Mayor Emil Corofo Deputy Mayor Lauro E Cima Councilwoman Patricia A. Licata councilman Vinceme Martin Councilman Albert Dichiora ‘Municipal Manager Vincent 1 Caruso Borough Clerk Cora. Dramico Borough attorney Alan b.Spinillo, Esa Borough Engineer Iegtia Engineering Borough Auditor Fronk &, Dittaria BOROUGH OF LODI (ONE MEMORIAL DRIVE - LODI, NEW JERSEY 07644 P: 973-365-4005 F: 973-365-1723 www.Lodi-N3.0rg July 6, 2017 County Clerk John S. Hogan Bergen County Clerk's Office Bergen County Administration Building One Bergen Plaza ~ Room 122 Hackensack, NI 07601 Superintendent of Elections Patricia DiCostanzo Bergen County Board of Elections Bergen County Administration Building One Bergen Plaza ~ Room 380 Hackensack, NJ 0760 RE: Lodi Board of Education - November Ballot Question Dear Clerk Hogan and Superintendent DiCostanzo: This letter will serve as a proactive notification concerning a recent article on June 29", 2017 that appeared in The Record concerning a proposed November ballot question by the Lodi Board of Education, In this article it states in part, that the Lodi Board of Education had passed a resolution approving 2 referendum question, and authorizing and directing the Business Administrator to send a copy to the County Clerk to apply it to the November 7" election ballot. This question is to read “Do you approve spending an estimated 7.5 million of Lodi tax dollars to demolish ond remove the Lodi Board of Education Administration building located at 8 Hunter Street?” According to published accounts of the Lodi Board of Education’s attorney, the Board of Education does not have the authority to place this question on the ballot and allegedly ‘this responsibility would be on the governing body of the Borough, therefore the Mayor and Council of the Borough of Lodi At the time of this letter, no one from the Lodi Board of Education has officially contact my office or that af the Mayor concerning this question. However, the firm representing the Borough of Lodi, Alan P. Spiniello, Esq. has written the attached letter which clearly states that this referendum question cannot be put forth by the Mayor and Council of the Borough of Lodi either.[As stated by our attorney in the attached document, “..the Borough of Lodi does not have the power or authority to adopt a resolution or ordinance to put forth such a ballot question since it would seek to solicit voter views on proposed action that is outside the governmental power of the Mayor and Councit ond is therefore not permitted by statute.” The Mayor and Council of the Borough of Lodi therefore respectfully request that should this matter officially come before your offices, that this legal opinion is taken into consideration in advance of any potential legal action that may arise as a result. Thank you in advance for your time and consideration in this matter, and should you have any questions, please feel free to contact my office at any time. Ket SG Vincent J. Caruso, Borough Administrator Borough of Lodi Cc Mayor and Councit Borough Clerk, Carole D’Amico Lodi Board of Education ~ Business Administrator, Marc Capizzi Alan P. Spiniello, Esc,ALAN P. SPINIELLO Attorney at Law 45 Essex Street Hackensack, New Jersey 07601 201-489-3377 FAX: 201-489-3554 duly 5, 2017 Vincent Caruso Borough Manager Borough of Lodi One Memorial Drive Lodi, NJ 07644 Re: Borough of Lodi with Lodi Board of Education - Proposed Ballot Question Dear Mr. Caruso: This firm represents the Borough of Lodi as Borough Attomey. In accordance with your recent request we have reviewed the recent article that appeared in The Record newspaper on June 30, 2017 entitled "Lodi trustees wrongfully approve ballot question” and we have performed legal research in this regard as follows. According to the article, the Lodi Board Trustees wrongfully approved a ballot question against the advice of their attomey which question was “Do you approve spending an estimated $7.5 million of Lodi tax dollars to demolish and replace the Lodi Board of Education administration building located at 8 Hunter Street?” N.J.S.A. 19:37-1 provides that ‘When the goveming body of a municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or ‘county upon any question or policy pertaining to the government or intemal affairs thereof, and there is no other statute by which sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election held therein, the governing body may adopt at any regular meeting an ordinance or resolution requesting the Clerk of the County to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form, Such request shall be filed with the Clerk of the County no later than 81 days previous to the election.”NwJ.S.A. 40A:16-2(a) provides that “Governing Body’ means the body exercising general legislative power in the municipality, including any Mayor selected by the governing body from among its own members. N.J.S.A. 40A:16-2(d) provides that ‘Municipality’ means any village, borough, town, township, or city of this State. N.J.S.A, 19:37-5 provides that “The submission of a public question in the manner herein provided shall not become operative in any municipality or county until the governing body thereof shall by ordinance or resolution duly passed declare its desire to submit any question or questions in this manner.” As a result of the foregoing, N.J.S.A. 40A:16-2(a) defines “Goveming Body" as the body exercising general legislative power in the municipality which In the case at hand is the Mayor and Council of the Borough of Lodi and not the Lodi Board of Education. In addition, N.J.S.A. 19:37-1 makes it clear that only when the “governing body of a municipality" desires to ascertain means the Mayor and Council of the Borough of Lodi and not the Lodi Board of Education. Additionally, N.J.S.A. 19:37-1 specifies "The sentiment of the legal voters of the municipality upon any question or policy pertaining to the government or internal affairs thereo? which means that the Mayor and Council can only consider submitting a ‘question when it pertains to the government or internal affairs of the Mayor and Council and not therefore pertaining to any question or policy pertaining to the government or internal affairs of the Board of Education. In Borough of Bogota vs. Kathleen A. Donovan, 388 N.J. Super 248 (A.D. 2006) the court in interpreting N.J.S.A. 19:37-1 held that "This statute provides @ method for municipalities and counties to determine their voters’ views on proposed action within their governmental power i.e., their views on local government issues. AFL-CIO vs. Bergen County Bd of Chosen Freeholders, 121 N.J. 255, 258-59, 579 A.2d 1231 (1990).” The court further held that the statute does not permit a municipality or county to solicit views of their voters on a question merely because it is one of public interest. Rather, ‘the public question on the ballot must relate to a matter within the power of the local government proposing it, something over which it can act,’ Id at 259, 579 A.2d 1231. Thus in AFL-CIO, the Court held that a non-binding referendum question proposed for the ballot by several counties dealing with recently enacted tax and school aide laws was impermissible under N.J.S.A. 19:37-1 because it dealt with subjects ‘committed solely to the Stale legislature’ Id at 260, 579 A.2d 1231" The Court in Borough of Bogota further held that the scope of the referenda authorized by statute [is limited] to subjects actually encompassed within the specific jurisdictional power of the county or municipality. The court further held that “But we 2are confident that the legislature never intended the non-binding referendum process to be used to test public opinion in the abstract or to ascertain the public's views on controversial or timely issues outside the providence of the governing body soliciting them....sentiment can only be asked for with respect to matters conceming or as to which the particular body has the power to act. Any broader interpretation would open the doors without any restriction and would lead to nothing but confusion and turmoil.” See also Bd of Chosen Freeholders v. Szaferman, 117 N.J. 94, 104, 563 A.2d 1132 (1989) holding impermissible a proposed non-binding county referendum on automobile-insurance regulation As a result of the foregoing, the Lodi Board of Education does not have the authority to put forth the subject referendum question for the next general election since they are not the "governing body’. Furthermore, the Mayor and Council of the Borough of Lodi does not have the power or authority to adopt a resolution or ordinance to put forth such a ballot question since it would seek to solicit voter views on proposed action that is outside the governmental power of the Mayor and Council and is therefore not permitted by the statute. Furthermore, in accordance with the statutes and case law, sentiment can only be asked with respect to matters conceming or as to which the particular body has the power to act and in the case at hand, since the Mayor and Council would have no power to act upon the question asked in the referendum, the referendum cannot be permitted and would be outside the scope of authority of the Mayor and Council and would therefore be contrary to law. Should you have any questions, please do not hesitate to call me. Very truly yoyrs, APSIdf cc: Mayor & Couneil Borough of LodiLodi trustees wrongfully approve ballot question butp:twwyssnorthjersey.comvstory/news/2017,06/29/boe-wrongtully-a, 1of2 Lodi trustees wrongfully approve ballot question Kile Catia uff Write, @KeiaeCatafi Puls $20 pon ET Jane, 2017 Updatd Te pm. EI Sune 29,2017 LODI— The Board of Echication has approved placing & question concerning the construction of $7 rion sdrnirisiration building on the Novamber bala illegally and against the board attorney's advice “The New Jersey School Boards Association confirmed that a local board of education does not have ti authorty 1 plaoe @ non-binding referendum en a ballot, according to Director of Communications Frar Belusci, reteset Other ballot questions conoeming constuction bond issues or exceeding the tax levy cap can be appr Cetatemrse/com) ‘a boerd of ecucetion ane sent to the county clerk, Belluscio explained ‘The Lodi board’ ballot question concerning construction was te be nen-tinding, which means regardiess ofthe election results, the final deisio remains inthe board's hands, _Aresolution agproving a referendum question and authorizing and airecting the business administrator to send a copy tothe county clerk to apR the Nov. 7 ballot was approved on Wednesday, The resolution was approved gains! ine board attorney's advice. In an email sent to boare members on Tuesday, attorney Alisa D! Chiara sald that ater reviowing the siate statute she believed the ballot questi emia to the caunty clark only by a "governing body." Chiara was not prosent athe Wacinesday meeting “Therefore, the Lodi Mayer and Council isthe ‘governing body’ of the municipality’ " Di Chiara said in her email. "The Lodi Boerd of Eduction Is considered @ ‘governing body’ and, therefore, dass net have the authority to submit ballot question 10 the county ler forthe November gener election. Accordingly, the resekiton cannot be adopted In a4-8 vole, the board approved the ballot question: "Do you approve spending an estimated $7.5 milion of Ledi tax dollars to demolish and re Lodi Board of Education edministration bulaing located at 8 Hunter Street” ‘Board President Dominic Miller asked the tustees to pull he resolution from the agenda based on Di Chiare's email, but other board members ¢ should move forward, claiming her explanation was too vague. Furthermore, trust Michael Nardine noted that the referendum doesn't say anywhara that its non-binding “think the question is evaightforward, and we should epprove it and move on from thera," tustee Ryan Gurion! said "ithe attorney had an opit shouldbe hera tonight. | ead the statute, ang | don' think ts clear cut Curioni sad the board has been discussing the referendum since January ang that ifthere's a problem it can be addressed later on “The resolution passed with trustees Curioni, Afonso Mastroflipo Jr, Jetrey Telep and Robert Marra voting in favor of it and trustees Miller, Nerd Jonathan Carafa voting against i ‘The existing administration building at 8 Hunter St.— @ former elementary school —houses 24 employees, the schoo! board offices, the superintendents office and the dsi’s chi sty toam. ‘State law allows a municipal goveming body to submit non-binding referendums to voters on matters within municipal authority, Belusci sac Timeline + In 2015, a survey ofthe structure found the building was unsafe in support and celing frames. The cost to repair the busing was e: tobe $6 milion, 0° $7 milion to buld @ new one, + In December 2016, the board approved a plan to raze and replace the administration building + In January 2017, the board vated to suspand the project until a non-binding referendum could be held seeking the public's input 6/17, 828 AM.-odi trustees wrongfully approve ballot question _atip:/wwew.northjersey.com/story/news/2017/06/29)/boc-wrongfully-a. + in March, a new structural assesement concluded thatthe bulding was safe but stl needed renovations. Richard Lee Burke, the ch structural division manager for Becht, eaid the 2015 rapor found the bulding unsatein support and eailing frames. The supports, ‘mad the building unsafe, have since been repeired and are currently holding to safety codes. ‘+ The new report said the bulling isin “air condition and can continue to be safely used fr office space. In April the 2017 school busgat was adopted with $7,787,542 in eapltal reserve funds dedicated forthe project. By including iin th ‘budget, the boar! has the flexibility to move forward with the demaliton and construction or to make the repairs tothe structure, But Administrator Mate Capiz said at ast month's board meeting + In April, a vole to include a referenclum question failed 4-4. Half te boar felt the public was already being protected because the | suspended + In May, a board member changed his mind, and with a 5 vote @ referendum is scheduled for the November election + (On Wednesday, the board approved the question to be sent fo the county to appear on the November ballot Read or Share tis story: htps:njersy.co!2uGDye 20f2 V6/17, 828 AM,