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Sale of Mamtek property at Moberly approved

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The sale of what was to be the site of a sugar refinery in Moberly has been approved by a federal bankruptcy judge.

The Mamtek facility sits empty at the north end of Moberly.

The Mamtek facility sits empty at the north end of Moberly.

The former Mamtek, International property has been bought by Columbia-based MFA Oil, a farmer-owned cooperative with more than 40-thousand members. It includes 33 acres of land and the uncompleted shell of what was to have been an artificial sweetener plant.

The former president and CEO of Mamtek is charged with multiple counts of fraud and theft for stealing money from the 39-million dollars in bond funds borrowed by the City of Moberly to back the plant. Cole remains on house arrest in his home in the State of California.

The investment banker that backed the bonds, Morgan Keegan, and 10 of its employees, have been sued by the state Securities Commissioner for $30-million in restitution, fines and penalties.

Monte Schisler, KWIX, contributed to this report

Kander files civil action against Mamtek bond underwriter

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The Office of Secretary of State Jason Kander has filed a civil enforcement action against Memphis, Tennessee-based Morgan Keegan and against 10 of its employees who worked on the sale of 39-million in bonds for the scrapped Mamtek sugar refinery at Moberly.

The Mamtek facility sits empty at the north end of Moberly.

The Mamtek facility sits empty at the north end of Moberly.

Morgan Keegan issued $39 million in bonds for the project. Kander is seeking $6.7 million in restitution for Missouri investors and $15 million in civil penalties.

Kander accuses the firm of securities fraud.

“If not for Morgan Keegan’s failure to satisfy basic due diligence standards, we wouldn’t be here today,” Kander tells Missourinet. “Had they done that it would have revealed to Missouri investors that Mamtek’s promises were false, and so in addition to failing to perform adequate due diligence during their underwriting of the bonds … Morgan Keegan exclusively sold the bonds in and out of Missouri and misrepresented the facts, and provided false information about the offerings.”

Secretary of State’s Office Communications Director Laura Swinford says the petition alleges Morgan Keegan failed to independently verify material facts, such as, “Mamtek’s financial ability to contribute to the construction of the sucralose facility, the existence of patents on the sucralose producing technology and the purported sucralose facility in China.”

The civil enforcement action was filed in Boone County Circuit Court, where the largest single bondholder is located.

Kander’s office also seeks to have Morgan Keegan barred from underwriting any more bond issues in Missouri until it hires an independent consultant to review its due diligence policies.

When Kander was in the House, he was a member of the Special Standing Committee on Government Oversight and Accountability, that investigated the Mamtek project as it had been in line for more than $17-million in state subsidies.

The Chairman of that Committee, Jay Barnes (R-Jefferson City), says he is, “pleased to see actions to hold those accountable responsible.”

House Committee looks for ways to improve Quality Jobs program

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A House Committee has held its first hearing digging into the Quality Jobs Program.

Representative Jay Barnes (speaking) says the committee on Government Oversight and Accountability will meet Friday, February 8 in Kansas City to talk about the Quality Jobs program and "What to do about Kansas."

Representative Jay Barnes (speaking) says the committee on Government Oversight and Accountability will meet Friday, February 8 in Kansas City to talk about the Quality Jobs program and “What to do about Kansas.”  (Photo courtesy; Tim Bommel, Missouri House Communications.)

The House Committee on Government Oversight and Accountability was originally formed to study the failure of a project to bring a sucralose refinery and more than 600 jobs to Moberly. Its chairman, Representative Jay Barnes (R-Jefferson City), acknowledges the Quality Jobs discussion began with the Mamtek investigation.

“It was just a catalyst to allow myself a platform to get people asking the first real questions about the Quality Jobs Act.”

Jones says Quality Jobs is has suffered from a low success rate. He says up until two years ago for projects of $1 million annually or more, about the jobs created matched the number of jobs promised about 35 percent of the time. More than 46 percent of those projects yielded no jobs at all. He says smaller projects met their job promises only about 20 percent of the time while creating no jobs nearly 76 percent of the time.

Barnes notes there have been some success stories, however, and says his goal is to find how to have more of those and fewer failures.

He says one way to achieve that might be to give the Department of Economic Development more discretion in what projects are approved for Quality Jobs incentives.

“Right now, as we heard the testimony, there is no discretion. You come in, you make certain promises, you get the tax credit automatically. What we know happened in Mamtek is the executives from Mamtek used that and some other things as leverage to put pressure on local communities for the offering of local government bonds which ended up in a tremendous failure.”

Proponents of Quality Jobs argue that in failures such as Mamtek, the project received no incentives because certain thresholds in job creation and other factors were not met. Barnes says there’s more to it than that.

“There’s two responses to that. The first is that the Quality Jobs Act authorizations are used in some scenarios to leverage local government resources or other resources in which taxpayer money is expended up front. We know from Mamtek that is what happened. The second issue is that these programs have caps … and every dollar authorized for a business that has no business receiving the authorization is a dollar that can’t be spent on a business that might actually create jobs.”

He also says the time spent by Department employees on failed projects is also wasted.

The committee also heard from the Director of the Institute for the Study of Economics and the Environment at Lindenwood University, Professor Howard Wall. He told the committee that academic economists view tax credit programs as “completely ineffective.”

He says the Department’s claim that Quality Jobs has created more than 11,000 new jobs over its life is hard to back up.

“There’s a credit authorized and a factory is set up then people are employed. That’s usually what’s called ‘jobs created.’ Maybe those were created by the credit, maybe they would have existed anyway. Also, that’s not taking into account the negative effects on employment everywhere else because those workers typically came from other jobs, other employers who might now shut down because they can’t get workers.”

Wall recommends that Quality Jobs be scrapped, but Barnes says realistically, that won’t happen.

“Politically speaking I believe it would be impossible. I have much sympathy for the professor’s position that it ought to be scrapped in total. However, I know that it has bipartisan defenders in [the Capitol] and I know that’s not going to happen.”

Barnes says the next step for the Committee will be a hearing at Union Station in Kansas City to discuss, “What to do about Kansas.”

He says the two topics are, “absolutely related, because the Quality Jobs Act is used as a measure of competition with the State of Kansas.”

Barnes says discussion of improving the quality jobs act will be one of the subjects at that hearing, as well as reducing taxes, which he says would do more to create jobs than all jobs tax credits combined.

Auditor: DED must improve due diligence, understand its role

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An audit that began with the investigation into Mamtek says the Department of Economic Development (DED) has taken some steps to improve its due diligence procedures, but could take more.

The Mamtek facility sits empty at the north end of Moberly.

The Department’s Division of Business and Community Services is responsible for due diligence and reviewed Mamtek in the spring of 2010. Mamtek was offered $17.2 million in incentives and Moberly issued $39 million in bonds to finance a sugar refinery. The project failed in September 2011.

Then Secretary of State Steven Tilley late last year asked State Auditor Tom Schweich to investigate the deal. State Auditor Tom Schweich began the review late last year into that and other projects.

Schweich notes the Department already updated its due diligence procedures in February 2011 and he says the improvements were significant. He says there are still some things that aren’t being done that should be.

“One area that’s of particular interest to me coming from the private sector is whenever due diligence is done in the private sector, especially for a startup company, you don’t just look at the entity because it’s new. You go to the principals … the people. The CEO, the principal shareholders, whoever it is that’s really running the show and you look and see what’s their criminal history, what’s their financial history, and determine whether they’ve had failed projects in the past. So those are a few holes in the new procedures that we think could be tightened up.”

Specific to the Mamtek project, the audit says state and local officials could have done a better job evaluating the claims made by the company, such as the existence of a plant in China and the existence of company equity or ability to raise it.

Schweich says prior to February 2011, the agency wasn’t following its own procedures. He says now they are following their own updated procedures, and his office has recommended more steps that he is confident will be implemented.

He isn’t satisfied with the Department’s response to the audit, however.

Read the audit summary and the full report (pdf).

DED points out, as it has in the past, that no incentives were ever awarded to Mamtek because it never met job creation and investment requirements. Schweich says that’s not enough.

“Taken to its extreme, then why do any due diligence? Why not just give everybody tax credits and wait until the jobs materialize. The fact of the matter is (DED is) more than just a switch that turns on and off tax credits. They have expertise in that department. They are supposed to look into the viability of projects before they award even contingent tax credits.

“People rely on them. Maybe not legally … I’m not going to get into the legalities of it. I don’t know if Moberly was legally allowed to rely on BCS or not, but a small city which doesn’t have a whole room full of financial analysts and experts and tax credit experts sees that DED said, ‘Yeah, we think this is a good project,’ and even if they’re not legally allowed to rely on it, as a factual matter they’re going to.”

The audit also looked into the “stacking” of economic incentives:  when one project claims multiple incentives for the same work. It was calculated the state issued tax credits totaling more than $134 million to project costs claimed under more than one program between fiscal years 2000 and 2011. For every $1 of project costs, a developer could be issued up to $3.27 in federal and state tax credits.

The Tax Credit Review Commission recommended the legislature bar projects from claiming multiple tax credits, and the auditor’s office recommends BCS develop cost containment measures with the legislature.

Another finding was that the Governor’s Office in fiscal years 2010 and 2011 paid more than $149,000 for about 160 flights for the Governor’s Office, circumventing the legislative appropriations process. Many of those flights were for media appearances by the Governor promoting economic development incentive awards and projects that were predicted to create jobs. 22 flights costing more than $6,000 are reported to have had no clear benefit to DED or BCS.

A DED spokesperson declined to speak to Missourinet about the audit, referring to the Department’s response found in the report. An e-mail to the Governor’s office seeking a response was not answered.

Former Mamtek CEO arrested and charged with stealing, fraud (COURT DOCUMENTS)

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The former chairman and CEO of the failed Mamtek sugar refining plant at Moberly, Bruce Cole, is in custody in Orange County, California. This morning, the Attorney General’s Office along with Randolph County Prosecutor Mike Fussellman, filed five charges in Randolph County against him related to the $39 million dollar deal.

Former chairman and CEO of Mamtek, Bruce Cole, was arrested at his home in Dana Point, California this morning.

Those felony charges are: one count of stealing with a punishment of 5 to 15 years in prison and four counts of criminal securities fraud, that each carry up to 10 years imprisonment and up to a $1 million dollar fine. Attorney General Chris Koster would not comment on whether prosecutors would seek the maximum penalties.

See the complaint and the probable cause statement.

The charges allege Cole took at least $700,000 from the $39 million in bond money for personal use. According to the probable cause statement, Cole had an invoice created that appeared to come from “Ramwell Industrial, Inc,” requesting payment of over $4 million for Ramwell’s services, though that company never existed.

The next day, Cole had a Mamtek bookkeeper wire $700,000 to Cole’s wife, Nanette. She then made a mortgage payment of over $243,000 to stop foreclosure proceedings on the Cole’s home in Beverly Hills, California.

Koster says Cole “misrepresented or failed to disclose important facts related to the construction project.” That includes claiming that the sucralose manufacturing process to have been conducted at the Moberly plant would have created no hazardous materials, when in fact it would have.

Attorney General Chris Koster (at the podium) announces the charges against Cole, along with Moberly Mayor Bob Riley (left) and Randolph County Economic Development Director Corey Mehaffey.

The charges filed today also allege that Cole told Moberly that Mamtek had a fully operational sucralose plant in China when it did not, and only four to six months would be needed to build the Moberly facility when Cole believed it would take longer.

Koster says the process begins today to extradite Cole to Missouri to face the charges. Cole is being held on $500,000 bond in Orange County, California.  Koster would not comment on whether additional charges might be filed or whether more people could face charges, but says the investigation is continuing.

Koster says these criminal charges have little to do with any money being recouped from the Mamtek deal, but adds, “I think that the likelihood of financial recuperation coming out of this still remains less than likely. The bankruptcy proceeding will determine that.”

The site of the Mamtek plant and all equipment there is scheduled to be auctioned off at 10:00, October 24.

House advances two proposals related to Mamtek (AUDIO)

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Two pieces of legislation have advanced in the House that stem from what has been learned about the failure of the Mamtek sugar refinery project in Moberly. Both were offered by the representative who chaired the committee that studied that deal, Jay Barnes (R-Jefferson City).

Representative Jay Barnes (photo courtesy, Missouri House Communications)

One is an amendment to HB 1455, which changes the Manufacturing Jobs Act. The other is a stand-alone bill, HB 1865. There are differences between the two, but some key provisions are found in both. They would require up-front verification of financial information by start-up companies applying for incentives, the sharing of “adverse” information received about a company and the creation by the Economic Development Department of a rating system for proposed projects. Barnes says he wanted to offer both so that the language has two opportunities to become law.

The proposals met with some opposition, especially from lawmakers who say they’ve heard from economic developers in their districts that the language goes too far. Barnes disagrees, “What my fear is, is that we haven’t gone far enough. There are a lot of other provisions our committee decided not to put forward because we wanted to put forth a proposal that should have overwhelming support from a body that generally supports protecting taxpayers. What we have is not as long as I’d like it to be.”

One of those who opposed the bill is Representative Denny Hoskins (R-Warrensburg). Of the provision that “adverse” information about a company should be shared, he said, “It seems like a big judgement call for these economic development corporations, also the Department of Economic Development, to determine what is ‘adverse’ and what is not ‘adverse.’ This might mean that all the companies would have to disclose all the information, and therefore be to the detriment of economic development in the state of Missouri.”

The representative whose district includes Moberly, Randy Asbury (R-Higbee), opposes the proposals. “As I read this legislation I’m unconvinced the outcome would have been any different had this new layer of beaurocracy been in place prior to Mamtek’s debut.”

Asbury disputes the requirement that start-up companies provide verification of financial information. “Just because we request financial verification for start-up companies does not mean anyone at any agency is qualified to make a better decision based on that information.” Mamtek provided a financial statement saying it had $7.2 million in cash or equivalent, but that was never verified by a third-party.

Both pieces of legislation can advance to the Senate on another positive vote. Both are likely to be voted on today.

AUDIO:  Representative Jay Barnes presents his amendment to HB 1455

House Commitee completes its report on Mamtek project (AUDIO)

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The House Committee that was assigned to look into the failure of a project to bring a Mamtek sucralose plant to Moberly has compiled its report, and is preparing to release it.
 

Representative Jay Barnes

The chairman of the Committee on Government Oversight and Accountability, Jefferson City representative Jay Barnes (R), says there are no new details revealed in the report beyond what came out in the hearing. The report recaps that information and offers six recommendations for changes that he says could prevent more similar failures.

Barnes says chief among those recommendations is that communication by the Department of Economic Development and local economic development officials must improve. “In this case, the Department of Economic Development had information from their own consultant in China that Mamtek had a similar lease-purchase agreement with a local government in China to the exact same deal they pitched to Moberly that went belly up in China, and that exact details of that information from China were never shared with people from Moberly or the third-party professionals involved.”

The other key recommendation, Barnes says, is that how due diligence is done in a municipal bond appropriation deal must be reassessed. “(The Committee was) told by professional after professional that Mamtek itself didn’t matter in the calculation. Well, we have no evidence to conclude that they’re wrong, legally, but that’s not the way it ought to be.”

With its report filed, the Committee can now take up legislation related to economic development and specifically, the Mamtek situation. Some bills have already been filed that deal with issues related to what happened with Mamtek. Barnes points to House Bill 1304 and House Joint Resolution 58 both sponsored by Committee member, Representative Chris Kelly (D-Columbia). Barnes says he is also working on legislation.

See our earlier story on the two pieces filed by Representative Kelly.

Economic development officials note that time is of the essence in some deals that have states competing with one another. Barnes says most of what is recommended in the report should not put Missouri at a disadvantage in trying to land projects. He offers the example of the financial statement Mamtek offered saying it had $7.2 million in cash or cash equivalent. Barnes says that was never verified by a third-party, and should have been. “That’s not something that takes any amount of time. It’s not something that any legitimate business looking to operate and receive tax incentives in our state should balk at.”

Barnes notes, based on the testimony the Committee heard from economic development officials, countless deals are administered just like the Mamtek project all the time. “If standard operating procedure gets the deal done most of the time, well why would we change our standard operating procedure? But, the fact that something hasn’t failed dramatically in the past isn’t necessarily indicative that the process weeds out all potential failures, as we’ve seen in this case.”

The report signals the end of the fact-finding investigation by the House Committee without the input of two key players. Mamtek CEO Bruce Cole and bond counsel Tom Cunningham both refused to testify. Asked whether he is satisfied moving forward without Cole’s testimony, Barnes says, “We wanted to get the report out. We’re running against time constraint here.” Barnes says in the scope of the Committee’s work, nothing was lost by not hearing from Cole.

See our earlier stories on Mamtek and the related investigation.

AUDIO:  Mike Lear interviews Jay Barnes (13:00)

Barnes: what patent attorney knew might have stopped Mamtek deal (AUDIO)

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The Chairman of the House Committee studying the failed deal to bring a Mamtek sucralose plant to Moberly says there are many who could have halted that deal before its collapse, but did not.  Representative Jay Barnes (R-Jefferson City) says the City of Moberly relied on a series of third-party professionals and the Department of Economic Development to back the project and do due diligence on it.

Patent attorney Michael Wise testified by video conference from California at Thursday's hearing.

One person Barnes says could have stopped the project is Michael Wise, a patent attorney for Los Angeles, California-based law firm Perkins Coie. 

Wise testified under subpoena Thursday afternoon before the Committee on Government Oversight and Accountability. He said that he had been to Mamtek’s production facility in Wuyishan City in Fujian Province, China on three occasions: in November 2007, November 2009 and August 2010. The existence and status of that plant has been at question for those investigating the situation.

Wise says on the first visit he observed a production line capable of making 18 tons a year. By the second visit, a larger line had been added that was capable of putting out 60 tons a year. When he returned in August 2010, neither line was in operation and a cooling tower was being added to the larger line.

What those lines were making was less clear.  Wise says the Mamtek executives he worked with said it was sucralose, adding he drank tea they said was sweetened with product made there.  A sample was later sent to his firm in Los Angeles via its Shanghai office.  Wise says he never confirmed sucralose was being made at the site, however.

“I never questioned my client’s (Mamtek) representation to me that they were making sucralose because that’s the nature of the relationship.  I’m a patent attorney.”

It was before his last visit, Wise testified, and before the Moberly deal closed that he learned the plant’s future operation was in question. He explained the area had been put under a protected status he equated to that of a national park in the U.S. “The central government had decided that Wuyishan (City) was a protected area, kind of like Yosemite, and as a result of that they weren’t allowing new factories or new lines to be allowed to produce anything in that area, and I assumed it was because of the national park-like status of that area.”

Representative Jay Barnes (right) is joined Thursday by Senator Jim Lembke, who chairs the Senate version of Barnes' committee.

Barnes says, “If Michael Wise would have told people … the Chinese government has some problems with Mamtek’s operation it’s very likely possible that none of this would have happened.”

Wise noted in his testimony the disclaimer that he offered the City of Moberly in a letter to its attorney Tom Cunningham, making clear that he was working for Mamtek and suggesting that the City should do its own due diligence with its own patent lawyers, independently.

Barnes also points to Standard and Poor’s as an entity that could have delayed or stopped the project if it had evaluated the status of Mamtek’s China operation before giving Moberly’s bonds an A-minus rating. S&P Managing Director Geoffrey Buswick, also under subpoena, said the rating was based on Moberly’s promise to pay off the bonds.

The Chairman is now weighing whether to move on to considering legislation related to the Mamtek situation, or to call at least one more witness: former Mamtek CEO and project point man Bruce Cole.

“The conundrum is: our role as a legislative committee is to figure out what we can do to prevent this from happening in the future. I’m not sure what exactly Bruce Cole adds to that question. Given that we’ve spoken to so many other different fact witnesses, I think we’ve got a general idea of what the facts indeed were.” Barnes says he may call Cole if other committee members, or “Maybe I change my mind and think that maybe he (Cole) has something to say that maybe we need to propose X.”

AUDIO: Listen to the testimony of attorney Michael Wise – 1 hour, 26 minutes

Senate committee continues Mamtek discussion

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The Chairman of the Senate Committee on Governmental Accountability says he questions whether the Department of Economic Development has the safeguards in place to protect Missourians.

The Senate Committee on Government Accountability hears testimony from representatives of the Department of Economic Development.

Senator Jim Lembke’s Committee has again heard from Department representatives about its involvement in the Mamtek sucralose plant project at Moberly, this time with new e-mails obtained from DED. Lembke says the e-mails reflect that some in the Department were asking “the right questions” about Mamtek and its executives, but he wants more.

Lembke told the Department’s Director of Legislative Affairs Jason Zamkus, “We’ve got to come up with some type of process…you say to the person that has an interest in coming to Missouri and starting a business that we need to have your financials before we can take it to the next step.”

He emphasizes that he is not suggesting background checks be conducted with all companies and all projects. Those with a more established background, with examples given in the hearing being Coca-Cola and Ford, would not be subject to the same inquiry as someone from a relatively unknown company, as was the case with Mamtek. “The bottom line for me is,” Lembke says,” how do we keep this from happening to another community.

Lembke wants to meet with DED in a different setting to discuss new approaches to prevent more Mamtek-like situations in the future. “Let’s learn from it and put some things in place that will actually protect the taxpayer and our Missouri communities.”

The House Committee looking into the Mamtek deal, the Special Standing Committee on Government Oversight and Accountability, is scheduled to meet at 12:30 p.m. Thursday. Chairman Jay Barnes anticipates long-awaited witnesses Tom Smith, who was Mamtek’s site consultant and Mike Wise, a patent attorney who claimed to have been to Mamtek’s plant in China.

Proposals would slow down Mamtek-like bond arrangements

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Two measures have been proposed in the House by a member of the committee that has looked at the Mamtek situation that would take some grease off the wheels in future, similar deals.

Representative Chris Kelly (D-Columbia)

Representative Chris Kelly (D-Columbia) says right now when communities want to issue bonds for industrial development, bond advisors & lawyers might advise the city’s credit be used, such as what happened in Moberly with Mamtek. His proposals target such arrangements.

“That is a, I think, kind of a sneaky method to avoid the Missouri Constitution, because what it does is it requires that one city council effectively bind the appropriations of further city councils without a vote of the people, and the Constitution prohibits that.”

The plan regarding communities would require a change to state statute, found in House Bill 1304, while the prevention of such state-backed bond deals requires a constitutional amendment found in House Joint Resolution 58.

Kelly acknowledges his proposal would put communities in Missouri at a disadvantage when competing with those in other states to bring in new industries, because those deals sometimes develop very quickly. Having to put certain elements before a vote of the people will significantly slow the process down. “That’s one of the things that the cities won’t like about this, but if the only thing that my bill does is it makes cities more aware of this problem, I will think that that in-and-of-itself is a good thing.”

On that line of thought, Kelly says his bill would not have to pass to sound an alarm. “I want to raise the consciousness about the danger here.”

Kelly says if his bill had been law when Mamtek was developing, the deal would have been aired better and might not have reached the stage it has. He notes, he is not critical of the people with the City of Moberly. “I am morally convinced that they did not realize that they were binding the credit of the City. The people I find fault with are the bond advisors and the bond lawyers.”

While discussing who was at fault in the Mamtek deal, Kelly says he thinks the state handled it “probably, actually about right. There’s a lot of political motivation to blame (The Department of) Economic Development because the governor’s a Democrat. But I think the Department of Economic Development handled this under (Governor Jay) Nixon the same way that they handled these under (Governor Matt) Blunt and it’s just handy now that this one went south, to try to find a political way to blame Nixon.

Kelly is not saying that DED could not have done better in certain areas involving communication or contributions to due diligence. “At any given time in any operation … you can find ways to make improvements.” He adds, “if there were sins here, they were pretty venial sins.”