Column #4-4-3-08-rev-1

 

COUNCILMAN BONACCI SAYS

 

COUNCIL MISSES THE BOAT ON LEGALITY VIA BAD PRESS COVERAGE

 

I have to tell an interesting vignette before getting to the specific Berkeley Heights information.  It relates to the way the Star Ledger’s Gabe Gluck and the Independent Press’s Mike Neavill and Michael Kelly write news reports.

 

A weather report analogy: 

 

1.   The weatherman reports “It will be a bright and sunny day tomorrow.  The     temperature will be 15 degrees below zero.”

2.   The reporter writes “It will be a bright and sunny day tomorrow” but leaves out the second sentence.

  1. The reporters’ believe they report accurate quotes of people they interview.
  2. The mothers of young children in Berkeley Heights send their kids out to play without hats, gloves, mittens and heavy coats.
  3. Three kids get frostbite and almost freeze to death.

 

Well the reporters used a true quote but not the whole quote so they missed the STORY.

What is the moral?  Listen to the weatherman and not the reporters for these two papers.  We don’t need parrots that only get half the quotes and never the full story.

 

Now the Alternative Press does it right.  They weave in the quotes relating to the story and then they print the full statement of the people responding in the online news media.

 

Well, lets get to the real world information of recent vintage in Berkeley Heights.

 

Case A. Prosecutor interaction—

1. The Press talks to Mayor Cohen and he pipes his version.  They don’t contact the President or Vice-President of the Town Council.

  1. The Press quotes about March 31 or so in 2008 that there is no Appropriate Authority in Berkeley Heights for 15 months.  However there was an Appropriate Authority on Jan. 1, 2007 effective for 90 days.
  2. The Press does not address that Berkeley Heights had a legal Administrative Code from Jan. 1, 2007 effective for 90 days.
  3. The Press can’t subtract 90 days from 15 months and arrive at the correct period without an Appropriate Authority or Administrative Code, which would be 12 months.
  4. The Press doesn’t do research although they were present on Jan. 1, 2008 when a Special Counsel to the Council was hired by resolution to write an Administrative Code including an Appropriate Authority and Police Ordinance.
  5. The Press does not find out that the work product of Mr. John Phillips was delivered on Feb. 29, 2008 completing that project. It was discussed at the April 1, 2008 Council meeting so that the proper actions could be taken in six weeks.

 

Case B.  Actual Actions of 2007 Council --

1.      On March 12, 2007, an Administrative Code including an Appropriate Authority was introduced as an Ordinance by Councilman Bonacci and seconded by Councilman Battaglia and voted also by Councilman DiPasquale but the Mayor broke a tie by voting no.  This was the 72nd day and thus with a final follow-up two weeks later, the Town would have completed its formal legal obligation in 86 days and ahead of the 90 day limit.  They did not want to report the Mayor’s actions to make our Town get into this 12-month problem.  Incidentally that ordinance would have formalized Mr. Kologi, the then Township Attorney’s Interim Resolution, which covered all the bases.

2.      The Mayor was in trouble and he knew it so he wrote a resolution attempting to do the above on March 27, 2007 because he said he couldn’t run the government legally after 90 days.  However the law calls for an ordinance to fulfill legality, not a resolution.  If the Mayor was right about a resolution then the Press should have quoted him and he might have said  “Oh we were only illegal for three months since the New Council took office on Jan 1, 2008”.  I’d like to think both he and the press knew he wouldn’t have been right on that one.  But does that explain disingenuousness on the part of those who behave that way?

 

Case C.  Actual Actions of 2008 Council --

1.      An ordinance was attempted to amend the Police Ordinance to provide 2 Captains, 7 sergeants and 17 officers plus a Chief. 

2.      The Press blamed Councilman DiPasquale for not being in attendance but the Mayor’s supporters Bruno and Perna were in attendance and they did not vote to make this simple change although it had been put in during 2007 as an Ordinance defeated by the Mayor’s supporters and passed as a resolution temporarily and the Mayor acted on part of it and refused the rest.

3.      The 2008 Council tried to get a vote on an amendment to the Police Ordinance appointing a 3-person Public Safety Committee of the Mayor and the President and Vice-President of the Council but the Mayor’s supporters blocked this.  This was the first compromise attempted.

4.      The Mayor offered a second compromise and one of his supporters introduced it but the other supporter did not second the introduction.  This is the famous 3-person committee with the Mayor, his pick and the Council President.  This seems to now be reported in the press without mention of other approaches.  How does 2 of 3 votes by the Mayor execute any differently from 1 vote by the Mayor?  This is a sham!  Look it up please.

5.      Councilman Bonacci offered in discussion a significant compromise.  Use the entire Governing Body consisting of the Mayor and 6 Council members as the Appropriate Authority.  He showed where this is stated in the NJSA statutes but no one steps up to offer an Ordinance.  An attorney has stated that if the Mayor plus 2 Council members were legal then of course the Mayor plus 6 Council members would be legal.

 

Now I have to claim that this third compromise is the best of all because it can directly address the duties of the Appropriate Authority, some of which are Executive in nature and some of which are legislative in nature.  A 3-person Committee can’t because rules would have to be developed which this Council has difficulty with.  However, there already is a body of law for the total governing body, which provides a basis for when an action is Executive and when it is Legislative.

 

I am not a lawyer and I am not offering legal opinions but I can and others can just read the legislative rules the way legislators might have either written or approved them.  For example here is the Statute with highlights and emphasis by me but using actual words:

 

App Author Statute-2-6-08 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 at least 5 lawyers I know.) –(- my insert for emphasis:  IT IS QUITE CLEAR HERE THAT THE MAYOR HAS NO POWER TO SELECT THE APPROPRIATE AUTHORITY.  IF HE REALLY WANTS IT HE MUST BEG FOR IT.  HE CANNOT DEMAND IT).

 

II.         APPROPRIATE AUTHORITY              as stated in the statute means the following seven categories (or choices, my words):

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. (My interpretation is ‘this means the Governing Body can do the whole thing whenever it wants or has to.  Therefore we are likely legal right now if the Governing Body takes any of the Appropriate Authority allowed actions and perhaps the Prosecutor and other attorneys should check this out.  That little word “or” seems to say that if the Governing Body is asked it can take the action right now for any issues relating to Police’

 

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. (Governing body has laws for executive and legislative powers)

 

You don’t have to be a “brain surgeon” to see that there are at least seven categories listed and the Mayor is only one of them.  Why would he allow our government to be illegal for 12 months just because the Town Council did not pick him in the 90-day period of 2007 and doesn’t want to pick him now?  I don’t think it pays more money.  Is there a Machiavellian motive hidden here?  Why didn’t the Mayor tell the press and the Prosecutor that he thought he was the Appropriate Authority from March 27, 2007 until December 31, 2007 for the period of his resolution?  Does he now think that resolution was not legal as I do?

 

Now the press blames the Town Council and it might appear that the Prosecutor does also but he has not directly expressed his opinion in print. Does he know something we don’t know about Governing Body inherent authority?  He has called attention to the current status without stating that we had it right once for at least 90 days.  In any case whoever wants to specify responsibility should look up the rules of the M-C-A form of government under the Faulkner Act.

 

The Mayor’s powers do include some legislative responsibility:

1.      Chair the meetings of Council

2.      Vote in case of 3-3 ties

3.      Veto ordinances passed by 4,5,or 6 votes (the veto can be overridden by 4 votes)

 

The Council has all remaining legislative power and some limited Executive power such as:

  1. Council prepares the budget and approves the appropriation accordingly and thus the setting of the tax rate.  Anticipated revenues are part of this authority of the Council.
  2. Council defines the Department Structure and the number of people in the various Departments which comprise the Executive Branch
  3. The Council can approve or reject the Mayoral appointments (six primary and up to six departments); all in the Executive branch
  4. The Council appoints the Public Prosecutor
  5. The Council appoints the Public Defender
  6. The Council can over-ride any Mayoral Executive veto by a 2/3’s vote
  7. The Council has final approval over all bills signed by the Mayor for payment under the bill list
  8. The Council can remove Mayoral appointments, sometimes with and sometimes without cause
  9. The Council can prevent any short-term resolution proposed by the Mayor from being placed into action.
  10. The Council must receive monthly reports from all Executive Departments
  11. The Council can re-organize any Department in the Executive, i.e. administrative branch
  12. The Council can meet without the Mayor and take actions in his absence
  13. The President of the Council can be delegated action authority by the Council totally in the absence of the Mayor and within restraints with the Mayor active.
  14. The Council must be in the loop for employee grievance proceedings and can take action to over-ride any Executive discipline decision.
  15. The Council must vote on and approve any litigated settlement whether money is involved or not

 

It ought to be obvious what the normal Executive duties of a Mayor are, so those should accrue to him if he is selected to be part of the Appropriate Authority.  A complete description of the duties breakdown under the Appropriate Authority powers is needed. Clearly the Mayor has authority to promote Policeman.  Why didn’t he promote Ernie Schmidt to Sergeant when he appointed W. Fettes as a Policeman, which the June 26, 2007 resolution allowed?  His other responsibilities, which are Executive in nature over any Department, are certainly applicable as long as consistent with the rules governing a Police Chief’s powers by law.  This Mayor likes to pick and choose according to his whims.

 

Why does the Mayor have a beef?  Does he want to have both the legislative as well as executive powers within the Appropriate Authority?  Does he just want to be King?  Should he take the time to discern between these responsibilities?  Should he step down from being Mayor if he can’t rise above this picayune desire to run the total Police Department?

 

Have the Mayor and some of his Council member supporters never gotten over the old Committee form of government?  When the Township Committee was both Executive and Legislative, there wasn’t much need to differentiate. They ought to get out of that “time warp”.

 

One thing we know for sure:  THE MAYOR HAS NO POWER TO DESIGNATE THE APPROPRIATE AUTHORITY OR DEMAND IT BE HIS WAY.  ONLY THE COUNCIL HAS THAT POWER.

 

Sorry for the length folks but if we want to do these things right there is a little work needed on everyone’s part (Mayor, Council, reporters, voters and myself included) to gain the proper understanding and do the right things.

 

John C. Bonacci           Council Vice-President