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Friday, June 10, 2005

Sticking point

Among the many questions about the City of Portland's proposed acquisition of Portland General Electric is whether it would be legal. Greg Chaimov, formerly the state legislature's main lawyer, had a piece in The Oregonian the other day raising that question, and so far I haven't heard anything close to an answer.

To understand the potentially deal-killing legal problem, a little corporate merger and acquisition talk is in order. There are two ways to buy a corporate business. You can buy all the stock from the stockholders; or you can buy the assets of the business from the target company (and its stockholders can then liquidate the target company and take out your money). For a lot of reasons, including several relating to taxes, sellers tend to want buyers to buy stock; for their own reasons, buyers often prefer to buy assets. The two deal structures are sometimes known as the "stock deal" and the "asset deal," respectively.

The PGE deal would almost certainly be a stock deal. PGE's sole shareholder is Enron, whose CEO -- essentially working for Enron's bankruptcy trustee, who in turn represents Enron's frustrated creditors -- has said over and over that the sale has to be a stock deal, period. Although it would technically be possible (albeit hideously complicated), an asset deal for PGE has been ruled out. As the O reported on April 20, Enron CEO Stephen Cooper "has made it clear that he's looking for more money this time around and only is interested in selling stock, not assets. Otherwise, he says, Enron is content to give its creditors stock in PGE and let financial markets decide what the company is worth."

So the City of Portland, if it buys PGE, is going to have to buy the stock. And that's where the legal problem comes in. The Oregon Constitution forbids local government from owning stock of a corporation. Article XI, Section 9, added in 1917, reads as follows:

Section 9. Limitations on powers of county or city to assist corporations. No county, city, town or other municipal corporation, by vote of its citizens, or otherwise, shall become a stockholder in any joint company, corporation or association, whatever, or raise money for, or loan its credit to, or in aid of, any such company, corporation or association. Provided, that any municipal corporation designated as a port under any general or special law of the state of Oregon, may be empowered by statute to raise money and expend the same in the form of a bonus to aid in establishing water transportation lines between such port and any other domestic or foreign port or ports, and to aid in establishing water transportation lines on the interior rivers of this state, or on the rivers between Washington and Oregon, or on the rivers of Washington and Idaho reached by navigation from Oregon's rivers; any debts of a municipality to raise money created for the aforesaid purpose shall be incurred only on approval of a majority of those voting on the question, and shall not, either singly or in the aggregate, with previous debts and liabilities incurred for that purpose, exceed one per cent of the assessed valuation of all property in the municipality.
"No county, city, town or other municipal corporation, by vote of its citizens, or otherwise, shall become a stockholder in any joint company, corporation or association, whatever...." That's pretty absolute language, and according to Chaimov's article, the state's courts and attorney general have interpreted the rule strictly. The city, with Commissioner Erik Sten in charge, apparently thinks the rule is a "technicality" that can be circumvented for purposes of the PGE transaction, but Chaimov's not so sure.

And in order for the deal to go down, the people with the money are going to have to be quite sure.

Back when Sten was still a kid at Fernwood Middle School, there was a little fiasco called the Washington Public Power Supply System (WPPSS, pronounced "whoops"). WPPSS issued a gajillion dollars' worth of public bonds to finance nuclear power plants, and it turned out that, because of a few "technicalities," the bonds weren't enforceable, even though fancy lawyers had originally opined that they would be. Lots of folks got burned, and I doubt Wall Street has forgotten about those worthless public power bonds from out in the Pacific Northwest.

In order to sell the billions of dollars of City of Portland bonds that are being proposed to finance the public takeover of PGE, the city is going to have to come up with a way to make the bond buyers of the world very, very comfortable with the legal aspects of the deal. I'm sure the city's investment banker consultants and out-of-state lawyers, who are all more or less working on commission, are telling the city fathers that they've got a way to get around what the Constitution plainly says. But they haven't convinced Chaimov.

The city has already blown well over $1 million of general fund money on the PGE adventure, by even conservative estimates. Before we get too many more millions down the road, maybe somebody from City Hall ought to get up at a press conference or City Club luncheon with a couple of PowerPoint slides showing exactly how the structure is going to satisfy the constitution.

Comments (24)


So when're you giving the Powerpoint presentation at the City Club to help explain how an asset deal could happen? :-) I want to go to it. I bet you can find a way. Besides I really miss your classes.

I can see from your Rose Festival float pic that you are keeping in great shape though!


Ginny Ross

PS The ethics case on my former employers went to the state Supremes. One of them Form B'd out and the other got 3 years suspension. :-0 Sheesh, first Arthur Anderson then this. My career has been like a John Grisham novel! :-)

I think Greg raises a good question.

It's my understanding that the city plans to have an intermediary entity buy the stock then turn around and sell the City of Portland the assets at the same price, with the city agreeing to hold the intermediary harmless for any liabilities, etc.

I assume any bonds would be sold by the City, and payment for PGE would be made through the intermediary to Enron (or, more accurately, the bankruptcy court). That begs the question, of course, of who sets up and owns the intermediary entity.

Anyone who answers "Neil Goldschmidt and Matt Hennessee, of course" is just way too cynical.

I can only imagine that the vast amounts spent on out of state lawyers and advisers has purchased those behind this deal a detailed understanding of terms like "transient ownership," "strawman" and "disregarded." You would think that the logical progression in a transaction like this would be to ensure that it is legal first, then go out and spend the big bucks to get in with the money people who can make it happen.

That said, I volunteer to set-up the intermediary company (aka strawman) for a reasonable fee ($1.6 million comes to mind).

This type of thread is why I read this blog. Thanks.

Jack Roberts says
"Anyone who answers "Neil Goldschmidt and Matt Hennessee, of course" is just way too cynical."

In light of the steady stream of monumentally stupid mismanagement and cooked up schemes over the past couple decades, (with the worst of the worst on the table right), how can anyone possibly be "too cynical"

OK so put Goldschmidt out of the picture.
What sort of lame thinking would then pretend Goldschmidt has removed himself or that the web of influence he represents is not as active as ever.

How about some people named Walsh, Kohler, or John D. Carter or Tom Imeson or any of the many Goldschmidt dinner guests who are today still stacked on boards at OHSU, TriMet Board, Port of Portland Board and PDC.

I swear, it is amazing, how the notion of Portland purchasing PGE is discussed as if we no longer have the identical circumstances which existed when the PERS defecit grew, when DMV wasted 120 million, Portland Water bureau wasted 20 million, the Port or Portland lost 50 million on the airplane Hanger misadventure, the Port gave away our $80 million shipyards for a song, the Convention Center anti-voter expansion ran up the yearly millions in losses, PGE Park lost millions, the Rose Quarter followed suit, $288 million (and climbing) gifts were approved for the powerful South Waterfront developers and other maleficence such as Tax funded bureaucrat "coaching", public agency credit cards for bureaucrat video poker, Library free for all theft and the mounting non-sustainable fiscal commitments to future spending.

Too cynical Jack?

"Besides I really miss your classes."

Ack, ack, ack...

How did this post turn into an opportunity to brownnose?

...and then dis' a former employer?


Mere technicality. Just like with PERS and the Pension Obligation Bonds.

The bond proceeds are held in accounts for which the government employers get both the gain and loss from investments. The bond money is commingled with the Public Employee Retirement Fund (PERF) for investment purposes. It is available for the purchase of PGE, and other investments, through intermediaries like the Texas Pacific Group or Fred Meyers via Kolberg Kravis & Roberts or Enron through ownership of the S&P stock index fund known as SPY.

The creative method to escape the prohibition of government ownership of private enterprise was to entrust the money first to PERS with a statutory requirement that PERS re-entrust the money back to the Oregon Investment Council for investment. Having the intermediate involvement of PERS is a purely cosmetic device that has absolutely no role other than to attempt to escape the clear prohibition of the government taking an interest in private enterprise.

If money that is dedicate to cover PERS costs, in the future as they accrue, can be bonded today, and invested in risky private investments, then almost any future government expenditure could be funded the very same way, provided an "independent" entity is created to act as an intermediary entity. Is suppose we could even call it a general purpose rainy day fund that is funded with either bonds or tax revenue; the source of the funds is less important than the manner in which it is invested.

The allowance of creative form over substance arguments to escape clear legal restrictions can render the law a mere technicality as it has with PERS and the Pension Obligation Bonds. If the employers could NOT have invested in private enterprise, rather than conservative investments yielding returns LESS than the cost to borrow, then the bonding would have had no economic justification, regardless of the mere technicalities.

The PERS Pension Obligation Bonds, so long as they remain commingled with PERF for investment purposes in private enterprise, and the benefits inure to the employer (through fungible reduction of other obligations so long as PERS is not terminated) in special Employer Lump Sum Accounts are simply void today, and everyday until this problem is fixed.

How could Mr. Greg Chaimov find a problem with Portland's plan to purchase PGE and not find a problem with the Oregon Investment Council's plan to buy PGE with public dollars? Erik Sten is right today that the constitutional prohibition on private ownership is a mere technicality if one looks only to anecdotal application of it in common governmental action, and particularly if Mr. Sten looks to the OIC's efforts specifically to buy PGE.

Like WPPSS, the Portland plan to buy PGE and the current Pension Obligation Bonds merely await the proper set of folks to enter a court room and get such deals declared void; void from the very outset of the deal, as was the argument in the WPPSS case. The trigger event for the Pension Obligation Bond case could be the termination of PERS (half accomplished today already) and the quandary of what to do with the employer accounts when the existence of PERS can no longer serve as a cloaking device to escape the clear constitutional prohibition of government investment in private enterprise.

If recent practice is the guide then Mr. Erik Sten is quite right, it is a mere technicality.

Steve - You magnificent cynical old dog. I think you've summed up this "World Class City" quite well. If you can put all that on a t-shirt, I'll buy one.

I'm currently working on a Tram/Potter/Vera design...tasteful, of course.


You must just be jealous if you didn't ever get to take a J. Bog. Advanced Tax Seminar. Too bad for you! I just mention it because I bet he could probably figure out how to do an asset deal and gosh darn it I wanna know if there's a way. Thanks to Ron L. for his interesting analysis, but all the more reason we need an asset deal.


An asset deal for a big outfit like PGE would be very messy. You'd have to transfer title to every single asset that it owns. It could be done -- Fred Meyer, Inc. was once sold this way, for example -- but it would be a mess.

Another reason Enron may want a stock deal is the treatment of PGE's liabilities. If the city buys the stock, it takes all of PGE's liabilities with it, known and unknown. If the city buys assets, the liabilities must be taken care of by Enron's creditors out of the proceeds of the Enron bankruptcy.

With the city pungling up $2-billion-plus in cash, you would think the city would be the one calling the shot on the deal structure. But this is essentially a hostile deal, and Enron doesn't really want to play with the city. And even if it did, the city's side is being handled by Erik Sten and Sam Adams, whose skills as negotiators and businessmen are quite evident in the PGE Park and Convention Center expansion deals... the phrase "lambs to the slaughter" comes to mind.


You are nice, but I'm already going to hell.

All I'm saying is that the "Advanced Tax Seminar" is different things to different people, and now I see why your nose is brown.


The complicated mess (and cost) of putting together an asset sale of an orginization as large as PGE aside, the city also lacks the motivation to acquire assets rather than stock that a private investor has, because the city has little or no use for the depreciation from the assets as a tax exempt municipality. (I'm sure someone will correct me here if a PUD does not get the municipality's tax exempt status.)

Any private buyer would demand to pay less for stock than assets to make up for the lost tax benefits (i.e., depreciation). Which leads me to wonder whether the city is also getting ready to over-pay for PGE (assuming it can otherwise put the deal together).

Very timely item, Jack. The Portland Business Journal has a cool article in today's electronic news as Portland's mayor explains it all, while speaking sharply to other Oregon mayors:


Portland mayor answers PGE concerns
Wendy Culverwell

Portland Mayor Tom Potter is firing back at the suburban mayors and county commissioners who questions the city's intent to acquire Portland General Electric Co. from its bankrupt owner, Enron Corp.

Responding to a June 7 letter signed by Salem Mayor Janet Taylor and additional letters from 30 additional cities as well as Marion and Yamhill counties, Potter answered that Portland is committed to a regional approach to running PGE and will not retain ownership.

In a letter released Friday, Potter said city leaders remain committed to principles laid out more than two years ago by his predecessor, Vera Katz. If the city succeeds in acquiring PGE from Enron, the utility will be governed by a regional board that will be responsible for decisions related to acquiring power, rates, service, expenditures and consumer protection. The city also pledged that local government services would not be funded from utility revenues and that experienced professionals -- not city officials -- would run the utility and the service territory would remain intact.

In addition, Potter said the city views itself as an agent to acquire PGE as a locally owned, public utility and not as a long-term owner.

"It is the city of Portland's intention to transition city ownership of PGE to an independent, regional utility," he assured skeptics.

Following the failed sale of PGE to Texas Pacific Group for $2.35 billion, Enron announced it would distribute the utility's stock to its creditors. Two groups have emerged with plans to issue bonds and buy the utility from Enron. In addition to the city, a Lake Oswego group wants to acquire PGE and turn it into a mutual utility.

Does any of this even matter if the city pulls the trigger and condemns PGE?

Here's the other "sticking point".

"""",,,the utility will be governed by a regional board that will be responsible for decisions related to acquiring power, rates, service, expenditures and consumer protection.""""

Come on.
The only thing this says is the Mayor wants to "stick: the public with yet another PMD. Program of Mass Dysfunction.

What the Mayor COULD have said is:
"Don't worry we have everything planned out and under control. We have corrected the environment at the City, PDC, Port and OHSU which delivered the past and current travesties."

But he can't because he may not see the travesties past or present. (earlier post above)

I can't think of a single example or sign, (in the last dozen years), that the public could consider indicative of a genuinely reliable system of city governance.

With a monumental endeavor such as the purchase and takeover of PGE
the reliability factor needs to be much higher. A strong track record of successes would be helpful as well.

I say NO WAY on Portland buying PGE.

The last thing we need is another "board" ripe with interests other than the public's, sticking us with another failure.

In a letter released Friday, Potter said
If the city succeeds in acquiring PGE from Enron, the utility will be governed by a regional board that will be responsible for decisions related to acquiring power, rates, service, expenditures and consumer protection. The city also pledged that local government services would not be funded from utility revenues and that experienced professionals -- not city officials -- would run the utility and the service territory would remain intact.

I hope we get to vote on the board members so we donít get stuck with the non-responsive, incompetent, political hacks that run things like: the Port of Portland, OHSU, Tri-Met, PDC, Planning , PDOT and the PUC that let PGE get away with charging us for taxes they never paid. Lets not add PGE to PGE park, water bureau billing, port sell off /sell out etc.

Further, an appointed board will pay attention to the politicians and their big doners before the well being of the average user. A directly elected board will at least pay lip service to the voters and face us for re-election.

The board must be accountable to the ratepayers, NOT TO CITY HALL.


Oh yes let's make sure we get to vote on them.
The Oregonian can advise us on how to vote and we will get the model representation found at Metro.

Sorry Jim, that's hardly enough to avoid more of the same.

First things first.

Let's see some positive results from somewhere first.
And by decree or declaration by the people relying on positive reports to keep their jobs.

I just love it when an agency or program is providing the measurement of their own merits.

I can easily see a new bureaucracy emerging from a new Portland owned PGE. Arriving under the lofty objectives of energy equity, energy conservation and energy development the new agency would start off in a small office with a staff of six or so. Not too long afterwards the then 200 employees with their several hundred million dollar budget would be housed in their own building while performing all sorts of tasks. All of which would be deemed vital, necessary and justified by their own reports and the Oregonian editorial board. Sound familiar?
That's because this new (post City of Portland purchased PGE) bureaucracy will be a duplication of the what the PDC has become to the city.

Of course by then it will be equally entrenched and we will be alarmed over the upcoming next misadventure.

Any guesses on what could be coming?

I agree. The last thing we need is another regional, quasi-governmental, quasi-public, quasi-accountable pot of money for the West Hills gang to steal from.


And "NOT" by decree

Jack Jack Jack,
That is way too cynical.
The "pot of money for the West Hills gang to steal from" is only a series of innocent public private partner ships with management fees.

It's all good.

I am stunned to read in Friday's Tribune something which I must applaud Commissioner Randy Leonard for.

Hold on now, I would still like to see Randy thrown out of office but on the PDC he is spot on!
"Commissioner Randy Leonard has proposed making the PDC into a city economic development bureau, and eliminating its five-member commission or having the City Council serve as the commission."

That is exactly the kind of downsizing the public MUST see. The PDC with it's large headquarters building, ( intended to be generating a return on the public's investment by now) 200 employees and enormous budget has evolved into everything but "set up so it can operate free from political pressures" It's entirely political. The only thing it is free of is accountability and genuine oversight protecting the public's interests.

You go Randy. You may be saved.

Having the City planning department take over those responsibilities makes sense. Don't back down and demand that the PDC sell, on the open market, it's headquarters and other nonessential properties and get the city out of the business of land speculators. The corrupting nature of this approach has weakened public support and sense of community beyond belief.

Take the City back to doing fewer things real well instead of doing too many things with bad results.
Once a few operations are checked off as manageable, productive and sustainable then responsible expansion will make sense to most taxpayers.

*******Off topic Library Humor

Library: 18,786 items missing

The CYA BS coming from the library is a hoot. http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1118484423150940.xml&coll=7

Excuses for the loss of 18,786 items falls short of the truth but soars with comedy.

"The main reason: The manufacturer recommends installing the gates no more than 3 feet apart. But in the libraries where the gates were installed, they were set wider to accommodate patrons in motorized mobility carts. That meant turning up the sensitivity so high that the alarm went off all the time."

Not a chance folks. There is not a mobility cart or wheel chair I have ever seen that does not easily fit through a 3 foot doorway or gate, period.

"The memo also cited problems that might have occurred but didn't, including the worry that sensitizing and desensitizing the magnetic security tags would create ergonomic problems for library staffers."

Obviously the Library management needs coaching.

Please someone explain how this excuse could have possibly gotten beyond the nit wit who dreamt it up.

This is exactly like the PDC. Where are the conciences of our public servants.
Why does it take six years and 18,786
losses before someone steps into do something?
Why did it take 9 months of 655 hours @ 200/hr coaching adding up to $130,000 at the PDC befroe someone stepped into do something?
What else is going on with people doing nothing?

Stevem torture yourself reading the library PR shill's fatuous whitewash here:


As if anyone on that site would ever not vote for more funds for any agency no matter how badly public money was used or accounted for.

I know it's very trogladite-sounding in this day and age, but I've always wondered about the county library system simply assuming that it was charged with the obligation to expand it's repertoire of services to include anything and everything possible beyond books. DVDs. Videotapes. Music. Internet. As if that stuff isn't ubiquitously available dirt cheap to anyone who wants it. Especially considering that they're always whining about their funding. Just stick to books, and try to do that well.

Steve - You magnificent cynical old dog. I think you've summed up this "World Class City" quite well. If you can put all that on a t-shirt, I'll buy one.

I'll take two, and a VOTE FOR SCHOOP one as well.

Wel this pretty much says it all


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