OpenCDA

February 12, 2013

Good Intentions — Bad Law

Filed under: Probable Cause — Bill @ 10:23 am

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I agree with newbie Idaho State Representative Luke Malek’s desire to update Idaho’s urban renewal laws and to rein in abuses by some of the state’s renegade urban renewal agencies.   The state’s poorly conceived urban renewal laws were hawked by predatory snake oil salesmen to enrich their cronies and were happily and uncritically approved by inattentive legislators.  The laws are in dire need of revision if not repeal.

But Malek’s proposed amendment contained in House Bill 0137 only exacerbates one problem while appearing to correct another.

Read on.  ]

According to  the Statement of Purpose accompanying HB0137, Idaho’s urban renewal laws empower the state’s urban renewal agencies “…to enter any building or property in any urban renewal area. This includes private residences.”    While that language is factually accurate, it is also misleadingly incomplete.  Here is the complete language from that section of Idaho Code §50-2007:

50-2007. Powers. Every urban renewal agency shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this act, including the following powers in addition to others herein granted:

(c)  within its area of operation, to enter into any building or property in any urban renewal area in order to make inspections, surveys, appraisals, soundings or test borings, and to obtain, upon sufficient cause and after a hearing on the matter, an order for this purpose from a court of competent jurisdiction in the event entry is denied or resisted;

I agree that (c) is an egregious usurpation of a police power conferred on an unelected body, urban renewal district employees and commissioners, by a snoozing legislature.  It needs to be changed, but there is an unintended consequence, and a very bad one at that, if (c) is simply excised from the law.

Malek’s amendment would make it even more difficult for the state to prosecute urban renewal agencies’ employees and commissioners for using public money for private gain and for receiving otherwise illegal gifts and gratuities of substantial value.

This issue was raised to the Idaho Attorney General by the Canyon County Prosecuting Attorney in 2010.  The commissioners of the Caldwell East Urban Renewal Agency (CEURA) had used CEURA money to purchase individual memberships in the YMCA, a CEURA project.  A citizen complained to the Canyon County Prosecutor that this was an illegal private use of public money.  In a letter sent to the Canyon County Prosecuting Attorney, the Attorney General’s office agreed that had been a clear violation of Idaho law.  But then Deputy Attorney General Stephen Bywater  counseled against criminally charging the CEURA commissioners.

DAG Bywater’s rationale was that the Commissioners had a plausible defense for their actions:  The Commissioners could assert that the gym memberships were paid to facilitate CEURA’s inspection of the YMCA’s facilities.  Bywater was apparently unaware that Idaho Code §50-2007 already gave the CEURA commissioners the necessary statutory authority to conduct inspections of their projects.  It’s in the very section Malek wants to remove!

Do you begin to see the problem with the amendment Malek wants to make?  If Malek’s amendment passes and removes inspection authority from the urban renewal agencies, the Idaho Attorney General’s office clearly erroneous guidance in 2010 will be used to create an opening for crooked urban renewal agency officials and employees to use public money for private gain or even to accept gifts and gratuities.  They can assert that their job requires them to inspect their projects and that they must use public money or accept gifts and gratuities to have the access they need to perform their statutory duties.

The state’s urban renewal laws do need to be carefully examined and even more carefully rewritten.  For example, Malek’s amendment does not remove or strictly control an equally egregious authority conferred on urban renewal agencies by Idaho Code §50-2007(c):

to acquire by … eminent domain or otherwise, any real property (or personal property for its administrative purposes) together with any improvements thereon;

Piecemeal amendment is not only unlikely to correct all the errors created in Idaho’s urban renewal laws, it is also likely to create new ones which predatory urban renewal officials will exploit for their own personal gain or that or their business partners, employers, cronies, handlers, and friends.

 

 

4 Comments

  1. If subsection (c) is repealed, it appears that the authority to INSPECT is gone. So how then can any URA official “…assert that their job requires them to INSPECT their projects…”?

    Comment by Gary Ingram — February 12, 2013 @ 11:26 am

  2. Gary,

    They will simply say that they have been entrusted with the public’s money and so they have a duty to ensure it is being properly spent. I’d agree with that. In fact, in his ignorance of the existing inspection authority, Deputy Attorney General Bywater was saying the same thing when he concocted his “defense” supporting declination to prosecute. Malek’s intentions are fine, but the revision needs to be more carefully worded to preserve the authority to inspect but under reasonable controls rather than unchecked authority.

    Comment by Bill — February 12, 2013 @ 12:02 pm

  3. In review of Idaho Urban Renewal code, I’ve observed that it was in whole or in part lifted from existing code elsewhere, probably from some smokestack state back east. I honestly don’t think the Legislature knew what any of the code meant when they adopted it. Typical. So this clause, which has probably never been enforced in the manner Malek is referring to, was probably related to some issue in another state that required resolution.

    While you can read the into code that it would allow, say, Tony Berns to knock on any door in a URD and demand inspection powers, that’s not the case. In fact, it seems like entry can be denied quite easily, in which case the URA must appeal to a judge. Absent that code, a URA with a desire to remediate property could be restricted in their actions. I’m not certain whether that removal would thwart any of LCDC’s projects one way or another. Specifically, I’m not certain whether anyone really pays that close attention, given the absence of oversight of urban renewal in Idaho. (That’s a bigger issue that hasn’t been addressed.)

    I agree with you, Bill: Eliminated the URA’s power of eminent domain would have been a better move. That power has never been exercised in Idaho, nor should it be by any unelected body.

    Comment by Dan — February 12, 2013 @ 2:04 pm

  4. Dan,

    Completely removing the “inspection” language rather than modifying it to be more precise and to impose tighter safeguards will make it easier for crooked urban renewal agency commissioners and its employees to justify spending public money for private gain. Actually, I want urban renewal agencies to be required to inspect specific projects to ensure the public’s money is going to be spent on a beneficial outcome. Without the inspection requirement, we have even fewer tools to hold them accountable. If the right of inspection is inferred, as DAG Bywater obviously did without knowing it had been expressly conferred by the statute, then removing it from the statute creates the very defense he concocted on behalf of the CEURA commissioners.

    Imagine the possibilities here in CdA. An LCDC commissioner or employee could appropriate LCDC money to buy a Riverstone condo for himself in order to facilitate the inferred inspection of a project. Thank DAG Bywater for that. It’s exactly the conduct he envisioned in his 2010 letter to the Canyon County prosecuting attorney when he recommended against prosecuting the CEURA commissioners for using CEURA money to buy YMCA memberships to enable them to inspect their project.

    Comment by Bill — February 24, 2013 @ 9:57 am

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