North Bergen BOE must allow state comptroller to perform audit, court rules

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The appellate division of the Superior Court of New Jersey upheld a 2015 judge’s decision that said the North Bergen Board of Education must allow the state comptroller to conduct a performance audit. North Bergen BOE

By John Heinis/Hudson County View

The case, which was decided by Judges Joseph Yannotti, Douglas Fasciale and Robert Gilson on June 15th, came after the North Bergen BOE appealed two lower court decisions: one from December 22, 2015 and another from February 11, 2016.

The board previously argued that the state comptroller should have to disclose his reasons as to why he selected them for an audit, but the appellate court disagreed with that argument in a 29-page decision.

“The State Comptroller established objective criteria, gathered voluminous information, and weighed various factions before deciding to conduct a performance audit of the NBBOE,” the decision says.

“Defendants insisted that the State Comptroller was obligated to disclose his reasons for the audit before it commenced. As a result, they conditioned their cooperation on receiving that information.”

The judges also wrote that based on state law, the State Comptroller “had no reason to explain his reasons for the audit.”

They continued that for the comptroller to disclose his reason for performing an audit would defeat the purpose.

“The legal issue presented on appeal is whether the State Comptroller was obligated to disclose his reasons for selecting the NBBOE for a performance audit before commencing the audit,” the decision reads.

“We hold that the Enabling Statute does not impose any such requirement. To hold otherwise would undermine the purpose of the Act; render meaningless an auditee’s unambiguous statutory obligation to provide full assistance and cooperation with any audit; and unduly delay the conduct of audits. We therefore affirm.”

Several pages of the report go on to explain the duties of the state comptroller, which has Marc Larkins currently serving in an acting role, which includes auditing government programs, examining efficiency of government programs and scrutinizing government contracts, as their website also notes.

Specifically, the Office of the State Comptroller requested six different types of documentation from the North Bergen BOE between July 2012 and March 2015.

1. Organizational Chart (including names of key personnel).

2. Written policies and procedures governing expenditures (including payroll).

3. Employment contracts for all bargaining units.

4. Board meeting minutes.

5. List, including vendor name, description of services and total amount paid, of all contracts exceeding $500,000.

6. Download of financial and payroll data.

While the North Bergen BOE “produced a majority but not all of the requested information,” they began to back away from the process when the OSC would not disclose why they were selected for the audit.

The North Bergen BOE also claimed that a previous judge abused his authority by failing to perform an in camera inspection of the documents requested by the comptroller – but that claim was also shot down.

“We conclude that defendants’ remaining argument, that the judge abused his discretion by failing to perform an in camera inspection of the documents, is without sufficient merit to warrant discussion in a written opinion,” they wrote.

” … The record, which contains numerous certifications, shows the judge could readily determine that the documents were not subject to disclosure. Like in cases involving OPRA, courts must balance the need for confidentiality against the public interest for information before determining whether to conduct an in camera review of documents.”

In a statement, North Bergen Superintendent of Schools Dr. George Solter said that the board has “fully complied” with the OSC audit processs.

“While we strongly disagree with this ruling, it is important to note that the North Bergen Board of Education has fully complied with the Comptroller’s Office audit throughout this process and will continue to do so,” he said.

“We believe that it is vital that operations of this type are conducted in a transparent manner that complies with state statutes and offers local taxpayers the assurance that their tax dollars will not be wasted on costly audits unless they are absolutely necessary. We are currently evaluating our legal options in the matter.”

Some recent history indicates why the North Bergen BOE may have been hesitant to comply with the OSC.

Back in June 2013, the OSC, then led by Matthew Boxer, released a 44-page analysis of legal fees paid by local governments in New Jersey, claiming that a North Bergen attorney, who works for the township, had been paid $18,800 and health benefits for a job with no responsibilities.