms get greased in the process.

The presentation, which was conducted by the ever-growing development team under the watchful eye of local land developer Raiford Trask III, was entitled, "Private Development Proposal Overview", giving the impression that perhaps a truly privately-funded stadium is within reach. However, nothing could be further from the truth.

One of the key players involved with Trask is Clay Boardman of Augusta, GA, who owns Flywheel, LLC. The "private" stadium investment team was referred to in the presentation as "Flywheel/Trask" or "FT". The Greater Wilmington Business Journal (GWBJ) recently wrote a piece on Clay Boardman, in which they said this:

An Augusta, Ga. native of dapper style, Boardman, 53, announced his firm — Flywheel Projects — would finance and construct the stadium at its own risk to bring an Atlanta Braves franchise to the Port City. http://wilmingtonbiz.com/industry_news_details.php?id=3603

Leading up to last night's presentation, one may have had the impression that Boardman was planning on financing the stadium completely on his own, without the use of tax dollars, which is what over 80% of Wilmingtonians said was the only way they would support a stadium. However, Tuesday night's presentation not only revealed the use of tax dollars in the project, but a strong reliance on the public's money for the project.

GWBJ went on to quote Boardman who said:

“I want to be transparent about all this,” Boardman said of current stadium negotiations. “I want to do the right thing because we’re spending money on this and so are the taxpayers . . . there will be no deal done if the taxpayer gets screwed, because I’m not going to be a part of it.” http://wilmingtonbiz.com/industry_news_details.php?id=3603 

Boardman gave an interesting personal story at the council meeting, where he talked about how his hometown of Augusta was trying to do basically the same deal as far as obtain a minor league baseball stadium. Boardman stated that he did not support the project there, and said it wasn't a good deal. However, a few hours up the road, in a town where he has no tax burden, and a tasty piece of the action; we're told a stadium is somehow perfect for us.

Proposal Details Revealed

The devil was definitely in the details of the Flywheel/Trask presentation, and answered the specific questions about exactly how much "investment" taxpayers would be in for.

The most fascinating element of the presentation was the fact that a private group of investors are clearly running the show, and dictating to the city exactly how much money is required from we the taxpayer. FT's presentation contained a graphic which identified the funding model of the stadium, which conveniently has FT sandwiched in the middle between the city and the stadium, getting a piece of the action both ways. Mandalay and the Braves pay a very nominal lease payment not to the city, but to FT; FT pays sales and use taxes to the city; the city turns around and makes all of its large payments not to Mandalay or to a bank, but to Trask and Co.; and in turn, FT makes the payment to the bank, after "administrative" costs are accounted for of course.

The basic premise was this:

According to FT, the proposed cost of just the construction of the stadium is between $32 and $38 million, and does not include the cost of land, remediation, etc. FT will have a total investment of only $10.5 million, payable over 30 years in $350,000 installments. The city will pick up every dime of the rest, including land and interest. Taxpayers could end up with a burden of around $50 million or more over the 30 year period. 

This is the much anticipated and wonderful "private" funding mechanism that we have heard is coming after the much-ballyhooed announcement and press conference held at the Wilmington Chamber headquarters last month, that revealed a "private" investment team.

As far as economic impact, FT and Co. state that as a result of all of this, 139 permanent jobs will be created, at an average pay of less than $28,000/yr. FT referred to these jobs in the presentation as "high paying".

The much-anticipated details of the "private" funding plan have been unveiled, and leave much to be desired, as well as leave the taxpayer on the hook for as much as 85%+ the total 30 year cost of the entire project. The private investment part has their bases covered, situating themselves in a position to recoup their investment from both directions. 

Now is the time to solidify our opposition more than ever against this ridiculous waste of taxpayer dollars and the public trust in general. The Wilmington City Council has shown itself a willing party in being manhandled, ordered around, and dictated to by Mandalay and Trask; from the choosing of a sports analysis firm, to exactly how much money they will bilk future generations of taxpayers out of. 

One thing is crystal clear about the proposal at hand: Flywheel/Trask and Co. are going to get paid; and taxpayers are going to be on the hook for decades to come.

How Do Film "Incentives" Affect NC?

An interesting article about whether or not NC's film incentives actually work. American Spectator:

The state offers one of the nation’s most enticing tax-incentive programs to production companies. Last year, Tar Heel taxpayers forked over $5,071,322 in tax credits to Journey 2: The Mysterious Island. In its three-season run, the HBO series Eastbound and Down has siphoned $3,740,884 from North Carolina. The CW Network’s One Tree Hill has drained a whopping $27 million from the state’s coffers over the last five years.

Even Vince McMahon’s World Wrestling Entertainment body-slammed the state for $135,401. That was its reward for shooting Raw and Smackdown at arenas in Charlotte and Raleigh in 2010.

WWE? WTF?

Hollywood welfare, like actual welfare, overflows with abuse. Last month, a Massachusetts court found filmmaker Daniel Adams guilty of defrauding the Bay State out of more than $4 million in tax credits by inflating his costs on The Lightkeepers and The Golden Boys. The offenses included a claim by Adams that he had paid Richard Dreyfuss six times his actual salary of $400,000. If you haven’t seen, let alone heard of, The Golden Boys or The Lightkeepers, you’re not alone. They appear to have been made as much for tax subsidies as for box-office receipts.

“In fiscal year 2010, the forty-three states that offer film subsidies spent $1.5 billion of your tax dollars subsidizing film and TV production,” Jason Mattera writes in Hollywood Hypocrites. “Let’s put that in real terms. Hollywood’s 2009 welfare payments would have been enough to pay the salaries of 23,500 middle school teachers, 26,600 firefighters, and 22,800 police patrol officers.”

How Do Regulations Affect Wilmington?

A few months ago or so, the Wilmington City Council hired a consultant, yet again. This time it was to tell them how to improve the "development process", meaning they paid someone $23k to tell them just how much the planning and zoning department is a tyrannical bureaucracy.

Of course, it would have benefited members of City Council to actually look into this themselves, but instead someone looked into it for them, and now we have this report.

What does it say? 

Recommendation #1: Hire a new person. Not fire anyone. Not give deadlines where if no action is taken on something it's automatically approved. Hire a new person.

They say this is necessary to essentially "change the culture" within the department.

The department already has a head. Should this kind of responsibility not go to the department head?

Additionally, from what I've heard, the city planning and code enforcement staff are real ballbusters, especially downtown.  Of course, the people who create this kind of atmosphere are never addressed.  The "solution" is to simply add another layer of bureaucracy that could be just as hostile as what's already there.

What about how quickly the city approves projects?

"There is certainly an issue with timeliness and timeliness is a two way street," Michelle Ferguson, associate of The Novak Consulting Group, said during a presentation of the findings to council at an agenda briefing Monday. Some of the lag has to do with insufficient submittal of site plans, the study found. 

Mayor Bill Saffo said several projects are taking six to eight months to get through the review process.

Ahhh, you have to love the understatement of Bill Saffo, especially when it benefits him.  Does it really take just six to eight months?

Let's take a look at part of an article that describes how long it took for The View to get approval downtown. For those of you who don't know, The View would have been where we now have our "wall of keys", the city's most appalling eyesore.

A lot has changed since 2006 when architects started drawing plans for The View. Terry Espy, managing partner and project developer, said it took three years to get the needed permits. The land, which has all the needed permits and has been released for construction from the city, now sits vacant as the economic tornado hit that project too.

Three years, folks. That's a lot more than six months, which is still too much. With some projects, like the Gateway project, they simply stifle it for years until the developers go bankrupt.

Additionally, what Saffo is saying is that he knows about this but he's doing nothing.  He's presenting himself as if he's helpless, when in reality he could actually be the most important figure in city government (no offense, Sterling.)

Finally, at the end of the story, we get actual figures about how terrible our city is in terms of facilitating development:

In the study, which included a survey of more than 57 stakeholders, 67 percent of those in the community who responded said the process doesn't result in higher quality development, 62 percent say it doesn't compare favorably with other communities and 85 percent said the current regulations hinder development.

Upset you don't have a job? Your kid or your friend doesn't have a job? Upset you don't have a nice place to shop or relax?  Talk to the Wilmington planning and development department.

Of course, don't talk to the Wilmington City Council, because we all know it's not them who's actually in charge of the city government.