Senate Republican Leader Tom Kean

Senate Republican Leader Tom Kean and Republican members of the Senate Budget Committee Tony Bucco, Kevin O’Toole, Steve Oroho, and Phil Haines have filed a lawsuit against Governor Jon Corzine today at 9:15 am. The Governor is violating the State’s open public records law by refusing to provide documents that show what budgeted funds Corzine has frozen to address an at least $1.2 billion revenue drop and to pay for more than $100 million in spending bills he signed over the past month. State law appropriately grants the Governor the power to impound budgeted funds, and Corzine has claimed to be using the power, but refuses to say to what extent or to name the funds that will be impacted.

“Red flags go up when the Governor claims one day that he is freezing funds and using the impoundment power, but for the next month refuses to say by how much or identify the funds being impacted, ” said Kean. “We need assurances that he is being aggressive enough so we can avoid tax increases that make New Jersey more unaffordable.”

“It would take ten minutes to copy a list of funds Corzine has put in reserve and share it with the public, but this is a governor who has brought his secretive Wall Street ways to Trenton and thinks everyone should just live with it, ” said Bucco.

“Republicans have offered specific, common sense budget cuts in the past and the public deserves to know whether the Governor is finally accepting them or if he is once again targeting property tax relief and aid to suburbs, ” said O’Toole.

“Corzine rejected previous calls by Republicans to scale back a grossly mismanaged and corrupt grant program for a handful of local governments and we made other constructive suggestions to make New Jersey more affordable, ” said Oroho. Oroho has pressed for reforming the program and scaling it back to 2002 funding levels, but the Governor has refused to accept the constructive suggestion and has targeted aid to suburbs instead.

“We want to work with the Governor to solve our State’s budget problems, but it’s next to impossible to do that when he refuses to provide basic information the public has a right to see, ” said Haines. “We can agree to disagree on policy matters, but there should be no disagreement that the Governor is required to explain how he is using his power.”

The complaint is below:

SENATE REPUBLICAN OFFICE

A Division of the State Legislature

Post Office Box 099

Trenton, New Jersey 08625-0099

On November 12, 2008, the Governor issued a statement to prospective purchasers of bonds that officially revised projections of revenue that would be collected in support of the 2009 Appropriations Act, noting that collections would be $1.2 billion less than projected at the time the 2009 Appropriations Act was enacted. (See Attachment A, “Supplement Dated November 12, 2008 to Appendix I dated July 17, 2008″)

On various dates in December of 2008, the Governor enacted legislation authorizing funds to be expended on newly created or expanded programs, including, but not limited to, Assembly Bill No. 3374, Assembly Bill No. 3377, and Assembly Bill No. 3459 (“New Spending Legislation”).

The $1.2 billion reduction in revenues, even without the enactment of New Spending Legislation, will result in a deficit in the 2009 Appropriations Act absent corrective action being taken by the Governor and/or Legislature.

The Governor may order the Treasurer to place funds in reserve whenever it appears to his satisfaction that revenues have fallen seriously below those anticipated and the Treasurer has broad statutory powers to place funds in reserve in order to ensure that the State’s budget is balanced. (See N.J.S.A. 52:27B-26.)

The Treasurer’s placement of funds in reserve is implemented by officials in the Department of the Treasury who place designated funds in “reserve” by manipulating the State’s computerized Consolidated Financial System.

Appropriated funds placed in “reserve” status in the State’s computerized Consolidated Financial System may not be obligated or expended by agencies that have been entrusted with such funds.

Placement of funds in “reserve” and any order or approval to do so by the Governor or Treasurer is a substantive act of the Executive Branch which impacts the State’s finances, alters the anticipated and intended expenditure of funds as set forth in the appropriations act, and has impacts on residents of the State.

The Governor publicly stated that he would to use his power to place funds in reserve in response to declining revenues. (See supplemental statement to prospective purchasers of bonds supporting transportation improvements at Attachment A)

The Legislature has the fundamental responsibility to understand the operations of its government and, in the context of revenues declining by more than the surplus planned in its 2009 Appropriations Act, to understand the extent to which the Governor has exercised the power to place funds in reserve.

The Legislature has the constitutional power to revise the 2009 Appropriations Act and to reduce appropriations for any reason, including to ensure that appropriations do not exceed revenues.

In order to understand the extent to which the Governor exercised his broad power to impound funds and to determine the extent to which the Legislature may need to exercise its constitutional power to revise the 2009 Appropriations Act, Plaintiffs directed their staff to request documents on their behalf that would show what funds the Governor impounded, including a list of funds placed in “reserve” status (the “Requested Documents”).

On December 2, 2008, staff with the Senate Republican Office, a division of the State Legislature, acting at the direction of, and as agents of, Plaintiffs, filed a request for public documents through the State’s central government records request web site that sought “(1) a list of all FY 2009 State budget accounts placed in reserve status since August 1, 2008; and (2) a copy of any and all directives, or approvals or authorizations from the Treasurer or anyone in the Governor’s Office to the Director of the Office of Management and Budget or any of her employees, to place accounts in reserve status.” (the “OPRA Request”, Attachment B)

On December 10, 2008, Senator Thomas Kean, Jr. sent a letter to Governor Jon Corzine requesting that Governor Corzine provide a copy of the Requested Documents and putting Governor Corzine on notice that legal remedies may be sought if documents were not produced. (Attachment C)

On December 11, 2008, Plaintiffs’ staff received a written notice from Defendant Barbara O’Hare stating that more time was needed to gather and legally review the Requested Documents sought in the OPRA Request and that the Requested Documents would be provided on December 24, 2008. (Attachment D)

On December 24, the date on which the Requested Documents were to be provided, Plaintiffs’ staff received a written notice from Barbara O’Hare stating that the OPRA Request was pending legal review and that no Requested Documents would be provided, if at all, until January 12 – more than 40 days after receipt of the OPRA Request. (Attachment E)

On December 24, 2008, Plaintiffs’ staff responded to Barbara O’Hare’s letter received that same day and indicated that the delay in providing the Requested Documents was not acceptable, objecting to the lack of any reason or privilege being provided for the refusal to provide the Requested Documents, and putting Barbara O’Hare on notice that legal action would be taken to obtain the Requested Documents if they were not immediately provided. (Attachment F)

Neither the December 11 nor December 24 notices provided by Barbara O’Hare in response to the OPRA Request cited any privilege or other reason why the Requested Documents would not be provided.

Governor Corzine never responded to the December 10, 2008 letter sent by Senator Thomas H. Kean, Jr. to Governor Jon Corzine requesting that he provide a copy of the Requested Documents.

Without the Requested Documents, Plaintiffs have no way of knowing to what extent the Governor or the Treasurer has placed funds in “reserve” status and what particular funds or constituents are being impacted by his use of the impoundment power.

Without the Requested Documents, Plaintiffs have an incomplete understanding of the extent to which they need to prepare legislation to revise the 2009 Appropriations Act in order to reduce appropriations and otherwise ensure that the State’s budget is balanced.

Without the Requested Documents, Plaintiffs are unable to understand or discuss the impact on constituents of the Governor’s use of the impoundment power and to determine if alternatives in the form of amendments to the 2009 Appropriations Act are advisable or necessary.

Every day the Defendants continue to deny access to the Requested Documents, the State expends additional funds and the Legislature’s options to revise the 2009 Appropriations Act are substantially diminished.

The failure of the Defendants to provide the Requested Documents causes irreparable harm by impeding the Plaintiffs’ ability to perform their constitutional responsibilities and obligations with respect to the 2009 Appropriations Act.

N.J.S.A. 47:1A-6 permits a person who is denied access to a government record to institute a proceeding to challenge such denial by filing an action in Superior Court. N.J.S.A. 47:1A-6 further expressly provides that “[a]ny such proceeding shall proceed in a summary or expedited manner.”

Plaintiffs therefore respectfully request that this action proceed as a summary action pursuant to Rule 4:67-1(a).

COUNT ONE – VIOLATION OF OPRA

Plaintiffs repeat and re-allege the allegations contained in Paragraphs 1 through 32 as if set forth at length herein.

The Requested Documents sought by Plaintiffs are government records within the meaning of N.J.S.A. 47:1A-1, et seq.

Plaintiffs’ OPRA Request is valid and Plaintiffs have a statutory right to access and inspect the Requested Documents pursuant to N.J.S.A. 47:1A-1, et seq.

Defendant Barbara O’Hare’s letters of December 10, 2008 and December 24, 2008 and continued refusal to provide any of the Requested Documents is a denial of access to the Requested Documents.

Defendant Barbara O’Hare has improperly denied Plaintiffs’ access to the Requested Documents in violation of Plaintiffs’ rights under N.J.S.A. 47:1A-1, et seq.

Defendant Barbara O’Hare’s actions were knowing, willful, and unreasonable under the totality of circumstances, justifying the imposition of civil penalties pursuant to N.J.S.A. 47:1A-11.

COUNT TWO – VIOLATION OF COMMON LAW RIGHT OF ACCESS

Plaintiffs repeat and re-allege the allegations contained in Paragraphs 1 through 38 as if set forth at length herein.

The Requested Documents are public records under common law.

Plaintiffs have an interest in the subject matter of the Requested Documents sufficient to confer standing to sustain a common law right of access.

Plaintiffs’ interest in obtaining access to the Requested Documents outweighs Defendants’ interest, if any, in preventing disclosure.

Plaintiffs thus have a common law right of access to the Requested Documents.

Defendants have improperly denied Plaintiffs’ access to the Requested Documents in violation of Plaintiffs’ common law right of access.

Defendants’ actions were knowing, willful, and unreasonable under the totality of circumstances.

WHEREFORE, Plaintiffs demand judgment against Defendants as follows:

A. Declaring that Defendant Barbara O’Hare violated Plaintiffs’ rights under N.J.S.A. 47:1A-1, et seq. and Plaintiffs’ common law right of access to public records;

B. Declaring that Defendant Jon S. Corzine violated Plaintiffs’ rights under common law right of access to public records;

C. Requiring Defendants to provide Plaintiffs with immediate access to the Requested Documents;

D. Awarding Plaintiffs reasonable attorneys’ fees pursuant to N.J.S.A. 47:1A-6 and costs;

E. Assessing civil penalties against Defendant Barbara O’Hare pursuant to N.J.S.A. 47:1A-11; and

F. Granting such other relief as the Court deems equitable and just.

SENATE REPUBLICAN OFFICE

A Division of the New Jersey State     Legislature

Post Office Box 099

Trenton, New Jersey 08625-0099

Attorneys for Plaintiffs

Thomas H. Kean, Jr., Anthony R. Bucco,  Kevin J. O’Toole, Steven V. Oroho, and   Philip E. Haines

By:_____________________________

Thomas H. Neff

Dated: December 31, 2008
CERTIFICATION PURSUANT TO R. 4:51

Pursuant to R. 4:51, I hereby certify that, to the best of my knowledge,  the above-captioned action is not the subject of any other action pending in any court or the subject of a pending arbitration proceeding, and no other action or arbitration proceeding is contemplated. I further certify that, to the best of my present knowledge, no other parties need be joined in this matter. I certify that the foregoing statements made by me are true. I am aware that, if any of the foregoing statements are willfully false, I am subject to punishment.

SENATE REPUBLICAN OFFICE

A Division of the New Jersey State     Legislature

Post Office Box 099

Trenton, New Jersey 08625-0099

Attorneys for Plaintiffs

Thomas Kean, Jr., Anthony R. Bucco, Kevin  J. O’Toole, Steven V. Oroho, and Philip E.  Haines

 

By:_____________________________

Thomas H. Neff

Dated: December 31, 2008
VERIFYING CERTIFICATION

I, Thomas H. Kean, Jr., of full age, certify as follows:

1. I am a citizen of the State of New Jersey and a member of the New Jersey State Senate with a business address of State House, P.O. 099, Trenton, New Jersey 08625-0099.

2. I have read the Verified Complaint to which this Verifying Certification is attached. The factual allegations set forth therein are true to the best of my knowledge unless expressly stated to be based upon information and belief.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

_______________________________

Thomas H. Kean, Jr.

Dated: December 31, 2008
VERIFYING CERTIFICATION

I, Anthony R. Bucco, of full age, certify as follows:

1. I am a citizen of the State of New Jersey and a member of the New Jersey State Senate with a business address of State House, P.O. 099, Trenton, New Jersey 08625-0099.

2. I have read the Verified Complaint to which this Verifying Certification is attached. The factual allegations set forth therein are true to the best of my knowledge unless expressly stated to be based upon information and belief.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

_______________________________

Anthony R. Bucco

Dated: December 31, 2008
VERIFYING CERTIFICATION

I, Kevin J. O’Toole, of full age, certify as follows:

1. I am a citizen of the State of New Jersey and a member of the New Jersey State Senate with a business address of State House, P.O. 099, Trenton, New Jersey 08625-0099.

2. I have read the Verified Complaint to which this Verifying Certification is attached. The factual allegations set forth therein are true to the best of my knowledge unless expressly stated to be based upon information and belief.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

_______________________________

Kevin J. O’Toole

Dated: December 31, 2008

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VERIFYING CERTIFICATION

I, Steven V. Oroho, of full age, certify as follows:

1. I am a citizen of the State of New Jersey and a member of the New Jersey State Senate with a business address of State House, P.O. 099, Trenton, New Jersey 08625-0099.

2. I have read the Verified Complaint to which this Verifying Certification is attached. The factual allegations set forth therein are true to the best of my knowledge unless expressly stated to be based upon information and belief.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

_______________________________

Steven V. Oroho

Dated: December 31, 2008
VERIFYING CERTIFICATION

I, Philip E. Haines, of full age, certify as follows:

1. I am a citizen of the State of New Jersey and a member of the New Jersey State Senate with a business address of State House, P.O. 099, Trenton, New Jersey 08625-0099.

2. I have read the Verified Complaint to which this Verifying Certification is attached. The factual allegations set forth therein are true to the best of my knowledge unless expressly stated to be based upon information and belief.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

_______________________________

Philip E. Haines

Dated: December 31, 2008