NJ News & Views

[Editor's Note: At 6:12 p.m. on July 22, 2010, this story was edited for style, content and accuracy.]

Earlier this month, readers of the Asbury Park Press commenting online about the news also reported it.

According to residents that attended the Jackson Township Reorganization meeting, which the newspaper's reporter covered on July 1, the mayor and council did not reappoint Township Manager Phil Del Turco.

The online copy of the July 1, 2010 Jackson Reorganization meeting agenda confirmed what residents told the public and the published copy of the newspaper did not.

That is not always the case.

Three years ago, the Jackson Board of Education reported on an addendum to the June 26, 2007 meeting agenda that the district received two bids for installation of fencing at Liberty High School and had awarded the contract to the lowest bidder.

Board members misinformed the public.

They also misinformed a member of the media that reports to the public.

On June 27, 2007, a reporter for NJ News & Views requested to inspect the bid package and fencing contract under the state Open Public Records Act (OPRA).

District personnel told the reporter they did not have the contract.

District personnel did not produce a bid package completed by both bidders cited on the board's meeting agenda either.

Instead, district personnel gave the reporter a blank bid package.

While the reporter did not request a completed bid package, the reporter also did not request a blank bid package.

Under OPRA, officials can respond with a written denial of access if the requested document does not exist.

That is not what the board's designated records custodian or the board attorney provided to NJ News & Views.

The reporter asked district personnel to provide the contract for inspection as soon as it was available.

They did not.

Several weeks later, the reporter called district offices and asked again if the contract was available for inspection under OPRA as previously requested.

Under OPRA, all contracts, bills and invoices must be produced for inspection upon request. They are the exception to the 7-business day limit in responding to all other requested documents.

On July 30, 2007, over a month after the reporter filed an OPRA request, district personnel presented a signed contract for inspection that included the winning bid proposal and no other.

The contract was signed on July 26, 2007 by Jackson board President Marvin Krakower and Anthony Martinez, President of National Fence Systems, Inc., the winning bidder.

Krakower is a former member of the municipal governing body.

On August 3, 2007, the reporter filed a denial of access complaint with the Government Records Council (GRC).

Under legislation enacted in 2002, which replaced the state's Right to Know law, OPRA called for the creation of the GRC to hear complaints of denial of access as a less expensive alternative to filing suit in state Superior Court.

Located in the state Department of Community Affairs (DCA), members of the GRC include the Commissioner of Community Affairs or the commissioner's designee; the Commissioner of Education or the commissioner's designee; and three members of the public appointed by the governor with the advice and consent of the state Senate.

Only two of the three governor's appointees are permitted to be from the same political party.

Because OPRA did not require that the GRC adjudicate all complaints within a specified time limit or that an alternate member of the public and the government be selected through the same procedure as jury duty to sit on the panel in the event there is no voting quorum, many complaints have not been adjudicated by the GRC or a court of law.

One of those complaints was filed three years ago by NJ News & Views.

Two years after a reporter for NJ News & Views filed a complaint against the Jackson Board of Education and its designated records custodian, business administrator/board secretary Gregory J. Brennan, mediation failed to yield an agreement. State mediator Fran Snyder turned the reporter's complaint back over to the GRC for adjudication.

Michelle Richardson, who succeeded Brennan upon his retirement, responded to the reporter's denial of access complaint two years after it was filed against Brennan, who was then deceased.

She denied the complaint and asserted that the reporter had received the requested information under OPRA.

In response, the reporter provided as further evidence a copy of the board's 2007 meeting agenda, which included the names of two bidders, a photocopy of the dated contract signature page, and correspondence with Brennan which further clarified the OPRA request and asked that it be fulfilled correctly.

In an October 1, 2007 letter, sent by postal mail and copied to the board attorney, Marc Zitomer, the Jackson Superintendent of Schools Thomas Gialanella, and the District Communications Specialist Allison Erwin, Brennan acknowledged receipt of the reporter's faxed letter of September 27, 2007.

"I sympathize with your frustration in not being provided with information exactly when you request it," Brennan wrote. "However, I fail to understand how you can expect some document to be produced that my office does not physically possess."

In an October 4, 2007 letter faxed to Brennan, the reporter reminded him that access had still not been provided to inspect all requested documentation.

"Instead of completed bid proposals, I received blank application forms for potential bidders to fill out," the reporter wrote. "As a reporter for an Internet news site, why would I want to inspect blank application forms instead of completed bid proposals?"

Despite further clarification of the OPRA request, Brennan still did not provide all fencing bid proposals listed on the board's June 26, 2007 meeting agenda or a denial of access letter to explain the absence of all requested documentation.

Neither did his successor, Michelle Richardson.

Instead of deciding the reporter's complaint based on the evidence presented by both sides, GRC member Kathryn Forsyth, the designated appointee of the Commissioner of Education, abstained without explanation. Her failure to vote on the matter reportedly left the GRC without a quorum.

Until last month, Forsyth was reportedly the Director of Public Information for the Department of Education (DOE) - a conflict of interest since she responds to media requests for information.

According to spokespersons for the DOE and the GRC, Forsyth is no longer employed as DOE director of public information. Commissioner of Education Brett Schundler has reportedly not appointed a new designee to the GRC.

According to GRC meeting minutes, Schundler has appointed a second designee to adjudicate some complaints on the GRC meeting agenda on which Forsyth abstained, but not others - including the complaint a reporter for NJ News & Views filed against the Jackson Board of Education in 2007.

After failing to adjudicate the reporter's complaint for two successive GRC meetings at the beginning of the year, the complaint was no longer placed on the GRC meeting agenda for 2010.

Without a replacement, the GRC spokesperson said there was no quorum to adjudicate the reporter's complaint.

Information a reporter does not receive is often information the public does not receive either.

The same year a reporter filed a complaint against the Jackson Board of Education, on September 11, 2007, the district entered into a joint busing agreement, called a jointure, with the Lakewood Board of Education.

The reporter made an OPRA request to inspect the signed jointure and all correspondence between the two districts regarding the transportation of Jackson students to public and non-public schools in Lakewood.

The Lakewood board delayed acting on the jointure for months after the reporter made the request, delaying its inspection just as the Jackson board had delayed inspection of the fencing contract.

Both districts denied any correspondence regarding the jointure existed, even though a Lakewood district employee told the reporter that no contracts or agreements were made without it.

According to Jackson documents as well as current meeting agendas posted on the Lakewood District Web site, both boards may have participated individually and in collusion in what is referred to as bid rigging.

In an inspection of 2009-10 Lakewood Board of Education meeting agendas, NJ News & Views found repeated awards of student bus contracts to a sole bidder, even though the district reportedly solicited four transportation companies for bids for each route.

Although the same transportation company did not bid on each bus route, by accepting a single bid, the Lakewood board essentially awarded a no-bid contract, increasing the cost of the service to Lakewood taxpayers.

Jackson taxpayers are also paying for malfeasance by elected members of the Jackson Board of Education, which awarded a fencing contract to only one documented bidder. While state law permits the award of a professional service contract without competitive bid, the Jackson board fraudulently informed the public on its meeting agenda that it put the project out for competitive bid - which was not confirmed by any documentation requested under OPRA by NJ News & Views.

Had the Jackson board's designated records custodian informed the reporter in writing that some bid documents requested under OPRA did not exist, the denial of access letter would have been admissible in a court of law as evidence of criminal wrongdoing.

Ironically, as a public document, the letter could be requested by other members of the public under OPRA - provided public officials admitted they had it. According to a spokesperson for the GRC, the oversight agency does not have the legislative authority to audit government records to determine if, in fact, they do exist.

Someone else does.

As State Auditor, Stephen M. Eells is a constitutional officer appointed by the Legislature. Within the Office of Legislative Services (OLS), the Office of the State Auditor conducts financial and performance audits of state agencies, certain school districts, and vicinages of the Judiciary. The State Auditor also conducts studies on the operation, economy and efficiency of state-run or state-supported programs, according to the Legislative Web site.

From the time period of July 1, 2006 to June 30, 2009, the state auditor conducted a performance audit of the Lakewood School District, which focused primarily on purchasing and payroll functions of the district.

The state auditor also conducted a forensic audit of the period of July 1, 2006 to June 30, 2007, when the district ended the 2006-7 school year more than $1 million in deficit.

"The objective of our performance audit was to determine whether financial transactions were related to the school district's programs, were reasonable, and were recorded properly in the accounting system," Eells stated in the report posted online. "The objective of our forensic audit was to determine the primary factors that contributed to the district's June 30, 2007 fiscal year end general fund deficit."

Under 2006 legislation, the forensic audit was triggered by a year-end deficit and a recommendation by the DOE that it be conducted. According to a spokesperson for the DOE, board members could face charges if the audit turned up evidence of criminal wrongdoing.

That is unlikely to happen.

"Certain questionable items will be turned over to the Division of Criminal Justice," the report stated.

On June 14, a reporter for NJ News & Views called Anthony Glebocki, manager of the Lakewood district audit, to discuss the report.

NJ News & Views asked Glebocki what "questionable items" were turned over to the Division of Criminal Justice for further action.

"We turned the entire report over to the Division of Criminal Justice," Glebocki said. "If we find things of this nature, it goes to Criminal Justice. In the past, we would turn over the audit report and talk to Criminal Justice. The policy goes back to as long as I’ve been there – 1975."

Based on a review of the report, investigators with the Division of Criminal Justice may find it difficult to prosecute any Lakewood official. While the report identifies by position some officials it charges with possible malfeasance, it does not identify them by name.

In the case of board attorney Michael Inzelbuch, who also holds the position of board employee, the state auditor alleged his position appeared to be a conflict of interest, but did not provide any evidence of it - even though evidence exists.

"As the board attorney, he may have to recuse himself from giving legal advice on employee matters which may impact him or other employees where there is an appearance of a potential conflict of interest," Eells reported.

A reporter asked Glebocki if auditors had investigated that possibility by researching the board's posted meeting minutes. He said no.

In March 2010, three months before the state auditor posted his findings following a 2-year audit of the Lakewood School District, NJ News & Views made an OPRA request for all ethics disclosures Inzelbuch was required to file as a board employee for each year since 2002, when he was appointed to each of the two positions he still holds.

Lakewood Business Administrator/Board Secretary Robert Finger told a reporter in an e-mail response that Inzelbuch did not have to file an ethics disclosure because he did not have the authority to spend district funding.

He already did.

Last year, Inzelbuch, who is also board Parliamentarian, publicly authorized district funding for his services to research an issue covered under the state's Open Public Meetings Act.

The November 23, 2009 meeting minutes, which the board approved, did not record a board vote or a request by board President Abraham Ostreicher to have Inzelbuch research whether or not Lakewood advocate Colin Lewis could videotape the meeting - which Inzelbuch, as Parliamentarian and board attorney, should have been able to advise the board was permitted by state law.

According to the meeting minutes, Inzelbuch stopped Lewis from continuing to videotape the meeting.

"Mr. Inzelbuch asked the gentleman filming the meeting to stop and stated the policy had to be reviewed," the November 23 meeting minutes reported.

In a 26-page letter Inzelbuch sent the board two days after the meeting, he advised his employer that Lewis could videotape the meeting if he provided the board with written notice beforehand.

Total cost to taxpayers: $312.50.

Had the state auditor also researched public documents posted on the county clerk's Web site, he would also have determined that Inzelbuch has already failed to recuse himself from numerous board meetings he attended from 2004-2007 with his client, then-board member Simcha Shain.

Glebocki conceded that the state audit did not include investigative findings that would assist the state Division of Criminal Investigation in prosecuting possible malfeasance identified by Eells in his report.

Politics may also play a role in whether or not Lakewood school officials face charges for their actions.

After the state auditor posted his findings of the Lakewood District audit online, a reporter for NJ News & Views contacted state Senator Robert Singer, who is also a member of the Lakewood Township Committee.

The reporter asked Singer what legislation he proposed to sponsor in the state Legislature that would address problems identified in the report by the state auditor.

Singer did not return the reporter's calls for comment.

He should.

Singer is not just a dual office holder that represents Lakewood on the township committee and as part of the 30th Legislative District in the state Senate. He is also a member of the Senate's Office of Legislative Services (OLS).

Created in 1979, the OLS has several duties, but the most important is to recommend revisions to existing state law.

"The Commission was given the responsibility to…carry on the work of continuous revision of the general and permanent statute law of the State…to remedy defects therein," according to N.J.S.A. 52:11-55 et seq, posted on the state Legislative Web site.

Last year, Republicans became the majority party on the Lakewood Township Committee, which voted to appoint Singer the 2009 mayor. Singer's administration hired another member of the OLS, Senator Sean T. Kean, a Republican representing the 11th Legislative District, as counsel to the Lakewood Development Corporation (LDC), which oversees the township's Urban Enterprise Zone (UEZ).

While Singer has repeatedly told NJ News & Views he does not support revisions to the Open Public Records Act or the Open Public Meetings Act, Kean has indicated he does.

In an October 16, 2009 letter, Kean referenced a public document a reporter did not request and did not believe existed based on Singer's public comments that the township was not required to tape its meetings under current state law.

"Please accept this communication in response to your inquiry regarding the Open Public Records Act and the Open Public Meetings Act, as they relate to the Lakewood Development Corporation ("LDC") meeting on October 13, 2009," Kean wrote the reporter.

On October 13, 2009, the LDC was scheduled to meeting at 4:30 pm. A reporter, arriving 10 minutes late, found the doors to the upstairs meeting room closed and members of the LDC and the public congregated outside it. In the hallway, the reporter saw Lakewood Committeeman Marc (Meir) Lichtenstein, the committee liaison to the transportation steering committee that was meeting inside the room at the same scheduled time as the LDC.

As the reporter entered the room, members of the LDC seated at a table got up and left the room, where other LDC members were waiting outside for their meeting to begin. The reporter charged that any of them could also enter the room - a violation of the state's Open Public Meetings Act, also known as the Sunshine Law.

Under the Sunshine Law, a quorum of members appointed or elected to a government body may not convene without first noticing the public so they may attend the meeting.

Kean denied that the overlap of meetings that both included members of the LDC constituted a violation of the Open Public Meetings Act.

"The Open Public Meetings Act is not triggered absent a quorum present," Kean wrote the reporter. "On October 13, 2009, prior to the regular LDC meeting, a quorum of the LDC members were not in attendance during the briefing which took place in the LDC meeting room."

Ironically, without a videotape to prove his assertion, Kean would have had to have been present during Lichtenstein's meeting to make such a claim - further proof that the LDC was meeting in advance of its advertised meeting time of 4:30 pm without public notice.

"Pursuant to NJSA 10:4-8, a 'Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the numbers of a public body, or (2) attended by or open to all members of three or more similar public bodies at a convention or similar gathering," Kean wrote. "Furthermore, regarding your request for a copy of the video, pursuant to the Open Public Records Act, you must make an official request on the form provided by the Township Clerk."

According to Lakewood Township Clerk Mary Ann Del Mastro, the township does not videotape its meetings.

The only videotapes the township makes are by cameras on board each Lakewood Police patrol car, which Chief Robert Lawson said start recording once the vehicle's lights go on.

Kean continued to assert in his letter that the township had videotaped the unadvertised meeting Lichtenstein held during the advertised time the LDC was scheduled to hold its monthly meeting.

"The Township, in a previous e-mail, volunteered to let you view their copy," he wrote. "However, if you would like your own copy, there may be costs associated with recording a duplicate."

At the July 8 meeting of the Lakewood Township Committee, members adopted an ordinance on second reading that raised the cost to obtain a videotape from the township.

"Duplication of videotapes constitutes an extraordinary duplication process and will be charged at the rate of seventy-five ($75.00) dollars per each CD, DVD, and/or videotape," the ordinance stated.

During the public forum held before the committee vote on the ordinance, a reporter for NJ News & Views asked if the township videotaped its meetings. The reporter referenced Senator Kean's letter, which suggested the township did videotape its meetings.

Township attorney Jan Wouters referred to the reporter's query as a "gotcha" question and declined to answer it.

"Its an improper question…that's not part of this ordinance," he told the reporter. "Its silly."

It is not.

Thirty-five years ago, Governor Brendan T. Byrne spearheaded a "government under glass" initiative that led to passage of the Open Public Meetings Act in 1975.

In an April 24, 2007 paper titled "Open Public Meetings in New Jersey: History and Current Issues," Suzanne J. Piotrowski, Assistant Professor of the Rutgers University School of Public Affairs and Administration in Newark, and Erin L. Bory, a Masters student at the same school, discussed the state Legislature's pending revision of the Sunshine Law.

"While the spirit of the current law promotes open government, revision is necessary to adapt it to current information technology, to promote uniform application in all jurisdictions, and to eliminate gray areas and ambiguities," the paper stated.

Piotrowski and Bory asserted that a new law was not enough.

"It is imperative to train public employees and elected officials concerning their obligations under the Sunshine Law," the two authors stated. "Key areas that need to be considered when revising the current Sunshine Law are: meeting minutes, closed sessions, notices and agendas, public comment provisions, the video and audio recording of meetings, electronic meeting regulations, and the recovery of attorney fees after successful litigation."

Less than a decade after the Open Public Records Act was signed into law, it, too, needs to be revised.

Both laws governing the communication of public information should reflect modern technological advances in a Digital Age. That means videotaping public meetings, not just police actions.

Instead of excluding the judiciary from the requirements of the Open Public Records Act, state law should mandate that all court records personnel meet the same requirements for disclosure and electronic copy of public records.

So should members of the state Legislature and their personnel.

Four decades ago, Federal officials also sought to limit public access to electronic documentation.

On July 16, 1973, during nationally televised Congressional hearings, presidential aide Alexander Butterfield disclosed that President Richard Nixon had ordered the installation of a taping system in the White House to automatically record all conversations. The special prosecutor immediately subpoenaed eight of the tapes to confirm testimony by White House Counsel John Dean.

Nixon initially refused to release the tapes, claiming they were vital to national security. He later agreed to surrender the tapes to U.S. District Court Judge John Sirica. However, the White House told the court that two of the eight subpoenaed conversations had not been recorded and that an 18-minute gap existed on a third.

To this day, information on those documents has never been recovered.

In a May 8, 2003 press release, Archivist of the United States John Carlin announced that tests conducted by several specialists had failed to recover any spoken words recorded in taped conversations between officials.

"We have explored all of the avenues to attempt to recover the sound on this tape," Carlin was quoted in the release. "We will continue to preserve the tape in the hopes that later generations can try again to recover this vital piece of our history."