The June 26, 2023, city council meeting agenda includes yet another request from the Clarkston Community Historical Society (the CCHS) to take over all of Depot Park for an entire weekend for their massive fundraiser, Art in the Village.
Sorry, I misspoke. The CCHS already claims the right to use the entire park for its September 16th and 17th event. On Monday, they are asking the city council to waive the Depot Park user fee, something they can easily afford. In other words, the CCHS wants to use all of Depot Park for free, a benefit that you will never receive (nor, as he’s told us, will the city manager ever suggest is a possibility for any Clarkston taxpayer – even though Clarkston taxpayers own the park).
I’ve been to Art in the Village, and I’ve seen the CCHS’s historical museum at the Clarkston Independence District Library (CIDL). Both are nice. It’s beyond dispute that the CCHS does nice things – but so does the Clarkston Farm and Garden Club, the Friends of Depot Park, and the Lakeview Cemetery Restoration Project, for example.
Art in the Village brings a lot of people to the city, along with traffic and pedestrian congestion, but the primary financial beneficiaries are the CCHS, its vendors, and I suppose the restaurants – but certainly not you. (As a matter of fact, your needs aren’t factored in at all.)
Honestly, I don’t care one way or the other if there is an Art in the Village. I don’t have to go if I don’t want to, I can avoid the crowds, and many people seem to enjoy it. My issue is with fee waivers generally, and additionally in this case, the chutzpah of an organization with lots of money in the bank trying to avoid paying one small $200 user fee – that our cash-strapped city could use to maintain the park – and trying to justify their request by listing things they’ve voluntarily chosen to do as part of their mission (and some things that aren’t). It’s the same kind of feeling I would get if someone confessed to occasionally taking food out of the Clarkston United Methodist Church’s little food pantry – not out of need but because they didn’t have the time to go to the grocery store – and then trying to justify that conduct because they’ve voluntarily donated to the food pantry in the past. It’s just icky.
The CCHS rakes in thousands and thousands of tax-free dollars during this event, but they don’t believe they should have to pay the same $200 park rental fee that you would be forced to pay – and all you would get for the money is a mere two hours of the exclusive use of a small portion of the park for your wedding or your kid’s birthday party. If things were equitable, the user fee to rent the entire park would be thousands of dollars, not one $200 fee the CCHS is complaining about having to pay to use the park for an entire weekend. As they say, rules for thee, but not for me.
Our city manager is the president of the CCHS. To the best of my knowledge, his wife is still its sole employee. She’s featured on a video on the CCHS’s website talking about the small library museum in the CIDL. Since money is fungible, the $200 that the CCHS saves as the result of a park fee waiver can be used to pay any of its expenses, including the city manager’s wife’s salary. (Hence, the title of this post.)
Private nonprofit (501(c)(3)) organizations like the CCHS get to keep every dollar they take in. They pay no federal tax, no state tax, and they are even excused from paying any Michigan state sales tax. The reason they are the beneficiary of such largess is: a) they applied for this lucrative benefit; and b) their organization falls within one of the authorized organizational purposes described in the federal tax code.
As you know, federal and state governments need taxes to function, so every entity that is excused from paying income and sales tax means that someone else must pay more to maintain the same level of government services (and hello, that someone would be you!). Being a “nonprofit” doesn’t mean an organization is poor; some nonprofits have billions in assets. The CCHS isn’t a billion-dollar organization, but they have substantial savings and investments and don’t have any financial need for a forced charitable contribution from Clarkston taxpayers – which is what a user fee waiver is. I wrote about that here.
Last year, the city manager personally asked for the fee waiver on behalf of his organization. It was the first time the CCHS made such a request, even though, to the best of my knowledge, the CCHS is in an entirely different financial league than all the other nonprofits and charities that have asked the city council for a fee waiver. As councilmember Wylie pointed out last year, the other requesters don’t have huge bank accounts – they might not even have $200 to pay the user fee – and their waiver requests certainly weren’t so they could avail themselves of the entire park for a giant fundraiser spanning a weekend.
This year, the CCHS is sending its secretary to ask for a fee waiver. She provided a list of the things the CCHS does that are included in the city council packet. I’ll be asking for a copy of their 2022 tax return, so we’ll all undoubtedly be able to confirm for ourselves that the CCHS had absolutely no financial need for a fee waiver last year, and it’s a safe bet that this year’s tax return (available next year) will reveal the same thing. It will be interesting to see how the CCHS has characterized their “contributions” to activities having nothing to do with their core historic preservation and education purposes on their tax return. (Seriously, how exactly does providing “corn hole” prizes and hundreds of s’mores kits fit within the CCHS’s IRS-authorized tax-avoidance paradigm? 🤔) But don’t you dare question the CCHS’s privilege and connections – if the CCHS’s secretary’s comments on this website in response to my challenge of last year’s waiver request are any indication, they really don’t appreciate it.
I wonder – do you think the CCHS is going to pay for all the parking spots they always use in the Depot Street parking lot since that lot will have converted to paid parking by that point, or will the city manager simply waive those fees for his own organization without council approval (just as he waives fees for other entities he alone thinks shouldn’t have to pay whatever anyone else does)? Will he follow the park ordinance when it comes to requiring that the CCHS pay the cost for our two Department of Public Works employees who will be forced to work this event, or will he simply accept a “donation” that may or may not cover actual worker expenses? (Based on the information the city provided in response to a FOIA request, the city manager’s unauthorized practice of accepting “donations” rather than following the park ordinance resulted in a shortfall to the taxpayers for the 2021 Art in the Village event, i.e., a forced taxpayer donation to the CCHS equal to the underpayment.)
In contrast to what happens with the privileged and connected, let me share how our city government treats an individual person who wants to reserve any part of the park. All peons have to go to the city’s website and agree to the “rules,” rules that apparently apply only to them. The unwashed masses can only reserve a small part of the park (usually just the gazebo area) for a two-hour period. Clarkston residents pay $200 (~$1.67 per minute), and non-residents pay $250 (~$2.08 per minute). Before the city confirms a reservation, the proles must fork over every penny of the fee, but for their “convenience,” the city will accept cash, check, Visa, MasterCard, Discover, and e-checks. You had better not cancel your event with less than two weeks’ notice, or the city threatens that it will keep all your money. Oh, did you want to use the restroom too? You’ll have to ask in advance and pay an extra $25.00 if you want the key. Otherwise, you’ll just have to “hold it” until your event concludes.
The city council has not established any criteria for waiving park user fees. At the April 24, 2023, city council meeting, the city manager alleged he has some sort of “pattern or agreement” with “councils” that give him a $500 magic wand to waive park user fees for 501(c)(3) organizations. Put another way, his claim was that while some 501(c)(3) organizations are forced to grovel in front of the city council and beg for user fee waiver consideration, others were apparently granted a fee waiver through the caprice and (unauthorized) generosity of the city manager. Interesting, that.
Where does the city manager’s supposed “$500 approval authorization” come from? There is only one place in the city’s ordinances that grants a $500 authorization, but that language is found under “purchases and sales” and is clearly limited to procurement issues, not fee waivers. The point of allowing a small expenditure for purchases that are not approved in advance by the city council is to avoid having to call a special city council meeting whenever city hall runs out of toilet paper. (I wrote about that here.) Despite what he might now claim, the city manager clearly knows he has zero authorization to do what he asserted he’s entitled to do. In fact, former councilmember Al Avery publicly chastised the city manager last year, expressly reminding the city manager that he has zero authority to waive user fees.
The city manager’s claim that he’d improperly extended his $500 authority beyond procurement matters to park user fee waivers made me curious, so I made a FOIA request for records of all occasions when the city manager waived Depot Park user fees without any city council approval over the last two years. The records I was provided show the city manager waived fees for several entities. First, he waived Depot Park user fees for a couple of Kindermusik graduations. (Kindermusik is a Clarkston Conservatory program, and they are a 501(c)(3) organization.) He’s also waived user fees for the CIDL for a few reading program events and a concert. (CIDL is an entity created and funded by Clarkston and Independence Township taxpayers.) The city manager extensively helped Mueva Fitness, a small private business that is neither a 501(c)(3) nor a joint government venture. Mueva enjoyed a $250 user fee waiver for every Saturday from May through September 2021, as well as a $250 user fee waiver on July 30, 2022. I follow city council meetings closely, and I don’t recall that any of these waivers were brought to the city council’s attention for approval. Why not?
There’s clearly no rhyme or reason for the city manager’s or city council’s generosity at taxpayer expense. They obviously don’t make decisions based on organizational need, or they wouldn’t have approved the CCHS’s fee waiver request last year. On the other hand, even Jesus doesn’t get favorable consideration from the city council – the woman who wanted to hold a no-charge event open to all to show a Jesus movie had to pay the full $200 to reserve a corner of the park. (To be fair, I suspect the city council would be equally uncharitable to Muhammad.) On the other hand, I guess The Satanic Temple would get a Depot Park user fee waiver on request because they have also been approved by the IRS as a nonprofit, just like the CCHS.
Though I find the chutzpah of the CCHS to be galling, the deeper issue isn’t about one privileged and connected nonprofit asking for money it doesn’t need from Clarkston taxpayers. Instead, the appropriate question is whether Clarkston city council – or the Clarkston city manager – can ever legally provide a gift of taxpayer property for the use of any private organization. (Even though the CCHS has the word “Clarkston” in its name, it’s still a private organization.) Giving away park user fees to some and not others is nothing less than an arbitrary and capricious conversion of public resources for the private purposes of a few – and a forced taxpayer donation to whomever the requesting organization is.
Our neighboring Village of Lake Orion recently addressed this problem at its May 22, 2023, village council meeting. (I’ve linked to the draft minutes here, and the policy change begins at page 42 of the June 12, 2023 council packet.)
The village manager for the Village of Lake Orion, who presumably isn’t also the president of a nonprofit demanding an annual fee waiver, was apparently the impetus behind the new policy. He stated even though previous village managers have granted fee waivers, he didn’t believe that he had discretion to reduce, waive, or forgive any fee the village council adopted. He also noted that “the waiving of fees and charges for private individuals or entities when consideration is not given to the public generally may be a conversion of public resources for private benefit and not permitted under law.”
In response, the Lake Orion Village Council wisely established the following policy by resolution:
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- The Village Council retains the sole authority to establish fees and charges for programs and services offered by the Village.
- The schedule of fees and charges as adopted by the Village Council shall not be waived, reduced, or forgiven in any manner, except that the Village Manager shall be authorized to waive, reduce, or forgive fees and charges to other governmental or public entities, when the Village Manager determines that such entities:
- Provide a program or service within the Village for which a fee or charge would normally be charged by the Village; and
- Fund the program or service in whole or in part through property or other taxes levied and collected by the entity; and
- Make such program or service open and available to the general public without entry or participation fee. Vendors may sell goods or services at such programs or events, but purchasing of goods or services must be optional and must not be a requirement for public attendance at or participation in the program, event, or service so provided.
- The Village Council determines that waiving, reducing, or forgiving of fees and charges by the Village for private, nonprofit, charitable, civic or other organizations, or individuals, to be a conversion of public resources to a private benefit when such consideration is not given to the public generally, and therefore is impermissible.
(The bolding is mine.) In other words, only public or government entities may request a fee waiver in the Village of Lake Orion, and even then, waivers will only be granted under specific, limited circumstances. The Lake Orion Review wrote about the new policy on June 21, 2023. See, Village Council Adopts Policy on Waiving Fees and Charges for Groups, Businesses Holding Events Within the Village (last visited June 23, 2023).
The Lake Orion policy applies to all nonprofit organizations because “[i]f you’re going to waive fees for one private entity you have to be willing to waive them for everyone.” The Lake Orion Review article quotes the village council president suggesting that anyone wanting relief from fees should “[l]ook at someone and ask for a sponsor if the fees are burdensome.” If Clarkston were to adopt such a policy, the CCHS and all the other nonprofits would be out of luck (along with Mueva Fitness). On the other hand, the CIDL’s programs would likely be entitled to a fee waiver.
Lake Orion proactively did the right thing. The question is whether Clarkston government officials will stop giving away taxpayer property to private interests by fiat. Unfortunately, if the past is any indication of the future, Clarkston government will do whatever its officials darn well please until someone files a lawsuit and forces them to do the right thing.
We should give Clarkston government the opportunity to do that right thing – at least for a short while. After that, all bets are off because this 💩 should not be allowed to continue. If the city council wants to make donations to private entities, they should write a personal check.