Federalism, Governance, & Bankruptcy

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eBlog, 2/15/17

Good Morning! In this a.m.’s eBlog, we consider the evolving governance challenge in New Jersey and the state takeover of fiscally troubled Atlantic City—a breach into which it appears the third branch of government—the judiciary—might step. Next, we turn to whether governmental trust by citizens, taxpayers, and voters can be exhausted–or bankrupted–as the third branch of government, the judiciary–as in the case of New Jersey–could determine the fate of the former and current mayors of the fiscally insolvent municipality of Petersburg, Virginia. Finally, we try to get warm again by visiting Puerto Rico—where the territorial status puts Puerto Rico between a state and a municipality—what Rod Serling likely would have deemed a fiscal Twilight Zone—further complicated by language barriers—and, in a country where the federal government may not authorize states to file for bankruptcy protection, in a governance challenge with a new Governor. No doubt, one can imagine if Congress appointed an oversight board to take over New Jersey or Illinois or Kansas, the ruckus would lead to a Constitutional crisis.

We Await the Third Branch. The first legal action challenging the State of New Jersey’s takeover of Atlantic City finances will be decided at the local level in the wake of U.S. District Court Judge Renee Marie Bumb’s decision to remand the case back to Atlantic County Superior Court. The case involves a lawsuit from the union representing Atlantic City firefighters which alleges state officials are unlawfully seeking to lay off 100 firefighters and alter the union’s contract; Judge Bumb held that the federal court lacks jurisdiction, since the complaint does not assert any federal claims, thereby granting International Association of Firefighters Local 198’s “emergency motion” to remand the lawsuit to New Jersey state court, saying it was inappropriate for the defendants to remove the action to federal court. Thus, the case will revert to New Jersey Superior Court Judge Julio Mendez, who temporarily blocked the state-ordered firefighter cuts at the beginning of the month. The case involves the suit filed by the International Association of Fire Fighters, Local 198, and the AFL-CIO challenging the state’s action to proceed with 100 layoffs and other unilateral contract changes under New Jersey’s Municipal Stabilization and Recovery Act—the legislation enacted last November in the wake of the New Jersey Local Finance Board’s rejection of Atlantic City’s rescue plan. The suit claims the act violates New Jersey’s constitution. This legislation, which was implemented last November after the New Jersey’s Local Finance Board rejected an Atlantic City rescue plan, empowers the state alter outstanding Atlantic City debt and municipal contracts. Prior to Judge Mendez’s Ground Hog Day ruling, the state was planning to set up changes to the firefighters’ work schedule, salaries, and benefits commencing by cutting the 225-member staff roughly in half beginning in September.

Hear Ye—or Hear Ye Not. A hearing for the civil case brought against Petersburg Mayor Samuel Parham and Councilman and former Mayor W. Howard Myers is set for tomorrow morning. Both men are defendants in a civil court case brought about by members of registered voters from the fifth and third wards of Petersburg. Members of the third and fifth wards signed petitions to have both men removed from their positions. The civil case calls for both Parham and Myers to be removed from office due to “neglect, misuse of office, and incompetence in the performance of their duties.” The purpose of hearing is to determine trial date, to hear any motions, to determine whether Mayors Parham and Myers will be tried separately, and if they want to be tried by judge or jury. James E. Cornwell of Sands Anderson Law Firm will be representing messieurs Myers and Parham. (Mr. Cornwell recently represented the Board of Supervisors in Bath County, Virginia, where the board was brought to court over a closed-doors decision to cut the county budget by $75,000 and eliminate the county tourism office.) The City Council voted 5-2 on Tuesday night to have the representation of Mr. Myers and Mayor Parham be paid for by the city. Mayor Parham, Vice Mayor Joe Hart, Councilman Charlie Cuthbert, former Mayor Myers, and Councilman Darrin Hill all voted yes to the proposition, while Councilwoman Treska Wilson-Smith and Councilwoman Annette Smith-Lee voted no. Mayor Parham and Councilmember Hill stated that the Council’s decision to pay for the representation was necessary to “protect the integrity of the Council,” noting: “It may not be a popular decision, but it’s [Myers and Parham] today, and it could be another council tomorrow.” Messieurs Hill and Parham argued that the recall petition could happen to any member of council: “[The petitions] are a total attack on our current leadership…We expect to get the truth told and these accusations against us laid to rest.” The legal confrontation is further muddied by City Attorney Joseph Preston’s inability to represent the current and former Mayors, because he was also named in the recall petition, and could be called as a witness during a trial.

Federalism, Governance, & Hegemony. Puerto Rico Gov. Ricardo Rosselló has said that he is setting aside $146 million for the payment of interest due on general obligation municipal bonds, noting, in an address to the Association of Puerto Rico Industrialists, that he plans to pay off GO holders owed $1.3 million, because the Commonwealth defaulted on its payment at the beginning of this month, so, instead, he said the interest would be drawn from “claw back” funds, a term the government uses to describe the diversion of revenue streams which had supported other municipal bonds. Now the Governor has reported the $146 million would be held in an account at Banco Popular, ready to be used to meet subsequent general obligation payments to bondholders—noting that the funds to be used had not been “destined” to be used for essential services for Puerto Rico’s people; the Governor did not answer a question as to which bond revenues were being clawed back; however, his announcement creates the potential to partially address the nearly 9 month default on a $779 million payment.

But mayhap the harder, evolving governance issue is the scope of the PROMESA Board to “govern” in Puerto Rico: the statute Congress enacted and former President Obama signed does not vest authority in the PROMESA Oversight Board to review all legislation introduced by the current administration before its approval—thus, the growing perception or apprehension is the implication that Congress has created an entity which is violating the autonomy of the Government of Puerto Rico. It is, for instance, understood that Congress and the President lack the legal or Constitutional authority to take over the State of Illinois—a state which, arguably—has its own serious fiscal disabilities. Thus, it should come as no surprise that Gov. Rosselló’s administration is feeling besieged by disparate treatment at the receipt of a letter sent by the PROMESA Board at the beginning of this month—an epistle in which Board Chair José B. Carrión requested that the Puerto Rican Government discuss with the Board the implications of any new legislation before submission, citing §§204, 207, and 303 of PROMESA as part of the “many tools that can be deployed in terms of legislation.” Unsurprisingly, Elías Sánchez Sifonte, Gov. Rosselló’s representative to the Board, wrote that the Board’s “request to preliminarily review all legislation, as a right they can exercise, is not considered in PROMESA, and it violates the autonomy of the Government of Puerto Rico,” noting that Governor Rosselló’s administration “is working and will continue to work in cooperation with the Oversight Board on all issues” considered under PROMESA. Nevertheless, in the epistle, Mr. Sifonte wrote that “nowhere” in §204 is there any mention that the Government of Puerto Rico must submit its legislation for revision, rather: “It only requires that the legislation be submitted to the Board after it has been properly approved,” even as Mr. Sifonte acknowledged in the letter that after the Fiscal Plan has been certified, the Commonwealth must forward any adopted legislation to the PROMESA Board, accompanied by a cost estimate and a certification stating if it is consistent with the fiscal plan. Moreover, Mr. Sifonte added, because there is currently no fiscal plan, such a certification is not applicable, although a cost estimate is—the deadline for the fiscal plan is February 28th at the latest.

Moreover, according to Mr. Sifonte, “[o]nce the Plan is certified, every piece of legislation to be submitted will be consistent with the Fiscal Plan and will be accompanied by the proper certification, which, in his view, means that it should be protected from Board review, according to the Congressional report that gave way to PROMESA, adding that his purpose in communicating was to “help” both Puerto Rico and the PROMESA Board understand and respect each other’s authority—or, as he noted: “PROMESA’s broad powers are recognized, and we recognize all of the Board’s powers contained within the law. What shouldn’t happen is for them to want to go further, despite those extensive powers, and occupy a space that belongs to the officials elected by the people, because then that would in fact infringe upon the full democracy of our country,” adding that “the administration’s intention is not to interfere with the Oversight Board while the members carry out their mission under the federal statute, but the letter seeks to clarify “the autonomy of Puerto Rico’s Government, which is safeguarded under PROMESA.” The letter also states that the Government’s interpretation of PROMESA is based on Section 204(a)(6), which establishes that the Oversight Board may review legislation before it is approved “only by request of the Legislature.” Finally, Mr. Sifonte addressed a fundamental federalism apprehension: referencing §207 of PROMESA, which establishes that “the territory” cannot issue, acquire, or modify debt, he wrote that Puerto Rico has not issued, nor does it intend to issue any debt, referencing the Puerto Rico Financial Emergency & Fiscal Responsibility Act, and emphasizing this statute marks a change in public policy, with the intention of paying the creditors, just as Governor Rosselló this month had announced. Finally, he noted: the “inappropriateness” of the Chairman’s proposition, where—under the protection of §303 of PROMESA—he tells the Government that “the compliance measures under PROMESA should be a last resort and hopefully won’t be necessary,” noting that that provision “expressly says that the Government of Puerto Rico retains the duty to exercise political power or the territory’s governmental powers.”

The Governing Challenge in Averting Insolvency

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eBlog, 6/10/16
In this morning’s eBlog, we consider the bipartisan legislation overwhelming passed by the U.S. House of Representatives last night to address Puerto Rico’s looming insolvency—and a related U.S. Supreme Court decision; then we look at the almost Detroit Public Schools filing for chapter 9 municipal bankruptcy. It almost seems as if these events and actions were staged just for my fine graduate class on public policy process.

 

Oye! The House last evening passed and forwarded to the Senate legislation to address Puerto Rico’s looming insolvency on a bipartisan 297-127 vote: Speaker Paul Ryan (R-Wi.) and Minority Leader Nancy Pelosi (D-Ca.) took to the House floor to urge support for the legislation, with Speaker Ryan noting: “The Puerto Rican people are our fellow Americans. They pay our taxes. They fight in our wars…We cannot allow this to happen.” The bill now heads to the Senate, where there is little evidence Senators are eager to remake the bill wholesale, particularly as conditions on the island continue to worsen. The only amendment to fail was one offered by Democrats that would have struck a provision of the bill permitting Puerto Rican employers to pay workers under 25 years old less than the minimum wage. The legislation is critical as Puerto Rico—being neither a municipality, nor a state, falls into a Twilight Zone in terms of authority to address an insolvency. Puerto Rico has defaulted on three classes of municipal bonds, including last month when it missed most of a $422 million payment, and faces $2 billion in payments on July 1 that the island’s governor said cannot be paid. That final vote on the amendment was 196 in favor to 225 against. Puerto Rico’s government has begun defaulting on $70 billion in debts, and has warned it could run out of cash this summer.

In pressing for the vote, the Speaker warned that pressure would mount on Congress to spend money rescuing the territory if it could not arrest its economic decline, telling his colleagues: “This bill prevents a bailout. That’s the entire point…if we do not pass this bill…there will be no other choice.” Anne Krueger, a former IMF economist who led a detailed review of Puerto Rico’s economy, has warned: “Come July 1, if nothing is done, Puerto Rico will technically be bankrupt…Assets will be tied up in courts. It is very likely that essential services will have to be suspended.”

As drafted, the House-passed legislation does not commit a single federal dollar to Puerto Rico. The legislation creates a federal oversight board—whose members will be appointed by Congress and President Obama, and not the governor—to determine whether and when to initiate court-supervised debt restructuring: it charges the board with the responsibility to determine the hierarchy of municipal debt obligations and encourages it to respect the existing legal framework, which places constitutionally backed general obligation debt above pension liabilities. The board terminates after Puerto Rico regains the ability to borrow at reasonable interest rates and balances its budget for four consecutive years. Congressional leaders and the Treasury hope the bill will avert a long, expensive courtroom battle between hedge funds and the federal government—a battle that could harm investment in the U.S. territory’s economic future and undercut its ability to provide essential public services (servicing Puerto Rico’s current debt burden today absorbs approximately 30 percent of the Commonwealth’s revenues)—especially as Puerto Rico is now at the forefront of the Zika virus. While critics have falsely warned the bill could set a precedent for distressed states to seek similar relief, the dual sovereignty created by the founding fathers—or statesmen—in the U.S. Constitution clearly undercuts such claims: Congress granted U.S. citizenship in 1917 under the Jones-Shafroth Act to residents of Puerto Rico, which was seized in the Spanish-American War of 1898. The U.S. gave the territory the right to elect its own governor in 1947.

 Republicans have been concerned that the language would allow the to-be appointed oversight board to elevate pensions above the island’s full faith and credit general obligation municipal bond debt: Rep. John Fleming (R-La.) submitted an unsuccessful amendment to require compliance with the legal hierarchy, calling the statutory use of the word “respect” a “weasel word.”

Hear Ye! By coincidence, the U.S. Supreme Court chimed in almost simultaneously in a 6-2 decision (Commonwealth of Puerto Rico v. Sanchez Valle et al., (2016), No. 15-108, involving a simple criminal prosecution for firearms sales, but also the related governance issue of the Commonwealth’s autonomy—a case in which attorneys for Puerto Rico argued that it should be able to try two men who already had pleaded guilty in federal court. Justice Elena Kagan, writing for the majority, said that would amount to double jeopardy, writing: “There is no getting away from the past…Because the ultimate source of Puerto Rico’s prosecutorial power is the federal government…the Commonwealth and the United States are not separate sovereigns.” Reasoning that even though Congress, in 1950, gave Puerto Rico the authority to establish its own government under its own constitution, that did not, in and of itself, break the chain of command that originates with Congress. As a result, the majority determined, the Commonwealth should be treated the same as other U.S. territories. While the 50 states and even Indian tribes enjoy sovereign powers that preceded the union or were enshrined in the U.S. Constitution, Justice Kagan wrote, Puerto Rico in 1952 “became a new kind of political entity, still closely associated with the United States, but governed in accordance with, and exercising self-rule through, a popularly ratified constitution,” adding that Puerto Rico’s Constitution, significant though it is, does not break the chain.” Justice Ruth Bader Ginsburg went further in her concurrence, suggesting that the high court should hear a case that tests whether states and the federal government should remain able to try defendants for the same crime.

During oral argument last January, a majority of Justices appeared to side with the Obama administration, which argued that, as a territory of the United States, Puerto Rico cannot try the gun dealers after federal courts have acted, with Asst. Solicitor General Nicole Saharsky arguing: “Congress is the one who makes the rules.” The majority appeared to agree: Justice Kagan, writing for the majority, noted: “If you go back, the ultimate source of authority is Congress.” Nevertheless, in their dissent, Justices Stephen Breyer and Sonia Sotomayor stood by Puerto Rico — with Justice Breyer writing that if the court ruled against it, “that has enormous implications” for setting back the U.S. territory’s legal status: “Longstanding customs, actions and attitudes, both in Puerto Rico and on the mainland, uniformly favor Puerto Rico’s position — that it is sovereign, and has been since 1952, for purposes of the double jeopardy clause.” Justice Sotomayor, whose parents were born in Puerto Rico, said during oral argument that the island is an “estado libre asociado” Ironically the case was the first of two involving Puerto Rico to come before the high court this term. The Court is also re weighing the Commonwealth’s effort to restructure part of its $70 billion public debt, an issue addressed last evening by the House: a federal appeals court blocked the restructuring because of conflicts with U.S. bankruptcy laws.

Schooling for What If & Municipal Bankruptcy. With uncertainty whether the Michigan legislature would be able to pass and send legislation to him before the Detroit Public Schools exhausted all its cash—and before the legislature completed its session, Gov. Rick Snyder’s administration had commenced discussion with regard to drafting a chapter 9 municipal bankruptcy filing for DPS—in some apprehension of a wave of vendors’ and employees’ suits against DPS—the city’s public school system foundering in more than $515 million in outstanding operating debt: key staff worked with attorneys on a possible DPS chapter 9 bankruptcy, and Gov. Snyder had exchanged text messages with his former law school colleague and appointee as Detroit’s Emergency Manager, Kevyn Orr, who had, as we have catalogued, served as Emergency Manager in charge of both taking Detroit into municipal bankruptcy, and then piloting it through its successful emergence and approval of its plan of debt adjustment. Michigan State Treasurer Nick Khouri recently estimated the DPS would need $65 million for capital costs, including deferred maintenance and upgraded security equipment; $125 million for cash flow needs due to the timing of school aid payments and other startup expenses; and $10 million for academic programming. Now, in the wake of partisan action on which we reported yesterday, DPS will be able to make payroll, pay vendors, and purchase supplies this summer to prepare for school this fall. Logistically, the new school district will be created by July 1: retired U.S. Judge Steven Rhodes, DPS’s emergency manager appointed by Gov. Snyder and now serving as DPS’ transition manager, is working with state administrators to implement the new agreement.

Michigan’s Role in Municipal Fiscal Fates

February 23, 2016. Share on Twitter

Out Like Flint. Does Flint have a fiscal future? University of Michigan-Flint Professor Marty Kaufman, who has been leading a research team studying the city’s denigrated water lines, has reported there are as many as 8,000 lead service lines—making the announcement yesterday at a news conference at City Hall, in the wake of his team’s painstaking analysis of handwritten records, paper maps, and scanned images to create a digital database of lead pipes. Professor Kaufman stressed that while the project is a full compilation of available data, the records, compiled from a 1984 survey, do not always indicate the types of pipes used—vastly complicating Mayor Karen Weaver’s efforts to get those lines removed as quickly as possible from what, once, was the state’s second largest city, but where, today, the fear of lead contamination, especially for children, can only threaten significant adverse fiscal consequences for the city as families with children become increasingly fearful of remaining in the city—not to mention the apprehension of other families about moving to Flint: fears that cannot bode well for the city’s assessed property values. Because at the time of the switch of its water supply, under then state-appointed emergency manager Darnell Earley, Flint did not treat the water with anti-corrosion chemicals: the omission allowed river water to scrape too much lead from aging pipes and into some residents’ homes. Nevertheless, yesterday, Gov. Snyder said 89 percent of water samples collected from key locations in Flint measured below the “action level” of 15 parts per billion for lead in an initial round of testing, adding that samples from the so-called “sentinel” sites will help determine when it is safe to drink unfiltered water again.

Out Like Snyder? Meanwhile, the Michigan State Board of Canvassers, which is responsible for canvassing and certifying statewide elections, elections for legislative districts that cross county lines and all judicial offices, except Judge of the Probate Court, conducting recounts for state-level offices, canvassing nominating petitions filed with the Secretary of State, canvassing state-level ballot proposal petitions, assigning ballot designations and adopting ballot language for statewide ballot proposals, and approving electronic voting systems for use in the state, has approved another petition seeking to recall Gov. Snyder, citing the governor’s declaration of a state of emergency in Flint after lead leached from the pipes into the city’s water supply. The Board approved the petition yesterday from the Rev. David Bullock of Detroit, who had filed his petition two weeks ago yesterday after the board rejected eight petitions to recall the Governor. Notwithstanding the approval, Rev. Bullock now must obtain at least 789,133 signatures. If approved, the recall effort would become a ballot question which would then need majority support from Michigan’s voters.

Schooling on Municipal Bankruptcy. As every city or county elected leader knows, the quality of a jurisdiction’s public schools are fundamental to such a jurisdiction’s fiscal balance: if the schools are excellent: they attract families to the city or county, with important, positive implications for assessed property values and property tax collections. If, in contrast, they appear to be physically dangerous or threatening, or incompetent; the schools can create the opposite fiscal outcome. Thus, even though many public school systems are nominally distinct from city or county-elected jurisdictions; those locally elected leaders have a very great stake in the perceived excellence of their public schools.

The city and Detroit Public Schools (DPS) have entered a consent agreement setting a timetable to address hundreds of safety and health violations in DPS’ school buildings. The agreement covers the first 26 schools inspected by the city that require repairs; additional schools will be added as inspections progress. Detroit Mayor Mike Duggan stated: “What we wanted was a commitment from DPS with specific time lines for making each repair and a binding agreement enforceable in court if those time lines are not met.” The action by the city comes in the wake of Detroit’s Building, Safety, Engineering & Environmental Department’s four-month inspection program for all 97 DPS buildings after complaints by teachers and parents about problems including water leaks, mold and heating—and rat infestation: at six schools with reported rodent infestations — Blackwell Institute, Clark Preparatory Academy, Cody High, Sampson-Webber Leadership Academy, Ronald Brown Academy and Spain Elementary-Middle — inspections are being done monthly by pest control contractors, according to the city report. Building checks were promptly conducted in 20 DPS buildings believed to be most problematic. Inspections of the remaining district buildings, plus Detroit charter schools, are to be completed by the end of April. The consent agreement, signed by Detroit’s City Attorney and Marios Demetriou, the DPS deputy superintendent of finance and operations, includes a spreadsheet listing progress on scores of projects and completion deadlines. City officials report that city inspectors have visited 64 DPS properties so far. In addition, the Detroit Health Department also conducted follow-up inspections in some cases. It is uncertain how the action taken by the city to deal with the dysfunctional DPS might impact—at least from a fiscal perspective—the suit filed last month by the Detroit Federation of Teachers with regard to building conditions, and seeking the removal of state-appointed Emergency Manager Darnell Earley, although Ivy Bailey, interim president of the DFT, said: “We do not plan to withdraw it until we are confident that the consent agreement’s commitments have been fulfilled.” Mr. Earley, who has previously served, or mayhap mis-served, as Gov. Rick Snyder’s appointed Emergency Manager for the City of Flint, will step down on Monday.

Recovery! Wayne County, the largest county in Michigan—and the home not just to Detroit, but also to 33 other cities and 9 townships—and where Michigan Gov. Rick Snyder last July had declared a financial emergency, and which is still operating under a consent agreement with the state—is now, according to the unmoody Moody’s, stable, with Moody’s Investors Service having revised its credit rating outlook on Wayne’s junk-level rating upward from negative in recognition of the Wayne County’s remarkable success in making substantial cuts to its public pension liabilities and other operating expenses, noting: “Revision of the outlook to stable from negative reflects diminished near-term fiscal challenges.” In response, Wayne County Executive Warren Evans noted: “Moody’s decision to upgrade our credit outlook to stable is a step in the right direction…Our successes last year in eliminating the structural deficit and reducing unfunded health care liabilities were definitely noteworthy, but, we aren’t resting on those successes. My administration continues to work to restore long term fiscal stability to Wayne County.”

The county has succeeded in reducing nearly $50 million in spending, achieved with elimination or modification of retirement benefits, a contraction of payroll, and other operating efficiencies over the last six months—having announced earlier this month that it is expecting $23 million in fiscal 2016 budget relief from cuts to retiree healthcare benefits—cuts which trimmed $850 million from its unfunded liabilities. In addition, the county now projects its annual savings are expected to grow, citing its post-employment benefit liabilities as one of the factors which had driven its deficit enough to raise the specter of municipal bankruptcy. Indeed, County Executive Evans noted: “The restructuring of the county retiree healthcare was the single largest contributor to restoring solvency.” Wayne County reduced its actuarial accrued OPEB liability by 65% in 2015, lowering it to $471 million from $1.32 billion, according to an actuarial analysis from Nyhart Actuary & Employment Benefits: the restructuring is projected to reduce Wayne County’s pay-as-you-go contribution this year down to $17.6 million from $40.4 million. In its upgrading, Moody’s analysts noted: “Enhanced control over expenditures was key to addressing the county’s fiscal concerns given limited options to raise revenue.”

Spinning the Debt Wheel in Atlantic City: “The city’s fiscal crisis is severe and immediate.” A new Atlantic City rescue bill, the “Municipal Stabilization and Recovery Act,” would give the State of New Jersey increased authority over Atlantic City’s finances as part of an effort to avoid the city going into chapter 9 municipal bankruptcy: the proposed legislation would empower the state to renegotiate Atlantic City’s outstanding municipal debt and municipal contracts for up to five years, while also giving the state the ability to leverage city assets and make staff cuts. Under the proposal, Atlantic City would be given one year to find a way to monetize its water authority. The quasi-state takeover of the city, coming in the wake of last month’s veto by then-Presidential candidate Gov. Gov. Chris Christie—a package which would have enabled Atlantic City’s eight remaining casinos to enter into a payment-in-lieu of taxes program for 15 years and aggregately pay $120 million annually during that period instead of a traditional property tax. The introduction of the bill came in the midst of ongoing governance confusion—with the role of the Governor’s appointed emergency manager for the city still in question. There has been, however, little question from the city’s perspective: Mayor Donald Guardian, joined by city council members and other elected officials, harshly criticized the takeover plan yesterday in a press conference, urging instead a new financial assistance bill which would allow the city to maintain “sovereignty,” with Mayor Guardian stating: “We cannot stand here today and accept any bill with the broad, overreaching powers as the one presented to us last week contained.” Or, as Atlantic City Council President Marty Small put it: “We were all troubled by this draft bill: It takes our sovereign right to govern our own city away.”

The legislation was introduced by New Jersey State Senate President Steve Sweeney (D-Gloucester), with Senators Kevin O’Toole (D-Wayne), and Paul Sarlo (D-Wood-Ridge), in an effort to avoid an Atlantic City chapter 9 municipal bankruptcy—with time beginning to run out at the home of the gaming tables: According to a January 21 report from Gov. Christie’s appointed emergency manager Kevin Lavin, Atlantic City could default as early as April absent a state rescue package. That is, there looms an Atlantic City fiscal hurricane—the red flag warnings of which now appear to have disrupted the year-beginning “new partnership” between Mayor Guardian, Gov. Christie, and Sen. Sweeney to avoid municipal bankruptcy—or, as Mayor Guardian described it: “The final piece of legislation that the State presented to us was far from a partnership…It was worse. Some would even say fascist.” Atlantic County Freeholder Ernest Coursey was no less upset, noting: “It will be a cold day in hell before we just stand by idly and just allow folks to run over the people of Atlantic City…I think we ought to work in partnership with the state of New Jersey and stop this hostile talk of a takeover.”

In Rome, they would say: tempus fugit, or time is flying: In this case, time is running out: in addition to addition to municipal bond debt, Atlantic City confronts a debt of $170 million to the Borgata casino from its tax appeals and a missed $62.5 million payment owed last December; moreover, Atlantic County Court Judge Julio Mendez ordered a 45-day mediation period commencing February 5th: Mayor Guardian yesterday said that if no resolution can be reached by then, he will have no choice but to petition the state’s Local Finance Board for a bankruptcy declaration, adding: “The sad irony is that we have a casino industry that wants to redirect their funds to the City of Atlantic City to help avoid all these doomsday scenarios,…There is a reasonable and practical solution out there, but that path has not been chosen by the state yet.”

Saving Puerto Rico. The U.S. House will convene simultaneous hearings on Puerto Rico Thursday as part of an accelerating effort to meet House Speaker Paul Ryan’s (R-Wi.) deadline for final House action by April first: The House Financial Services Committee’s Subcommittee on Oversight and Investigations will hold a hearing on the possible effects of Puerto Rico’s debt crisis on the municipal bond market; the House Natural Resources Committee will convene its hearing to discuss the Treasury Department’s analysis of the situation in Puerto Rico. The subcommittee hearing will feature three witnesses: Anne Krueger, a senior research professor of international economics at John Hopkins University who led a recent economic study of Puerto Rico; Juan Carlos Batlle, senior managing director of CPG Island Servicing, LLC; and William Isaac, senior managing director and global head of financial institutions for FTI Consulting. House Financial Services Subcommittee Chair Sean Duffy (R-Wis.) has, to date, been a key player in seeking to determine an exit from Puerto Rico’s looming insolvency: he introduced legislation last December to give Puerto Rico’s public authorities Chapter 9 bankruptcy protection in return for the creation of a five-person, Presidentially appointed financial stability council, seeking to balance the municipal bankruptcy authority Democrats have been pushing with the oversight authority for which Republicans have pressed. The Treasury proposal the Natural Resources Committee is scheduled to discuss is not dissimilar to Rep. Duffy’s, but it would propose restructuring for the entire commonwealth, a legislative concept deemed by some “Super Chapter 9” bankruptcy—a proposal which has not gained support in Congress over misplaced apprehensions by some that such a proposal could open up the possibility for states, such as Illinois, to try to restructure their constitutionally backed general obligation debts. These members are, apparently, unfamiliar with the dual sovereignty system unique to the United States of America. The Treasury position supports restructuring for the entire commonwealth, but that the extension of restructuring could come through Congress’s power under the Constitution’s Territorial Clause—a clause which gives Congress the power to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” U.S. Treasury Secretary Jack Lew has backed comprehensive restructuring legislation for the territory, partially to make it easier for its officials to bring all the commonwealth’s creditors to the table.

It Ain’t Over ‘Til It’s Over: One would think that after the long, tortuous, expensive process of gaining approval for a plan of debt restructuring from a U.S. Bankruptcy Court to exit municipal bankruptcy, a municipality could get back to focusing on recovery. But then you might be misjudging. Jefferson County, Alabama, however, finally at least has its new day in court set to determine whether its approved bankruptcy plan of debt adjustment is final: The 11th Circuit Court of Appeals has tentatively set the week of May 16 for its expected schedule of oral arguments in an appeal of the county’s successful exit from Chapter 9 municipal bankruptcy—albeit the 11th Circuit has no timeframe within which it must rule after arguments are heard. But one could anticipate a long and arduous road: it has taken well over a year to prepare the record for the court to consider hearing arguments, meaning that Jefferson County has now been in appeal longer than it was in municipal bankruptcy case. The lingering issue relates to the county’s approved plan of debt adjustment which .enabled it to issue $1.8 billion in sewer refunding warrants to write down $1.4 billion in related sewer debt two years ago last December—an approval which provoked a group of ratepayers on the sewer system to appeal U.S. (now retired) Bankruptcy Judge Thomas Bennett’s approval, and after, nearly 18 months ago, U.S. District Judge Sharon Blackburn rejected the Jefferson County’s contention that the ratepayers’ bankruptcy appeal was moot, based in part on the fact that the plan was largely consummated when the refunding debt was sold.

On the Edge of Municipal Bankruptcy

January 21, 2016. Share on Twitter

On the Edge of Municipal Bankruptcy. In the wake of Gov. Chris Christie’s veto of bipartisan legislation that would have helped the city by the sea revive its tax revenues and cash flow, the city, instead, is facing default—a position under which, if the Local Finance Board of the New Jersey Department of Community Affairs determines that a triggering event has occurred, Atlantic City would be placed under the board’s supervision—which would, in turn, enable the city to file a petition for chapter 9 municipal bankruptcy. Atlantic City Mayor Don Guardian City Council President Marty Small are planning an emergency city meeting next week to consider filing for bankruptcy, a motion which must be approved by the state, with Mayor Guardian noting: “If the state is not able to come up with the funding we need within the next few weeks, we will have no choice but to declare bankruptcy.”

The legislation aid package, worth $33.5 million for Atlantic City, was first passed by state lawmakers last June: it included measures to stabilize the municipality’s property tax base and establish fixed payments for tax appeals. After months of delay, Gov. Christie vetoed the bill, and he asked for certain changes. When the legislature, in a bipartisan effort, incorporated the Gov.’s proposed changes and re-passed the bill, Gov. Christie this week vetoed it again—virtually forcing the city into municipal bankruptcy. Should Atlantic City file for municipal bankruptcy, as appears nearly certain to be the case, it will mark only the second time a city has so filed: Camden filed in 1999; however, its case was subsequently dismissed.

In vetoing the key measure, Gov. Christie’s spokesperson stated: “Atlantic City government has been given over five years and two city administrations to deal with its structural budget issues and excessive spending…It has not. The governor is not going to ask the taxpayers to continue to be enablers in this waste and abuse.” Without the legislation, Atlantic City could be in default by April.

Mayor Guardian stated; “We’re shocked that the governor, who presented us with his bill, reneged on the funding,” and Assemblyman Vince Mazzeo (D-Atlantic City) said that the Governor’s vetoes demonstrated a “brazen disregard” for Atlantic City’s fiscal recovery. Nevertheless, the city, which already is in a unique position of dual governance—with both a state-appointed emergency manager as well as a Mayor and Council—appears to have no support at the state level: New Jersey State Senate President, Democrat Steve Sweeney, initially supported the aid package, but no longer does; instead he supports a state takeover of the city’s operations, a move strongly opposed by Mayor Guardian. Sen. Sweeney said: “We cannot afford to let Atlantic City go bankrupt…The best way out is for the State of New Jersey to take control of Atlantic City’s finances and the best way to do it is to act quickly.”

It is unclear exactly how what Sen. Sweeney is proposing would differ from the current role the state is playing in Atlantic City’s oversight through its appointment of emergency manager Kevin Lavin nearly a year after he was appointed by Gov. Christie to find ways to fix the dire state of Atlantic City’s fiscal condition. Indeed, Mr. Lavin released a final report late Friday which stops short of recommending that the city file for municipal bankruptcy—instead suggesting massive spending cuts, as well as consolidating and privatizing some parts of the local government. Ergo, Mr. Lavin said he supported efforts in the state Legislature that are currently underway to help Atlantic City — albeit, he was not specific with regard to the recently unveiled plan by state Senate President Stephen Sweeney calling for the state to take over Atlantic City’s finances. Mr. Lavin’s report, released a year after his appointment by the Governor to the $135,000-a-year job and more than six months after it was due, was posted on the New Jersey Department of Community Affairs website around 5 p.m. Friday.

For his part, the beleaguered Mayor Guardian said in a statement late Tuesday that the municipal bankruptcy option is “now back on the table” in the wake of Gov. Christie’s veto of state legislature’s package which would have enabled the city’s eight remaining casinos to enter into a payment-in-lieu of taxes (PILOT) program for 15 years and aggregately pay $120 million annually over 15 years instead of a traditional property tax. The city’s adopted FY2015 budget relied on some $33.5 million in anticipated revenues from redirected casino taxes included in the rescue bills to address a $101 million deficit. In his statement, Mayor Guardian warned that: “if the State is not able to come up with the funding we need within the next few weeks, we will have no choice but to declare bankruptcy…The signing of the PILOT bill would have saved us from looking at that, but unfortunately, the Governor did not sign the bill so we have to think realistically. The next few weeks will be very interesting.” That package, which would also have reallocated the state’s casino alternative tax to pay debt service on Atlantic City-issued municipal bonds, would have, in addition, given the city a chance to receive $60 million in funding directed to the city’s marketing arm, the Atlantic City Alliance for 2015 and 2016 had the legislation been signed by Tuesday’s high noon deadline.

The beleaguered Mayor Guardian also took aim at Sen. President Sweeney’s proposed state takeover of Atlantic City operations: “We will not tolerate the stripping of our God-given civil rights and right to self-governance…Atlantic City has worked too hard and has come too far to let that happen,” adding, in a statement, yesterday, that municipal bankruptcy is not the right course for Atlantic City, noting that, in the Garden State, only the state has power to declare bankruptcy and that doing so would have “disastrous results” and hurt the financial standing of other New Jersey municipalities.

EM’s Report. In his second, and almost certainly final report, Atlantic City Emergency Manager Kevin Lavin, whose contract with the state is scheduled to expire tomorrow, urged the consolidation and privatization of municipal services and massive spending cuts, but stopped short of recommending chapter 9 municipal bankruptcy. Mr. Lavin wrote that the city would run out of cash by April if New Jersey Gov. Chris Christie did not—as he did not—sign the package of rescue bills passed by the State Legislature. Mr. Lavin, in his final report, recommended regionalizing Atlantic City’s police force with neighboring municipalities and privatizing its fire department, noting that that these two departments, alone, comprise 69 percent of the city’s budget for salaries and wages. Mr. Lavin also recommended privatizing the Boardwalk Hall sports arena and the Atlantic City Convention Center, noting that these two properties operate at a combined loss of $15 million to $20 million annually with $75 million currently reserved for “substantial capital expenditures,” and adding that Atlantic City’s Municipal Utilities Authority has “significant assets” that present opportunities to increase revenue; he recommended dissolving the water authority and restructuring it to better benefit Atlantic City.

In his report, Mr. Lavin gave credit to Mayor Guardian and Atlantic City officials for the way in which they took on the city’s $101 million deficit in crafting their FY2015 budget, but he noted the overwhelming $190 million plus of casino tax appeals and other non-bond debt the city now faces, noting that the city’s ability to raise public funds to repay the non-bond debt is “highly unlikely” due in large part to an inability to quality for adequate Qualified Bond Act financing, according to the report. Atlantic City’s credit ratings have dropped to junk status. As Mr. Lavin noted: “As this report shows, over the past year we have accomplished much by working together with all stakeholders, and successfully kept the City from falling into fiscal ruin, including taking on a $100 million budget deficit that ballooned by nearly 20% in the course of the year…Atlantic City had been losing yardage for years, but we began to move the ball down the field. Unfortunately, our momentum has been stalled by parochial politics that continue to inhibit progress.”

For his part, Senate President Sweeney issued a statement after the Lavin report’s release emphasizing the need for state involvement to avoid bankruptcy: “New Jersey taxpayers cannot afford to let this crisis continue and that is why our takeover bill must be acted upon promptly…We can avoid bankruptcy, but only if we act now.”

Frustration. With the multiple, but conflicting state roles—between the state-appointed emergency manager, peripatetic Presidential candidate Chris Christie, and state legislative leaders—all sending conflicting, as opposed to constructive messages, one could sense the growing frustration in the city: as Mayor Guardian put it; “We have already made definitive progress within the confines of all the options made available to us…“So why have the plans not worked out in the time since I have been elected?” Ticking off the multiple and oft conflicting state oversight roles, including the past five years under a state monitor, with emergency manager Kevin Lavin added to the mix last year and a Local Finance Board that must approve the city’s budgets, Mayor Guardian said even a paperclip could not be mismanaged without review, noting: “The wake-up call to those above us is that this simple one-step answer to the problems that have been created over 35 years does not exist, and more to the point, we can certainly not fix everything in just two short years.”

A City Perspective: Atlantic City Council President Frank Gilliam, in an op ed yesterday, wrote:

The behavior of the New Jersey state government toward Atlantic City in recent days can be compared to that of a mugger — a robber who takes his victim’s money, demands his jewelry, and then threatens to shoot him for not having enough money.

Let me explain. While it’s without doubt that Atlantic City faces difficult financial circumstances, much of the difficulty is caused by the state. For decades, the state and its agencies have treated Atlantic City as their own bank, taking more than $1 billion.
It currently takes, through the Casino Reinvestment Development Authority (CRDA), more than $55 million each year:
• $26.6 million in sales and luxury taxes
• $20.5 million in parking fees
• $9.25 million in hotel room taxes

When Atlantic City occupied space as the unique gaming destination on the East Coast, this was tolerable. But as the state acknowledges, Atlantic City is no longer unique. The city must change to face this reality. But the state must also face this reality. It needs to allow Atlantic City to keep the revenue generated in Atlantic City. This alone will allow the city to finance city services.
The threat of takeover by the state because of city finances is a cynical ploy. The state has set up Atlantic City to fail, so that it can be plundered by outsiders. The reality is that the state is seeking to take away the constitutional rights of the residents of Atlantic City to choose their own leaders.

The state has had control of all hiring, firing, and contracts let by the city for several years through its appointed monitor

Again, let me explain.

Legislation passed last week that would allow for casinos in North Jersey would further reduce revenue to Atlantic City and increase competition. It’s a double whammy for Atlantic City:

The legislation creates $50 million in payments from the casinos, but the recipients are the Atlantic County government and city schools. No payment comes to the city. All payments from northern casinos would go to another CRDA-like state agency.

The state is seeking to reduce revenue to the city in a cynical manner to attempt a takeover. If revenue falls below 50 percent of expenses locally, the state has used that as an excuse for takeover. Witness Camden City.

For these reasons, those who know the city best have opposed the recent state moves. Republican Mayor Don Guardian calls the takeover threat “our Pearl Harbor.” Democratic state Sen. Jim Whelan, a former Atlantic City mayor, also opposes a takeover.

As (Sen.) Whelan points out, the state has had control of Atlantic City’s tourism district for nearly five years. During that time, four casinos have closed and convention bookings are down.

But it’s not enough that the state has taken our money. It now wants our assets, including the Municipal Utilities Authority. These are wrong moves and the state’s own monitor and the Department of Community Affairs has said so.
The state is one of the biggest offenders of owning assets that contribute nothing to Atlantic City. The CRDA owns 675 properties that pay no taxes. The state could sell these assets, get them back on the tax rolls, and help generate additional revenue for Atlantic City.

One of the most distressing thoughts related to a state takeover is the potential disenfranchisement of voters. It would be unfair, undemocratic, and un-American for the state to deny Atlantic City voters their constitutional right to choose their own government, a mayor and city council with real authority.

Atlantic City is vastly diverse, and to deny any voter his or her right would be wrong. But it would be particularly hurtful to deny African Americans, the largest group of residents in Atlantic City, the full value of their votes.

The best course of action for the state is recognize Atlantic City no longer occupies a unique place in the gaming market, but is still unique in New Jersey. The state should allow Atlantic City to keep the revenue generated there and let those who know the city best — its locally elected officials — the freedom to determine the city’s future.
What About the Future? Children are cities’ futures, so it is understandable that Detroit Mayor Mike Duggan is trying to change not only the math of the system’s failing fisc, but also the failed governance of a system currently under a state-imposed emergency manager. With black mold climbing the interior walls of some classrooms, and free ranging, non-laboratory rats occupying classrooms, the arithmetic of the schools’ finance merit an F: Of the $7,450-per-pupil grant the school district will receive this year, $4,400 will be spent on debt servicing and benefits for retired teachers, according to the Citizens Research Council. Absent a turnaround, the failing school system is hardly likely to spur young families to move into Detroit.

Air Force One. President Barack Obama visited—but did not attend school in—Detroit yesterday to witness the city’s iconic—and federally bailed out auto industry; yet today marks still another sick out for the teachers of Detroit Public Schools (DPS)—where state-appointed DPS Emergency Manager Darnell Earley has filed for a temporary injunction to keep teachers in the classroom. Rather than learning from the city’s bankruptcy, the next round in the deteriorating school system will likely play out in the court room, where DPS is seeking a temporary injunction as a remedy to the sick-outs which shut down about 88 schools yesterday, alleging the sickouts are “depriving students of their right to attend school, adversely impacting their academic progress, and forcing parents to miss work.” Detroit’s teachers are leaving the district, class sizes are swelling, and the conditions in many school buildings are deplorable. State-appointed DPS Emergency Manager Darnell Earley yesterday warned that the sickouts are not the way do it: “Closing schools for reasons such as today and on previous dates further jeopardizes the limited resources the district has available to educate its students and address the many challenges it faces. We have heard teachers’ concerns and identified short and long-term solutions to several key issues.”

Bluegrass Blues. Kentucky State Representative Brad Montell (R-Shelbyville) has proposed reconsideration of Kentucky’s municipal restructuring law (Kentucky Rev, Statute §66.400), as well as whether the state should develop a program to assist financially struggling local governments, noting: “In looking at our statutes, we simply don’t address it…It seems to me we need to have sort of a blueprint of what authority the state government has in these instances.” In fact, Hillview, a Louisville suburb of just over 8,000, became Kentucky’s first municipality to file a Chapter 9 municipal bankruptcy petition last August, in an effort to address an $11.4 million legal judgment after losing a lawsuit to Truck America Training—a filing which U.S. Bankruptcy Judge Alan C. Stout is currently considering. Previously, two Kentucky utility districts had filed chapter 9 petitions. Rep. Montell has proposed House Concurrent Resolution 13, which proposes that the state’s Legislative Research Commission conduct a study of municipal bankruptcy, including laws and preventative practices employed by other states. For a municipality to be eligible to file for chapter 9 municipal bankruptcy, it must be authorized by the respective state. Currently, twelve states specifically authorize municipal bankruptcies, while twelve states authorize the filing of a petition with conditions. In those states which have acted, as is required under federal law, for a city to be eligible, such state laws have implemented programs to provide assistance, refinancing, oversight, and other mechanisms, giving local governments a “second look” at ways to avoid taking the final, last-resort option. Municipal bankruptcy wizard Jim Spiotto last December testified before the U.S. Senate that, over the last 40 years, those municipalities with no state “second look” or oversight have been over six times more likely to file for municipal. In the Bluegrass State, any taxing agency or instrumentality can file for municipal bankruptcy, but Kentucky counties are prohibited from filing a petition unless their restructuring plans first are approved by the state local debt officer and the state local finance officer—a provision which does not apply to cities or any entity other than counties. Rep. Montell said he proposed the bill in an effort to be “proactive” in the event of filings other than Hillview’s: the proposed study would include a review of other state laws, and the practices that they have employed in order to intervene in a city or county financial crisis, but it also cites apprehensions with regard to the financial health of its governments, as another reason to study Chapter 9 further—especially the state’s pension liabilities: In a report last week, Moody’s listed the worst performing states in terms of making their actuarially determined contribution in FY2014: New Jersey (18.6%), California (48.2%), Texas (62.9%), New York (64.4%), Kentucky (64.5%), and Virginia (69.3%)—making Kentucky the state with the second-lowest pension funding ratio of any state behind Illinois, and the third worst if Puerto Rico were included, according to Atlanta-based Asset Preservation Advisors. Rep. Montell said the state should look at its current municipal bankruptcy statute, because the budgets of cities, counties, and school districts also could be pressured because of their costs to participate in state-run pension plans, along with other stressors such as labor costs.

Puerto Rico. U.S. Treasury Secretary Jacob Lew yesterday met with Puerto Rico Governor García Padilla in San Juan, stating: “I have tried to be very clear that restructuring and oversight have to move together, but that oversight has to be done in a way that is respectful of Puerto Rico’s system of self-government…There are no alternatives to Congressional action in terms of coming up with a solution that is lasting and that provides the avoidance of a long protracted period of pain on the island.” In addition, Secretary Lew met with a group of officials, including Puerto Rico Senate Pres. Eduardo Bhatia Gautier, House President Jaime Perelló Borrás, Senate Minority Leader Larry Seilhamer Rodríguez and House Minority Leader Jenniffer González Colón—as well as Puerto Rico’s non-voting member of Congress, Delegate Pedro Pierluisi, who said in a statement: “With respect to a possible fiscal oversight board, I insisted that I would only support such a measure if it were paired with more equitable treatment under federal programs and a mechanism that enables Puerto Rico to restructure debt in a way that is fair to creditors and that enables Puerto Rico to provide essential services to our people. The board should have the power to oversee the Puerto Rico government’s budgeting and fiscal practices, but the board must respect our constitution.” Delegate Pierluisi is running in the New Progressive Party primary to become its candidate for Governor against Ricardo Rosselló Nevares—who, earlier this week, wrote to Secretary Lew that the Padilla administration’s “focus on debt restructuring is a distraction from the urgent need to reduce government expenditures and restore economic growth.”

The Intergovernmental & Governance Challenges to Municipal Sustainability

eBlog

 

June 18, 2015

Visit the project blog: The Municipal Sustainability Project 

S-O-S. Wayne County Executive Warren Evans yesterday, writing that “Wayne County’s fiscal situation will continue to deteriorate without further remedial measures,” requested the State of Michigan to issue, on an expedited basis, a declaration of financial emergency. Mr. Evans wrote to Michigan State Treasurer Nick Khouri to request a preliminary review and declaration of financial emergency, citing several key issues which, he wrote, “threaten the county’s ability to provide necessary governmental services essential to public health, safety, and welfare,” referring to a projection that Wayne County’s accumulated unassigned deficit would grow from $9.9 million in the current fiscal year to $171.4 million by 2019, the county’s junk bond rating, and the judgement levy this month in a pension case that will cost taxpayers an estimated $50 in a one-time property tax assessment this summer on a $100,000 house. The epistle comes in the wake of a stream of warnings Mr. Evans has provided with regard to the County’s structural deficit and its unfunded pension liability—a liability now estimated to be approaching $1 billion—and comes in the first year of neighboring Detroit’s implementation of its municipal bankruptcy plan of debt adjustment in a city where the school system is under a state-appointed emergency manager—and where there are, as we noted yesterday, questions about the state’s legal authority to impose an emergency manager. Mr. Evans, in a release subsequent to the request, reported Wayne County would continue to negotiate with stakeholders under a consent agreement: “Our recovery plan provides a clear path to financial stability for the county, but we are keenly aware that our time frame to get the job done is quickly fading…Throughout this process we are constantly evaluating where we stand and proactively seeking solutions to work ourselves out of this massive deficit. I am requesting this consent agreement because the additional authority it can provide the county may be necessary to get the job of fixing the county’s finances done.” Under Michigan’s law, the state will first determine if a preliminary review is warranted, and, if so, the Treasurer will have up to 30 days to complete a preliminary review and final report—after which the local emergency financial assistance loan board would have 20 days to determine if probable financial stress exists—a finding seemingly likely here, and one which, if made, would trigger Governor Rick Snyder’s appointment of a financial review team, which would have up to 60 days to perform a more in-depth study—a study which could result in the appointment of an emergency manager or a consent agreement or emergency manager.

Under a consent agreement, the county would retain authority to implement pieces of County leader Evans’ plans, although complicated by the existence of constitutionally mandated positions, such as the sheriff and prosecutor complicate the prospects for a workable consent agreement. A consent agreement would be designed to allow the county to maintain a level of local control while providing a plan for managing the financial crisis with state assistance. Mr. Evans said a consent agreement would allow the county to continue negotiations with stakeholders while giving the county the ability, if necessary, to find other ways to achieve cost-savings and address the county’s $52 million structural deficit — a recurring shortfall that stems from an underfunded pension system and a $100 million yearly drop in property tax revenue since 2008: “Our recovery plan provides a clear path to financial stability for the county, but we are keenly aware that our time frame to get the job done is quickly fading.”

Because Wayne County surrounds Detroit, the two municipalities are not just linked geographically, but also fiscally. It is hard to imagine what the impact of insolvency for Wayne County would mean for Detroit’s ongoing recovery and implementation of its federally approved plan of debt adjustment.

It Ain’t Over Until It’s Over. While going through municipal bankruptcy can be fiscally and governmentally draining, it turns out that emerging from municipal bankruptcy—even once a U.S. Bankruptcy Court has approved a municipality’s plan of adjustment, might not suffice. So it is that in the wake of U.S. District Judge Sharon Blackburn’s rejection last September of Jefferson County’s contention that the appeal of U.S. Bankruptcy Judge Thomas Bennett’s decision approving the county’s—at the time—exit from the largest municipal bankruptcy in U.S. history just might not prove to be the last word. In rejecting Jefferson County’s argument that the appeal was moot, Judge Blackburn also said that she would consider the constitutionality of the county’s approved adjustment plan that cedes the county’s future authority to oversee sewer rates to the federal bankruptcy court. So it was that this week. Jefferson County’s attorneys argued in the 11th U.S. Circuit Court of Appeals that investors in the financing that enabled the county to exit bankruptcy nearly two and a half years ago should not have the “rug pulled out from under them” by losing a prime security feature they relied upon in deciding to loan the county money—referring to the security feature of the federal bankruptcy court’s oversight of Jefferson County’s plan of adjustment for the 40 years that the sewer refunding warrants remain outstanding—a key provision of the county’s plan of debt adjustment. As the godfather of municipal bankruptcy, Jim Spiotto, notes, what transpires in this appeal will have broader implications for all municipal bond market investors who rely on security enhancements, such as promised rate covenants or court oversight as part of their investment decisions: “To the market, hopefully the result [of Jefferson County’s case] will be a reaffirmation that rate covenants will be and should be enforced, and if you make a promise, especially in a Chapter 9 plan, it should be enforced as any contractual promise is.” In its 93-page brief, Jefferson County attorneys requested oral arguments to examine the constitutional, statutory, and equitable principles of the case which “are particularly important to governmental entities that may consider Chapter 9 relief now or in the future, as well as to the municipal debt market.” The issue underlying the appeal centers on whether proper legal steps were taken when Jefferson County’s bankruptcy plan was appealed to the U.S. District Court in Alabama by 13 residents and elected officials on the county’s sewer system, described as the “ratepayers” in court documents, who, Jefferson County attorneys argued, had failed to obtain the required legal “stay” suspending the plan while the appeal proceeded. Without any barriers to re-enter the bond market, Jefferson County proceeded to issue $1.8 billion in sewer refunding warrants in December 2013 that allowed the county to write down $1.4 billion in related sewer debt and exit bankruptcy. With the sewer refunding warrants long since sold to new investors, the complex plan of adjustment cannot be unwound, the attorneys wrote. Mr. Spiotto notes that the issue here comes down to an interpretation with regard to what chapter 9 permits and whether the bankruptcy court’s supervision is actually the act of setting rates or insuring that the county complies with the covenants that it promised. In its petition for an appeal before the 11th Circuit, Jefferson County wrote that neither its court-approved plan of adjustment or Judge Bennett’s confirmation order “changes the substantive law of the state of Alabama with regard to the enforcement of rates established pursuant to contract or legislation…Rather, the plan merely retains the bankruptcy court as an available forum in which such substantive law may be enforced, using the same remedies available in Alabama state court…In no event will the bankruptcy court ever set sewer rates; it is simply a forum to enforce the plan and related contracts – just as an Alabama state court could.” As Mr. Spiotto notes: here, no person—or court—is attempting to usurp the right of the state or a municipality under state law: “At the same time, no state or municipality should believe that it can make a promise and not live up to it: Whether you give it as Detroit did as a statutory lien or you have the court involved there are different roads to the same summit.”

Who has standing in a municipal bankruptcy case–and whether taxpayers, citizens, citizen groups, and major businesses in a municipality should have a role e in connection with the plan of debt adjustment, was a question I posed to U.S. Bankruptcy Judge Steven Rhodes for an interview with State Tax Notes. Judge Rhodes, in his response, wrote:

  1. This is perhaps among the most difficult questions in chapter 9. One practical reality is that every resident and business in a municipality that is going through a bankruptcy case has a direct and personal stake in the outcome of the case, although that stake may or may not be a financial stake in the strictest sense. But another practical reality is that the case has to be manageable. Most cases therefore deny standing to residents, concluding that the municipality’s democratically elected leadership adequately represents the residents’ interest in the case. That was my conclusion in a previous chapter 9 case called Addison Community Hospital District.

But the question is more complex where, as in the Detroit case, the management of the case is in the hands of an un-elected agent of the state and not the municipality’s elected leadership. In the Detroit case, I decided that a looser application of the traditional standing requirements was needed and so I invited the public to participate in the eligibility and confirmation phases of the case.  I maintained the manageability of the proceeding in other, more creative ways.

I followed up: Should a debtor propose a plan of debt adjustment which requires the debtor to take action that is contrary to state law including disregarding the pledge or dedication of revenues to the debt payment required under state law? In reply to which, Judge Rhodes said: “Yes, if it is necessary to restore or maintain adequate services. Although the Fifth and Fourteen Amendments generally prohibit bankruptcy from impairing property rights, nothing in those amendments or the bankruptcy code prohibits a plan from impairing creditors’ statutory or contract rights under state law.”

The Fate of a U.S. Territory. As Congress readies a hearing next week to consider whether Puerto Rico should be eligible for statehood, pressure continues in a separate committee in the House with regard to whether Puerto Rico should have the same authority as all other states with regard to municipal bankruptcy—that is, the authority to enact legislation which would permit any of its 157 municipalities to file for federal bankruptcy protection. In the latter issue, the struggle is with regard to H.R. 870, legislation proposed by  Rep. Pedro Pierluisi (D-P.R.), which is pending before the House Judiciary Committee—and which has the strong support of Puerto Rico Gov. Alejandro García Padilla. As pending, the bill would allow nearly insolvent governmental authorities, including the islands cities to formally reorganize under U.S. Bankruptcy court supervision—if authorized by Puerto Rico. The legislation, unsurprisingly, is opposed by funds which invest in Puerto Rico bonds, including Franklin Municipal Bond Group and OppenheimerFunds, Inc.: the funds recognize that municipal bondholders—in the event of a municipal bankruptcy—are more likely than not to take a haircut. Thus, they oppose any efforts to grant Puerto Rico the same powers granted to every state, claiming the municipal bankruptcy process is filled with uncertainty. The issues are even more complex from a governance perspective, however: should the bill be amended so that Puerto Rico, itself, could seek access to chapter 9, or should the bill be adopted as proposed, authorizing Puerto Rico to consider whether its municipalities should have access to municipal bankruptcy. Gov. Padilla supports the legislation as drafted; however, municipal distress veteran and long-time specialist Dick Ravitch, who has experience not just from his leadership in averting bankruptcy for New York City in the 1970’s, but more recently during his volunteer service in Detroit’s bankruptcy, has been pressing Congress to modify the bill so that Puerto Rico would itself have access to the U.S. bankruptcy court to reorganize its own debts. Mr. Ravitch fears that the territory, because it has issued so much debt, cannot conceivably repay it all, noting: “I do not believe the economy in Puerto Rico can prosper without a significant restructuring of all the debt.” That position contrasts the veteran municipal distress expert with Rep. Pierluisi, who yesterday released a statement cautioning that Congress would not support the bill to allow the restructuring of the island’s general obligation bonds, stating: “To lobby to amend H.R. 870 to enable Puerto Rico to restructure its general obligation debt is unwise and unnecessary as a matter of public policy.” The questions and issues with regard to equitable treatment for cities in Puerto Rico comes as the House Natural Resources Subcommittee on Indian, Insular, and Alaska Native Affairs has scheduled a hearing for next Wednesday on H.R. 727, proposed legislation to provide a path to statehood for Puerto Rico: the bill would authorize a U.S. sponsored vote to be held in Puerto Rico within one year of its enactment—the gist of which would be whether or not Puerto Rico should become a state. Should that vote be authorized—and the voters in Puerto Rico approve it, then the new state would automatically gain the authority to determine whether its municipalities ought to have access to chapter 9 municipal bankruptcy. Such a decision would also eliminate any authority by Congress to determine the new state’s access to federal bankruptcy, as Puerto Rico would become a sovereign. Former Puerto Rico Gov. Luis Fortuño said the statehood bill is getting a hearing because Rep. Don Young, the Alaska Republican who chairs the panel, is a friend to Puerto Rico and remembers when Alaska was a territory prior to 1959.

Detroit Preps for Historic Trial, Puerto Rico opts for power over bondholders, and Pennsylvania’s capitol city watches its purse.

             August 28, 2014

Visit the project blog: The Municipal Sustainability Project 

Drip. Yesterday’s Michigan Finance Authority sale of some $1.8 billion in municipal revenue bonds on behalf of the Detroit Water and Sewerage Department to finance the purchase of debt from investors attracted orders from about 64 institutional buyers, including many who participated in the department’s tender offer program, according to the Detroit Water & Sewerage Department (DWSD), netting the Motor City an estimated $249 million of interest rate savings over the life of the bonds. DSWD officials credited the favorable outcome to bond rating upgrades, investor outreach, and U.S. Bankruptcy Judge Steven Rhodes approval Monday of the voluntary tender offer and refinancing, noting that despite the city of Detroit’s municipal bankruptcy status, its outreach and strategic and financial plan, combined with updates on the Detroit economy by community leaders, and a tour of the sewage treatment plant appear to have contributed to the successful sale of the $855 million of senior and second lien water bonds and $937 million of senior and second lien sewage bonds. Bond documents warn several times that Detroit is at risk of filing for Chapter 9 bankruptcy again—in which case, according to the documents―the water and sewer bonds are subject to extraordinary optional redemption at par. Detroit will amend its plan of debt adjustment and treat all of the water and sewer debt as unimpaired once the sale closes and the tendered bonds are purchased, with the untendered bonds continuing to get the scheduled principal and interest payments. DWSD’s bond portfolio totals $5.2 billion.

The Unfine Art of Municipal Bankruptcy.  Art Capital Group has offered to loan the Motor City as much as $4 billion, but only on the condition that the City would, in effect, broach the so-called Grand Bargain and instead pledge the Detroit Institute of Arts and its collection as collateral to secure the loan, in effect handing over rights to the city-owned museum’s internationally acclaimed collection—and, likely, forcing the city to sell some of the Institute’s artwork to help finance the loan. But the deal would require the city to pledge the Detroit Institute of Arts and its collection as collateral to secure the loan — a process that would be highly unlikely considering it would require a legal battle over rights to the city-owned museum’s prized collection. The pre-trial move by Art Capital Group LLC is supported by Financial Guaranty Insurance Co. (FGIC) and implicitly supported by Syncora Guarantee Inc., two holdout creditors of the city—with Art Capitol purporting that it has made the offer in an effort to provide “the city, and the entire community, $3 billion to $4 billion.” The New York-based Art Capital wrote in a prepared statement. “Our goal is to do everything we can to keep the DIA’s art collection in the city and intact. We’ll work with the city to structure the loan with the flexibility needed so it does not become an unreasonable burden.” FGIC called the Art Capital offer “a game changer,” adding: “It represents a real and viable solution that could enhance recoveries for all creditors by billions of dollars and catalyze the revitalization of the City — while also keeping the DIA collection in Detroit. Choosing to proceed with the inferior ‘Grand Bargain’ would be opting to disregard common sense at the expense of all parties…The city cannot ignore the fact that the Art Capital proposal is a game changer…It represents a real and viable solution that could enhance recoveries for all creditors by billions of dollars and catalyze the revitalization of the city – while also keeping the DIA collection in Detroit. It is an extremely attractive option for all stakeholders and a win for all sides. Choosing to proceed with the inferior ‘grand bargain’ would be opting to disregard common sense at the expense of all parties.” The offer, nearly double what the group offered last April, would reduce the city’s indebtedness by nearly 25 percent if accepted—but leave one of its most critical assets for its economic future at risk.  Emergency manager Kevyn Orr’s office yesterday responded that Detroit rejects the offer and stands behind the so-called Grand Bargain that would retain the DIA as an independent entity, and leverage $815 million in combined state aid and non-profit contributions to ensure no city retiree falls below the federal poverty level and that the prized art collection will remain a jewel of the city—with spokesperson Bill Nowling stating: “The city will not sell or leverage the art. This latest proposal is nothing but a thinly veiled attempt by our remaining hold-out creditors to improve their recovery at the expense of the city’s pensioners and its cultural assets,” asserting that acceptance of the proposal would force drastic, double-digit pension cuts to the city’s retirees and undercut the unprecedented state intervention package or grand bargain. FGIC supports the Art Capital offer, noting: “It represents a real and viable solution that could enhance recoveries for all creditors by more than $2 billion and catalyze the revitalization of the city, while also keeping the DIA collection in Detroit.” Detroit’s rejection of the offer also came in the wake of its requested assessment of the offer by ArtVest Partners co-founder Michael Plummer, who Mr. Orr hired to evaluate the value of the world-class Institute. Mr. Plummer determined in his assessment for the city that the Art Capital deal was “not economically viable.” Moreover, Mr. Orr’s office has also questioned whether the DIA’s property legally can be sold: DIA leaders have vowed a legal battle if the city were to pursue a sale or a collateralized loan.

Electric Municipal Bond Jolts. Hedge funds have been negotiating with Puerto Rico’s public power authority (PREPA) over a possible restructuring of more than $8 billion in municipal bonds in the wake of a forbearance agreement the authority entered into two weeks ago, which includes a list of all the bondholders, who represent some 60 percent of PREPA’s $8.3 billion in outstanding municipal revenue bonds. While Puerto Rico’s municipal bonds have traditionally been held by municipal bond mutual funds, the territory’s deteriorating fiscal condition and inability to file for federal bankruptcy protection has led to financial contortions as a means of averting insolvency. The list includes 15 creditors, of which three of those were already known to have been a part of the forbearance agreement—and which three filed suit against Puerto Rico earlier this year to annul a new law that allows public corporations such as PREPA to restructure their debt. A key issue is that PREPA’s forbearance arrangements with creditors reinforce banks’ claims of priority over bondholders in receiving repayment—a situation which makes it more difficult for the territory’s municipal bondholders to force increases in PREPA rates. PREPA has about $8.3 billion in bonds outstanding; the utility has indicated it will restructure its debt next March. Under the first agreement, the bondholders gave up their rights to sue PREPA for at least several months and signed non-disclosure agreements. With insufficient resources to both continue operations and make interest payments to its municipal bondholders, the utility has been paying its operational expenses in order to ensure continuity in its operations—before making its interest payments to its municipal bondholders—almost as if it were in a chapter 9 municipal bankruptcy—even though, because it is not a municipality, it cannot legally seek federal authority to do so. According to PREPA’s forbearance agreements with the bondholders and the banks, PREPA has $8.3 billion in outstanding revenue bonds and owes $696 million to Citibank, Scotiabank de Puerto Rico, Banco Popular de Puerto Rico, Oriental Bank, and Firstbank Puerto Rico. Two weeks ago, PREPA made changes to its bond-governing agreement which would make it more difficult for its municipal bondholders during the forbearance period to initiate a legal process to force rate increases. That jolt likely electrified bondholders, because the pre-existing  1974 agreement with its bondholders provided that the utility would adjust its rates so that revenues, at a minimum, would be equal to at least PREPA’s current expenses plus a level covering at least 120% of aggregate principal and interest payments to its bondholders—and that, if PREPA failed to follow said agreement, and if 10% of the bondholders requested the bond trustee to take action, then the trustee was directed to sue PREPA to force it to increase its rates. However, under a critical portion of the forbearance portion of the agreement, triggering an adjustment would require 50 percent of the bondholders to initiate such a suit—an outcome considered unlikely, thereby putting off any potential electric confrontation until the current agreement expires next March, when the utility intends to introduce a restructuring plan. Moreover, the utility claims that if it were to file for the protection of the Public Corporations Debt Enforcement and Recovery Act for restructuring during the forbearance period, the forbearance agreement itself would be voided.

Harried in Harrisburg. Harrisburg, Pa. Mayor Eric Papenfuse, in the wake of charges by the Dauphin County DA that the capitol city’s Treasurer, John Campbell, had stolen from a nonprofit, Tuesday said there was no threat to the city: “All accounts are in order and the city treasury continues to function in the midst of this dilemma.” The clarification came hours after Dauphin County District Attorney Ed Marsico charged Mr. Campbell with writing 10 checks to himself totaling about $8,400 from the account of Historic Harrisburg Association while he was its executive director. Mayor Papenfuse Tuesday named former City Treasurer Paul Wambach to oversee the office in Campbell’s absence, with the municipality’s solicitor stating: “As chief executive officer of the city, the mayor has an obligation to protect the city’s assets…Under that, he can take whatever steps he deems necessary as long as it’s not contrary to state law or the Constitution.” The County is charging him with theft by failure to make required disposition of funds received and a charitable organizations act violation. The financial charges against Mr. Campbell come in the wake of Harrisburg’s so far successful efforts to recover from the brink of municipal bankruptcy. (Unrated Harrisburg late last year began implementing a financial recovery plan that erased $600 million of debt, largely through the sale of the city incinerator and a long-term lease of parking assets. The plan includes four years of balanced city budgets and other measures designed to repair Harrisburg’s reputation in the capital markets. Incinerator and parking bond sales both closed in late December.) The Mayor indicated he fully expected Mr. Campbell to resign, warning that if he did not, the city would go to court “to settle this matter once and for all…We have cut off Mr. Campbell’s Internet access and he will not be welcome here on the premises.” In addition, the Mayor made clear that the treasurer and city controller must sign off on all city checks—adding that the issue came to light (no pun) after the Historic Harrisburg Association noticed the money missing several weeks ago, when it intended to reimburse the city toward $24,000 it had pledged under its Lighten Up Harrisburg program to help fix street lights. The Mayor noted that the city has yet to receive any reimbursement.

 

Getting Ready to Rumble in the Motor City & Fitch Likes Chapter 9 Fix for Puerto Rico

August 7, 2014
Visit the project blog: The Municipal Sustainability Project

Trial Delay. Rhythm guitar playing Steven Rhodes of the Indubitable Equivalents (see photo from the Wall Street Journal), who last month was strumming old band favorites for attendees at the American Bankruptcy Institute’s annual meeting in Vermont (classics for you to croon like: “Born to Be Wild,” “Honky Tonk Women,” and “Running on Empty”), yesterday played a different tune at the bar, where, as the U.S. bankruptcy judge overseeing the pending trial to determine whether to approve the Motor City’s proposed plan of adjustment, Judge Rhodes rejected Syncora Guaranty’s motion to delay the commencement of the trial scheduled to start on August 21st. Syncora, with some $7 billion at stake, and one of the few remaining holdout creditors of the city, argued before the bench that Detroit has missed critical deadlines to provide it with key documents. The judicial action came as Toyota yesterday pledged $1 million towards the so-called grand bargain—helping the Detroit Institute of Arts sum up some $80 million—or 80% of its announced goal of $100 million—with the funds, including $195 million from the State of Michigan, to be directed towards ensuring that no Detroit retiree falls below the federal poverty level and that the Detroit Institute of Arts could become a foundation—remaining a key institution in the Motor City.

Bonds on Tap? After weeks of confidential mediation sessions with the city’s major bondholders and insurers, the Detroit Water and Sewerage Department yesterday confirmed it had reached an agreement by which it will be able to refinance up to $5.2 billion in debt, possibly helping to accelerate resolution of the Motor City’s successful exit from municipal bankruptcy and enabling the department to reduce rates to customers—an issue where, because of shutoffs for non-payment—the federal bankruptcy court has raised concerns. The Michigan Finance Authority would issue the debt. In a statement the authority released, it wrote: “This transaction has the potential to significantly lower the interest rate on existing DWSD bonds, reduce DWSD’s debt service costs, reduce risks and transaction costs, and enhance the department’s future cost of borrowing…The savings to DWSD customers could be in the millions.” Under the DWSD plan, effective today through the 21st, the day Judge Rhodes currently intends to open the confirmation trial for the City’s proposed plan of adjustment, holders of the water and bonds will have ten days in which to accept the offer to tender their debt to help the city embark on a massive refinancing of the water and sewer department debt portfolio―with the offer serving as an alternative to Detroit’s current proposals seeking to have its water and sewer bondholders either waive their call protection, allowing for a refinancing, or to accept a lower coupon rate. Under the proposal, bondholders may their bonds or tender them at a fixed tender offer price—a price which was not, as of yesterday, made public. The tender price will be financed either by a bridge loan from Citi, a public offering of exit tender bonds through the Michigan Finance Authority, or a combination of both. Under the plan, bondholders that do tender the bonds would have to agree to drop all objections to the Motor City’s plan of adjustment, and they would be deemed to have permitted debt to be described as “unimpaired” under the plan. Yesterday’s deal raises a legal question with regard to whether the so-called “special revenue” doctrine of chapter 9 would remain because of the voluntary nature of the proposed tender. In addition, the plan raises an issue with regard to whether insurers of the old, outstanding bonds might be afforded the opportunity to claim that their originally insured security is extinguished—so that they would no longer be obligated to pay the old interest amount. What is clearer is that emergency manager Kevyn Orr’s team believes the proposal could be a significant breakthrough, with Detroit’s attorney Heather Lennox yesterday alluding to a major agreement in the offing before Judge Rhodes in the federal bankruptcy court yesterday that could have a major impact on the length of the plan of adjustment confirmation hearings set to begin Aug. 21st. In the tabulation of creditors on the city’s proposed plan of adjustment, 119 out of 151 sub-classes of DWSD voted to reject Detroit’s plan of adjustment—upset that the Motor City was seeking to replace their current bonds without paying all future interest: ergo, a settlement with the DWSD bondholders and insurers would surmount a critical obstacle to Judge Rhode’s favorable approval of the city’s hopes to exit bankruptcy.

The Impact of Congressional Approval of Chapter 9 for Puerto Rico. Fitch Ratings yesterday wrote that the extension of Chapter 9, municipal bankruptcy protection “would be a positive and important development for Puerto Rico and holders of debt of its public utilities and public instrumentalities,” referring to the possibility of Congress approving legislation, HR 5305, the Puerto Rico Chapter 9 Uniformity Act of 2014, which would amend the municipal bankruptcy law to extend to the Commonwealth of Puerto Rico the authority to use Chapter 9 proceedings in federal bankruptcy court to adjust debts of its municipalities and public instrumentalities, or, as Fitch noted: place Puerto Rico on an equal footing with the 50 States, who can currently use Chapter 9 to achieve debt adjustment for their municipalities. The bill, which could be taken up by the House Judiciary Committee, is supported by the National Bankruptcy Conference—which has recommended the amendment be modified so that it would be retroactive. As we have reported, the island is confronted with grim fiscal challenges—leading it to enact a Recovery Act last June—with Fitch yesterday noting: “Given the economic and fiscal pressures facing the Commonwealth itself and its need to provide proper service levels for its citizens, its ability to continue to provide meaningful ongoing financial support to its public corporations going forward would be challenging, in Fitch’s view.” Fitch described the Commonwealth’s recovery act as “an effort to fill the void resulting from the absence of a federal bankruptcy alternative. The Commonwealth has attempted to forge its own framework for orderly debt restructuring applicable to its public corporations, including the Puerto Rico Electric Power Authority (PREPA) and Puerto Rico Aqueduct and Sewer Authority. While the Recovery Act is intended to restore solvency over the long-term, it entails debt restructuring that would trigger suspension of debt payments and preclude the timely payment of principal and interest during the pendency of the proceedings.” But the rating agency noted that the Recovery Act “specifically excluded the Commonwealth’s general obligation debt and certain instrumentalities of the Commonwealth, including the Puerto Rico Sales Tax Financing Corporation,” adding that “the adoption of the Recovery Act and the absence of any preemptive federal bankruptcy alternative, in Fitch’s view, suggest a degree of legal uncertainty regarding how the Commonwealth might act at a time of more severe financial stress to extend the same or a similar act to debt obligations of the Puerto Rico Sales Tax Financing Corporation.” Fitch added that the “adoption of the Recovery Act also spawned litigation and market volatility, potentially increasing the challenge to market access for the Commonwealth and its public corporations. The litigation challenging the Recovery Act will likely be costly to the Commonwealth, a distraction from more important governance activity and will continuously shroud the outcome of any proceedings or agreements entered into under the terms of the Recovery Act with uncertainty.” Fitch noted that while Puerto Rico’s Recovery Act has provisions that “mimic to a degree those in Chapter 9 (municipal bankruptcy),” there are also key distinctions; nevertheless, Fitch wrote: “[C]larifying the rules for restructuring and aligning them to a federal standard with understandable precedent, albeit limited, and providing a federal forum for the proceeding would benefit bondholders. It would also protect the Commonwealth from claims it is acting unjustly or arbitrarily and contrary to accepted norms,” adding that the “range of options available to the Commonwealth and its municipalities and public instrumentalities would be the same as those available in other states.” Fitch added that were Congress to able access to chapter 9 for Puerto Rico, it expected the Recovery Act would be withdrawn.