Wednesday, September 29, 2010

Dumb, Dumber and Alderman Penning

I’ve often said that MJMEUC’s MoPEP and UPPA contracts are I.Q. tests for city elected officials…when they sign; they flunk, but perhaps even that was too kind. This is a true story about Hermann, Missouri, another MoPEP town, and their city council discussion of the class-action lawsuit against them for allegedly skimming their inflated utility prices which could cost them as much as $5,255,000 in rebates alone.  The city of course denies that they ever deliberately inflated utility rates so they could skim off the excess revenues for non utility uses even though this ‘accident’ happened with uncanny regularity month after month, year after year, decade after decade.

On September 27, 2010, the Hermann City Council was listening to a report from City Attorney Politte on the progress of the lawsuit which had just been transferred to the Missouri Supreme Court. It’s a total mystery why Mayor Miskel allowed them to discuss this in open session as “new business” when a report on the status of active ongoing litigation not only isn’t “new” business it’s one of the few topics that they can legitimately discuss in closed session.   Oh well….

Nevertheless, the discussion was held in open session where CountyNewsLIVE.com publisher Jeff Noedel could capture this priceless record of the meeting where the collective pants of Hermann’s city government were pulled down around their ankles. In just seconds and in one very long run-on sentence, City Alderman Penning dropped the city’s legal defense into the toilet. It was possibly the most painful, if not the most expensive bombing run on a city since World War II.

This makes Alderman Penning a candidate for the 2010 MoPEP Darwin Awards, not because he blurted out the awful truth in front of witnesses and killed their key legal defense, but because Penning really believes that a local vote in Hermann can supersede a statewide voter referendum to amend the state constitution.

Read the short transcript below and after you quit laughing – or, if you live in Hermann, after you quit crying - see if you don’t agree that there is dumb, dumber and then there is Alderman Penning. 

PERILOUS "ARBOR LAWSUIT" DISCUSSED IN CITY MEETING MONDAY NIGHT: City lawyers consider case's transfer to Supreme Court "positive development" -- Ald. Penning says electric department was set-up in 1950s "to make money to run the city"

CountyNewsLIVE.com Mon, 09/27/2010 - 11:20pm — J. Noedel-Publisher

Monday night was the first Board of Aldermen meeting since the "Arbor lawsuit" against the city was transferred to the Missouri Supreme Court.  Hermann Mayor Larry Miskel asked City Attorney Dave Politte to offer a report.

Here is a transcript of what was said by Politte and by Hermann Aldermen Dan Wilson and John Penning:
(23:23)  MAYOR LARRY MISKEL:  Next on the agenda under new business is the status of the of the Arbor-Hancock lawsuit...the Arbor lawsuit. (inaudible)  You're up.

CITY ATTORNEY DAVE POLITTE:  Just...It won't take long.  I just want to report that the Supreme Court of Missouri has accepted transfer and will consider arguments in this case.
As you recall, our local circuit court ruled in the city's favor, without even the need for a trial, saying the city wins.
The plaintiffs took the case to the Court of Appeals of the Eastern District.  And, as you recall from Mr. Heinz's discussion, there were five factors for the Court to consider when try to determine whether our electric fees are a tax or not.  And if they decide that they are not, then that's in favor of the city.
Well a local circuit court decided in favor of the city on four-and-a-half of the five.  The Court of Appeals said, 'No, we want the circuit court judge to look at it again, because we think that three of the five are inconclusive.'  They didn't rule in favor of the other side; they just said they needed more information.
But now that the Supreme Court has going to look at it... And we, the attorneys, view that as a good thing, because they may just decide to overrule the Court of Appeals.  And in that event...

ALDERMAN DAN WILSON:  Can you speak-up just a little bit please?

POLITTE:  The Supreme Court is going to take the case, and we think that is a good thing because they may decide to overrule the Court of Appeals and to uphold the local circuit judge's decision.  In which case, the case is over.  Without the need to come back to the local circuit court and have a trial and go through the expense and hassle of all that, with the possibility of having to go back up the ladder again to the Court of Appeals and the Supreme Court. So...it's, I think, a positive development.

(25:30)  WILSON:  Is it alright to discuss that there were others that are interested in this case that were not previously?  Could you go into that briefly, if it doesn't...?

POLITTE:  Well, officially, the Missouri Municipal League and the Missouri Public Utility Alliance have filed what they call amicus briefs with the court, supporting the position of the city of Hermann.  What an amicus brief is it's something that the courts allow to be filed by parties who aren't a party to the case but who have a real interest, or a real... (26:00) something at stake in the outcome, and I think those two organizations both...

WILSON:  That part is clear.  What status are these two groups....are they recognized in the state as having any kind of standing in any way?  You know, I mean, what does this do?  I mean, I'm not trying to tie you into legal...  What I'm trying to find out is... I know what the M.M.L. is, but maybe other people do not.  And...

POLITTE:  Well, the Missouri Municipal League is an association of Missouri cities or municipalities who associate in order to look out for the interests of the cities and municipalities.  And they have a lobbying arm.  They'll have individuals that go to Jeff. City trying to lobby on behalf of cities.
(27:00)  A lot of what they do, though, is education and support. They host the seminars for the city officials to go to and learn how to become aldermen and mayor.  And they hold city attorney seminars.  And they provide newsletters to city clerks and mayors and attorneys on updates on the law and so forth.  They're basically an organization formed by cities to advocate for cities.

WILSON:  And the other group?

POLITTE:  It is the same thing with respect to utilities, and municipally-owned utilities.  The Missouri Public Utility Alliance is the umbrella under which you have MDGMCK and MOPEP and the Gas Commission and the various...

WILSON:  So this means we've acquired quite a few friends in this case.

POLITTE:  We have.  And we've also made some good friends... If you want to say 'Misery loves company,' but... (27:53)  The City of Marceline has been sued by the same plaintiff's law firm under the same theory.  And the City of Salem has been sued by the same plaintiff's lawyer under the same theory.
Rumor has it that there are other cities out there that have a target on them.  But those are the only two that I know of so far.

WILSON:  What was the original date of the filing of this case...when this case started?

POLITTE:  It was on or about January first of 2008.

WILSON:  2008.  Thank you.

(28:20) ALDERMAN JOHN PENNING:  I still have a question that I have... There was a magazine that came out this week that was in our file.  Did you read the last page of it?  That covered this lawsuit?  The City of Hermann and Arbor?  Written by a lawyer in St. Louis. I don't know if he represented them or not.
What I don't understand... The Hancock Amendment was passed in 1980.  We had an election in the 50s in this town to go into the electrical business to make money to run the city.  It's never been rescinded.  And that would sure supersede the Hancock Amendment.

And that point has never been argued.

And that was a vote of the citizens of Hermann.  And I was asked if I can document that, and I said, 'Absolutely.'  Because I voted in that election.

And that was, to me, superseded any Hancock Amendment that may come up.  Because it was done specifically to make money to run the city.  And that's what the people voted in.
(pause)

MISKEL:  I believe our attorneys are well aware of that.


PENNING:  But that was never brought up, and it should have been.  It's never been changed.
(end of article)

Thursday, September 23, 2010

Mo. Supreme Court to hear Hermann utilities rate case


Gasconade County Republican, Wednesday, 22 September 2010 08:30 Dave Marner 

Missouri’s Supreme Court will hear a Hermann-based lawsuit seeking relief from the city of Hermann for alleged violations of the Hancock Amendment, specifically overcharging its residents on utility fees.
Minutes from the Supreme Court’s session on Tuesday, released at 1 p.m. Sept. 21, noted the appellants’ Aug. 3 “application for transfer from the Court of Appeals, No. ED92933, (is) sustained and cause ordered transferred,” according to the court’s web site.

Jeffrey T. McPherson, an attorney for the  firm Armstrong Teasdale, LLP, in St. Louis, which represents Arbor Investment Company, LLC., CFV Plastics, LLC, and citizens Buzz Manley and Donna Austin as the plaintiffs/appellants, said Tuesday afternoon he had not received a written order from the court but confirmed he saw the notice on the court’s web site. “That’s what I heard,” said McPherson. “That’s what the notation on the (court’s) web site says. I believe its been granted.”

He said the application for transfer to the state’s Supreme Court was filed “in the general interest for the people of the state.”

The application for transfer notes the cities of Salem and Marceline, like Hermann, “have padded their general revenue by unconstitutionally increasing utility charges without a vote of the people” and cites state audit reports of those Missouri communities as a footnote. Hermann’s audit, according to the Appellate Court’s ruling of June 22, shows the gross receipts fees paid from electric, water, sewer, and natural gas utilities to the general revenue fund accounts for 35 percent of total general revenue.”

What remained unclear to the Appellate Court, however, was if this was done by design to raise general revenue funds or simply the way it worked out. The court was unable to determine if that issue favored the city or the appellants/plaintiffs.

The Court of Appeals found two factors in the city’s favor and three others which involved “genuine disputes of material fact.” It ruled the trial court “erred in entering summary judgement in favor of the city” since there were disputed facts concerning utility rates as they pertained to the Hancock Amendment approved by voters in November 1980.

“We’re asking the judgement of the Circuit Court be reversed,” said McPherson, “It’s an issue of general interest (statewide) that the court should rule on.”

In the Appellate Court’s ruling, Presiding Judge Robert G. Dowd, Jr., wrote for the 3-judge panel: “If it is shown on remand that the object of the fees is to fund the city’s general revenue, then this constitutes a violation of the Hancock Amendment and deserves an appropriate remedy under the Hancock Amendment.”

“That’s what was asked of the Supreme Court,” said McPherson. “To rule on the Hancock Amendment as it’s applied to all these political subdivisions.”
McPherson said they seek the Supreme Court’s ruling to “uphold the Appellant’s reversal and enter a judgement for the plaintiffs.” The Whole Story....

Thursday, September 16, 2010

The not-so-final deal to cover Prairie State cost overruns

The September 15, 2010, Bond Buyer headline confidently declared “Final Prairie State Deal Looms” announcing that the nine municipal consortium owners – MJMEUC among them – will have to pony up another BILLION dollars to cover the cost overruns on this ill-fated coal-fired power plant. Calling this the “final deal” was just way too optimistic.

Don’t confuse this article about the additional debt necessary to cover the colossal cost overruns on the Prairie State plant which was exposed by the Chicago Tribune in July, with the Kansas City Star’s expose on September 8th, of the colossal cost overruns that will have to be covered on the Iatan 2 power plant, another of MJMEUC’s ill-advised high-risk investments.

These belated reports on the true costs of both Prairie State and Iatan 2 plants, and the accelerating cost of the megawatts both plants will eventually generate, should make for interesting discussion at the next MoPEP meeting when CEO Kincheloe and CFO Loethen try to explain to their members that finding their share of the Prairie State BILLION dollar cost overrun to add to the billions in debt they already have and doubling the cost of the power it produces is....no big deal?

MJMEUC owns 12.3% of PS and has already invested over $600 M in the project. Because they are owners the joint venture MJMEUC/MoPEP members will have to throw in about another $60 million to cover their share of the cost overruns at this stage of construction which is still less than 50% complete. There is no telling how astronomical the cost per megawatt will finally be when the last 50% of the plant is finished because from here on it’s all cost overruns!

At the next MoPEP meeting CEO Duncan Kincheloe will stumble through some admin-babble explanation to the utility managers, mayors and city administrators who are used to having smoke blown up their noses and have unquestioningly swallowed all the sunshine construction reports they have been getting for years from CEO Duncan Kincheloe and his Project Manager Vern Kincheloe. Will any of these gullible MoPEP members wonder if their MJMEUC/MoPEP investment in PS, which was supposed to produce $35 MW power, is still cost effective at $64.40 per MW?

How high does the price have to go before they realize they’ve been had - $75, $85, $100 per MW? Which of MJMEUC's other power investment gambles will be the next to report billions in cost overruns that the Kincheloe Family construction reports haven’t mentioned?

Finally someone - an IMPA official in this article - admitted what anyone with a grain of common sense (that automatically excludes everyone who voted for a MoPEP contract) knew, “For all participating agencies, the increased costs will ultimately mean higher electric rates for municipalities and other customers that buy their power from the agencies.”

The article quoted MJMEUC CFO Mike Loethen as saying MJMEUC/MoPEP plans to issue additional debt to cover its increased costs, although those numbers have not yet been finalized. “The immediate need for funds is not there yet, but we may enter the market before the end of the year to take advantage of the BAB program,” Loethen said.

The “immediate need is not there yet?” Which “immediate need” is Loethen talking about? The “immediate need” to borrow more millions to cover Prairie State cost overruns, the “immediate need” to borrow more millions to cover the Iatan 2 cost overruns or the “immediate need” to cover the cost overruns for the remainder of both the Prairie State and Iatan 2 construction?

Even leveraging the usual first lien on the utility revenues of their newest member, the City of Lebanon, and cashing the check for Lebanon's join-up fee of $550,000 won’t begin to cover the ante-up on these plants and even if it did there are all those lawsuits. There is the one by Kennett and Poplar Bluff against MJMEUC because Duncan allegedly stole their Plum Point transmission rights and gave them away to other members - that one may cost MJMEUC millions. Then there are the class action Hancock lawsuits against Hermann, Marceline and Salem that MJMEUC/MoPEP members haven’t been told about. If successful those will permanently cripple MJMEUC’s ability to squeeze unlimited rate increases out of their obtuse MoPEP captives. The bond rating agencies aren’t going to like that one at all.

MJMEUC's upside down pyramid of debt that teeters precariously on top of 35 little rural Missouri towns just gets bigger….and bigger….and bigger….

The Bond Buyer – Final Prairie State Deal Looms
Agencies Gear Up For Coal Plant Sale

By Caitlin Devitt and Yvette Shields Wednesday, September 15, 2010

CHICAGO — Public power agencies in Indiana and Ohio plan to return to the market this month with their final borrowings for the Prairie State coal-fired plant project that has risen in cost by more than $1 billion to $4.4 billion.

The nine power agencies that own a stake in the Prairie State Energy Campus will need to come up with more than $1 billion to cover rising construction costs associated with the project, one of the only new coal plants being built in the U.S. more…

Monday, September 13, 2010

Iatan 2 - Another MJMEUC/MoPEP investment with double cost overruns

The Kansas City Star reported on September 8, 2010, that another MJMEUC investment, Iatan 2, in Weston Kansas, has joined the now infamous Prairie State power plant in having doubled their construction cost estimate. These unpleasant and newly disclosed facts about the billions in Prairie State and Iatan 2 cost overruns have not been reported in MoPEP meetings by Vern Kincheloe, MJMWUC/MoPEP CEO Duncan Kincheloe’s relative, who for years has been in charge of construction oversight of their power plant investments.

If Kincheloe and the MJMEUC/MoPEP board won’t tell their MoPEP “joint venture” members the truth about incompetence in the construction and management of the over $2 Billion in power plant investments MJMEUC has made behind the backs of their member cities who are locked into this “joint venture,” the MoPEP cities will have to subscribe to the major metro newspapers to keep up with this grim tale about their escalating liability.

Since the Chicago Tribune broke the story about the bloated costs of the Prairie State power plant in Illinois, other metro papers have ceased their uncritical praise for these projects for the few jobs they will produce and are beginning to dig out the rest of the story - the one all electric consumers are going to have to pay for.

Who will wind up paying for all these bloated plants? The only answer is - the investors in the plant which includes the MJMEUC/MoPEP "joint venture" investors. That’s what “joint venture” means, all partners in the venture are equally liable for EVERYTHING that goes wrong. That’s why the MJMEUC/MoPEP contracts contain a blanket requirement that all MoPEP members pay without question and without exception for any and all of MoPEP’s “direct costs” that are passed through to them along with their power bills.

MoPEP Mayors will try to deny their local electric rates will be impacted by these cost overruns but that’s patently false. Investors and consumers always pay and the MoPEP towns are equity investors – owners – of these plants, they have not just contracted to buy overpriced power from them. The MW price for Prairie State power was $35 MW but it's now quoted at $64.40 per MW and it will go higher because that plant is less than 50% complete. One way or another they will pass these mismanagement costs down the kilowatt billing pipeline even if they have to sell MW at a loss to others with investor-client municipalities and their captive ratepayers making up the losses.

But, if you look down the road – something the city council signatories of the deceptive MoPEP contracts didn’t attempt to do - there are some unavoidable market forces at work here that will eventually kill the MoPEP scam no matter how loyal the municipal Bubba’s are to Kincheloe’s club. As these vastly overpriced plants go on line, MJMEUC and the other municipalities in Midwest states that were foolish enough to become equity investors to finance these plants and also consumers of their overpriced power, will try to absorb the cost overruns but they can’t eat them all by passing along the bloat to non-owner customers because they’ll price themselves out of the market. Charging a .15¢ per kWh rate when 10 miles away a smarter town is buying direct from a cheaper PSC rate-regulated commercial utility and paying less than 7¢, is no way to run a shoe store.

How long can the MoPEP towns charge double the commercial kWh rates to their local customers and not run all business and most residential customers out of town either to nearby towns that were smart enough not to join MoPEP or to unincorporated areas where they can get cheaper co-op rates? Long term, Duncan Kincheloe’s “joint venture” investment club not only won’t “stabilize” your rates as Kincheloe and his minions claim but they will strangle the delicate economic balance of dozens of Midwest small towns until they are boarded up ghost towns. You could call that “stabilized.”

KCP&L faulted for mismanagement in power plant project

By STEVE EVERLY
The Kansas City Star (Posted Wed, Sep. 08, 2010 11:41 PM)

The Iatan 2 power plant near Weston (in this 2009 photo) has taken more than four years to build and is scheduled to begin operation later this year. The plant is now estimated to cost almost $2 billion — about double original estimates.
Kansas City Power & Light mismanaged much of the early construction of its new coal-fired power plant near Weston, causing cost overruns that it wants its customers to cover, according to a report to Kansas regulators.

The utility ignored expert advice, delayed important decisions and had a “dysfunctional” relationship with the contractors on the Iatan 2 project, according to Walter Drabinski, president of Vantage Consulting Inc., who was retained by the staff of the Kansas Corporation Commission.
His report said those problems added costs and caused delays for the coal-fired power plant, now estimated to cost almost $2 billion — about double original estimates. More...