Jon Riches

 

Public resources should be used for the public’s benefit. And if a city like Scottsdale can play favorites with the use of its public swimming pools, it can play favorites with the use of every public resource – from parks to libraries to nature preserves. 

 But on Wednesday, the scottsdale.org published a Guest Writer piece by Dave Pattison that was critical of a lawsuit challenging an arrangement whereby Scottsdale is engaging in an unfair and unconstitutional subsidy of one private swim club. Pattison took issue with this paper’s reporting on the case, and he argued in favor of the city continuing that subsidy. 

 While Mr. Pattison’s criticism is understandable – he personally benefits from the city’s subsidy as a “proud parent” – it is also woefully wrong on both the facts and the law. 

 The Arizona Constitution’s Gift Clause prohibits local governments from giving taxpayer resources to private parties. The purpose of this constitutional protection is to prevent governments from using public resources to give advantages to private, special interests. 

 The city of Scottsdale owns and operates several public swimming pools – a limited public resource – that can be used for competitive and recreational swim. While other youth competitive swim clubs have sought access to these public facilities for many years, Scottsdale has elected to give one private party, the Scottsdale Aquatic Club (SAC), exclusive admission to the pools at a significantly reduced rate. 

 Another youth competitive swim club, Neptune Swimming Foundation (Neptune), a host to many Scottsdale residents, brought this issue to the city’s attention, contending that the arrangement was unfair to other clubs and Scottsdale residents seeking access to the pools as well as to Scottsdale taxpayers, who must finance the city’s subsidy to SAC. Scottsdale eventually agreed to put the swim lanes up to a public bid.  Both SAC and Neptune submitted proposals in an open procurement process. But when Neptune was ultimately determined to be the most advantageous bidder, rather than award the contract to Neptune, the city cancelled the procurement and unilaterally extended the contract to SAC.

 The city did so even though SAC bid $284,000 less per year for use of the swim lanes. Thus, this agreement cost the city hundreds of thousands of dollars in revenue at a time when Scottsdale leaders were looking to cut the city’s budget for lack of revenue. 

 Mr. Pattison (and the city of Scottsdale) justify this arrangement by comparing it to “a marriage,” where the city “should seek a partner who they can work with in a long-lasting, mutually beneficial relationship.” But the only party who benefits from the existing relationship is one special interest that is forcing the public to shoulder the burden of its government dole. Plus, last I checked, the only parties the city should be married to are its residents and the resident taxpayers who fund its operations. 

 Mr. Pattison also contends that SAC deserves special access to public facilities because it is “a highly-regarded non-profit.” Be that as it may, according to its publicly available tax forms, as a nonprofit, SAC also compensates its coaches generously and does not appear to offer better rates to its members or to Scottsdale residents than Neptune or other youth competitive swim clubs. And although Neptune is also a nonprofit, Mr. Pattison misses the point: The city’s stewardship of public resources should be guided by getting the highest and best use of publicly owned property for city residents and its taxpayers. 

 But at the end of the day, this case is not about SAC, or any other swim club. This case is about the city of Scottsdale and how its leadership has allowed only one private entity the exclusive use of limited public resources to the detriment of Scottsdale residents and at a cost of nearly $1.4 million over a five-year contract. 

 While arrangements like the one with SAC might benefit certain private parties, they do not benefit the city or its taxpaying residents. And this arrangement violates the Arizona Constitution.   

 Jon Riches is the Director of National Litigation at the Goldwater Institute. He is representing Neptune Swimming Foundation in a challenge to Scottsdale’s use of its public swimming pools.