Sunday, September 27, 2009

MAPS III — The Actual Vote

This article will be modified as MAPS 3 voting issues occur. The initial post was made on September 27, 2009; modified and completed on September 29, the 10:24 a.m. with various grammatical corrections after that. As expected, City Council voted about half an hour ago to submit MAPS 3 to a vote of the people on December 8, 2009. The only council member voting NOT to let the people vote on MAPS 3 was Ward 5 council member Brian Walters.


In another lengthy article, I tried as well as I was objectively able to present the pros and cons with regard to the on-the-table report of the Core To Shore Steering Committee to contribute to the discussion, and I'll not repeat the content of that article here. In a nutshell, that article presented the Steering Committee's late 2007 report for the purpose of understanding, discernment, and discussion at a time that, presumably, your and my input may have been a factor in shaping the final plan. And, in the MAPS 3 proposal, MAPS 3 is discussed as to it pragmatic content, again, without repetition here.

The focus of this article is/are procedural matters/decisions to be made by city council and by you and me, nothing more, nothing less, from this day forward. This article is not involved with your and my possible reasons for favoring or disfavoring MAPS 3 in the final vote. It is strictly related to procedure from this point forward until the vote is cast. The article contains and discusses the ballot and related documents which will be presented for our decision on December 8.

Council Vote   Background   Ballot
Ordinance   Advisory Board   Resolution   Conclusion

Note: I've OCR'ed the documents discussed discussed below (the Ballot, proposed Ordinance, and Resolution, and converted them to text. To read and/or print those documents, click here. Most are also set out below.


THE 1ST VOTE: CITY COUNCIL ON SEPTEMBER 29, 2009. The 1st version of this article was written two days before the September 29 council meeting, and the City Council has now decided that MAPS 3 will be submitted for public vote on December 8. Council members Gary Marrs (Ward 1), Pete White (Ward 4), Skip Kelley (Ward 7), Meg Salyer (Ward 6), Sam Bowman (Ward 2), Larry McAtee (Ward 3) and Patrick Ryan (Ward 8) and Mayor Cornett voted Aye. Only J. Brian Walters (Ward 5) voted Nay.

Council member Walters wasn't even willing to let the people make their own decision on MAPS 3. So, as promised two days ago, Brian Walters is bestowed the Doug Dawgz Anti-Democracy Award for 2009, hopefully the last time that such a non-prestigious award ever be made.

It is fair enough for one to conclude that MAPS 3 should not be passed. Each of us are entitled to form our own opinions about that and cast our votes accordingly. But, WHETHER you and I get to participate in a democratic vote is an entirely different matter. The voters should hold the trump card, not a council member who would want to prevent that from happening.

BACKGROUND. City Council voted "Yea" on September 29 to approve matters then pending to submit MAPS 3 items to a vote of the people on December 8. But it comes in a different form than MAPS 1 did and this section attempts to explain why.

Oklahoma City's learning curve may have come from a 1986 capital improvements initiative by Mayor Andy Coats. Mayor Coats had described Oklahoma City's situation in bleak terms, and we certainly know that the period was a dark time for Oklahoma City, at least at night if one was downtown. The city was even losing population for the first time within anyone's memory. His "Six To Fix" campaign was an attempt to do something about that — among other things, it would have created a domed stadium at the fairgrounds. "Six To Fix" involved multiple ballots, one per proposed project with each project being voted on separately.

The only happy watch parties on the night of June 17 were in the "vote no" camps. Incomplete returns in the June 18 Oklahoman reflected that only police and fire department elements had been approved and that the big ticket items were substantially defeated. For example, the stadium proposal was failing by a vote of 40,753 to 17,409.

With 1993's MAPS, Mayor Norick was determined to take a different tack. Instead of multiple ballots, there would be only one — up or down, all or none. More, it would be the most bold and ambitious tax proposal ever to be submitted to Oklahoma City voters (at least, as far as I'm aware). Steve Lackmeyer and Jack Money's OKC: 2nd Time Around brilliantly and thoroughly describes Mayor Ron Norick's approach and how it succeeded — symphony and arts supporters who wanted upgrades to the Civic Center Music Hall were in common cause and league with sports supporters who wanted a Bricktown Ballpark and Sports Arena, and so on. Each group wound up being a cheerleader for the other. That approach worked and MAPS 1 passed 54% to 46%.

While the present MAPS 3 proposal takes the same general approach, there are differences, some perhaps all arising out of legal necessity.

The Ballot. The first difference is in the ballot content itself. In his July 20, 2009, article at OkcCentral.com Steve Lackmeyer reported,
David Holt Reports on Structure of a MAPS 3 Ballot

Many people might forget that the original MAPS ballot – a list of items to be paid by the tax but with just a "yes for all" or "no for all" vote might be difficult to exactly duplicate today due to a court ruling that came out against such ballots a few years ago.

David Holt, assistant to Mayor Mick Cornett, reports the following regarding a potential MAPS 3 ballot:

"Legal interpretations of what an Oklahoma ballot should look like have evolved since the original MAPS vote in 1993. Should the Mayor and Council move forward with a MAPS 3 proposal, the process will certainly conform to the operative law, and the City's legal office will be exploring those issues as appropriate. It would be our intention to stay close to the basic model the voters have shown themselves to be comfortable with."
During a meeting I had on September 28 with David Holt, Mayor Cornett's Chief of Staff (which will be more particularly described in this related article on the actual Maps 3 Proposal), he was able to give me some leads pertaining to the legal issue alluded to above. I have no intention of making an in-depth study of the legal issues involved here — in the 1st place, I have no expertise in this area of the law, and, in the 2nd, legal issues are not what this article is about, even if I did. But I did peruse the case of Fent v. State ex Rel. Oklahoma Capitol Improvement Authority, a 2009 Oklahoma Supreme Court Decision, as well as some of the references mentioned in that case, and I am more than reasonably satisfied that a ballot like that contained in original MAPS would not likely withstand legal challenge today — at the least, I take and accept that conclusion as a given.

The nub seems to be, at least at the state (Oklahoma Legislature or initiative referendum) level, an "all or none" approach is not OK. That general method is referred to as "logrolling" in the cases. Paragraph 14 of the above cited Fent case reads as follows:
¶14 Art. 5, §57 of the Oklahoma Constitution provides: "Every act of the Legislature shall express but one subject, which shall be clearly expressed in its title. . . ." This provision is commonly known as the "single subject rule." The purposes of the single subject rule are: 1) to ensure that the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation; and 2) to prevent "logrolling," the practice of assuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted. The single subject rule applies to legislative acts promulgated through the initiative process, as well as those promulgated through the Legislature.
For much more about "logrolling," see the 1993 Oklahoma Supreme Court decision in Campbell v. White, beginning at ¶7. Although the just cited cases pertain, strictly speaking, to state legislation and initiative petition measures, I nonetheless take it as a given — but without researching the matter further and knowing with certainty — that the same types of rules pertain to revenue measures of political subdivisions, e.g., cities such as Oklahoma City, since it would be senseless for one set of rules to apply to state-level revenue measures and a different set of rules to apply to political subdivisions, e.g., cities such as Oklahoma City. In my very shallow research, I did see that Oklahoma Constitution, Article 10, §19, provides that
Every act enacted by the Legislature, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.
As a practical matter, the bottom line is that the city would likely have followed the original MAPS model if it thought that it could do so, given that model's history of success in our city.

So, while the 1993 MAPS ballot was long and detailed, each item being particularly identified, the 2009 MAPS 3 ballot reads quite differently.

Below is a hard-to-read version of the 1993 MAPS ballot, followed by the ballot MAPS 3. The image below is from the December 13, 1993, Oklahoman. Click on the graphic for a more readable version.

As you can see, the original MAPS ballot was quite long and itemized each project and contained these words of limitation and oversight:
* * * providing that said additional limited-term excise tax may be expended only for the following limited purposes (the "main projects"):
* * *
* * * providing for a citizens oversight board to review and make recommendations regarding expenditures of tax monies collected under Ordinance No. 20,045; * * *
Compare the 1993 ballot with that which will be utilized in the 2009 election, which is much more general in its content:


The Proposed Ordinance. The above ballot is only a snapshot, a brief summary, of the much lengthier proposed ordinance No. 23,942.

The ballot reads, in part,
The Ordinance [No. 23,942] defines the term "City capital improvement." The Ordinance states expenditures to provide City capital improvements may include expenditures for any or all items(s), article(s), cost(s), or expense(s) related in any way to providing a City capital improvement. The Ordinance creates the "Oklahoma City Capital Improvements Sales Tax Fund."
Go to the actual proposed ordinance and see that "City capital improvement" receives considerable attention:
§ 52-23.4. Excise tax on gross receipts for funding City capital improvements.
* * *
     (c)  For purposes of this section, the, term "City capital improvement" shall mean without limitation any one or more of the following:

           (1) The acquisition of real or personal properties or any interests therein or appurtenances thereto; and/or

           (2) The construction, reconstruction, demolition, installation, assembly, renovation, repairing, remodeling, restoring, furbishing, refurbishing, finishing, refurnishing, equipping, reequipping, or maintenance of City buildings, structures, fixtures, or personal properties or on any City real properties or interests therein or appurtenances thereto; and/or

           (3) Any other type of beneficial or valuable change or addition, betterment, enhancement, or amelioration of or upon any real property, or any interest therein or appurtenances thereto, belonging to the City, intended to enhance its value, beauty, or utility or to adapt it to new or further purposes.

     (d)  Expenditures to provide City capital improvements under this section may include expenditures for any or all item(s), article(s), cost(s), or expense(s) related in any way to providing a City capital improvement, including without limitation the following:

           (1) Payment of the costs of acquiring real or personal properties or interests therein and appurtenances thereto;

           (2) Payment of the costs of construction, reconstruction, demolition, installation, assembly, renovation, repairing, remodeling, restoring, furbishing, refurbishing, furnishing, refurnishing, equipping, reequipping, and maintenance;

           (3) Payment of architectural costs, engineering costs, or consulting costs;

           (4) Payment of project management costs, administrative costs, and legal costs;

           (5) Payment of any other items, articles, costs or expenses related, incidental, or ancillary in any way to providing a City capital improvement;

           (6) Reimbursements or paybacks for expenditures made by a public trust with the City as its beneficiary for the purpose of providing a City capital improvement; and/or

           (7) If deemed necessary or appropriate by the City Council for cash-flow purposes, for the payment of principal and interest on and the costs of issuance of bonds, notes, lines-of-credit, or other evidences of indebtedness issued by a public trust with the City as its beneficiary for the purpose of providing a City capital improvement.

     (e) Pursuant to authority of 68 O.S. § 2701(B), there is hereby created a limited-purpose fund to be known as the "Oklahoma City Capital Improvements Sales Tax Fund" (hereinafter the "Fund") into which all revenues collected pursuant to Subsection 52-23.4(a) above shall be deposited. Money in the Fund shall be accumulated from year-to-year. The Fund shall be placed in an insured interest-bearing account and the interest that accumulates on the Fund shall be retained in the Fund. The Fund shall be non-fiscal and shall not be considered in computing any levy when the City makes its estimate to the Excise Board for needed appropriations. Money in the Fund shall be expended only as accumulated and only for the limited-purpose specified in Subsection 52-23.4(b) above.

     (f) The excise tax levied pursuant to Subsection 52-23.4(a) above shall be for a limited term of seven years and nine months, beginning at 12.00 a.m. on April 1, 2010, and ending at 12:00 a.m. on January 1, 2018.

     (g) For the purpose of advising the City Council regarding projects proposed for funding from the excise tax levied by this section, the City Council shall by resolution establish a Citizens Capital Improvements Sales Tax Advisory Board. The Board's function shall be to review any such proposed project and submit recommendations to the City Council regarding the project.
Without more, and assuming the legal validity of both the ballot and the ordinance, passage of the ordinance would give the city carte blanch authority to apply and utilize the $777 million projected to be received via the MAPS 3 vote in any way that it might occasionally decide by adopting a new Resolution which modified the first. As long as the definition of "City capital improvement" was satisfied, it would be within the city council's power to do that.

Given that I am such a fan of Oklahoma City, the city might well decide to honor that fact by using an itty-bitty piece of that $777 million by constructing a very cool public swimming pool in Mesta Park, just two blocks west of where I live! Way Cool!

But, no, you wouldn't like that, would you? You would want the $777 million to be expended for the items explicitly outlined by the mayor and council in the MAPS 3 overall proposal. And so would I (the possible exception being the cool pool in Mesta Park).

So where's the safeguard that the $777 million will actually be expended for the explicit purposes that the city tells us the money will be spent to construct?

SAFEGUARDS. Actually, there are two: (1) a Citizens Capital Improvements Sales Tax Advisory Board; and (2) the resolution which accompanies the other documents.

      Citizens Capital Improvements Sales Tax Advisory Board. The proposed ordinance includes the following paragraph:
(g)  For the purpose of advising the City Council regarding projects proposed for funding from the excise tax levied by this section, the City Council shall by resolution establish a Citizens Capital Improvements Sales Tax Advisory Board. The Board's function shall be to review any such proposed project and submit recommendations to the City Council regarding the project.
As is plain from the language, the advisory board has no power of decision. Its functions are limited to (a) review and (b) recommendation. It might be a good thing to have an Eric Groves and/or a Kirk Humphreys type of guy on this committee, I'm thinking. But, that's just me.

      The Accompanying Resolution. Taking it as a 1st given that the MAPS 3 ballot and ordinance may not be the "logrolling" type discussed above, and taking it as a 2nd given that the city still opts for the general collective "up or down" approach of the original MAPS championed by Mayor Ron Norick, what's a mother city to do? The 1986 "Six to Fix" item-by-item campaign was, substantially, a disaster. Conversely, the 1993 MAPS initiative take-it-or-leave-it all-or-none approach turned out to accomplish a true and non-debatable miracle for our city.

How can the original MAPS approach be duplicated today given the legal constraints discussed above? Put differently, is there a way around the "logrolling" legal problem discussed above?

Maybe. Possible legal challenges will ultimately answer the above question. But, for now, the city has put together a logrolling work-around (1) by crafting a general ordinance which identifies no particular project but only defines the term, "City capital improvement," and (2) by crafting a simultaneous City Council Resolution which commits the city to utilizing the MAPS 3 tax receipts for the purposes which have been publicly identified in the overall MAPS 3 proposal, those projects being identified in the Resolution.

My guess, given the existence of what some might call ombudsmen like Jerry Fent (who has been involved in at least 26 Oklahoma Supreme Court cases as a taxpayer litigant that I could quickly locate), is that if MAPS 3 passes it will face immediate legal challenge before the Oklahoma Supreme Court. I offer no outcome prediction should that occur, but it would be foolhardy not to anticipate and expect that such challenge, given what I've already said above, would be made.

The accompanying Resolution reads as follows (underscoring in the Resolution is added):
RESOLUTION

RESOLUTION SETTING FORTH THE PRESENT INTENT AND RESOLVE OF THE CITY COUNCIL OF THE CITY OF OKLAHOMA CITY REGARDING THE "MAPS 3 PROGRAM" TO BE FUNDED WITH THE "OKLAHOMA CITY CAPITAL IMPROVEMENTS SALES TAX" LEVIED PURSUANT TO SECTION 52-23.4 OF ARTICLE II OF CHAPTER 52 OF THE OKLAHOMA CITY MUNICIPAL CODE, 2007; STATING THE COUNCIL'S INTENT AND RESOLVE REGARDING THE CITY CAPITAL IMPROVEMENT PROJECTS TO BE INCLUDED IN THE MAPS 3 PROGRAM; AND DIRECTING THE CITY MANAGER TO TAKE ALL NECESSARY ADMINISTRATIVE ACTIONS TO IMPLEMENT THE MAPS 3 PROGRAM UPON APPROVAL OF THE OKLAHOMA CITY CAPITAL IMPROVEMENTS SALES TAX LEVY BY CITY VOTERS ON DECEMBER 8, 2009.


     WHEREAS, on December 8, 2009, the voters of The City of Oklahoma City will be voting on the proposed levy of the "Oklahoma City Capital Improvements Sales Tax," a seven-years and nine-months limited-purpose excise tax of one percent (1%) enacted by the City Council of The City of Oklahoma City pursuant to City Ordinance No. 23,942; and

     WHEREAS, upon its approval by City voters on December 8, 2009, the Oklahoma City Capital Improvements Sales Tax levy will provide funding for City capital improvements within The City of Oklahoma City; and

     WHEREAS, the City Council intends to use the Oklahoma City Capital Improvements Sales Tax revenues to continue the exceptional "Metropolitan Area Projects" initiative begun in 1993 by Mayor Ronald J. Norick and continued in 2001 by Mayor Kirk Humphreys; and

     WHEREAS, the MAPS initiative is visibly transforming key parts of The City of Oklahoma City to the benefit of the citizens of this great community, including but not limited to Bricktown and adjacent areas, the Oklahoma River, the State Fairgrounds, and numerous public schools and public school facilities that are located in the Greater Oklahoma City Metropolitan Area and that are attended by City-resident students; and

     WHEREAS, the City Council desires at this time to set forth its present intent and resolve to use the revenues generated by the Oklahoma City Capital Improvements Sales Tax levy to fund the continuation of the exceptional MAPS initiative begun in 1993 and to implement a new City capital improvements program to be known as the "MAPS 3 Program;" and

     WHEREAS, the City Council's intent and resolve is for the MAPS 3 Program to include the implementation of all of the City capital improvement projects listed on Exhibit A attached to this Resolution; and

     WHEREAS, the details regarding the City capital improvement projects included in the MAPS 3 Program shall, at appropriate times in the future, be determined by the City Council following recommendations regarding said projects to be submitted to the City Council by the "Citizens Capital Improvements Sales Tax Advisory Board," as required by Ordinance No. 23,942.

     NOW THEREFORE, BE IT RESOLVED that the City Council of The City of Oklahoma City does hereby express its present intent and resolve to use the revenues generated by the Oklahoma City Capital Improvements Sales Tax to fund the MAPS 3 Program, with the City capital improvement projects to be included in the MAPS 3 Program listed on Exhibit A attached to this Resolution.

     AND BE IT FURTHER RESOLVED that the details regarding the City capital improvement projects included in the MAPS 3 Program shall, at appropriate times in the future, be determined by the City Council following recommendations regarding said projects to be submitted to the City Council by the Citizens Capital Improvements Sales Tax Advisory Board, as required by Ordinance No. 23,942.

     AND BE IT FURTHER RESOLVED that the MAPS 3 Program shall be subject to the provisions of Section 38-488 of the Oklahoma City Municipal Code, 2007, relating to the budgeting of public funds for works of art and for the selection and placement of works of art upon property owned by the City.

     AND BE IT FURTHER RESOLVED that the City Manager of The City of Oklahoma City is directed to take all necessary administrative actions to implement the MAPS 3 Program upon approval of the Oklahoma City Capital Improvements Sales Tax levy by City voters on December 8, 2009.
I guess you caught that "present intent and resolve" part, right? Put differently, City Council could, should it wish, change, delete, substitute, abandon, each and every item contained in Exhibit A which follows, and it would be completely legal.

The Resolution could have been made a little tougher by including a requirement that a generous supply of tar and feathers be made publicly available and accessible at all times, should Council unwisely make such a choice.

Here's Exhibit A to the above Resolution:

EXHIBIT A
THE MAPS 3 PROGRAM

The intended MAPS 3 projects include the following —

  1. A new large, downtown public park linking the core of downtown with the Oklahoma River, with the park to be generally in accordance with the Core To Shore framework plan.

  2. A new rail-based streetcar system to service the inner city and/or to service other areas within The City of Oklahoma City, plus funding for other transit infrastructure as appropriate, such as connections to other rail-based systems and/or a transit hub.

  3. A new downtown convention center, to include exhibit halls, meeting rooms, ballrooms, mixed uses, and parking.

  4. A series of strategically-placed sidewalks on arterial streets and near public use facilities within The City of Oklahoma City.

  5. Improvements and/or enhancements to the Oklahoma City public trails system.

  6. Additional facilities, equipment, improvements, and/or enhancements related to the recreational use of the Oklahoma River, including but not necessarily limited to the following items:
    1) New public whitewater kayaking facilities and equipment; and

    2) New grandstands and other rowing venue enhancements.
  7. New health, wellness, and aquatic centers designed for senior citizens.

  8. Improvements and/or enhancements to the Oklahoma State Fairgrounds.
CONCLUSION. In a nutshell, the method described above places a great deal, a very great deal, of public trust in the City Council and Advisory Board, not just this year or the next but during the entire span of 7 years and 9 months time.

Members of council will come and go before the time fully passes. Should the citizenry decide to pass MAPS 3, we actually don't want the city to decide, later, to chuck parts of MAPS 3 which are being sold to us today, do we. That's a rhetorical question.

While I would have preferred a "long ballot" with all of the projects identified in it with an all-or-nothing vote like MAPS 1 was, since "logrolling" is apparently no longer legally allowed, that was not a possibility.

I'm willing to take the risk and do the handshake deal, but I also think that we should make sure that the supply of tar and feathers isn't allowed to get too cold, should they become needed — that, and get an Eric Groves and a Kirk Humphreys on the Advisory Board, as well. Fair enough? Fair enough.

That's pretty much all there is to say unless I think of something to add later.

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4 comments:

Blair Humphreys said...

Very nice overview Doug! This article should be running in the Oklahoman. It lays out the reasoning for the ballot while very fairly discussing the positives and potential negatives of the "work around". Glad to see some real journalism on MAPS 3.

Doug Dawg said...

Thank you, Blair. Though it may seem an odd thing for me to say, as to your comment, "Glad to see some real journalism on MAPS 3," that possible truth troubles me more than you will likely know.

Run this article in the Oklahoman? Sure thing. See what I said in OkcTalk.com about that kind of thing ever happening.

Hope that you picked up the respect when I nominated your dad as a possible member of the MAPS 3 Advisory Board ... it was not without thought or without good reason that I did that. I would have nominated you, too, but, damit, you don't live here right now. Bummer.

Dennis Wells said...

I don't see that "present intent and resolve" allows changing the intent and resolve... unless that's just some legal code-phrase for such a thing(?).

However, I do think the ballot will confuse the voting public. It doesn’t even mention MAPS! The resolve and intent is for the money to go to the list of Projects (buried in the invisible Ordinance Exhibit-A), but the ballot language only references an ambiguous “fund” and taxes… When they see the ballot, many voters might default to “no,” only because they won’t be sure it IS the MAPS-3 ballot.

Like you, I support the initiative and intend to vote “yes.” I also think it would be good to modify the ballot so that it’s unquestionably a MAPS-3 ballot.

Doug Dawg said...

Dennis, the "present intent and resolve" language IS important. The language is contained in a city council resolution. A resolution can be modified at any time that by a 5-vote majority if full council is present, or by a smaller majority if only a quorum is present. That's why I used the term "handshake deal" in the Conclusion part of the article.

See this July 2003 article by Steve Lackmeyer for an example of city council making such a change. In the article, note that in that district court litigation Leslie Batchelor, attorney, then argued (successfully) about the resolution there involved, "'It's a mere declaration of intent,' Batchelor countered. 'The city is free to change its intent at any time.'"

In the same and other OkcTalk.com threads, some have suggested the establishment of a public trust into which the tax revenues would flow with the trust document requiring, not just intending, that trust funds be expended for the 8 projects identified in the Resolution. If done, that would go a long way toward (if not completely eliminate) eliminating the "handshake deal" nature of what we'll be voting on.

As for changing anything in these regards at this point, while I'm one who would favor that, I doubt that it could be done within the existing timetable pointing toward a December 8 vote.

Since it is evident that at least some will vote no simply because of the "handshake deal" approach, it might be wise of the council to gain supporters who will vote no for only this very reason. As a practical matter, I don't see the council being willing to do that.