Monday, August 24, 2009
Weasle Words and Forked Tounges
O.K. Let's put aside that the Tribe Leaders came to the BOS back in April, and stated that the Town would not have to refund any "past amounts." Review the tape. Let's also put aside that the Town asked for the letter confirmation on July 16, and only received a response more than one month later.
The focus should be on what precisely has been said by the Tribal leaders in their weasley three paragrapgh letter--which should simply have said: "Under no circumstances shall the Town of Middleborough be required to refund any sums of money paid to it pursuant to Section 5 of the IGA and in the nature of pre-opening mitigation planning monies." Pretty simple statement and no loop holes. But what did we actually get after a four month, inexcusable delay by the Tribe?
Regarding Past and Proposed Projects
Paragraph 1 of the letter impliedly acknowledges that we have sent the Tribe a list of projects done and projects planned (which we did in order to get their blessing). The Tribe DOES NOT however do anything to confirm that those projects are actually what they believe complies with the terms of the IGA concerning the spending of the Section 5 monies. GAPING HOLE!!!!! That was the point of sending them the latter with the "accounting" of projects--and as we will see in a minute, it is very important to the Tribe that the money be spent "according to the terms of the Intergovernmental Agreement."
The Three NEW Conditions to NON-Refundability
Paragraph 2 of the Tribe's letter is the most weaseley of them all. Let's break down the relevant portions. Remember, the simple answer that Cedric Cromwell previously gave was that the "past monies" will not need to be refunded, and he placed NO qualifications on that statement. Now, after the lawyers got done with him, he says:
"As I indicated when I spoke to the Selectmen recently, the Tribe has no intention of seeking the return of monies provided by the Tribe that were spent by the Town according to the terms of the Intergovernmental Agreement."
Let's flip this over and look at its underbelly. The TRIBE (not the investors) will not seek the return of the monies if:
1. Those monies were provided BY THE TRIBE to the Town;
2. The subject monies were SPENT; AND
3. The spending of the monies was ACCORDING TO THE TERMS OF THE INTERGOVERNMENTAL AGREEMENT.
These are three cumulative conditions to non-refundability.
1. Money Provided by the TRIBE to the Town
Not ALL the checks received have come from the Tribe. This is important, since recently it was said that the last check came directly from the investors--not the Tribe. If true, then that payment does not meet qualification number one ("provided by the Tribe"), and is certainly within the realm of being demanded back. The BOS should send that check back to the investors, and tell the investors to give the Tribe the check and have the Tribe reissue a check to the Town. On the other hand, the investors could simply confirm in writing to the Town the non-refundability of such monies.
2. Money Must be "Spent"
All unspent money would be refundable to the Tribe, since those unspent funds do not meet the condition of "spent by the Town." So anyone who believes that there will be any windfall is wrong. Also, spent implies a cash basis accounting, and any long term liabilities that are accrued would be eaten by the Town, if all unspent monies are returned before all long term liabilities which have accrued have come due.
3. Spending Must Be According to the IGA
Finally, the biggest part of this farce called a confirmation of non-refundability, is that the Tribe has said refundability will depend on whether the spending is "according to the terms of the IGA." This leaves open the argument that if the BOS spends it in a way that the Tribe can claim violates the IGA, they can demand the money back.
Someone on the BOS, pleeeeese read the IGA. Please look at the definition of "the Project." Pleeese wrap your minds around what the IGA says, and not what you think it says or the past practice. Limit the spending to the narrow definition, which DOES NOT include paying the OECD department head for marketing issues, or doing studies at Everett Square, or studying a police station at St. Luke's. It has to do with development and improvement of "the Project Site" -- another defined term in the IGA.
The BOS asked the Tribe to confirm the proposed projects in writing, and they refused to do so in their most recent letter. The BOS either needs to not spend the money until there is a written confirmation that the proposed and past projects ARE "according to the terms of the IGA" or the definition of "the Project" needs to be renegotiated to include those projects that are being contemplated.
Conclusions to Draw
What you have is a Tribal leadership that has reneged on its agreement with the investors, already violated the terms of the IGA on several occasions, and now has used lawyers to draft a three paragraph letter that says nothing, and avoids saying that "Under no circumstances shall the Town of Middleborough be required to refund any sums of money paid to it pursuant to Section 5 of the IGA and in the nature of pre-opening mitigation planning monies."
Middleborough cannot afford any further mistakes at this juncture, as a mistake here could bankrupt the Town.
Just my opinion.
Posted by AMB at 12:06 PM