The level of ignorance of the IGA displayed by Mr. Perkins is indisputable in my opinion, since he apparently has not actually read and understood the deal in which he inaccurately claims to have been a chief negotiator. (As he knows, he actually didn't even see the inside of the conference room where the negotiations I was involved in took place--were there others Wayne?) In any event, the Emptyprise reports: "Former Selectman Wayne Perkins, who was a chief negotiator in the agreement, was at this morning’s meeting as well. He told the Enterprise afterwards that he doesn’t think the town needs such a guarantee, since it is already covered in the current agreement."
The only part of the quote I agree with is that "...he doesn't think...." Refundability of the monies is NOT covered by the IGA, and Wayne, please educate us and simply comment on this blog with the Section of the IGA that does cover refundability of the planning monies. Should be simple, since "it is already covered in the current agreement."
Put aside the fact that the IGA actually does not cover the refundability issue. Why wouldn't you cover the Town's interests WITHOUT ANY QUESTION by demanding -- not a guarantee -- but a written clarification, amendment, or whatever you want to call it, signed by the Chairman of the Tribe. This is how the IGA requires a verbal confirmation to be legally enforcable. Does Wayne like to live dangerously--at the Town's risk? If it is already covered by the agreement--which it is not--why would the Tribe even resist giving such a signed document--unless they don't have the same opinion. Aren't we all neighbors and friends here? Simple request, it need be no longer than two sentences and signed by the Tribe. If it is covered, no harm no foul. If it not covered, we get what we have been promised in writing and in a legally enforceable form.
Wayne's comment is simply foolish and foolhardy, and is consistent with the man that claimed "Never in my wildest dreams did I ever believe the Tribe would buy the land." After the Tribe sues in equity for the monies back, it will be a great consolation to know from Wayne that "Never in my wildest dreams did I ever think the Tribe would want the money back."
Stop thinking of the Tribe for once and please start covering the Town's collective and very exposed ass--whether you think it needs it or not!
Here is the section:
"Within ninety (90) days of executing this Agreement, the Tribe shall pay
annually, using the Fiscal Year of July 1 to June 30, to the Town the sum of $250,000 for the purpose of mitigating the Town's staff and outside consulting costs for supporting the planning, development, and coordination of the Project, excluding costs relating to offsite permit issuance by the Town. The Town shall provide written certification to the Tribe that the Pre-opening Mitigation Payments in this sub-section are utilized for these purposes and, if requested, copies of detailed invoices of outside consultants. The payments shall continue annually thereafter until the date that Annual Impact Payments described in Section 5.C commence. The Tribe's payment shall be prorated for the first and last years."
I don't see refundability addressed at all. That leaves it an open question, and how attorneys love to litigate open questions.
12 comments:
I got some chuckles out this post.
I'll never forget being at the Whitten meeting. Two hundred pissed off residents actually laughed when Wayne said that "wildest dream" thing - which of course came right after telling us that the town had discussed that very piece of land with the tribe.
Does the fact that the IGA doesn't mention refunding of the money also mean they can't ask for it back? I guess I'm trying to understand thier legal right to ask for a return of the money. Has the town spent the money? Can we demonstrate that the money was used for casino planning?
I know this is bad for us, but I'm trying to determine how bad.
The concern I have is this:
The Tribe is paying money to the Town with the expectation of having a casino at theend of the day. They are paying planning monies based on that expectation of getting the benefit of their bargain.
If the casino doesn'tcome, I am afraid of the argument that based on a mistake of law (the Carcieri holding that SOI cannot take land into trust) they should be returned the monies paid under that mistake of law. They might have a quantum meruit claim -- an equity claim -- for the return of the funds. Would I rather have their side of the argument or ours? I would rather have ours...but I would rather just not have the potential litigation issue at all and have a written agreement signed by the Tribe that ends the issue and any risk for the Town conclusively and in a manner that is enforcable. The BOS have left this Town out on a limb on many issues by not tying off issues. We should demand that the Tribe and the Town tie of this issue and end any question of risk. I don't think this is unreasonable in light of our past experiences with the Tribe.
If the tribe signs some sort of aggreement that they will not ask for the money back, isn't that the same as them admitting the casino/resort plan is dead?
As long as they are still of the belief the project is going forward, why would they ever submit to such an agreement?
I think the town does need to protect itself but looking at it from the tribe's point of view, I would be reluctant to admit defeat at this juncture.
Let the tribe call an end to their persuit of a casino in Middleboro and let the payments stop.
The money paid to the town is for the purpose of planning for the casino and as long as the tribe continues down that path the town has every right to those funds. If the town continued to receive payments after an official announcement the tribe was abandoning it efforts, then I could see the tribe wanting that money back since planning would no longer be required by the town for a casino at that time.
Hey Adam,
I don't know what you mean when you say a mistake in the law. Do you mean that SCOTUS made a mistake, or do you mean that the law was a mistake to start with? If you think SCOTUS made a mistake, I'd like to hear your opinion as to why you think so.
Thank you.
By mistake of law I do not mean that SCOTUS was wrong. Mistake of law means that when the parties entered the agreement that they both believed that the law permitted all those things anticipated by the agreement. Here, when SCOTUS ruled, it said the law was not what both parties anticipated--i.e., both thought that the SOI had the legal right to place the land into trust, when they don't. That mistake of law by the parties allows the parties an argument that the IGA cannot be completed based on a mistake of law, and that the contract should be unravelled and each party put back to the position they started from economically.
Sorry for the long and amittedly simplified explanation. You asked for the time and I told you how to build a clock.
REDACTED PRIOR COMMENT:
I am so sick and tired of people like Wayne and *****, always thinking that they have the answers about the things going on in town. If they do in fact have more answers than the average Joe citizen in Midd., than could they be, in fact, being fed inside information from the three members of M-F that sit of the BOS currently and that they are so closely associated with?
Will the tribe be coming up to Midd. this year to have another pow wow and if so will the entire town be invited? Or have they already been here? Wasn't it about this time last year? Will those three members be going to the pow wow as members of M-F or the BOS? Didn't they go last year?
Isn't it in their oath that the BOS are not suppose to be sharing confidential information or sharing info that is not privy to others? If it is not, than it should be.
Why is Wayne the one answering Alice E. instead of the lawyer that actually sat in the negotiations?
Why aren't the three M-F recusing themselves from any tribal matters?
Don't they party with them? don't they get inside info from one M-F individual married to a tribal member?
June 26, 2009 5:05 PM
It's not easy dealing with comments.
People want to remain anonymous for obvious reasons yet still have valid points to make - even if the point is simply anger and frustration.
Problem is, the minute you as the blog owner publishes it, you get attacked and held to a different standard than "real" newspapers. The article comments in papers like the Globe and others are ten times worse than anything that's ever been posted on my blog. Yet the minute you use the term dipsh*t or wazoo you get some knucklehead trying to make bad press for you.
I think the tagline for Wil Wheaton's blog sums up nicely how I feel about people that attack bloggers for the comments that they choose to publish:
"Don't be a dick!"
I published the above comment so that I could say that Idisagree with it. I understand the concept, but I disagree with the liberal extension of it. Calling an entire Town yokels, dips**ts etc. only makes cuts that won't heal. In the throws of the casino debate I wrongly used braying mules out of my anger at the beating my family and I already were taking on the blogs. I was as wrong to do that as were those attacking me and my family on the blogs.
It is my right to speak, and I generally am a pretty abrasive writer when it comes to certain issues and certain people or Selectmen--but maybe when bloggers publish comments the "Don't be a dick" principle is equally appropriate--although I am sure that I have violated that rule on many occassions.
Thank you for the explanation, Adam. I now have a better understanding of "mistake of law". And I like what it means for us (the town) and for the opportunity it gives us to renegotiate the IGA. Of course, that's based on the tribes' claim that a bill will be passed to put the land into trust, or will allow them to be recognized under the IRA. At least, I think that's what they are waiting for? Please feel free to correct me. I don't like walking around with bad facts.
Here is a good thought about the $250,000.00 just received from the investors not the Tribe.
Graham works for the investors, does he not? Wasn't he fired by the Tribe? If so, does that mean that Graham is still very much in the picture reporting everything to Belmont, and M-F? If that is the case, than the three BOS's that sit on M-F should absolutely be recusing themselves from the voting of the approval of spending this $250,000.00.
What do most of the expenditures of the $250,000.00 being recommended by the Resort Advisory Committee have to do with the ancillary project paragraph of the IGA contract? The answer is nothing.
Let's look at the feasibility study of a privately owned old hospital that people want to see if it can be used as a medical facility. A feasibility study was done for an educational purpose and passed. The building has always been used as a medical facility. Why can't the owner of the building, if she really wants to sell it, pay for the feasibility study?
Is it really in the best interest of the town to pay for a new department to be formed when we can hardly pay for the old ones? That is what is being asked when it is being asked to pay for the economic and development department. They have always been their own entity through the grant process. They would apply for a grant and it would pay the salaries. This is not to be confused with the planning department that is part of the town's departments. Would the town then always have to pick up the salaries, benifits and give out pensions to these workers here on end?
Just a few things to think about.
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