AP-column- -2-29-08-Col #2

 

Councilman Bonacci Says                  

 

            Town Council Actions taken based on Town Attorney Advice

 

Let’s contemplate where we have been in Berkeley Heights and where we are going since the change in government about 14 months ago on January 1, 2007 and perhaps the three years preceding that change.

 

Starting with the day after the Nov. 6, 2006 election when seven (7) newly elected persons became the governing body that would take over on Jan. 1, 2007 there has been plenty of activity but not enough progress.  During that seven week period the main issues discussed in a preparatory manner were:

·        Revised Administrative Code

·        Appropriate Authority over the Police Department

·        Structure or organization of the operating departments i.e. Executive branch of government

 

The then Township Attorney, Mr. E. Kologi, wrote and drafted the Interim Resolution/pending Administrative Code according to NJSA title 40:69A-207 a, b, c, d and e stating that he had input from the prior administration. As Councilman-elect, I raised numerous questions and suggestions at non-confidential public sessions. What resulted was an Interim Resolution/pending Administrative Code that was tightly written and that conformed to the Faulkner Act M-C-A form of government voted in by our Town in Nov. 2005.  Mr. Kologi inferred the draft would stand the test of time and I agree. It was adopted by a 6 to 0 vote on Jan. 1. 2007 and the amendment for the Appropriate Authority (Town Council over the Police Department) passed by a narrow 4 to 2 vote, the first crack in the dike so to speak.

 

The Council Rules and Procedures were drafted, presented and defended by Councilman-elect Bonacci with primary discusser as Mr. Kologi. These   were adopted by a 6 to 0 vote on January 1, 2007.  Suffice it to say, Mr. Kologi and I do respect each other.

 

DETAILED ISSUES AND PROBLEMS

A.  Interim Resolution/pending Administrative Code-The provisions of the Faulkner Act providing for the development of an Administrative Code according to NJSA 40:69A-207 is very specific.  For example there is one and only one Interim Resolution provided for as excerpted. Below.

a.      Several offices and positions  –etc.etc. -  are to remain including a tenured Township Clerk

b.     Provision for officers and for the organization of the municipal government under the optional plan may be made by an Interim Resolution pending the adoption of an Administrative code

c.     Within 90 days after the date of organization of the first municipal Council under the optional plan the municipal governing body shall adopt, by ordinance, an Administrative Code, --- etc. etc and establishing the manner of performance thereof.  The Code shall restate the major provisions of the municipal charter, etc. etc. etc. to carry out the functions and activities of the municipal government

d.     The Administrative Code shall take effect 30 days after it is adopted

e.      The Administrative Code may be amended or supplemented from time to time by ordinance subject to the provisions of law.

 

So why is this important?  As stated, Mr. Kologi’s Interim Resolution was tight and had a very specific clause 24 providing that all existing ordinances were to remain in force pending new or revised ordinances.  A resolution, which is not an ordinance, could not be used in the place of those required ordinances.  In fact when he wrote a follow-up as an ORDINANCE introduced on March 12, 2007 it was rejected because it could not get a vote of 2/3’s of the Council (i.e. 4 members) because he inserted a bad discipline code for employees based on Administration input and inserted the Mayor as the Appropriate Authority although I can’t be certain that he made that insertion.  Councilman Bonacci, in early March, offered the original Interim Resolution as an actual ordinance in order to comply even further with the M-C-A statutory requirements.  This introduced Ordinance was defeated by the Mayor’s tiebreaker vote because he insists on controlling the Police Department.

 

Mr. Kologi left and a new Township Attorney Scrivo came on.  Mr. Scrivo opined that the original Interim Resolution/pending Administrative Code died on the 90th day.  He was completely wrong as far as I am concerned.  The Council should have made the original document the formal Administrative Code by ordinance as a starting point and we would have been well on our way to an effective government and all of the residents would have seen a positive and different result from their government.

 

B. The Mayor wrote a copy of some sorts of Mr. Kologi’s March 12, 2007 ordinance attempt and the Mayor called it a SECOND Interim Resolution.  Attorney Scrivo opined that this Second interim resolution was valid and seemed to ignore the word pending an ordinance on the original. He then allowed that it could pass by a simple majority, not a 4-vote Council member total majority as the original Interim Resolution/pending Administrative Code had obtained.  Please look up the word pending in your dictionaries and the difference between ordinance and resolution while you are at it.

 

C. It gets worse.  The Mayor in the above second resolution then named himself as Appropriate Authority and he wrote in a discipline code that took away the rights of employees to have a hearing before the Council.  The Mayor’s actions were counter-productive and we have had problems ever since.  The original Interim Resolution established just one Department of the six allowed by statute (the Police Department).  There was significant disagreement on establishing too many departments, which the Mayor was soon to change by adding two unnecessary departments.  He did so also by resolution and not by ordinance and not by discussion, negotiation and compromise with the 6 Council members.

 

D. Shortly after these first 90 days, an action taken earlier by the Administration (the suspension of the Sewer Plant Superintendent for 90 days without pay), was upheld by the Mayor by the application of another Attorney Scrivo opinion.  This was inconsistent with the provisions of the applicable Administrative Discipline Code since 90 days is not mentioned in that Code but a three-day per incident is and a hearing before the Council is not prohibited but was actually required for a grievance.  These two wrong conditions were upheld by Attorney Scrivo’s opinion and are still in effect today contrary to common sense.

 

E.     In October Attorney Scrivo, after stating that the Statute clearly gave sole authority to the Town Clerk to certify or not certify petitions by voters, took specific contrary actions.  During the 10-day petition review process he actually duplicated the Town Clerk’s activity and came up with his own count on the certification.  He claims it was OK because he was asked for some advice.  There is, however, no provision in any statute or law that allows anyone other than the Town Clerk to do the count or to certify or not certify except a judge, which Mr. Scrivo is not.  It gets worse again because the Mayor and the 2007 Council voted using the Mayor’s tie-breaker vote to release to the public the Town Attorney’s privileged communications thus allowing taxpayer funded work to be used by a small group of residents against the approximately 1000 voters who properly signed the petition.  The subject of the petition doesn’t matter but the actions taken to prevent voters from their right to vote on a large expense of $10 million does. It is NJ law after all and important to all of us. So far this has resulted in extra costs to the taxpayers and a delay in a decision for public safety vehicles requested by the Fire Department because of bad management in developing the bond ordinance.

F.     It does get worse.  Based on an employee complaint pushed forward by the Township Administrator and at least one Council member, the Attorney spent time and money to admonish a Council member without reading the few lines of an e-mail that caused the complaint.  He cited law that is not contained in the Faulkner Act M-C-A form of government and provided a seven-page memo at taxpayer’s expense without trying to suggest private discussion and deliberation.  A nasty public display resulted with news coverage.

 

G.    The Mayor and a lame-duck 2007 Council proceeded to recruit and appoint a new Township Administrator between Dec. 14, 2007 and Dec. 18, 2007.  Mr. Scrivo evidently agreed that the Council Rules and Procedures requiring 14 days notice did not apply and 4 days was sufficient for the Council to advise.  With three Council members obviously opposed to the appointment for reasons detailed in published reports, Mr. Scrivo also ruled that a simple majority vote was sufficient to confirm the appointment of an Administrator.  He ignored the precedent that the prior advise and consent appointments had all been done with a 2/3’s vote of the total Council as clearly stated to him by two Council members and the prior public record of Jan. 1, 2007.  So the Mayor accepted that opinion and declared the appointment valid only to see it rejected on Jan. 1, 2008 by the newly elected 2008 Council by a 4 to 2 vote as he was publicly told would happen.

 

Well readers some progress has been made but I have to tell you it isn’t going to get any better soon.  That is unless the voters stay informed and continue to pay attention to what is going on in our government.  I believe we will need one or two more elections and some new properly confirmed appointments to get this government on the right track.

 

As we enter 2008 (now Feb 29 as of this writing) we have the Attorney casting an opinion that the compromise proposed by Councilman Bonacci of having the Town Council appoint the entire governing body as the Appropriate Authority over the Police Department is not valid.   Thus, as of this writing, I have not pushed for the introduction of an ordinance.  I gave as my reason that I truly want to have the minority two Council members and the Mayor buy in to the offer.  The only way to address the common sense aspect of this proposal is to state the section of the NJSA statute that applies with exact words but highlighted for ease of the reader.

 

“APPROPRIATE AUTORITY COVERED BY N.J.S.A. 40A: 14-118 provides—

I.                   The Council has the power to designate the Appropriate Authority over the Police Department- (stated in the Statute and confirmed by Mr. Scrivo).

II.         APPROPRIATE AUTHORITY              as stated in the statute means the:

a.      Mayor

b.      Manager

c.       Other appropriate executive

d.      Other Administrative Officer- such as:

i)                    As a full-time director of public safety

ii)                  The governing body

iii)                Any designated committee or member thereof

iv)                Any municipal board or commission established by ordinance for such purposes

III.    Except as provided by NJSA 40A: 14-118, the municipal governing body and members thereof shall act in all matters relating to the Police Function in the municipality as a body or through the Appropriate Authority if other than the governing body.

IV.  The designation shall be by ordinance in a manner consistent with the degree of separation of executive and administrative powers from the legislative powers provided in the form of government under which the governing body operates.

.

Councilman Bonacci observed that at least one judge has noted that 40A: 14-118 was enacted as a legislative amendment to provide for a system of checks and balances so that one person could not become a tyrant.  He also noted that the governing body, the Township Council as well as the state legislature create the laws.

 

Councilman Bonacci asserts, “It would behoove the current Town Council to make the Appropriate Authority designation be the entire governing body (i.e. the Mayor plus 6 Council members) for one and only one simple reason.  There is a solid body of rules and law that tell us how to operate the governing body with respect to legislative and executive roles.  And there are both executive and legislative actions that the Governing body is authorized to make, at least a dozen or so.  If we select a committee of three or any number there will have to be promulgated rules of operation and we would move back to square one and more arguments.  In fact it is likely that even if just the Council is appointed the Appropriate Authority, which would certainly be allowable as a special committee, one would need to promulgate some specific rules because there is an even number of Council members and the tie breaker role provided for in the governing body would not be available to a specific 6-member Council-committee acting as an Appropriate Authority.”

 

I guess we will leave it to the reader to interpret the above language.  It seems pretty clear to me that the “governing body” is explicitly listed.  Also if one reads the actions that accrue to an Appropriate Authority, it is clear that these actions are mainly of policy and rules and procedures, which are clearly legislative in nature.  The executive actions, when required, can certainly be allowed under existing provisions and of course the Town Council can reassign the Appropriate Authority at any time it desires by a new or revised ordinance.

 

Dr. John Bonacci is a member of the Berkeley Heights Township Council and Vice-President of the Council for 2008.

 

Editor’s Note:  On December 10, 2007, The Alternative Press sent every elected Mayor and Councilmember in Summit, Berkeley Heights, and New Providence a letter inviting all of them to have a weekly, bi-weekly, monthly, or bi-monthly column of any length published unedited and in its entirety on The Alternative Press.  As they have been so informed, all columns can be sent to editor@thealternativepress.com

 

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