Guest MINDSETTER™ Ken Block: Understanding and Fixing What Went Wrong With 38 Studios

Monday, September 28, 2015

 

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Last week’s release of documents relating to the state’s 38 Studios lawsuit was a sad and depressing event. Laid bare was gross incompetence, awful decision making and dereliction of duty to taxpayers.

The public perceives a lack of serious effort on the part of our government to determine accountability regarding 38 Studios. The fact that the depositions released by the courts contained so many surprises proves that our government did little to try to disclose the truth of what happened to the public. This is unacceptable and unconscionable.

Since this disaster was conceived inside our legislature and delivered by the Economic Development Council (EDC), both entities need to perform a public introspection and then provide a list of reforms to ensure that something like 38 Studios will not happen again. While in theory the EDC exists no more and has been renamed the Commerce Corp, I remain unconvinced that much has changed inside this agency which bears the most blame for failing to stop this bad deal.

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The General Assembly now appears to be ready to hold hearings to explore 38 Studios more fully. 

Issues the General Assembly should pursue in hearings:

•    Hold subpoena-based hearings to demand answers from everyone involved – especially those who were not deposed in the court case. Remember that the lawyers in the court case were only interested in winning their case – they were not trying to fully explain 38 Studios.  The public needs more information than is contained in the released depositions and documents.  If possible, the motivations of key players like Fox, Corso, Carcieri, Stokes, Murphy and Chafee need to be determined.
•    Explore the utter lack of due diligence performed by the Board of the now disgraced EDC.  Depositions from former EDC Board members indicates that these captains of RI industry abdicated their responsibility to fully assess the risks of the 38 Studios deal.  Deposition after deposition states that these board members fully relied on EDC staff to determine the merits of the deal. What is the point of having a Board who simply acts as a rubber stamp to others?  Thanks to Karl Wadensten – the sole EDC board member to vote no on 38 Studios.
•    Probe Keith Stokes’ failure as the head of the EDC to guide that agency to do the right thing for taxpayers.  Did Stokes have the skills necessary to be in that role?  Missing from the deposition questions were queries driving to the competency of those involved.  Did patronage jobs play a role in the EDC’s failure to perform? 
•    Explain Governor Chafee’s apparent abdication of duty to oversee the deal once he took office.  As bad as the decision making was to approve the deal in the first place, Chafee’s complete detachment from protecting taxpayers’ investments after the fact needs to be more fully questioned.

What reforms should the General Assembly consider once the 38 Studios story is fully understood?

•    The Speaker is too powerful.  Fox wanted 38 Studios, and it happened. Between the imbalance of power between RI’s legislature and Governor (one of the most imbalanced in the country) and the rules of operation of the House which give the Speaker incredible control over that body, fear of the Speaker’s power is enough to allow really awful public policy to occur.  Things that can change to create a better balance of power include:

o    Establish a Governor’s line-item veto for the budget. RI is only one of 6 states that do not have one.
o    Provide mechanisms for bills to move through the House that the Speaker does not like.  It took more than 50 years to get the Master Lever bill a vote in the House, which remains an outrage.  Why does a Representative, once elected, cede most of his or her power to the Speaker?  RI should explore best practices in other state legislatures and adopt rules of operation that benefit the public.  We need more than anything else great lawmaking – and we continue to not get it.  The rules and procedures are partly to blame.
o    Eliminate the corrupt legislative grant program.  

•    Eliminate the use of moral obligation bonds.  They cost too much and buy RI taxpayers nothing.  There may be a small number of valid reasons to use moral obligation bonds – those need to be carefully explained.
•    Cease and desist from patronage employment.  Safeguard the executive branch and quasi-public agencies from being pressured to hire unqualified people simply because someone powerful wants to get cousin Joey a job.
•    Make impossible the rushed, last minute, poorly understood lawmaking that gave birth to 38 Studios.  Too many vitally important pieces of legislation pop up in the last days or weeks of the legislative session.  This disrespects the public, which deserves the right to be able to understand and weigh in on potential legislation.

Who do elected officials serve?

Elected officials must not lose sight of the fact that they, government employees and appointed officials are there to serve the public.  Nearly everyone involved in the decision making that led up to the 38 Studios disaster and the weak effort to explain the failures after the fact has disserved the public’s interest.

Rhode Island deserves better than this.

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Ken Block was the Republican candidate for Governor.

 

Related Slideshow: Seven 38 Studios Facts You Would Not Believe

Here are the seven facts that you would not (want to) beleive about the 38 Studios deal.

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1.

Meetings Started a Year Before When We Were Told

The first story was that Governor Carcieri went to a fundraiser for a WWII Veteran’s event at Curt Schilling’s home and that served as the spark to a meeting between Keith Stokes and the 38 Studios officials to try and lure the company from Massachusetts to Rhode Island.

Then, it was disclosed that meeting Speaker Fox had had meetings earlier in the spring through his relationship with his close friend Mike Corso.

In the documents released Thursday, Bill Murphy attested to how he sat in on a meeting with Corso, Fox and Curt Schilling while he was still Speaker.

But now, emails starting in July of 2009 between Corso and 38 Studios’ Tom Zaccagnino show the wheels were put in motion even earlier than we thought.

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2.

If Not for RI, 38 Studios Would Have Closed Within 1 Month

If RIEDC had turned down the deal in July 2010, documents released showed that 38 Studios would likely have missed making payroll the next month.

In a July 7 email from Rick Wester to Tom Zaccagnino, he wrote, “The latest would be the August 15th payroll at this point. I’m having doubts we can get through the 30th."

The RIEDC board approved the $75 million in bonds on July 26.

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3.

The Original 38 Studios Deal Was Small and Inexpensive

An internal email at 38 Studios dated February 18, 2010 outlines a Rhode Island staffing plan starting at 10 employees in 2010 and increasing to 40 in the future.

However, RIEDC mandated a high staffing level and thus a high burn rate. 

For 38 Studios to receive its last payment the RIEDC agreement required staffing to elevate to 450 headcount.

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4.

38 Studios Knew RI Money Was Not Enough to Fund the Company

An email exchange between top 38 Studio leadership and Mike Corso, confidant to Speaker Gordon Fox, in preparation to meeting with the RIEDC Board led by Governor Don Carcieri showed that 38 Studios wanted to keep certain financial realities under wraps. 

Tom Zaccagnino wrote to CEO Jen MacLEan, CFO Rick Webster, and Corso, “I really don’t think we should highlight the fact we might be undercapitalized…won’t go over well with staff or board."

Two and a half weeks earlier EDC Board gave preliminary approval and on July 26, the RIEDC Board gives final approval to the $75 million.

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5.

Style Over Substance

In October of 2010, RIEDC was preparing a public relations strategy because “the Gubernatorial candidates have politicized the 38 Studios deal.”

The Strategy document outlined the key messages, and the need to  “accelerate development of an in-depth Providence Journal story, including offer of access to Board members. The Providence Journal team will be Andy Smith, Paul Grimaldi and Business Editor John Kostrzewa — we will push for Neil Dowling’s inclusion.”

At the same time as EDC was rolling out its PR strategy to sell to the public value of the 38 Studios deal, 38 Studios internal documents showed that the company was tittering on financial collapse.  In fact, a demand for payment from Speaker Fox’s confidant for a $500,000 payment could not be met because it would cripple payroll.

An October 27 internal memo from CEO Jen MacLean to Schilling, Zaccagnino, CFO Rick Wester, and COO Bill Thomas said, “After running payroll, we have less than $500K in our Maynard accounts. We simply can’t pay Mike before the bonds close, no matter how much he might wish otherwise.”

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6.

The Deal Was Done Before Anyone Could Imagine

How deep were top EDC staff in on the deal to fund 38 Studios?

In an April 12 (2010) memo from RIEDC’s Michael Saul to Mike Corso and RIEDC’s attorney Rob Stolzman, he proposes “Determine whether any local institutions (RISD endowment, RI Foundation, Hasbro, Brown endowment, State Pension fund, etc) would commit to purchase a share of bond issue.”  This is just one of ten “to do’s.”

EDC’s top staff were strategizing on how to sell the bonds, months before the bill ever hit the House floor for consideration. 

This April 12 strategy session was supposedly just a little over a month after Governor Don Carcieri and Curt Schilling met and two months before the loan guarantee program is signed into law.  

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7.

Did Rhode Island Pay for Improvements at Corso's Bar

In one email in May 2011, Mike Corso alerted top 38 Studio officials of over $600,000 in change orders to the build out of the Empire Street 38 Studios’ offices.

The change orders Corso pushed for increased the cost of contractor Nappa Constructions’ project cost from $10.9 million to $11.6 million. As GoLocal reported in 2014:

A former subcontractor for 38 Studios is alleging that his firm was ordered to work on former Speaker of the House Gordon Fox's business colleague Michael Corso's bar as part of their contract - and has produced what he says is documentation to prove it.

Project manager Michael Rossi with SyNet, Inc. has revealed a budget for work which he says shows at $25,000 line item for work to be done at Corso's Tazza Cafe in 2011 -- under a job order for the failed 38 Studios.

Warwick-based SyNet bills itself as "the premier design-build low voltage contractor of structured cabling, access control, surveillance and audio visual systems in the Northeast."

"I'm changing everything on job -- these were all no bids. Nappa construction picked Rossi Electric. I realize the job can't be done the way it's designed," said Rossi. "The money was getting kicked back in the form of goods and services to Corso and Fox. I said I'm not doing this. I knew I was getting set up for jail with this. I went out on sick leave, I was done."

 
 

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