image of money on steps of courthouse

Citing fears of lawsuits, Nogales, Arizona city officials are taking a closer look at non-profit organizations that lease city-owned properties, and they’re not alone.

In the small town of just over 20,000 residents, groups such as the Boys and Girls Club and and a senior center will now need to prove the benefits they provide to the community in order to qualify for “special” discounts on rent of public (i.e. city-owned) spaces. State law in Arizona – and precedents set by lawsuits – are restricting how municipalities go about leasing city-owned properties.

City Attorney Jose Luis Machado told the Nogales City Council in early December that the Goldwater Institute, a conservative public policy group that’s backed by the Koch brothers and other elite conservative donors, is suing governments that offer “less-than-market-value” rents to nonprofits.

“The case law is developing to where we’ve got to charge for the use of city property,” Machado said. He believes there is “some leeway” for city-sponsored programs such as the Nogales Senior Center.

“It used to be we’d grant something for a dollar a year for 10 years just because we thought they were doing something good,” Machado said. “It’s much stricter now. You really have to identify how the city is getting a direct benefit from them using the property or else it’s considered an illegal gift.”

“We have to look at all of that and we’re going to get in trouble if we don’t do it,” Machado told city council,  citing recent lawsuits by the Goldwater Institute against the City of Tucson and Pima County regarding improper gifts.

“It’s just a matter of time before it happens to us, unless we clean it up,” Machado said.

The city plans to put the properties up for bidding by organizations or whoever is interested, said Deputy City Manager John Kissinger, but Mayor Arturo Garino said the city should “establish exactly what each organization is doing and charge them accordingly.”

Of course, asking the city government to discern and judge which nonprofits are considered “valuable” to a community places municipalities in a dangerously censorious position. In fact, Mayor Garino already claimed that there’s at least one group that is “not doing anything for the community,” though he declined to cite it by name.

It’s easy to imagine all the things that could go wrong with governments deciding which nonprofits provide a public service, and which do not. Groups that assist with birth control and sex education, or that cater to an unpopular cause among a conservative base, such as LGBT rights or undocumented immigrant minors, could easily be forced out of spaces when the rent is priced out of their range.

“We pay the light. We pay the water. We pay the utilities. We pay everything. And they have a free building,” Mayor Garino said, agreeing with the rent hike. “If a non-profit is going to take it, they should be used properly for the community.”

One of the groups in danger is the Boys and Girls Club of Santa Cruz County, which leases a property on North Tyler Avenue from the city, as it has done since 1993, according to local publication Nogales International. Executive director Vicki Barden says the club currently pays $1 per year on a lease set to expire in 2020 – but they pay for utilities and have made improvements to the property by building a gymnasium and office.

So the burning question is now: Do “public buildings” in Arizona only belong to the (incumbent) government that manages them? Where exactly do taxpayers and community leaders fit in to the decision-making process?

P.S. Fear of “lawsuits” is also becoming an easy excuse for universities, and local governments across the US to take a sharp right turn – and rewrite laws and policies – while no one seems to be looking.