Tuesday, November 30, 2010

Global Warming Causes Increased Rainfall, No Wait, I Mean Drought

Today's Indianapolis Star features a letter to the editor from a Millard Johnson who thinks she found global warming in her backyard.
Behind my hobby farm in Morgan County is an acre pond. In the deepest part there
is a spillway that should be overflowing at this time of year. It isn't. The pond is 3 feet low and the fields are so hard that farmers' plows have trouble biting into the baked earth.

We elected new legislators this year with a conservative agenda. I hope they realize that global warming and climate change are not political issues. Science gave us most of the wonderful things of the modern world. Global climate change is a scientific issue and legislators need to educate themselves and take appropriate action.

There should be no ideological fight here. If legislators are wrong about health care, we will try something else in a few years; if they are wrong about global warming, people will starve.

Really, Millard? So you are claiming that the drought this year is proof of global warming? You're claiming this one summer proves long-term temperature patterns for this 4.5 billion year old planet?

Maybe I should point out that you even have the global warming claims wrong...global warming is supposed to cause an INCREASE in rainfall for places like the United States, not a decrease.

Here are some additional facts. The climate of the planet has been changing for 4.5 billion years and will continue to change, sometimes dramatically so. The temperature has been hotter than today and cooler. There is nothing to suggest that today's temperature is the ideal and that a warmer planet would be a bad thing. In fact, historically man has done better in warmer climates, including climates warmer than today's.

The sad thing is the politicization of the scientific debate on this issue. Scientists who dare question the politically-correct global warming, er, I mean "climate change" agenda, are ridiculed and ostracized. We need fair, honest scientific debates, not ones driven by a political agenda.

Monday, November 29, 2010

Former School Board Member Greg Wright Offers Sensible Education Reforms

Former Washington Township School Board Member Greg Wright pens a guest editorial in the the Indianapolis Business Journal that should be read by reformers all over the state.

I particularly like how Wright exposes how the school boards and superintendents, rather than operate as separate branches of government (legislative and executive), are in bed together. I experienced that in Pike Township. The phone number listed for Pike School Board's president rings into the administration's office. The administration takes board members on a "retreat" to indoctrinate them and supplies board members with computer laptops and the same health insurance than top administrators (but not teachers) receive. The Board also relies on the Superintendent's attorney for legal advice, apparently not realizing that that attorney's responsibility is to act in the Superintendent's best interests, not impart objective legal advice to the Board.

The only thing different is that, unlike in many districts, in Pike the administration and teacher's union is very much at odds. Both support opposing slates of candidates in school board elections.
At the end of his column, Wright proposes some sensible reforms. I can't say I disagree with any of them.

• Allow all K-12 children to enroll in any public school, including charter schools, in any school district in their county of residency.

• The money must follow the child.

• Provide children travel vouchers for transportation to any public school within their county of residency.

• Move school board elections from May to November.

• Make all school district employees (including teachers) state government employees and provide them with the same benefits currently provided other state employees.

• Require all school employees and school board members to adhere to the same ethics rules as all other Indiana government employees.

• Require public schools to transfer vacant school classroom buildings to certified charter schools.

Sunday, November 28, 2010

Indiana Week in Review Runs Away from Controversy; Is It Time for a Competitor?

Has the local political show, Indiana Week in Review grown stale? Let's take a look at the topics of the last three post-election shows:
This Week
The President’s trip to Kokomo
The politics behind the Indiana visit
Public school metrics and what they mean
The Democratic challenge to Charlie White’s election
The workload in the state court system

Last Week
Plans for a Presidential trip to Kokomo
Speaker Brian Bosma appoints Democrats as committee chairs
Todd Rokita win a GOP leadership post on Capitol Hill
Richard Lugar pushes for ratification of the START Treaty
Governor Daniels completes trade mission
Beer now on sale at the City Market

Two Weeks Ago
Political fallout from the Officer David Bisard crash
Richard Mourdock’s interest in a run for U.S. Senate
Freshman Orientation in the General Assembly
The call for tax hikes to pay for rapid transit
Efforts to preserve a horse racing subsidy
Mark Souder’s attempt to restore his reputation
During those three weeks, we've had more Tim Durham stories broken. It's been revealed that county prosecutors have been pocketing millions of dollars that belong to the Common School Fund. Barnes & Thornburg received, from the Daniels administration a highly-controversial $5.25 million contract to represent FSSA in a lawsuit against IBM over the botched Medicaid privatization...even though B&T represents ACS, IBM's partner in the effort. The Indianapolis Star broke the news that officials in the Daniels administration knew about the IURC-Duke conflict of interest early on but did nothing. (Apparently there is an FBI investigation of that scandal.) Just a week or so ago, Indianapolis awarded a 50 year parking deal to ACS, despite obvious conflicts of interest.

I'm sure that readers will point out many more stories that the host of the show, Jim Shella, simply chose to ignore during that three week period in favor of more bland topics. It seems that, at every opportunity, Shella shies away from controversial topics, in particular from topics which might step on the toes of powerful people in Indianapolis and Indiana government.

Not only are the topics lacking, so too is the panel. Every week the show features partisan spokespersons, usually Republican Mike McDaniel and Democrat Ann Delaney taking valuable time simply spouting the party line. The only ones who dare offer independent analysis of Shella's milquetoast topics are the reporters (and in the case of think tank president John Ketzenberger, a former reporter) and even that analysis is generally greatly tempered.

In terms of covering state and local politics, the Indiana Week in Review show is the only game in town and has been for years. I think the show has to be pushing 25 years old, having originated before Shella became host maybe 15 years ago. By now its audience can't be more than political junkies who have nowhere else to tune into to get their fill of political discussion.

A new state/local political talk show that tackles the tough issues and which has panelists who actually speaks their minds, would within a month or two eclipse the IWIR audience. Is it time for such a show? I think so.

Saturday, November 27, 2010

Mayor Ballard's Plan for Towing Monopoly in Works for Nearly Six Months

I had a chance to watch part of the Metropolitan Development Committee meeting on Council President Ryan Vaughn's s proposal regarding towing. This is what I learned:

There are six towing zones in the City. The city contracts with five towing companies in those zones. Currently the contracts are awarded using a traditional bid system where the low bid gets the contract.

Vaughn's proposal would eliminate the bid requirement with the administration instead choosing which company receives the monopoly contract. The change in the ordinance would award one mega contract to a towing company which then could subcontract out to other companies to tow in the zones. Instead of the city picking those companies, the company awarded the contract could pick who they choose to partner with. The person who spoke on the proposal from the Department of Code Enforcement emphasized that there would be an MBE/WBE/VBE component to the monopoly contract. Let me translate that for you: the Ballard Administration hopes to use the MBE carrot to try to persuade an African-American Democrat on the Council to vote for the monopoly towing contract proposal in case any Republicans defect.

The big surprise of the meeting was when it was revealed that the plan to award a monopoly towing contract, which depends on the council changing the law, has been in the works for nearly six months. Nobody at the Ballard administration bothered to tell members of the Council.. In July the administration asked for RFPs from the towing companies interested in the monopoly contract. So much for Indianapolis Mayor Greg Ballard's claim of running a "transparent" administration. Apparently the plan was to give a towing company a monopoly so it can work in conjunction with ACS on the 50 year parking contract.

When Ballard's campaign finance report comes out it will be interesting to see how many of the towing companies interested in the monopoly contract have contributed to Ballard's campaign. in the hopes of winning a contract worth millions.

Wednesday, November 24, 2010

Attorney General Greg Zoeller Refuses to Enforce Indiana's Forfeiture Law to Recover Money for Schools, Instead Targets Whistleblower


I was disappointed to learn that Indiana Attorney General Greg Zoeller will attempt to represent county prosecutors in the qui tam lawsuit we filed against Indiana prosecutors who are not following Indiana’s forfeiture law. Certainly we will vigorously oppose the Attorney General’s attempt to represent the prosecutors in the suit, which is an action filed by a plaintiff on behalf of the State of Indiana. The law does not authorize the Attorney General, the attorney for the State of Indiana, to represent a defendant in a lawsuit filed by a plaintiff for the benefit of the State’s citizens.

Contrary to Attorney General Greg Zoeller’s claim he “[s]tands with law enforcement,” Mr. Zoeller is standing for the principle that he will represent state officials “zealously” even when he knows perfectly well those officials are violating the law and keeping money that is supposed to go to supporting the state’s schools.

In his press release, Mr. Zoeller makes the outlandish claim that “prosecutors have great discretion to apply assets recovered under civil forfeiture to overall law enforcement costs…” That interpretation would obliterate the legislature’s requirement that excess civil forfeiture proceeds be paid to the Common School Fund. Civil forfeiture proceeds will never cover the entire county’s law enforcement costs, which would include the police and prosecutor’s budget for the county. While the method by which “law enforcement costs” are calculated is open to debate, it is obvious that the General Assembly did not mean all law enforcement costs in the county have to be covered before a dime has to be paid to the Common School Fund.

During the last two and a half years, most of which was under Attorney General Zoeller’s watch, the state’s 90 prosecutors paid only $95,509 to the Common School Fund pursuant to the state’s civil forfeiture law. It should have been millions. Only five counties during that time paid anything. While Attorney General Zoeller talks about the need for legislative changes – which nobody disputes – the fact is Attorney General Zoeller has never sought to enforce the law. Rather it took a private citizen filing a lawsuit to bring his lack of enforcement to light. Instead of viewing this as an opportunity to work toward a settlement and recover money for the state’s schools while ensuring future compliance with the law, Attorney General Zoeller has instead chosen to target the whistleblower who pointed out the fact that prosecutors are not following the law.

As the elected Attorney General, Greg Zoeller took an oath to uphold the law. He has duties under the law including providing honest, objective legal interpretations and ensuring that state officials are following the law. We would ask that he live up to those responsibilities and work toward a resolution of this matter that results in the recovery of money for the state’s school children and ensures that prosecutors in the future follow the law.

*** *** *** ***

Tuesday, November 23, 2010

Tomlinson Tap Room - Okay, Where's the "Room?"

Tomorrow the Tomlinson Tap Room at the City Market is set to open to the public. I was excited when I heard about the concept. I expected the bar, which is to feature Indiana craft beers, would be the perfect place for an after work brew. Jolene Ketzenberger of the Indianapolis Star wrote a glowing preview.

Finally, I thought, City Market leaders were doing something different that just might bring people to the venue.

Last Friday, I stopped by the Tomlinson Tap Room to check it out. I couldn't believe it. First there is no "room." It's a bar sitting out in the open on the second floor of the center of the City Market. There are a few plastic chairs and tables scattered around for people to use...just like there was before the bar was installed.

I was told by a City Market business owner that the Tomlinson Tap "Room" would be closing at 8 pm on weekdays and 5 pm on Saturdays.

This has failure written all over it.

The Responsibility of Attorney General Greg Zoeller to Uphold the Law w/Addendum

I was disappointed to hear the rumor that Attorney General Greg Zoeller might seek to represent the county prosecutors in the qui tam action filed by my law firm to recover monies that should have been paid into the common school fund.

First, I would point out that a qui tam lawsuit is a lawsuit filed by a taxpayer, ON BEHALF OF THE STATE OF INDIANA. The qui tam statutes provides for a very special role for the Attorney General. He may choose to intervene for the Plaintiff and take over the lawsuit, pursuing it to its conclusion or settling the case. If the Attorney General feels the lawsuit is meritless, there is a process where the AG can intervene for the Plaintiff and ask that the case be dismissed. There is nothing in the qui tam law though that would authorize the Attorney General, the attorney for the State of Indiana, to represent defendants against someone who filed an action on behalf of the State of Indiana. Indeed I cannot find a single qui tam case in the country where a state attorney general or a U.S. Attorney represented a defendant in a qui tam lawsuit. To do so makes no sense. Certainly we will vigorously oppose any effort by the Attorney General to represent the county prosecutors in this case. The procedures set forth in the Indiana’s qui tam law need to be followed.

While I realize that traditionally the Indiana Attorney General’s Office provides representation to county prosecutors who are technically state officials, the Attorney General’s Office also represents the Indiana General Assembly which passed the state’s forfeiture law as well as the Indiana Treasurer’s Office which manages the Common School Fund. The Attorney General should not be involved in helping county prosecutors deliberately violate the law passed by our General Assembly by holding onto money and property that actually should go to the Common School Fund maintained by the State Treasurer.

Contrary to some suggestions, the law is not vague whether “law enforcement costs” refers to all law enforcement costs in the county or law enforcement costs related to the particular civil forfeiture action. Of course it refers to law enforcement costs relating to the action that results in the particular civil forfeiture. To interpret the law to mean all law enforcement expenses in the county, including the cost of running the prosecutor’s office, would completely nullify the law as money obtained through civil forfeitures is never going to exceed law enforcement expenses in a county. One rule of interpretation is that you don’t interpret a statute in a way that obliterates the law.

When Greg Zoeller assumed the Office of Attorney General, he took an oath to uphold the Constitution and the law, including statutes passed by the Indiana General Assembly I would simply ask that he live up to that oath and join the Plaintiff in ensuring that county prosecutors follow the civil forfeiture law and pay excess funds above law enforcement costs to the Common School Fund. Certainly we welcome the Attorney General’s efforts in brokering a settlement to recover funds for the Common School Fund as well as future compliance with the law. We don’t welcome the Attorney General though if his appearance in the case is going to be about helping county prosecutors continue to violate Indiana law by keeping civil forfeiture funds which do not belong to them and which instead belong to the state’s schools.
Paul Ogden
Addendum: I would add that I served as a Deputy Attorney General under Linley Pearson. Pearson took the position that allegations of violations of law by state officials would be investigated and if he felt they were violating the law, he'd refuse to represent them, making them to hire other counsel. That unfortunately has not been the practice of the Attorney General's Office under Steve Carter or thus far under Greg Zoeller. I know from experience as an attorney and a whistleblower myself, that the AG will not conduct an investigation when you point out legal violations and the AG will aggressively target anyone who dares to blow the whistle on a state official.

Democratic Blogger Takes Unfair Shot At Mayor Ballard

Democratic Blogger Terry Burns of Indianapolis Times has a "Ballard Buck" posted on his website which contains the motto "Zero Ideas." That's a wholly unfair shot at Indianapolis Mayor Greg Ballard who has never been short of ideas. Let's talk about a few of them:
  • He had the idea to raise taxes to cover the CIB shortfall while demanding no accountability from the CIB.

  • He had the idea to give the Pacers $33.5 million of our tax dollars even though not obligated by any contract.

  • He had the idea to fund payments to the Pacers out of property tax revenue by playing a shell game with ICVA and MDC.

  • He had the idea to hand out a 50 year no bid, monopoly parking contract to a politically-connected private company which had already been involved in one major privatization screw up in the State.

  • He had the idea that handing out millions of dollars for corporate welfare should take priority over the City's libraries, bus system and parks.

  • He had the idea to float a $98 million dollars bond to loan money to a developer (who is a client of the Marion County Republican Chairman) who couldn't get a loan from any lender as the company's project was deemed too risky.

  • He has had the idea to propose raising taxes and fees not once, but more than 100 times.

  • He had the idea of "selling" the city's water and sewer utilities to another public entity so the public can fund paving of roads with a 30 year bond.

  • He had the idea to hire outsider Frank "Call Me Doctor" Straub for a position he is clearly not suited for which has lead to a demoralization of police morale.

Those are just a few of the Mayor's "ideas" that I can think of just off the top of my head. Mr. Burns, you owe Mayor Ballard an apology. He has plenty of ideas. They're just all BAD ideas.

Are City's Pay-to-Play Players Trying to Position Zore's to Win Lucrative Monopoly Towing Contract?

As previously reported, Council President Ryan Vaughn has introduced a proposal to eliminate the towing zones used by the city so that the Mayor can award an exclusive towing contract to a single company.

The monopoly towing contract will be worth millions. Companies wanting the contract will be lined up outside of the Mayor's Office to cut checks to his re-election campaign in the hopes of currying favor with the administration. A clever owner of a towing company might choose to take additional steps such as hiring Marion County GOP Chairman Tom John to lobby the Mayor's Office. After all, Buchman Company hired John as a lobbyist and now the City is falling all over itself to finance a $98 million deal real estate development deal for the company that every lender viewed as too risky.

It didn't take long. The City's lobbyist database indicates that Zore's Towing has now hired Tom John of Ice Miller to lobby the Mayor's Office. Further, An ethics form filed by Councilor Bob Lutz filed last year suggests he has an ownership interest in Zore's and may also be acting as its attorney.

If Vaughn's proposal passes the Director of Code Enforcement for the City would have the absolute right to pick the winning towing company without any interference from the council. Of course, the Director is going to pick whichever company the Mayor wants ... that is if he wants to keep his job.

Yet another day in the world of Indianapolis pay-to-play politics.

Pictured: Ryan Vaughn, Bob Lutz and Tom John.

Monday, November 22, 2010

Republican Insiders Have New Blog

Republican insiders, who have been using a naive Mayor to line their pockets and the pockets of their friends with taxpayer money, apparently got tired of other reform-minded Republicans pointing out what they were doing. So they started a blog to discredit us:


Consider this an informal poll, who do you think is penning this blog?

Last time they tried this was the " Ogden Truth Squad." Thee author of the blog turned out to be the media person for the Marion County Republican Party.

Sunday, November 21, 2010

Crystal Ball Reveals No Drama in 2011 Mayor's Race; Ballard Has No Path to Victory

A few weeks ago I was having breakfast with a well-known Republican party official who has watched a half century of political races unfold in Indiana. He began talking about Mayor Ballard's re-election prospects. "You know he has no chance, don't you?" "Yes, I know," I responded.

There we sat for the next hour or so talking about state and local politics. Regarding the Mayor and Council races both our crystal balls were clear as to the fate of Mayor Ballard and the Council Republicans hold on the majority and the outcome wasn't going to be pleasant.

I've always struggled with understanding why people, even people who are involved in politics, can't better gauge the impact of policies and events on the ultimate verdict at the polls. A couple weeks before the election a friend of mine who had worked on several campaigns told me he thought the Charlie White was probably going to do in his candidacy. I told him that it wouldn't matter because it was going to be a huge Republican year and White would win easily. I also pointed out the distinction between the two candidates names and how that would be tough for the Democrat to overcome. On election day White won all but a handful of counties.

This morning Jon Murray, one of the better writers at the Indianapolis Star, tries his hand at political analysis, gauging what's likely to happen in the 2011 Mayor's Race. While Murray does a good job, I got the impression he was holding back in his analysis.

Folks here's what will happen. Going into the calendar year 2011, Mayor Ballard will have decent approval numbers, probably in the 50s. That problem is that number is fluid, a number that was set during years when he was the only game in town.

If Ballard attracts an opponent in the Republican Primary, which is very possible, that opponent may get 25% or more anti-Ballard protest vote without spending a dime. One thing the newspapers do not get - though Murray hints at it - is how Mayor Ballard has governed completely opposite to everything he campaigned for in 2007. I have never seen so many rank-and-file Republicans detest a GOP elected official than they do with Ballard. It's not enough to overcome the advantages of incumbency, but Ballard's three year affair with the Old Guard, insider Republicans has thoroughly ticked off his populist supporters.

Murray refers to those 2007 supporters as "independents" but most of them are Republicans. Let's not forget that when the Mayor tried to assert his influence with the rank and file Republicans to help Councilor Ryan Vaughn win a state senate seat, the Mayor was rejected by his own party workers who overwhelmingly picked Scott Schneider. That is only the tip of the iceberg as far as how disliked and unrespected Mayor Ballard among GOP party workers.

If Marion County Democratic Chairman Ed Treacy is smart he won't spend a dime on any primary fight. After all the general election will be nothing more than a straight referendum on Ballard's performance in office. Treacy would be smart to instead spend resources in the primary window when voters are paying attention running anti-Ballard ads, driving a wedge between Ballard and Republican fiscal conservatives and populists. Undoubtedly we will see ads pointing to the more than 100 tax and fee increases proposed by Ballard. The Democrats will also point out to Republicans the Mayor's reckless spending and his trail of broken campaign promises.

Even if Treacy can't resist the temptation to get involved in the primary, it is unlikely to matter. Ballard has no issues to run on. Murray points to Ballard's legislative accomplishments - the utilities "sale" to Citizen's, the 50 year parking meter deal, and the $10 million dollar gift to the Pacers. He also points to development deals. Although he doesn't name it, he is undoubtedly referring to things like the North of South proposal coming soon to the Council.

Murray hints about possible problems with Ballard using these legislative accomplishments as political issues. No kidding. The unpopularity of the 50 year ACS parking deal was only dwarfed by the incredible anger the community expressed over the $10 million Ballard gift to the Pacers. Astonishingly Ballard appeared on numerous TV and radio programs promoting the highly unpopular $10 million Pacer gift. Treacy should send Ballard a thank you card for giving him so much footage he can use in negative ads.

The only issue that could be a wash politically is the utilities sale, which might have been 50-50 with the public. But even that is highly unlikely. People who were on the "no" side on that deal are angry about what happened and motivated to vote. The "yes" people are satisfied and have moved on to other issues. I highly doubt that bragging over selling off a city asset is good political strategy.

Of course, the Mayor will point to infrastructure improvements. If a Mayor lets infrastructure slide, then that could be an issue. But to base a campaign on bragging about doing his job pavign road? Well, I've never seen that work. Infrastructure repairs is simply somethign voters expect mayors to do.

Then you have the public safety issues. Embarassing incidents involving IMPD officeers are becoming the stuff of legendl However, you also have Public Safety Director Frank "Call Me Doctor" Straub who appears to be single-handily trying to tear down the administration. Clearly he has character flaws that makes him unsuited for the position. A smart Ballard would cut his losses now and can Straub. Instead the Mayor is stubbornly going to take gaffe-prone Straub into an election year. The Democrats are very appreciative of that, I'm sure.

Once Republicans are so fed up they stay home or go to the polls to vote against Ballard, the Mayor's chance of re-election is over. He needs almost Republicans all going to the polls and about 85% support among Republicans to have any chance in solidly-Democratic Marion County. If I were a Democrat strategist, I'd make alienating Republican support from the Mayor a top priority.

The Democrats will also hit things like the 50 year parking deal and the Pacers $10 million gift. Country to the Marion County GOP Chairman Tom John's comment in the article, the last thing the Mayor wants is a debate over priorities. Do they really think they can justify $10 million to the Pacers while libraries are shortening hours and laying off staff? Do they think they can justify $98 million to Buchman Companies for the North of South development while cutting funding to parks and the bus system.?

I'm sure the Democrats won't hesitate to point out that John is a lobbyist for Buchman and Joe Loftus, counsel to the Mayor, is a lobbyist for ACS which received the 50 year no bid parking contract. Then dial back a year or so and you had the Pacers attorney, Bob Grand, running the CIB which ended up cutting a deal with the Pacers, which it turned out was funded by property taxes, contrary to what the Mayor claimed at the time.

Expect Ballard insider deals and conflicts of interest to be the focus of many anti-Ballard advertisements. Again, it represents a betrayal of principles. Elected with the promise of running a more ethical administration than his predecessors, Ballard has taken insider deals and conflicts of interest to a new level.

Expect also advertisements about Ballard being seduced by the perks of power. Cut to footage of the Mayor on Election Night 2007 talking about ending country club politics in Indiana. Now cut to stories of his country club memberships, his front row seats at Pacer games, his many junkets to exotic locales paid for directly or indirectly with our tax dollars.

Usually with a candidate I can see a path to victory, even if it is a difficult one. Outside of his Democratic opponent getting charged with a felony, Ballard's political career will lose and lose badly come election night. Ballard has spent three years saying and doing things to ensure he won't have a chance at the ballot box in 2011. I truly believe the Mayor, who may be the most politically naive politician ever, has not a clue what he's done. He probably thinks he can campaign successfully on the utilities sale, the parking deal, the gift to the Pacers.

The people around the Mayor - Joe Loftus, Bob Grand, Tom John, Council President Ryan Vaughn, etc. - do know the Mayor's finished politically and that's why they're cashing in now trying to convince the politically naive Mayor to pursue measures that make themselves and their friends lots of money. Expect their proposals to get even more bold in the next few months as they ask the Republican majority to swallow hard and support the Mayor's self-serving agenda. Hopefully Council Republicans will wise up and start distancing themselves from the politically tone deaf Mayor before it's too late for them.

Friday, November 19, 2010

Prosecutors Sued for Failing to Pay Money Owed to Common School Fund

Sorry I haven't posted anything the last few days. In tomorrow's Indianapolis Star (a short story was on line today) will be a story about the qui tam lawsuit we filed against 89 of the state's 90 prosecutors four months ago and that was unsealed today. We dismissed 11 county prosecutors who said, in response to open records requests, they had not done any civil forfeiture actions over the past few years.

A qui tam lawsuit basically is a taxpayer lawsuit to recover state money that was wrongly misappropriated or not paid that should have been paid to the state and was not.

Indiana has a civil forfeiture law which says that in a civil forfeiture action, the prosecutor can deduct law enforcement costs including attorney's fees, and the remainder is to be paid to the Common School Fund. In the last 2 years, the 92 counties in Indiana only paid $95,000 into the fund pursuant to the civil forfeiture fund. They kept all the rest of the money. In Marion County, approximately $1.6 million is netted in forfeiture every year (which estimate is probably is low as it doesn't appear to include private attorney, Greg Garrison's, cut), and the county hasn't turned over a dime to the Common School Fund and hasn't for many, many years. Marion County does not even try to figure law enforcement costs...they have a standard percentage that goes to law enforcement agencies and the prosecutor's office (or private attorney) on every case.

Only one prosecutor in the state, Wayne County Prosecutor Michael Shipman, diligently figures law enforcement costs on every case and regularly cuts a check to Common School Fund. On the 13 cases I looked at in Wayne County, law enforcement costs (including attorney's costs) averaged about 25% of the total. Wayne County turned over 75% of the money they collected in those 13 civil forfeiture cases to the Common School Fund.

Doing some complicated math calculations, I estimate that in a two year period, the state's prosecutors could have taken in $22 million plus in civil forfeiture funds. (Even that is a conservative estimate because some cases settle before trial and escape review.) By my calculations, during that two year period the Common School Fund should have received about $16.8 million in forfeiture funds. Instead the school fund received $95,000.

Regardless of how this case comes out, hopefully all the attention on the problems in Indiana's civil forfeiture law will bring some much need changes to that law.

Wednesday, November 17, 2010

Star Columnist Tully Says ACS Deal "Makes Sense" Really?

This morning Indianapolis Star columnist Matthew Tully pens a lackluster column saying that the parking deal "makes sense." Really, Matt? I was curious as to which of the following "makes sense."
  • That we are agreeing to give a 50 year contract to ACS, a company involved in a multi-million dollar screw up of privatization of Medicaid here in Indiana and which screwed up a seven year parking meter deal in Washington, D.C.
  • A 50 year deal that mortgages the future for $20 million in upfront cash.
  • That the 50 year contract ties the hands of the next 12 mayors and councils elected in this City.
  • The termination provision in the ACS contract which prohibits the City from contracting out with another vendor for 2 years after the termination provision is exercised.
  • The termination provision that requires the new vendor to accept whatever money ACS made in the year 2010 (which may well be nothing), while the City is not allowed any revenue if the City tries to contract out during the two year cooling off period.
  • The provision which prohibits the City from borrowing the money to pay ACS's termination fee.
  • The provision which prohibits the City from reviewing ACS's books to ensure the City is actually receiving the money the City is entitled to under the contract.
  • A promise for 200 jobs from ACS that the company refuses to put into the contract to make it legally enforceable.
  • The provision that allows Ice Miller (whose attorneys on the deal included Marion County GOP Chairman Tom John) to be paid $500,000 in legal fees even if the ACS contract was not approved by the Council.
  • That the Barnes & Thornburg Partner Joe Loftus is a paid lobbyist for the Mayor and also lobbies for ACS. See any conflict there, Matt?
  • President of the Council Ryan Vaughn works for Barnes & Thornburg which represents ACS and Vaughn himself was identified in state records as an ACS lobbyist. Yet Vaughn not only won't recuse himself, as presiding officer he controls the debate and pushes the Council to give the 50 year no bid contract to his law firm's client.
  • That the City refused to ask for bids from other companies after making substantial changes to the contract terms.
  • That Republican councilors who didn't want to support the deal had their arms twisted and were threatened by Vaughn and others. One councilor lost her position on a key committee when she wouldn't support the deal.
  • The promise for 200 jobs does not require the jobs be full-time and the promise is not even legally enforceable because it wasn't included in the contract.
  • That it is too "risky" for the City to spend $8 million to buy new meters and keep 100% of the profits, but it's not risky for the City on the very same day to propose floating a $98 million bond to help private developer Buckingham Companies fund a project deemed too risky by every lender that reviewed it. Of course, Buckingham's lobbyist to the Mayor's Office is none other than GOP Chairman Tom John, someone who Tully regularly praises as leading a (non-existent) revival of the GOP in Marion County.

Matt, can you tell me which of the above "makes sense?"

Councilor Bob Lutz: Either Tell the Truth or Resign

On Monday night, I caught only the last half of the debate live on Channel 16. I expected to be able to simply watch the streaming video feed of the meeting only to get the following message:
The system was unable to find an appropriate server for the content you requested, the content may be behind a firewall or may be in the process of transferring to a distribution server. Please try again later.

Thank you for your patience
Two days later, I continue to get that message. Funny, I've never had any problem playing a Channel 16 video of a city meeting on my home or work computer.

I'm not sure what I missed, but I did get to see part of a thoughtful presentation by Councilor Angela Mansfield. I also saw councilor Brian Mahern point out - quite correctly - than Ryan Vaughn had no business running the meeting while being a major advocate for the ACS contract that was being debated. Vaughn gave a rambling, nonsensical answer to why he didn't have a conflict of interest even though his employer- Barnes & Thornburg - lobbies for ACS. (Apparently Vaughn thinks the closeness of a vote impacts on whether one has a conflict.) Vaughn's boss, B& T Partner Joe Loftus (who lobbies for the City and for ACS) was sitting in the front of the room according to spectators and quickly was on the phone after the vote. Not sure if he was wearing his ACS or City hat.

In Vaughn's defense, his employer, Barnes & Thornburg, has never met a conflict of interest the firm couldn't ignore. The firm is constantly playing both sides of the fence in violation of ethics rules, a situation the rest of the legal community has complained about for years. Most recently, B&T was awarded a $5.25 million contract to represent FSSA in a suit against IBM over the bungled Medicaid privatization deal. IBM's partner on the deal was ACS, which is represented by B&T. B&T even acknowledges in its engagement contract with the FSSA that it might have to sue ACS, which is still the firm's client. (That is a conflict that is nonwaivable under the disciplinary rules.) Certainly ACS does not have a lot to worry about B&T going after it. The last thing B&T is going to do is lose ACS as a client because of an ethical responsibility to zealously represent a client FSSA and we taxpayers.

But I digress. What I found most interesting was Republican Councilor Bob Lutz's comments. Bob is an attorney and in fact was at one time the Wayne Township Small Claims Court judge. Most Republicans Councilors are quiet rubber-stamps for the administration's policies of raising taxes/fees and handing lucrative contracts out to politically-connected contractors. Lutz, on the other hand, is always in committee meetings and in full council pontificating at length about his supposed concerns about administration measures. In the end though, Lutz always pulls out his rubber stamp like everyone else.

Many people though have been persuaded by Lutz's comments, thinking he may ultimately vote against an administration measure because of the concerns he has expressed. I'm not the least bit fooled. I know that Lutz's performance is nothing more than act, trying to give the appearance of thoughtful consideration, while knowing his conclusion is always going to be that the administration is right. In reality, Lutz is no less of a rubber stamp on the council than a Susie Day or Angel Rivera. He's just a smarter rubber stamp.

Lutz's act though on Monday went too far. Lutz claimed the City could borrow money to pay off the ACS termination fee. That is a bald-faced lie. Minutes later Monroe Gray, who is not a lawyer, contradicted Lutz pointing out that the contract expressly forbids the City from borrowing the money to pay the termination fee. Gray is absolutely correct. Here's the language from Section 18.2 of the contract: "The City shall not ... obtain capital from any third party in order to fund the payment of the Termination Penalty..." It was outlined in a blog article I wrote in which I did a legal analysis of the termination provision, an analysis by the way that was directly emailed to all councilors including Mr. Bob Lutz.

Lutz as an attorney, indeed as a former judge, is cloaked with a certain authority when he speaks on legal issues. Other Republican councilors undoubtedly depend on his legal guidance. Lutz though chose to lie when he said the City could borrow to pay the termination fee. Lutz lied not only to his fellow councilors, but he lied to his constituents and the public, right there on Channel 16.

Councilor Bob Lutz abused his position as an attorney and councilor to lie to help push through a 50 year sweetheart deal for a politically-connected contractor. If Lutz cannot tell the truth, he needs to resign from the Council. After Monday, he certainly has no moral authority left to represent his constituents.

Tuesday, November 16, 2010

Next Up on Council President Vaughn's Agenda - Creating a Monopoly Contract for Marion County Wrecker Services

Little noticed last night was the introduction of Resolution 298, 2010. Authored by Council President Ryan Vaughn, the resolution has a digest that reads:
DIGEST: amends the Code to unify franchise zone tow contracts and abandoned vehicle tow contracts for efficient removal, storage and disposal of impounded or abandoned vehicles under the authority of the department of code enforcement, and further to provide authority for employees of the department of code enforcement to direct the impoundment of vehicles declared a public nuisance.
The current situation has the City divided into zones and towing companies that want a contract in that zone engage in a bidding process.

Vaughn seeks to change that. Instead of city business spread out among several towing companies, Vaughn wants a "Franchise Wrecker Service" to be awarded an exclusive contract to tow and store vehicles on behalf of the City or anyone who contracts with the city. The administration, through its Director of Code Enforcement (with input from the Director of Public Safety and the IMPD Chief) would have the right to award the exclusive contract. The contract will be based on specifications provided by the Department of Code Enforcement in a request for proposal, request for invitation to bid or request to quote. See 611-206.

Pursuant to Vaughn's proposal, all impounded or abandoned vehicles identified by the City or City contractor would have to be towed by the Franchise Wrecker Service and stored on that company's lot. The proposal explicitly prohibits those vehicles from being stored on lots owned by the City or County. 611-205(a). When claiming a vehicle, the owner gets charged a towing fee and a per-day storage fee as provided in the contract entered into between the city and franchise wrecker. 611-205(b). There is no limit in Vaughn's proposal on how much these towing and storage fees will be.

Vaughn's resolution expands the definition of impoundment to include the removal (by the city or a city contractor) of vehicles from private property. 611-202. Of course the Franchise Wrecker Service is the company which gets paid the towing and storage fees.

Almost certainly Vaughn and city leaders have in mind which wrecker company they want to steer this lucrative exclusive contract to. The contract may turn out to be a long-term one, providing for tens of millions of dollars in an upfront payment for a contract that might stretch over decades. That is all in keeping with the Mayor Ballard's ACS parking contract approach of mortgaging the future for a stack of re-election cash and making a politically-connected company wealthy.

Abdul Tweets Rumor About Melina Kennedy

One of Attorney Abdul's tweets about the ACS parking deal voted on by the Indianapolis City-County Council last night:
Apparently Melina Kennedy was calling the black D's telling them to vote no and they'd just pass it when she became Mayor. Nice!
Really? So let me get this straight. Kennedy was calling black Democrats to tell them to vote against a highly unpopular proposal (70% of the people opposed it in a poll), so she can as Mayor push it through and take the political hit instead of Ballard? Yeah, that makes sense.

Price Tag for North of South Project Increases from $86 Million to $98 Million

Perhaps distracted by the parking contract debate, it appears the media missed another story. Yesterday Proposal No. 292, 2010 was introduced by Republican Councilor Jeff Cardwell for the City to take out $98 million in bonds to fund the North of South (No-So) project. This is an increase from the original $86 million dollar the administration of Indianapolis Mayor Greg Ballard agreed to finance when a developer, Buckingham Companies, could not get a loan when every private lender Buckingham approached viewed the project for retail, apartments, and condos on the near southside near the Lilly complex as too risky.

So the City has no problem issuing $98 million in bonds to support the No-So project while at the same time City officials say it is too risky to borrow $6 million to buy and install parking meters? Who are they kidding?

By the way, Tom John, Marion County Republican Chairman, is listed as the lobbyist for Buckingham Companies, specifically for the purpose of lobbying the Mayor's Office.

That Public Opinion Poll on 50 Year ACS Parking Deal; What Will Be the Political Fallout to Council Republicans?

On a 15-14 vote last night, the Indianapolis City-County Council passed the highly unpopular 50 year contract with ACS to modernize the City's parking. As a result of the deal, ACS, a client of Barnes & Thornburg and the Mayor's attorney, Joe Loftus, stands to make as much as $1 billion dollars. During the debate last night, Council President and Barnes & Thornburg attorney, Ryan Vaughn, refused to give up presiding over the meeting and immersed himself deeply in defending the sweetheart deal for his law firm's client.

Like the agreement to give $10 million of taxpayer money to the Indiana Pacers, the public was outraged over this deal. Yet, despite political warning signs, Vaughn and the administration continued to push the highly questionable proposal. In the end, only one Republican councilor, Christine Scales, was willing to stand up and say it wasn't a good deal for the public.

What are the political ramifications of the vote? Over at Indianapolis Times, blogger Terry Burns published the results of a poll showing that 70% of the people opposed the deal, while only 20% supported it. Opposition to the proposal cuts across all demographic groups and was unpopular even in heavily Republican areas, like Franklin Township and Perry Township, where 71% of the residents were opposed to the measure. Republicans were the most supportive of the measure, but even Republicans opposed the plan by a 52% to 33% margin. Fully 23 of 23 subgroups in the poll opposed the ACS deal.

I have to wonder where this polling information came from. A line is redacted from the bottom of the document. Other pages of the document are not included, probably because they have identifying information on them. Unless I'm to believe the document was simply created out of thin air, which I don't believe, I have to wonder who was doing polling and then decided not to release the result.

The news media often polls. Obviously if the news media did this one it would have been released. So they're scratched from my list of suspects. That only leaves two suspects left: the Democrats and the Republicans. Democrats are a possible suspect, but it doesn't really explain why the poll wasn't shared until the day of the vote.

Burns in one line suggests where the poll came from:
The poll, which was conducted last month among more than 400 county voters, was given to the Indianapolis Times by a former supporter of Ballard's ill-conceived parking meter deal.

Translation: The poll was done by the Ballard people and leaked to the Indianapolis Times. Undoubtedly part of the deal for publicizing the poll was that the source information be redacted and that Burns not reveal the source. That's typical media practice when you're protecting a source who has agreed to provide confidential information.

Why wasn't the poll made public? The obvious answer lies in the results. Supporters of the deal did not want Council Republicans to know how incredibly unpopular their vote would be. I have no doubt that Republicans like Council President Ryan Vaughn, Mayoral advisor and ACS lobbyist Joe Loftus, and Marion County Republican Chairman Tom John, were well aware of this polling information. They were more than willing to let Council Republicans go off the political cliff in order to help a politically-connected company make a billion dollars off taxpayers. As a reminder, Tom John was one of the Ice Miller attorneys that drafted the contract, netting the firm $500,000 of our tax dollars.

Back to the 70% to 20% poll result. The 50 year deal is unlikely to be a voting issue for that 20% who support that deal. That 70% though is plenty ticked off and they are unlikely to forget come election time. Certainly the Democrats won't hesitate to remind voters of Council Republicans' vote on this issue as well as the Pacer vote and other unpopular measures.

The way Council Republicans are proceeding reminds me so much of 2007 when Mayor Peterson and Council Democrats decided public opinion simply did not matter and there would be no political consequences whatsoever for pursuing unpopular measures. The Democrats were taught a lesson in 2007 about the folly of ignoring the wishes of the public. Is there any doubt that Mayor Ballard and Council Republicans will be bounced from power in 2011 because of their own arrogance and their decision to set aside the wishes of the public in order to make political insiders wealthy at the expense of taxpayers?

Monday, November 15, 2010

Council President Ryan Vaughn and Barnes & Thornburg Influence Peddling

Today the Indianapolis Star finally acknowledged ACS's connections to the Ballard administration and Council President Ryan Vaughn:
ACS is a powerful player in government contracting and already plays a role in Indiana's welfare-services modernization. And the mayor's office and ACS have shared a lobbyist at Indianapolis law firm Barnes & Thornburg. Council President Ryan Vaughn works at the firm as an associate but does not perform any work for ACS, he says.

Such connections make some critics uncomfortable, even if ACS, the law firm and the mayor's staff insist that the lobbyist, Joe Loftus, didn't participate in parking-meter

Vaughn, who has faced pressure to recuse himself, plans to vote in favor because he views the deal as important for his Broad Ripple district.

He acknowledges an appearance of a conflict of interest.

"But it's one that I've gone to great lengths to explain," he said.

He doesn't view his firm's association with ACS as violating the council's ethics rules. Those require recusal if a council member or a business in which he or she has an interest would directly benefit by more than $1,000.
It is interesting to me that the Star is always railing about about legislators taking gifts and the state revolving door, but has steadfastly ignored local conflicts of interest and the local revolving door between city government and contractors. The Star seems willing to simply accept whatever explanation Barnes & Thornburg attorneys Joe Loftus and Ryan Vaughn gives them about why they do not have conflicts. I should mention here that the Indianapolis Star is represented by, you guessed it, Barnes & Thornburg.

Let's though examine Ryan Vaughn's claim. Vaughn claims he doesn't have a conflict because he doesn't have an ownership position in Barnes & Thornburg and thus wouldn't directly receive any profits from ACS legal fees. The underlying suggestion is that it is a black and white rule that allows Vaughn to support deals from the President's seat that helps his law firm's clients.

Vaughn is a young attorney whose only legal experience is time spent as a deputy prosecutor. Would Barnes & Thornburg normally have an interest in hiring that person to a six figure lobbyist position? Absolutely not.

But Vaughn is not an ordinary attorney. He is seen as someone who was moving up on the City-County Council. Now that is something Barnes & Thornburg is interested in. The law firm is all about selling political influence and the fact that a member of the firm is a key player on the Council was something that could be sold to clients. Then when Vaughn was promoted to President, his value to potential B&T clients increased greatly. Barnes & Thornburg can sell, either directly or indirectly, to clients that the firm has the proverbial ace in the hole by employing the President of the Council, someone who is in a position to push through measures favorable to a B&T client, while claiming not to be conflicted because he's "only" an associate at the firm.

Indeed that is exactly what's going on in this case. Vaughn is no passive vote for the ACS parking measure as suggested in the Star article. He is outspoken at meetings, relentlessly pushing the ACS deal. Behind the scenes he has twisted arms and issued threats to Republicans who express reluctance in voting for his firm's client, ACS. Vaughn removed Republican Councilor Christine Scales from a committee when she refused to vote to agree to vote for the ACS 50 year, no bid parking deal, something the Star did not find newsworthy.

I should also point out that records of the Indiana Department of Administration actually identified Vaughn himself specifically as an ACS lobbyist - before Vaughn had those records, which he claimed were a mistake, changed.

Yet Vaughn would like us to overlook his refusal to recuse himself in this case because he doesn't have an equity stake in Barnes & Thornburg and well it is a really important matter to ACS, er, I mean his constituents. Does anyone really believe that Vaughn would be free to vote against the ACS contract given his position at Barnes & Thornburg? Are we supposed to believe that B&T pardner Joe Loftus, who also represents the City, lobbies for ACS, and is infamous for behind-closed-door threats to councilors who oppose him, would not have Vaughn fired if he aggressively came out opposing the ACS parking deal? B&T makes millions off of representing ACS. You think B&T is going to tolerate Vaughn costing a B&T client a billion dollar deal?

Unless one can say that Vaughn is totally free to vote against the ACS deal, without employment repercussions, then he has a conflict and needs to recuse himself. Period.

The FBI and our new prosecutor-elect though need to look closer at local pay to play politics scene, only part of which involves influence peddling and Michael Ryan Vaughn. It's time to stop tolerating the corruption of Indianapolis politics by those who, like Vaughn and Loftus, have no problem selling out the public's interest if it benefits their clients.

Sunday, November 14, 2010

Company Towed Veterans' Vehicles In Violation of Indiana Law

WISH-TV last week reported that a group of veterans had their car towed from a private lot last during the Veteran's Day parade. The veterans had apparently parked there in previous years without being towed. Thursday though they arrived back from the parade finding their cars towed. The towing company hit the veterans up for $235 to get apiece to get their cars back.

According to the report:
The towing company says they were well within their legal right. 24-Hour News 8 crews confirmed there are "Permit Only Parking" signs all over the lot on Illinois and St. Clair streets.

However, the charge to get their cars back is $235. The city said the towing company is within their rights to charge that much.


"A-Mass Towing intends no disrespect to any veteran or their families, but we have an obligation to monitor and protect the private property of our clients,” the statement said.

Kate Johnson with the city’s department of code enforcement says she's heard the concerns about towing companies. She says the city does not regulate how much a private towing company can charge.

"There are (currently) 24 businesses that are licensed, and we are certainly open to exploring whether or not a towing company maybe require that we regulate them via a license," Johnson said.

It is true that there is no law charging how much towing companies can charge, at least that I can find. That's a problem because this is not a situation where someone with a towed vehicle can shop around for the best price. They're at the mercy of the towing company to get their car back.

However, it was illegal for A-Mass Towing to tow those vehicles in the first place.

Indiana law, in particular, IC 9-22-1-15, requires a vehicle that is left on private property to be tagged with a notice that it is going to be towed if it is not removed within 24 hours. IC 9-22-1-16 then allows for the removal of the vehicle by the private property owner if the owner has not removed after 24 hours. IC 9-22-1-18 lets a police officer remove the vehicle after 48 hours.

Indiana law provides an exception to the 24 hour rule if there is an emergency or the vehicle is interfering with business operations. Obviously that doesn't apply if a store is closed.

Here's another thing people don't know. The posting of a no parking/towing sign has no legal effect whatsoever. There is no exception to the 24 hour rule for property owners who post signs.

I had the same thing happen to me. When I went to Traffic Court last year, I found the tiny lot filled to capacity. I parked at a Dairy Queen just down the road, which wasn't open and has a huge lot. An hour or so later I came back to find my car towed. I sued Dairy Queen and the towing company in small claims court and got my $200 towing bill back because it wasn't tagged for 24 hours.

Now I'm not saying the law is necessarily fair or right for private property owner. I could see the situation where people are constantly having their private lot used for parking on the weekend and that could present a problem. But those who claim the veterans should know the rules are guilty themselves of not knowing the rules.

Nonetheless, I don't have a lot of sympathy for these towing companies. The way towing companies "monitor" private lots to jump at the chance to tow vehicles and then charge folks an arm and a leg to get them back is a big racket that needs to be stopped.

Saturday, November 13, 2010

Council Republican Proposes Extending Indianapolis' Vehicle Excise and Wheel Taxes

Indianapolis' wheel tax and vehicle excise tax were set to sunset on January 1, 2011. Late last week, Council Vice-President Marilyn Pfisterer, a Republican who represents the west side of Indianapolis, introduced Resolution 294, 2010 to extend those taxes for eight more years, until 2019.

Is there anyone who thinks that these tax extensions are not being pushed by Indianapolis Mayor Greg Ballard's administration? Ballard has never met a tax or fee he didn't want to raise...or in this case, continue.

Here's what's going to happen folks. Democrats are going to support the elimination of these taxes, while Ballard puts Republican Councilors in a position of voting lock-step for more taxes going into an election year. Is Ballard intentionally trying to lose the election?

Prediction: Republican-Controlled General Assenbly Moves to Eliminate Indianapolis At-Large Council Districts

In 2007, Republicans won 3 of the 4 at-large seats on the Indianapolis City-County Council. Republican Ed Coleman later switched to the Libertarian Party.

Given the strong base vote Democrats continue to demonstrate in Marion County, most analysts believe the 2007 result was an aberration and the Democrats are poised to capture all four at-large seats next election. If that happens, the Republicans will have to win 15 of the 25 council districts to retain control of the majority.

The odds of that are extremely long. What would improve Republican prospects for retaining control is if the at-large districts were eliminated and all 29 councilors were elected from districts. Then with a strong gerrymander, Republicans would have a shot at retaining control.

Indiana's law (IC 3-11-1.5-32) currently prohibits the Council from redistricting after November 8th in a year preceding a municipal election. So Republicans councilors cannot redistrict going into the 2011 election. However, if the General Assembly were to change the Council from 25 districts to 29, eliminating the at-large districts, the legislature would also have to change the law to allow the Republican controlled council to redistrict for 2011 election.

Could this be done? Absolutely. Republicans have strong majorities in both the Indiana House and Senate. The only way the Democrats can stop the change is a walk-out in the Indiana House to deny the Republicans the quorum they need to pass the bill. It's not at all clear that Democrats in the House though would want to do this and expose themselves to the wrath of the public. Most House members do not live in Marion County and thus may not care about what happens to the Indianapolis Council. Also, the Democrats would probably win a majority with a 29 district Council anyway, regardless of how a Republican-controlled Council draws the map.

Will this be attempted? Absolutely. Will it be successful. I'm not sure.

Friday, November 12, 2010

Reason's Unreasonable Article on Privatization; How Privatization Was Derailed by Political Contributions, the Revolving Door and Long Term Contracts

I was recently sent a link to a Reason Magazine article written by Leonard Gilroy in support of Indianapolis' parking privatization plan. Now normally I'm a big fan of Reason which trends libertarians, small government. In fact, I was recently quoted in Reason on the Indiana's civil forfeiture debacle.

Reading the article reminded me of myself as a young man, idealistic about how government could operate better. In the early 1990s, I was one of the first to purchase the book "Reinventing Government" the bible on privatization. In the book authors David Osborne and Ted Gaebler make the compelling case for government privatizing some services.

I took another look at Reinventing Government, the privatization bible, this morning. The authors insist that privatization has to be about putting market competition into the delivery of services. While the authors don't warn of long, multi-generational contracts - I'm not sure they saw those coming down the road - they do warn about contracting out to a sole vendor and that on any large project it's important to have both a majority and minority (not "minority" interms of race or ethnicity) so that government can switch to the minority vendor if the main vendor is not providing services as needed.

Osborn and Gaebler though warn that privatization is not always the answer:
Conservatives have long argued that governments should turn over many of their functions to the private sector --by abandoning some, selling others, and contracting with private firms to handle others. Obviously this makes sense, in some instances. Privatization is one arrow in government's quiver. But just as obviously, privatization is not the solution. Those who advocate it on ideological grounds --because they believe business is always superior to government are selling the American people snake oil.

We don't need to have government employees picking up trash. Privatization done correctly is government contracting out to pick up your trash. If the contractor doesn't do a good job, you switch to another company. That's what privatization is all about. Market competition.

Imagine though if instead of short term deals, the City of Indianapolis decided to bid out trash service for the next 50 years. The winning company, XYZ, provides an upfront payment of several million dollars for the deal. Where's the competition? Well according to Gilory, who doesn't even blink defending the ACS contract lasting 50 years, something I doubt Osborne and Gaebler would have ever supported, that would be perfectly okay. Why? Because to Gilroy, XYZ would want to do really good job because the company would want to win other long-term deals.

In Gilroy's analysis of the ACS parking deal he makes that exact argument, suggesting that the company will want to do a really good job on Indianapolis' parking so that it wins other long term contracts from other cities. The market competition to retain the privatization contract advocated by Osborne and Gaebler as the check government holds goes out the window in Gilroy's analysis. He thinks it is not terribly important that Indianapolis can't give ACS the boot because, hey, if Indy is unhappy with how parking is run, other cities will take notice and steer their business elsewhere.

I empathize with Gilroy's pro-privatization piece because I, as a disciple of privatization, would have written a similar piece..in the 1990s. What I did not see coming down the road then were the long term contracts, the political contributions from contractors, and revolving door between contractors and government. All have deeply corrupted the very legitimate competitive marketplace envisioned by Osborne and Gaebler in writing Reinventing Government.

I won't do a blow by blow refutation of his defense of the 50 year ACS deal. Frankly, I'm tired of writing articles tearing apart the flaws contained in the ACS contract, many of which Gilroy simply ignores. But rather I write to challenge Gilroy's idealistic, romanticized version of privatization that is far from the reality of how privatization has played out in practice.

In my work as an attorney, I have seen first hand a case study on how privatization has worked out in the jails here in Marion County. It's been a disaster. CCA that runs Jail #2 has a 10 year contract. They have contributed a lot of money to Sheriff Anderson who is supposed to oversee their contract. CCA is known as the McDonald's of the corrections business.

CCA has an an intake room there where they keep 100-150 people awaiting assignments, which sometimes take 5-7 days. One toilet, no running water.. It's called the "Katrina Room." The CCA doctor there cut out a round of medication so the company could save money hiring staff....which of course increase CCA's bottom line. If you were supposed to get your medicine three times a day, well you're out of luck. If your medicine is too expensive, CCA just give you something cheaper or no medicine at all...again so that the private company can make more money. People who have medical needs often go untreated. CA wants to ship them out so someone else can pay for them. People die and get injured at Jail #2 for not get proper medical care all the time.

At Jail #2, inmates burn holes in the windows and work with people on the ground to bring drugs and other prohibited stuff into the jail.Former employees at Jail #2 report that drug use and sex by employees with inmates is common. Attacks by inmates against other inmates and staff happen frequently. Many cameras and radios at the facility do not work. CCA requires unarmed, untrained nurses to escort inmates throughout the facility. Jail #2 is a hostage situation waiting to happen.

In Gilroy's world, Sheriff Anderson would be enforcing the contract and CCA would be losing other contracts because of their poor performance. But that's not reality. In the real world, CCA contributes a lot of money to politicians, including the person who is supposed to be overseeing the Jail #2 contract, Sheriff Anderson. In seven years, Sheriff Anderson has never done the first investigation into a single incident that has happened at Jail #2, including wrongful deaths alleged to be caused by medical problems. Sheriff Anderson takes the position that once he contracts out a jail responsibility he has no responsibility for it any more.

CCA continues to get other contracts. In Gilroy's world that would have to be because CCA is doing a good job. I assure you CCA's failures are renown, and are all across the country. CCA gets contracts because the company hires powerful politicians and spreads money around.

Of course, CCA Jail #2 can point to the ACA certification that it's doing a job. This is yet another racket. CCA pays ACA, a pro-jail privatization group, a small fortune to get the seal of approval on the prisons and jails the company runs all across the United States. In the two supposed audits it did of Marion County Jail #2 in 2005 and 2008, the ACA report indicated that auditors talked to hundreds of employees and inmates. I too have talked to hundreds of former CCA employees and inmates. None of them have ever been interviewed by an ACA auditor. ACA brags how its audits can be used to convince public officials the private contractor is doing a good job and can be used in lawsuits.

Jail #2 is privatized top to bottom. Jail #1 is run by the Sheriff's Department, except the medical which is run by a private company. The medical department until recently was run by CMS. Everyone who has had brushes with the Marion County jails, including the inmates and employees, say that the difference between how well Jail #2 and #1 is run is like night and day. The Sheriff's Department does an outstanding job running Jail #1...except for the medical which is privatized. Again that's another situation where you have contractor whose work is not being overseen.

The fact is political contributions and the revolving door have corrupted the privatization model that Osborne and Gaebler so eloquently advocated in their 1991 book, Reinventing Government. Now with long term contracts, you have even more undermining of the competitive model of privatization. It is human nature that today's generation of political leaders will gladly mortgage the future with a multi-generation contract in return for upfront cash...and reelection...today.

I understand Gilroy's idealism. I had that same idealism 15 years. But time has taught me that the best ideas about government can get derailed when put into practice. Political contributions, the revolving door and long-term contracts have done exactly that to privatization.