November 19, 2009
IN THE MATTER OF APPEAL HEARING REQUEST, OCEAN TOWNSHIP
On appeal from the Department of Community Affairs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 20, 2009
Before Judges Lihotz and Ashrafi.
Larry S. Loigman, a private citizen and taxpayer, filed this appeal following receipt of correspondence dated November 7, 2008, from the Local Finance Board (LFB), a state agency under the Division of Local Government Services in the Department of Community Affairs, declining his request for a full examination of the fiscal integrity of Ocean and Middletown Townships. We dismiss the appeal.
On July 24, 2008, Loigman directed correspondence to Susan Jacobucci, Director, Division of Local Government Services (Director), in which he challenged the fiscal practices of the Ocean Township Committee and demanded an investigation of certain alleged fiscal irregularities. Specifically, Loigman identified two instances, in September 2006 and November 2007, when the Ocean Township Council approved payment to special counsel in an amount exceeding the authorized expenditure in violation of N.J.S.A. 40A:4-57. Although resolutions retroactively increasing the authorized amounts were later adopted, the resolutions failed to include the certification of available funds as required by N.J.A.C. 5:30-5.4(a)(2). Loigman additionally asserted Ocean Township failed to properly offset equipment and administrative costs against the revenue received for special duty police services in years 2005, 2006 and 2007, artificially inflating the total general revenue reported.
On October 7, 2008, the Director responded to Loigman's letter regarding Ocean Township. She informed Loigman that her staff discussed his concerns with Ocean Township counsel and the chief financial officer (CFO). The CFO developed a procedure to comply with the regulation. Following her review, the Director was assured Ocean Township's budgetary procedures were now in compliance with all required reporting rules. She also concluded the reporting of off-duty police revenues as "Miscellaneous Revenue" was appropriate.
Loigman appealed to the LFB, requesting a hearing on what he characterized as the "Director's . . . refusal to carry out the duties imposed upon her by N.J.S.A. 52:27BB-8[.]" Loigman asserted:
The fiscal integrity of the local government unit, as well as public confidence, are severely eroded by the Director's neglect of her statutory duties. The Board should compel a comprehensive investigation of Ocean Township's fiscal affairs, as well as the Director's inability to carry out the responsibilities of her office.
The LFB rejected Loigman's request, stating the Director's determination not to authorize a "full examination" of the "fiscal integrity" of Ocean Township did "not qualify as a matter under which the Board would conduct a hearing on an appeal." In other words, the LFB concluded that based on the described circumstances, the Director had no obligation to act, and her inaction was not a determination subject to appeal, see N.J.S.A. 52:27BB-10(4) and 15, but rather a permissible exercise of her discretion.
On August 25, 2008, Loigman sent another letter to the Director challenging a budget line-item contained in the 2008 Middletown Township budget. He asserted Middletown Township improperly transferred $100,000 from the pool utility account to the general budget, in violation § 58-4(A) of the Middletown Township Code. Loigman questioned why the Director "did not disapprove Middletown's budget under the[se] circumstances." When the Director did not respond to Loigman's concern, he submitted a follow-up letter restating the fiscal practices at issue and requesting her response. No appeal to the LFB was filed.
On appeal before this court, Loigman asserts the LFB ignored its statutory obligation to conduct an appeal hearing, as requested. Because the Director is responsible to supervise municipal fiscal affairs, Loigman believes she must conduct a full investigation of citizen's complaints of misfeasance. Loigman relies on N.J.S.A. 52:27BB-15 to support his proposition that the LFB must hear his appeal regarding the Director's "inadequate response" to his complaints. The statute allows a taxpayer, who is "aggrieved by a determination made or an order issued by the director[,]" to apply to the LFB for a "review and redetermination" within ten days of the Director's determination or order. Ibid. Loigman argues the LFB was incorrect when it concluded he could not appeal the Director's decision not to conduct a special investigation. We reject Loigman's arguments.
Pursuant to the Local Government Supervision Act (1947), N.J.S.A. 52:27BB-1 to -100, the Division of Local Government Services "exercise[s] State regulatory and supervisory powers over local government[.]" N.J.S.A. 52:27BB-6. An aggrieved party may seek to overturn a decision made by the Director by appeal to the LFB. N.J.S.A. 52:27BB-15. Judicial review of the Board's decision is available by appeal as of right to this court. N.J.S.A. 52:27BB-20; R. 2:2-3(a)(2).
In her supervisory role, the Director "may at any time during regular business hours make inspections and examinations of the financial administration of a . . . municipality." N.J.S.A. 52:27BB-46 (emphasis added). Further, the Director, may make a special investigation of a . . . municipality, if, upon examination of the reports of audit and recommendations of an accountant, there appear to be errors, inaccuracies or omissions in the report of audit or recommendations, or evidence of illegal financial practices; or if the director has reason to believe that irregularities in the conduct of the financial affairs have occurred. [N.J.S.A. 52:27BB-47 (emphasis added).]
The statutory language makes clear the Director's determination to investigate is permissive. The statute does not mandate an investigation be conducted on every suspected fiscal violation presented. See generally, Marques v. N.J. Bd. of Med. Exam'rs., 264 N.J. Super. 416, 418 (App. Div. 1993) (denying an appeal where statute granted board discretion to investigate third-party complaints).
As a citizen watchdog, Loigman properly presented his concern to the Director. The Director reviewed Loigman's complaint to determine whether the municipality's fiscal practices were sound and compliant with regulations designed to protect the public interest. The Director consulted with the Ocean Township officials responsible for compliance and saw that corrective procedural safeguards were implemented to prevent future failures. Loigman's right to alert the Director to fiscal irregularities does not carry with it a right to require further review when the Director's response to that complaint suggests no further action is necessary. Ibid.
The Director's informal review fit well within the scope of the day-to-day regulatory activities granted by the Legislature. N.J.S.A. 52:27BB-8. See In re Solid Waste Util. Customer Lists, 106 N.J. 508, 519 (1987) (stating that administrative "informal action" is "statutorily authorized agency action that is neither adjudication nor rulemaking"). There is no allegation that the informal resolution was an abuse of the granted discretion.
The LFB's determination not to conduct a hearing to review the Director's reasoned exercise of discretion was proper and does not afford Loigman a right of appellate review. Accordingly, we reject Loigman's suggestion that upon any complaint, the Director is mandated to conduct a formal investigation.
With respect to Loigman's complaint regarding a budget item of Middletown Township, Loigman's request is untimely. The Local Budget Law, N.J.S.A. 40A:4-1 to -88, assigns to the local governing body the responsibility for allocating available resources among the various services provided to residents. Atlantic City v. Laezza, 80 N.J. 255, 263 (1979). The Director must certify her approval of a municipal budget prior to its adoption by the municipality. N.J.S.A. 40A:4-10, N.J.S.A. 40A:4-76, N.J.S.A. 40A:4-78. Appeal of the Director's approval of the budget should have been filed within ten days as allowed by N.J.S.A. 52:27BB-15. Rumana v. County of Passaic, 397 N.J. Super. 157, 173 (App. Div. 2007). We conclude appellate review of the Director's approval of the Middletown Township budget is not available without exhaustion of administrative remedies. Hovnanian v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 7-9, (App. Div.), certif. denied, 185 N.J. 390 (2005); N.J.S.A. 52:27BB-20.
The appeal is dismissed.
© 1992-2009 VersusLaw Inc.