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This page contains a single entry from the blog posted on March 22, 2012 8:48 AM. The previous post in this blog was In the meadow we can build a snowman. The next post in this blog is The people! United! Don't want to get wet!. Many more can be found on the main index page or by looking through the archives.

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Thursday, March 22, 2012

Ringmaster of Portland debt circus makes a move

In our monthly Oregon bar association magazine, we see that Harvey Rogers, the lawyer who presides over most of the local government borrowing in Portland, has left mega-firm K&L Gates and moved over to another national law outfit, Hawkins Delafield & Wood. His new firm specializes in helping government go into hock; no doubt Rogers brought them a serious book of business here in Portlandia.

Speaking of which, we see here that the City of Portland is planning to run out on April 12 and borrow $12 million to pay back the bridge loan it took out to help Little Lord Paulson build his soccer stadium. Apparently, they're going to be "full faith and credit" bonds, but not property-tax backed. That ought to be interesting.

Comments (12)

Under ORS 59.015(19)(a), the definition of a "security" includes any "evidence of indebtedness."

So, no matter what the city calls these bonds, their sale will be a felony violation of ORS 59.135, Oregon's securities fraud statute, because city officials, the Paulsons, and MLS officials concealed and misrepresented material facts in connection with the city's use of its borrowing authority to fund the renovation of Jeld-Wen Field.

In fact, a line of credit is also a security, so the city violated ORS 59.135 when it obtained the original $12 million line of credit in 2010.

It'll be interesting to see what the FBI and the U.S. Attorney do now.

Is Henry Paulson "too big to jail?"

If the state AG looks the other way, who's to say it's a violation? Based on events of the past several years one could wonder whether CoP was possibly promised a free pass to govern "creatively" in these hard times.

Peter -

The US Attorney has no jurisdiction to investigate or prosecute criminal or civil violations of Oregon securities law, and the FBI lacks jurisdiction to investigate criminal violations of Oregon securities law.

Nice straw man, though.

Federal jurisdiction might have attached when telecom was used in those arrangements.

In response to Nonny Mouse, I've contacted the FBI and the U.S. Attorney because there is also clear evidence of obstruction of justice by state and local officials in this particular case.

And just so you know, I've been through this same type of situation before, so I have some idea as to how the system works. In fact, the FBI is currently investigating a group of city officials in Oxnard, California. That investigation became public in 2010, and I was one of several people who first began reporting evidence of corruption by those same city officials to the FBI over a decade earlier. Hopefully, things won't take as long this time around.

Mojo -

But neither wire nor mail fraud are violations of Oregon securities law, which is what was specified. In the last 15 - 20 years, the US Supreme Court significantly narrowed the scope of each of the federal wire and mail fraud statutes. When I first was a federal prosecutor (I did it for the better part of 16 years), mail and wire fraud convictions were as common as drug distribution convictions. Much has changed in the past 15 - 20 years.

Peter -

"Obstruction of justice" ORS 162.225 - .385, and specifically 162.265; .285; .295 and .305 - are not federal offenses. No US Attorney or FBI Jurisdiction.

Conversely, the federal obstruction statutes, 18USC 1505, 1510, 1512, 1513 don't apply to alleged violations of state law.

And just so you know, I've been through this same type of situation before, so I have some idea as to how the system works.
I've prosecuted wire and mail fraud cases, and defended against them as well.

Not just as a self appointed professional busybody and career snitch.

In response to Nonny Mouse, I've contacted the FBI and the U.S. Attorney because there is also clear evidence of obstruction of justice by state and local officials in this particular case.

What a waste of everyone's time.

Nonny Mouse -- You're sidestepping the evidence which clearly shows that ORS 59.135 has already been violated, and that over the past two years-plus the D.A., the Oregon Division of Finance and Corporate Securities, and the Oregon Attorney General have done nothing. In fact, multiple DFCS officials have flat-out lied in writing about the evidence and the law in the correspondence that they've sent to me.

You're also sidestepping the fact if and when the city does sell bonds in April, that will absolutely trigger federal jurisdiction. And I would argue that federal jurisdiction was actually triggered two years ago when the city obtained a line of credit from Bank of America.

And by the way, that FBI investigation in Oxnard is being done in conjunction with the local district attorney's office, which is obviously the best way to deal with any issues regarding jurisdiction.

And while I was writing this comment I just now saw Bojack's comment calling all of this a waste of time.

Well, Bojack, how about finally explaining your legal reasons.

There's no securities law violation if the bondholders are told all the material facts. The width of the seats in the stadium, noncompliance with the MSL design standards, and all the other things you're complaining about, are not material. People have been trying to tell you that for a long time now. You're not listening. That's my last attempt.

Bojack -- Here is a portion of the text from the email that I sent on March 12, updating you on the legal research that I've done on this issue. You never responded, so I'll let your readers judge for themselves:

ORS 59.135 is Oregon's primary securities fraud statute. And violating it is a Class B felony. Here is the complete text:

59.135 Fraud and deceit with respect to securities or securities business. It is unlawful for any person, directly or indirectly, in connection with the purchase or sale of any security or the conduct of a securities business or for any person who receives any consideration from another person primarily for advising the other person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise:
(1) To employ any device, scheme or artifice to defraud;
(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading;
(3) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person; or
(4) To make or file, or cause to be made or filed, to or with the Director of the Department of Consumer and Business Services any statement, report or document which is known to be false in any material respect or matter. [1967 c.537 §14]

Under ORS 59.015(19)(a), the definition of a "security" includes any "evidence of indebtedness." And that includes the line of credit obtained by the city.

Under ORS 59.015(17)(a), the definition of a "sale" of a security includes every "contract to sell, or disposition of, a security..." And that includes the transaction in which the city obtained the line of credit from Bank of America.

Under ORS 59.015(14), the definition of a "person" includes "an individual, or... a government or political subdivision of a government." So, under ORS 59.135, which states, "It is unlawful for any person, directly or indirectly, in connection with the purchase or sale of any security or the conduct of a securities business...," city officials and the city are not exempt from the law.

That also means that ORS 59.135(3), which describes "any act, practice or course of business which operates or would operate as a fraud or deceit upon any person ...," is not limited to persons who are investors or shareholders, and includes the public on matters involving public securities.

ORS Chapter 59 does not contain any definition of a "material fact," but ORS 162.055, which deals with perjury, defines "material" as "... that which could have affected the course or outcome of any proceeding or transaction." I've also looked up a number of court decisions that deal with the definition of a material fact in securities cases, and I've found nothing that would support the argument that material facts can be legally concealed from -- or misrepresented to -- the public on matters involving public securities.

On August 5, 2009, the city council approved Ordinance No. 183070, which gave final authorization -- requiring no further action by the city council -- for the Office of Management & Finance to use the city's borrowing authority to fund the project, even though a final deal was not approved until January 2010. And the RFP that was issued on January 14, 2010, for the line of credit, specified that the RFP was being issued under the authority granted by Ordinance No. 183070.

However, the approval of Ordinance No. 183070 came one month before I obtained a copy of the MLS Venue Design Guide, on September 3, 2009. And the MLS Guide is dated September 1, 2008, three months before the first so-called "fact-finding" task force hearing in December 2008.

And despite all of the negative findings based on the material facts contained in the MLS Guide that I brought to the city's attention after September 3, 2009, the city never made the MLS Guide a part of the public record.

So, Bojack, the law is clear, and so is the evidence.

And for those who aren't familiar with the material facts contained in the MLS Guide, the findings based on those material facts indicated that the main grandstand, even after renovation, would have less than half the required minimum number of restroom fixtures, less than one-third the recommended minimum amount of concourse space, and 3" less than the required minimum amount of leg room for all 18,000-plus seats.

In fact, 20% of the stadium's total seating capacity (approximately 4,700 seats) had to be cordoned off last season due to grossly inadequate spectator facilities.

And, Bojack, that's material.

OK, you get the last word. That is your last word on the subject on this blog.

Hey, how 'bout dem Timbers? I can't wait for minor league baseball season to kick in. Somewhere.

Wall Street Shuffle ~ 10cc (live, 1974)
http://www.youtube.com/watch?v=SNYBh4ryl5k

....Did your money make you better?
Are you waiting for the hour
When you can screw me?
`Cos you're big enough
To do the Wall Street Shuffle
Let your money hustle
Bet you'd sell your mother
You can buy another....


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