Protection for Whistle Blowers

I’m not very popular at town hall. Nearly everyone is friendly, professional, and helpful, but they must be wondering what I’ll publish next. I don’t blame them. I’m certain many have witnessed things in the township they wish they hadn’t.

Lately, rumors have been swirling among the staff that the council is attempting to engage in a witch hunt. Tidbits have been dropped to see if they result in an OPRA request or a new posting. Others have been accused of giving me too much information in response to my OPRA requests. I’ve witnessed documents gone missing from the files. Yet, most township employees are as repulsed by unethical behavior in government as I am.

For those who wish to be heard but fear the repercussions, this post is for you.

New Jersey’s “Whistleblower Act” is called the Conscientious Employee Protection Act (CEPA). The law prohibits any employer from taking retaliatory action against an employee who

• Discloses or threatens to disclose information to a supervisor or public body regarding actions unlawful or contrary to the public welfare
• Refuses to engage in acts unlawful or contrary to the public welfare

The law allows for compensatory damages and also applies to vendors and contractors who work substantially in an employer/employee relationship.

However, the law does not extend to termination for sharing information with “reporters”. For that, we need to rely upon New Jersey’s Shield Law.

For purposes of the statute, this blog fulfills all criteria for “News Media”. The shield is “absolute” for all civil cases. No state court can compel me to reveal any non-public information that may reveal a source except under extreme circumstances in a criminal proceeding. Federal courts have a bit more leeway but still need to consider the societal cost of compelling a journalist to reveal a source and determine there are no alternative methods.

However, these protections only go one way. NEVER send me an incriminating email from a work computer. Your employer owns all work emails and you have no right of privacy to anything on your work computer. If you wish to contact me, you can email me your contact information and I will call you. I never exchange incriminating information by email. Email is NOT secure.

So long as all communication is done by phone without witnesses, you will be safe. No one will be able to prove you were the source for any specific piece of information. If you ever feel pressured to do anything unethical, tell your supervisor, in writing, that you refuse and why. Even if the municipality has other justifications for terminating your position, they will be extremely hesitant because of their civil liabilities.

This blog has documented far too much to assume our township employees haven’t witnessed any improprieties. And this blog will continue to investigate.

For my readers, here are some examples of the difficulty I have retrieving information.

I once requested a vendor history of all payments made to former town manager, Mark Coren. Shortly after retiring, he was paid a $1,479 consulting fee regarding the transit village project. Since it appeared “within reason”, I didn’t question other reimbursements, such as his $185 monthly cell phone bill, or the inflated expenses for the ICMA conference. However, the township “neglected” to provide the vendor history of Coren Municipal Advisors. Sure enough, he received another $8,500 in payments a year later for “consulting” work on the non-existent Anchor Glass development. For all I know, he’s still receiving payments under the name of other corporations. I have no reason to believe the township if they say otherwise.

Another time, I requested a series of financial documents and received a letter claiming the search would take several hours, possibly over ten, and incur fees. I complained to Mayor Sobel and had all my documents within the hour (save one paper detailing bond payments which I received that afternoon).

Another example is when I hunted for evidence that CME Associates tried to fleece the taxpayers over Oakshades Park. I submitted a number of inquiries but the township always remained firm that CME Associates never had nor attempted to have any involvement in the park’s new lighting system.

Sure enough, I finally found the proof I needed – the township’s grant application to the county included $80,000 for engineering work that was never used.

Steady but slow, bit by bit, more and more will be uncovered. If anyone in the township has witnessed anything contrary to the public welfare, have no fear. The law is on your side. >>> Read more!

Back to School

Labor Day weekend marks the end of summer and the beginning of the school year. We do the best to enjoy the time we have left knowing it is about to end. It’s also a time to make a school year’s resolution. Time to resolve that this year will be better than the last. Time to make goals and set standards. Time to set the stage for a great academic year.

Below are some of the best ideas I’ve heard, most of them from community leaders.

Student/Parent Surveys
At the end of the academic year, send each student home with two surveys, one to be completed by the student and the other to be completed by a parent/guardian. Ideally, most surveys would be completed online to avoid the time and expense of data entry.

The surveys, covering all aspects of the school experience, would provide valuable feedback and direction for the administration and faculty.

Raising Graduation Requirements
Each school district has the discretion to determine its own graduation requirements. Matawan-Aberdeen uses the statutory minimum. Different ideas for graduation requirements range from requiring students to take a minimum number of advanced classes to developing a masterpiece. The state’s minimalist standards should not be our standards.

Developing Special Education Programs
Each year, we send scores of children to other districts at a cost of millions of dollars per year. All these children would be better served closer to home but we lack the capability.

We should develop a special education center that not only allows us to educate our own children but also attracts students from other areas. Such a center would not only save us money but could generate revenue as well. We would start the program by selecting a single specialty and slowly expand from there.

Maximizing Data Capture
With nearly 4,000 students, we have a tremendous opportunity to collect wide-ranging data and identify trends over a substantial timeline. What’s the impact of tutoring programs? Which instructors consistently outperform their peers? What’s the relationship between physical fitness and academic achievement?

Creating such an application would be remarkably easy. Simply build a database that matches each student to his grades, his classes, his extra curricular, and his surveys. Then, over time, create a series of reports that can be reviewed by the administration.

Partner with the Chamber of Commerce
Last year, Dana Egreczky of the New Jersey Chamber of Commerce gave a shocking presentation on the correlation between high school academics and later success (such as students who only take Algebra I and Geometry have a 23% chance of getting a bachelor’s degree). The U.S. Chamber of Commerce has provided much of its research and recommendations online at www.LearnDoEarn.org. By working closely with the Chamber of Commerce, we can better prepare our students for the challenges ahead.

Community Involvement
This has been a perennial problem and there’s no easy solution. The powers that be have both the organization and the incentive to maintain the status quo. Most people have long stopped believing their votes matter. The schools have not improved. Spending keeps rising. And we haven’t had candidates offering a vision and roadmap for a better future.

Several people have already contacted me to offer their support. I believe far more people are out there, ready to answer a call to arms. Later this year, I hope to initiate a grassroots campaign. We will be organized, we will have a message, and we will have candidates prepared to fight and win on our behalf.

The school year is about to begin. May each year be better than the last. >>> Read more!

High Hopes, Low Bar

Superintendent O’Malley has launched an ambitious and exemplary initiative to “produce high achieving students.” The program covers all aspects of the Matawan-Aberdeen Regional School District from education, to staff training and retention, to financial controls and facility maintenance. The best news of all is that the program is already a success. Already, you ask? How can that be? You see, in our school district, success is measured by effort, not outcome. As far as our school district is concerned, the program is already a success simply because we tried.

The superintendent’s initiative includes six goals, supported by an array of “action steps” to accomplish its objectives. The six goals are:

1. To improve student achievement for all students through high expectations, frequent monitoring of student progress and staff development activities with specific focus on standardized tests
2. To provide a vigorous comprehensive and fully articulated preK-12 curriculum designed to produce high achieving students, who are both responsible citizens and life-long learners that challenge and engages all students to reach academic excellence
3. To obtain, retain and support a superior staff that values creativity, innovation, professional growth and development, and the individuality of students
4. To continue to examine the provision of special education services within the least restrictive environment, seek to improve the communication with parents, the quality of the instructional delivery systems to students with special needs and providing consistent procedures that are in compliance with IDEA
5. To ensure quality management, financial integrity, meaningful accountability and an effective operating infrastructure
6. To provide safe, clean and efficient facilities to successfully implement our instructional programs

The goals sound terrific but haven’t these been our goals all along? Look at the first goal – to improve student achievement for all students through high expectations. Is this a new goal? Were we previously using low expectations?

I tried to pigeonhole Dr. O’Malley into defining high expectations. His initial response was to see each child reach his potential. Not good enough. I wanted to know what we, as a district, expected of our students as a group. I wanted numbers. Just like we grade our students, I wanted to grade our district.

Dr. O’Malley finally conceded that our district’s goal, at least in the short term, is to see our students score 50% on the state assessment exams. In fairness, even that modest goal may prove difficult. A third of our seniors are enrolled in remedial courses because they failed the HSPA exams.

Still, is this the vision we’re communicating to our staff and students? Is this how we define “high expectations”? Scoring 50% on a state exam?

Bear in mind, Dr. O’Malley only confessed this goal after repeated questioning; it is not part of the program being distributed among the staff. In fact, the initiative only has two measurable “action steps” – reducing both out-of-district placement and energy consumption by 10%.

Goals without measurable objectives are nothing more than good intentions. Every prior administration could have presented the same goals and claimed success. Seven of our nine BOE members have been re-elected at least once on a platform of “look what I’ve done.” This may be the first time our goals are fully articulated but they’re certainly not new.

I questioned Dr. O’Malley regarding out-of-district placement for special needs students. From the board agenda, it appears that, without exception, every special needs student is being reassigned to the same school he attended last year. Does the administration monitor their progress? Yes, he answered. Could he cite a single instance of a student whose progress was unsatisfactory and was therefore assigned to a different school this year? No. Over 70 students are being placed out-of-district at an annual cost around $4 million and not one child was advised he may do better in a different institution.

Is this what they mean by helping our children reach their potential? Dump them out-of-district and pay the bills on time?

I argued with a member of the high school guidance department that our students weren’t being sufficiently challenged. Fewer than 10% of juniors and seniors passed an AP exam last year. The school staff member responded that it was perfectly reasonable to assume only a minority of students could handle an AP course. After overcoming my shock and dismay, I asked how our students could be expected to handle a college course after they graduated if they couldn’t handle a single AP course during their senior year. The response – AP courses are more difficult than courses at Brookdale Community College.

Is this what we mean by “[engaging] all students to reach academic excellence”?

Will our school district ever have the courage to design a standard whereby we can measure ourselves? My definition of excellence for our school district is a 90% SAT participation rate with an average 1700 score and 80% of graduates have passed at least one AP course.

Matthew Bratsch, the new student representative on the school board (and an active student advocate) reported to the board he recently read Tuesday’s With Morrie as part of Matawan-Aberdeen’s summer reading list for seniors. His friends from New Brunswick read the same book four years ago as part of their 8th grade reading list.

High expectations, indeed. >>> Read more!

More Senseless Legal Fees

As reported by the Independent, Aberdeen Township has decided to once again pursue a frivolous lawsuit against the proposed cell tower in the I- Section of Strathmore. Residents of I-Section had demanded action and the town council responded by throwing money at a political donor. These legal proceedings are a farce and everyone on the town council knows it.

In April, 2006, in blatant violation of federal law, the Telecommunications Act of 1996, the zoning board denied Sprint’s application for a variance to establish nine wireless antennas on a 145-foot water tower.

The law is clear. Aberdeen Township plainly violated four provisions of the Telecommunications Act. 1) The municipality must not “unreasonably discriminate” against cell towers. 2) We can’t act in a fashion that has the effect of prohibiting the provision of wireless service. 3) Any decision denying a request must be supported by substantial evidence. 4) Health and environmental concerns are not grounds for denying a request so long as the cell tower operates within FCC guidelines. (A good summary of the law can be found here.)

Marc Leckstein, the Zoning Board Attorney, knows this. I am absolutely certain he advised the zoning board and the town council that denying Sprint’s variance petition would violate federal law. But our elected representatives saw a twofer they couldn’t refuse – the opportunity to score political points and enrich a party contributor at the same time.

So, with great fanfare, they denied the request. Sprint filed suit in state court and won. The township appealed and Sprint won again. Now, the town plans to appeal again, and will continue appealing as long as they can. This is a gravy train with no end in sight.

We are literally paying Marc Leckstein thousands of dollars for dreaming of bogus legal theories while sitting on the toilet. His latest challenge is to be considered by the New Jersey State Supreme Court. It won’t be easy. In Smart SMR v. Borough of Fair Lawn (1998) the court ruled as follows:

To guide local land use agencies and the lower courts in deciding cases involving the location of such facilities, we offer the following further guidelines. Generally, the issuance of an FCC license should suffice for a carrier to establish that the use serves the general welfare. Nonetheless, if a telecommunications facility requires construction of a tower or monopole, the applicant must prove that the site is particularly suited for that use. Concerning the negative criteria, the Radiation Act and the Telecommunications Act have virtually preempted local consideration of radiation emissions. Proof of an adverse effect on adjacent properties and on the municipal land use plan, moreover, generally will require qualified expert testimony. Bare allegations that the construction of a tower or monopole will cause a decline in property values rarely will suffice.

I empathize with my neighbors in the I-Section (I, too, am “technically” in the I-section). Cell towers can be scary things. Anxiety over radiation could certainly affect health, student performance, and property values. (My compliments to the web designer for SayNoToSprint.com.) But this case has no legal basis. A 145-foot water tower on an elevated area is ideal for wireless antennas. The court will not consider any health or environmental impact. Nor did the zoning board follow the court’s guidelines and produce expert testimony demonstrating the cell tower will create a substantial and adverse impact to the community.

Had the township really wanted to block the antennas, it would have enlisted the aid of county and state officials to petition the New Jersey American Water Company to not lease the water tower to Sprint. Instead, our town council decided to hire some friends and put on a show.

Next time our councilmen are interested in courtroom antics, they should consider submitting the case to Judge Judy. At least then we’d get some entertainment value for our taxpayer dollars. >>> Read more!

Republicans Not Welcome

On May 15th, 2007, the Township of Aberdeen passed Ordinance 10-2007, cryptically entitled the Ordinance Amending the Revised General Ordinances of the Township of Aberdeen to Implement a Public Contracting Reform Ordinance. A more apt name would have been the Ordinance Amending All Welcome Signs to Include the Following Statement – Republicans Keep Out!

The ordinance is our town’s version of a pay-to-play statute. You won’t find the ordinance included on our state’s list of local pay-to-play statutes because, in truth, it’s not. The ordinance was specifically drawn to exclude one businessman from even thinking about doing business in Aberdeen. His name is Jack Morris, the developer our neighbor, Matawan, chose for the transit village project.

The new law specifically states the Township of Aberdeen “shall not enter into any agreement or otherwise contract with any private party for the planning, re-planning, construction or undertaking of any project or redevelopment work . . . if that redeveloper has solicited or made any contribution of money or pledge of a contribution” to any political group within the township or county.

That’s right. The ordinance is only against developers seeking to do business with the township. Unsurprisingly, not one of the Aberdeen Democrat’s large contributors happens to be a developer. So, CME Associates, their largest contributor, is still welcome to collect $1.2 million a year and oversee over 20% of the township’s annual budget through the road improvement program. Coppola & Coppola, another big contributor, is welcome to receive over $100,000 in fees. And nearly every professional contract can still go to financial contributors or those with political connections.

Meanwhile, Jack Morris, the head of the Columbia Group, a consortium selected by Matawan to be its lead developer for the transit village project, is effectively blocked from doing business with Aberdeen and Matawan. As detailed by Jackie Corley, a reporter for the Courier, Jack Morris is a major contributor to local Republicans, including Matawan’s former mayor, Freeholder Rob Clifton. It’s inconceivable that Morris will be able to develop 40 acres straddling Aberdeen’s border in conjunction with Aberdeen’s developer on a joint transit village project without making some “agreement” with the township.

This in no way suggests that Matawan and Morris are free of any taint of pay-to-play but it’s extraordinary that the Aberdeen Town Council would craft an ordinance that blocks Matawan’s developer but allows the Democrats to continue handing contracts to their contributors.

Nor is the timing any coincidence. Aberdeen’s developer, Silver Oaks (who seemingly made an indirect contribution in 2001), launched a baseless lawsuit against Matawan after they selected the Columbia Group. The borough, already in financial dire straits, spent hundreds of thousands of dollars in legal fees defending their selection. At the end of January, 2007, Matawan won the case. Three months later, Aberdeen passed Ordinance 10-2007, effectively barring Matawan’s developer from the project.

The ordinance was also passed just prior to the election season. The Aberdeen Democrats had effectively positioned themselves to defend against any claim of pay-to-play while simultaneously attacking both the Aberdeen and Matawan Republicans with the same charge. (Some have speculated that Silver Oaks appealed the case simply to keep the issue alive through the elections; the owner's son, Bill Bocra, graduated at the top of his class from Columbia Law School so legal costs were minimal.)

How interesting that our town council has finally found a political contributor with whom they won’t do business – a developer who gives money to local republicans. Makes you wonder if Vic Scudiery had his hand in this. Tellingly, and contrary to the documented ordinance, Councilman Perry voted against the statute.

As an aside, I’d like to thank the town council for selecting my birthday as Aberdeen Day. The honor is flattering, unwarranted, and wholly unintended, I'm sure. >>> Read more!