OLS Analysis Flawed

September 17, 2008

Contact: Bill Murray / (609) 292-5199
Senator Tom Kean (R-21)

Legislative Democrats Firmly in Favor of Massive Toll Hike

Senate Republican Leader Tom Kean made the following comments in response to an Office of Legislative Services (OLS) “brief analysis” released today by Assemblyman Wisniewski.

“The breadth and scope of the legislative veto authority function is for the Legislature, and not for the Corzine Administration or the Turnpike Authority to define. The release of the OLS document shows that the Trenton Democrats are now committed to aiding and abetting the Governor’s plan to nearly triple tolls on middle class New Jersey families.

“The incomplete OLS analysis does not address in any way the underlying, and most important issue, namely does the diversion of tolls for non highway projects exceed the authority granted to the Turnpike in N.J.S.A. 27:23-5(g).

“Our State Supreme Court has clearly opined that many administrative agency actions may constitute ‘de facto’ rulemaking under the ‘Administrative Procedure Act.’ In Metromedia v. Division of Taxation, a 1984 State Supreme Court case, the Court explicitly said that ‘an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present …’ In other words, the mere designation as an agency action as something other than a rule or regulation, for example a resolution, is not dispositive. The case goes on to establish a test of relevant factors to review to determine if an agency action is in fact a rule or regulation. We believe that raising turnpike tolls meets all of those standards.

“The definition of ‘administrative rule’ in the ‘Administrative Procedure Act’ means ‘each agency statement of general applicability and continuing effect that implements or interprets law or policy…’ It is obvious to anyone that the near tripling of the Turnpike tolls, by resolution, has general applicability and continuing effect. It also obviously interprets the law.

“It is also interesting to note that the requirement to pay a toll on the Turnpike is set forth in the New Jersey Administrative Code at N.J.A.C. 19:9-1.19. It is curious that the OLS would take the position that the requirement to pay a toll cannot be affected by our constitutional legislative veto authority.”

Link to Post:

http://www.senatenj.com/index.php/tomkean/ols-analysis-flawed/1084