No madam chairwoman, it was not “erroneous” and is “significant”

At the August 28 meeting of the Tourism Community Enhancement District Board (TCED) the Ole Seagull, followed up on his March 27 presentation to the TCED which showed that the Missouri Supreme Court, in the case of “Jefferson v. QuikTrip,” resolved that case using a logic and statutory construction that had not been previously addressed in any of the prior legal opinions to the TCED that the Ole Seagull had seen or was aware of. He believed it provided more than an adequate basis for effective legal or other action to be taken that could stem the TCED’s diversion of millions of dollars to the pay the city of Branson’s TIFs and the loss of the hundreds of millions of dollars in economic and marketing benefit to Branson area shows, attractions, lodging facilities and businesses those marketing dollars represent.

During the August 28 TCED meeting he said, “I just want to be perfectly clear on this; your attorney gave you an opinion that what I said at the March meeting was ‘dicta.’ Relying on that opinion, although I don’t believe that most of you even knew what ‘dicta’ was, you fluffed me off, and, based on that opinion, made a multi-million dollar decision which was proclaimed on the front page of the local paper a few days later. I just have to believe that subsequent events have established conclusively that what I said was not ‘dicta’ and that the opinion you relied upon for your action was as wrong as it could be and that at the time it was delivered, the attorney either knew or should have known that it was wrong.”

He closed asking this question, “Why would no action by the District [TCED] be required in view of the patently erroneous opinion that it relied on to make a multi-million dollar decision?”

In response, TCED Chairwoman Ann McDowell said, “We did not make a multi-million dollar decision based on that comment from Matt in one of our meetings… We have made that decision based on two written opinions by legal counsel and other consultations with attorneys on that matter, not by a casual comment made by an attorney at our board meetings. So that is erroneous. We did not believe that any further action was necessary because we did not believe that comment was significant.” [Underline added.]

Madam Chairman, may an Ole Seagull express his opinion that you, and any of the board members, who “did not believe that comment was significant” evidently missed the fact that a professional, being paid to give you advice, at least as related to what was presented at that March 27 meeting by the Ole Seagull, gave you advice that, in his opinion, the attorney either knew or should have known was false.

Even worse Madam Chairman, is that you and the board dismissed what the Ole Seagull presented with a couple of platitudes such as “We trust Matt,” and “Thanks for supporting the renewal of the tax.” This without, he believes, either fully understanding the significance of what he had had presented or what “dicta” was.

It is an Ole Seagull’s further opinion that, but for the fact he wrote a column, entitled “Is TCED Tourism Tax Board inaction costing Branson $1 Billion in marketing and economic benefits?” on March 30 describing what transpired at that meeting, that would have been the end of the board’s involvement with the issue. Fortunately, the Ole Seagull believes, the board, because of the upcoming election for the reauthorization of the tax, overreacted resulting in, as ironic as it is, the April 1st post to the web site of the Branson Tri-Lakes News, containing a front page story entitled, “Tourism board firm on legal opinion of payment” with the board and its attorney discussing the “insignificant” comments made at that meeting.

In the story the boards attorney again described what the Ole Seagull had presented at the meeting as “dicta” prefaced by verbiage that, while making no sense to an Ole Seagull must have resonated with Chairman McDowell and the board because she said, “I appreciate the fact that Gary did the research and tried to get into the details of the matter, but I think our board tends to put our faith in the attorneys we’ve hired over the years to give us their opinions.”

McDowell’s response, “We have made that decision based on two written opinions by legal counsel and other consultations with attorneys on that matter” has nothing to do with what was presented by the Ole Seagull at the March 27th meeting and the cavalier way that what was presented was treated. Perhaps she, or any board member, could be so kind as to show an Ole Seagull any official TCED record or opinion existing prior to March 27, 2014 relating to the information presented by him at that meeting. If that happens then the Ole Seagull was “erroneous”. The absence of that happening speaks for itself.

The only time those opinions were mentioned was when the board’s attorney delivered, what the Ole Seagull believes, was his “prepared” response to what he thought the Ole Seagull was going to say. It would be his further opinion that when different information was presented the attonrey “shot from the hip” with the “dicta” comment to the board that will forever live in the Ole Seagull’s heart as a prime example of “legal infamy.”

In the interim, it has been “legally” established that what the Ole Seagull presented was in fact not “dicta” and, based on the information that the Ole Seagull presented at the March 27 meeting a local attorney had offered to take the case on a “contingency basis,” basically if he wins he gets a percentage if he loses he gets nothing. What was the board’s reaction? According to McDowell, “The TCED was not interested in pursuing a lawsuit or declaratory judgment regarding this issue at this time?”

Instead, what did they do? Had an unofficial meeting with State Senator Don Phillips that circumvented the provisions of the “Sunshine Law.” McDowell said, “As the meeting with Don Phillips was unofficial, no minutes were taken. However, Don offered to request an Attorney General’s opinion, to which we agreed.”

Interesting, all this “insignificant” stuff involving hundreds of millions of dollars in marketing and economic benefit and a legal issue that the courts are very familiar with moving in a calculated manner outside of the judicial system and public scrutiny through a political process. A process that has, since March, cost hundreds of thousands of actual marketing dollars and millions in marketing and economic benefit to our area.

The questions might be asked, “Isn’t an Attorney General’s opinion just another opinion” and “Why isn’t this tax issue being litigated like the last two tax issues involving the city of Branson which were given a final resolution by the State Supreme Court?” As to the first question, an Ole Seagull would say, “Basically Yes.” As to the second, he would venture an opinion, it’s because the TCED, as a board, appears to be more concerned about preserving the TIF payments to the city than their fiduciary duty to the people of the district. This has cost the district’s retail businesses, theatres, attractions, lodging establishments and restaurants about $88 million per year in lost marketing and economic benefits.*

*Figure uses the ROI (Return on Investment) of $75.00 to every $1.00 spent on tourism marketing furnished by the Branson Lakes Area Chamber of Commerce and CVB.

Note: The two previous columns the Ole Seagull has written are available on line at

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