Office of Open Records Reply 5-21-09 Gennaro A. Marino P.E.
409 W. Main St.
Kutztown, Pa 19530
610-683-7977
www.marinoreport.com
Nathanael J. Byerly Esq.
Appeals Officer
Officer of Open Records
400 North Street 4th Floor
Harrisburg, Pa 17120
Re: MARINO V. KUTZTOWN BOROUGH DOCKET #AP 2009-0359
Dear Mr. Byerly,
I am in receipt of a copy of a letter sent to you from the Borough’s Right to Know Officer Bonnie Bray, who is also the Borough Secretary, and I do not understand it. She states there is no contract but there is a contract after Frank P. Caruso, Director of, Director Information Technology, sends a letter to the contractor, Blonder Tongue Laboratories, stating,” WE ANTICIPATE OUR ON-SITE PROJECT START DATE FOR INSTALLATION AND TESTING OF OUR EQUIPMENT PER THE BID WILL BEGIN JUNE 3,2009 etc.” His letter refers to a BID FORM which lists some equipment prices and a total of $119,511.87. Borough Secretary Bray’s letter states this Bid Form shall function as a contract. This Bid Form can not function as a contract because it is not signed by a Borough Representative. And it can not function as a contract because it does not list any details. ITD Caruso’s letter mentions installation and testing which is not mentioned on the Bid Form. A contract has to at least list a Scope of Work, a list of Exclusions, types of testing and many more details.
It seems to me that the Borough makes up its own rules as they need them. This project can not move forward with this piece of paper that Mr. Caruso and Ms. Bray produced and called a contract. I spent almost 40 years in the construction business and have never seen such nonsense, and I do not know of any reputable owner or contractor that will honor or work with such an agreement.
This action by Mr. Caruso and Ms. Bray is fraudulent and an insult to the intelligence of the residents of Kutztown. I do not accept this as an answer to my request.
Sincerely,
Gennaro A. Marino P.E.
cc: Kutztown Borough Council
Mayor Green
ITD Caruso
Borough Secretary\Right to Know Officer Bray
Pa. Attorney General
Blonder Tongue laboratories
Others
Thursday, May 21, 2009
Tuesday, May 19, 2009
ATTORNEY GENERAL 5-18-09
Attorney General 5-17-09 Gennaro A. Marino P.E.
409 W. Main St.
Kutztown, Pa 19530
610-683-7977
Website www.marinoreport.com
Deputy Attorney General
Norman W. Marden
Dear Sir,
I would like to up date you as to what is happening in the Borough that is related to actions of the Borough and Blonder Tongue Laboratories Inc. The Pennsylvania Office of Open Records has ruled that the Borough should release the Purchase Order to me as per my appeal (attached). The Borough has refused to deliver it to me stating they have 30 days to appeal it. I would like to remind you that I have an e-mail from Blonder Labs (attached) that there were no open Purchase Orders between their firm and the Borough of Kutztown.
Again under the Right to Know Law I have requested to see the tentative the start and completion dates of the contract between Blonder Labs and the Borough and was denied by Borough Secretary\Right to Know Officer Bonnie Bray (attached) stating the Contract does not exist.
Attached please find a letter I hand delivered to the Borough (dated 5-10-09) in which I state among other reasons that the work can not be started without a contract. My letter is clear and the Borough has not answered it.
I have also received a copy of a letter, dated May 11, 2009, sent by The Office of Open Records to Borough Secretary\Right to Know Officer Bonnie Bray (attached) requesting her to submit a sworn affidavit that the contract does not exist and address my statement that the contract does exist. The Borough has until May 26, to respond.
This letter and the attached materials confirm my accusations that the Borough is making a concerted and organized effort to conceal and cover up all aspects of the dealings with Blonder Tongue Laboratories that were illegal from the start which was early March of 2009.
This contract is for Hometown Utilicom WHICH IS A BUSINESS VENTURE AND NOT A UTILITY as the Borough would like everyone to believe. The finances of Hometown Utilicom are blended in with the finances of the General Fund and the Borough’s Electric Fund to further conceal HU finances from the public. The Borough is also illegally financing HU by transferring funds from other Borough departments to fund Hometown Utilicom. NOTE: There has never been a complete financial report on Hometown Utilicom since its inception in 2002.
To further confirm my charges the 2008 Audit has still not been published as per the Borough Code which states it should be published 90 days after the end of the fiscal year which was April 1, 2009. It also confirms the Borough is not very forthcoming with Borough business, records or finances.
I am readily available should you need any further information or documents. Thank you.
Sincerely,
Gennaro A. Marino P.E.
cc: Mayor Green
Borough Council Members
Borough Manager\Treasurer Khalife
Borough Secretary\Right to Know Officer Bray
Borough Assistant Treasurer Samilo
HU Director\Information Technology Director Caruso
Borough Solicitors Mooney and Dietrich
Independent Auditors Long & Barrell
Blonder Tongue Labororatories Inc.
409 W. Main St.
Kutztown, Pa 19530
610-683-7977
Website www.marinoreport.com
Deputy Attorney General
Norman W. Marden
Dear Sir,
I would like to up date you as to what is happening in the Borough that is related to actions of the Borough and Blonder Tongue Laboratories Inc. The Pennsylvania Office of Open Records has ruled that the Borough should release the Purchase Order to me as per my appeal (attached). The Borough has refused to deliver it to me stating they have 30 days to appeal it. I would like to remind you that I have an e-mail from Blonder Labs (attached) that there were no open Purchase Orders between their firm and the Borough of Kutztown.
Again under the Right to Know Law I have requested to see the tentative the start and completion dates of the contract between Blonder Labs and the Borough and was denied by Borough Secretary\Right to Know Officer Bonnie Bray (attached) stating the Contract does not exist.
Attached please find a letter I hand delivered to the Borough (dated 5-10-09) in which I state among other reasons that the work can not be started without a contract. My letter is clear and the Borough has not answered it.
I have also received a copy of a letter, dated May 11, 2009, sent by The Office of Open Records to Borough Secretary\Right to Know Officer Bonnie Bray (attached) requesting her to submit a sworn affidavit that the contract does not exist and address my statement that the contract does exist. The Borough has until May 26, to respond.
This letter and the attached materials confirm my accusations that the Borough is making a concerted and organized effort to conceal and cover up all aspects of the dealings with Blonder Tongue Laboratories that were illegal from the start which was early March of 2009.
This contract is for Hometown Utilicom WHICH IS A BUSINESS VENTURE AND NOT A UTILITY as the Borough would like everyone to believe. The finances of Hometown Utilicom are blended in with the finances of the General Fund and the Borough’s Electric Fund to further conceal HU finances from the public. The Borough is also illegally financing HU by transferring funds from other Borough departments to fund Hometown Utilicom. NOTE: There has never been a complete financial report on Hometown Utilicom since its inception in 2002.
To further confirm my charges the 2008 Audit has still not been published as per the Borough Code which states it should be published 90 days after the end of the fiscal year which was April 1, 2009. It also confirms the Borough is not very forthcoming with Borough business, records or finances.
I am readily available should you need any further information or documents. Thank you.
Sincerely,
Gennaro A. Marino P.E.
cc: Mayor Green
Borough Council Members
Borough Manager\Treasurer Khalife
Borough Secretary\Right to Know Officer Bray
Borough Assistant Treasurer Samilo
HU Director\Information Technology Director Caruso
Borough Solicitors Mooney and Dietrich
Independent Auditors Long & Barrell
Blonder Tongue Labororatories Inc.
Tuesday, May 12, 2009
OFFICE OF OPEN RECORDS LETTER TO SECRETARY BRAY 5-12-09
COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS
May 11, 2009
Bonnie Bray
Right to Know Officer Borough of Kutztown 45 Railroad Street Kutztown, PA 19530
Re: Marino v. Kutztown Borough, Docket # AP 2009-0359
Dear Ms. Bray:
As you are aware, our office has received an appeal on the above matter. After reviewing the documents provided to our Office, I will need additional documents to render a decision in this matter.
Please provide our office with a sworn and notarized affidavit verifying that the requested contract does not exist. In addition, please address Gennaro Marino's statements that the contract does exist.
Given the short timeframe I can accept the materials via facsimile no later than May 26, 2009. If the above requested information is not received by this date, the Final Determination will be based on the information that has been provided.
A sample affidavit is available for review on our webpage in the "Forms" section: http://opemecords.state. pa. us
If you have any additional questions, please do not hesitate to contact me. Thank you in advance for your assistance in this matter.
Rey#fiillY,
rid( 'l /:.
anae! J. ]
ARpeals Officer
Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, P A 17120-0225 http://opemecords.state. pa. us
cc: Gennaro A. Marino
Commonwealth Keystone Building I 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225 (717)346-9903 I (717) 425-5343 (Fax) http://openrecords.stare. pa. us
May 11, 2009
Bonnie Bray
Right to Know Officer Borough of Kutztown 45 Railroad Street Kutztown, PA 19530
Re: Marino v. Kutztown Borough, Docket # AP 2009-0359
Dear Ms. Bray:
As you are aware, our office has received an appeal on the above matter. After reviewing the documents provided to our Office, I will need additional documents to render a decision in this matter.
Please provide our office with a sworn and notarized affidavit verifying that the requested contract does not exist. In addition, please address Gennaro Marino's statements that the contract does exist.
Given the short timeframe I can accept the materials via facsimile no later than May 26, 2009. If the above requested information is not received by this date, the Final Determination will be based on the information that has been provided.
A sample affidavit is available for review on our webpage in the "Forms" section: http://opemecords.state. pa. us
If you have any additional questions, please do not hesitate to contact me. Thank you in advance for your assistance in this matter.
Rey#fiillY,
rid( 'l /:.
anae! J. ]
ARpeals Officer
Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, P A 17120-0225 http://opemecords.state. pa. us
cc: Gennaro A. Marino
Commonwealth Keystone Building I 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225 (717)346-9903 I (717) 425-5343 (Fax) http://openrecords.stare. pa. us
Sunday, May 10, 2009
RIGHT TO KNOW REQUEST BLONDER CONTRACT 5-8-09
Right to Know Request 5-10-09 Gennaro A. Marino P.E.
Kutztown Mayor Green &
Kutztown Borough Council
Dear Borough Elected Officials,
The letter that I delivered to you at the Borough Hall dated May 5, 2009 from RTKL Executive Director Terry Mutchler to Borough Secretary\Borough Right to Know Officer Bonnie Bray is in reference to my RTKL request to see the start and completion dates for the contract with Blonder Tongue Laboratories Inc. Secretary Bray denied my request stating that the contract does not exist therefore there are no start or completion dates. The Council voted to accept the bid from Blonder for $119,511.87 and to award them the contract at the last Council Meeting which means the contract exists. I recently asked Borough Manager\Treasurer Khalife about Mrs. Bray decision to deny my request and he stated he knew nothing about it which means she does not have authorization or approval of her decisions to grant or deny requests from her superiors, the Borough Manager, the Mayor or the Borough Council.
The absence of any leadership or a chain of command on the part of the Borough Council has led to this appeal and will generate more letters from the Borough Solicitor. My last appeal for the Blonder Purchase Order led to the Borough Secretary and the Borough Solicitor contradicting each other in letters to the Office of Open Records which was very embarrassing for the Borough.
I recommend you make public the start and completion dates of the contract immediately so as not to repeat the exchange of letters and confusion as in the request for the purchase order that the Borough was eventually ordered to make public by the Office of Open Records. As per the Borough Code all financial books and records should be published periodically and the Borough can start by publishing a full financial report on Hometown Utilicom.
As per the Borough Code the 2008 audit should have been made public and published in a local newspaper by April 1, 2009 and it was still unavailable at the Borough Hall as a of Friday May 8, 2009 and it was never published in a local newspaper. At least one of you should address this and provide an answer of why the Audit is not available.
Sincerely, Gennaro A. Marino P.E.
Kutztown Mayor Green &
Kutztown Borough Council
Dear Borough Elected Officials,
The letter that I delivered to you at the Borough Hall dated May 5, 2009 from RTKL Executive Director Terry Mutchler to Borough Secretary\Borough Right to Know Officer Bonnie Bray is in reference to my RTKL request to see the start and completion dates for the contract with Blonder Tongue Laboratories Inc. Secretary Bray denied my request stating that the contract does not exist therefore there are no start or completion dates. The Council voted to accept the bid from Blonder for $119,511.87 and to award them the contract at the last Council Meeting which means the contract exists. I recently asked Borough Manager\Treasurer Khalife about Mrs. Bray decision to deny my request and he stated he knew nothing about it which means she does not have authorization or approval of her decisions to grant or deny requests from her superiors, the Borough Manager, the Mayor or the Borough Council.
The absence of any leadership or a chain of command on the part of the Borough Council has led to this appeal and will generate more letters from the Borough Solicitor. My last appeal for the Blonder Purchase Order led to the Borough Secretary and the Borough Solicitor contradicting each other in letters to the Office of Open Records which was very embarrassing for the Borough.
I recommend you make public the start and completion dates of the contract immediately so as not to repeat the exchange of letters and confusion as in the request for the purchase order that the Borough was eventually ordered to make public by the Office of Open Records. As per the Borough Code all financial books and records should be published periodically and the Borough can start by publishing a full financial report on Hometown Utilicom.
As per the Borough Code the 2008 audit should have been made public and published in a local newspaper by April 1, 2009 and it was still unavailable at the Borough Hall as a of Friday May 8, 2009 and it was never published in a local newspaper. At least one of you should address this and provide an answer of why the Audit is not available.
Sincerely, Gennaro A. Marino P.E.
Friday, May 8, 2009
OFFICE OF OPEN RECORDS FINAL DETERMINATION 5-8-09
pennsyLvania·
OFFICE OF OPEN RECORDS FINAL DETERMINATION
IN THE MATTER OF
GENNARO A. MARINO, Complainant
v.
BOROUGH OF KUTZTOWN, Respondent
Docket No. AP 2009-0272
INTRODUCTION
Gennaro A. Marrino submitted a request to the Borough of Kutztown ("Borough")
seeking access to a purchase order placed on a Borough Consent Agenda, but not acted upon,
pursuant to the Right-to-Know Law, 65 P.S. §§67.101 et seq., ("RTKL"), The Borough denied
access stating that the record did not exist. Mr. Marino timely appealed to the Office of Open
Records ("OOR").
For the reasons set forth in this Final Determination, Mr. Marino's appeal is granted, and
the Borough is required to release the record.
FACTUAL BACKGROUND
On March 27, 2009, Mr. Marino submitted a right-to-know request to the Borough
seeking "'a copy of the purchase order of $119,511.87 which the Council was to ratify at the
March 17, 2009 council meeting" ("Request"). Bonnie Bray, Right-to-Know Officer of the
Borough timely responded on April 1st and advised that Mr. Marino's Request "is denied
1
OFFICE OF OPEN RECORDS FINAL DETERMINATION
IN THE MATTER OF
GENNARO A. MARINO, Complainant
v.
BOROUGH OF KUTZTOWN, Respondent
Docket No. AP 2009-0272
INTRODUCTION
Gennaro A. Marrino submitted a request to the Borough of Kutztown ("Borough")
seeking access to a purchase order placed on a Borough Consent Agenda, but not acted upon,
pursuant to the Right-to-Know Law, 65 P.S. §§67.101 et seq., ("RTKL"), The Borough denied
access stating that the record did not exist. Mr. Marino timely appealed to the Office of Open
Records ("OOR").
For the reasons set forth in this Final Determination, Mr. Marino's appeal is granted, and
the Borough is required to release the record.
FACTUAL BACKGROUND
On March 27, 2009, Mr. Marino submitted a right-to-know request to the Borough
seeking "'a copy of the purchase order of $119,511.87 which the Council was to ratify at the
March 17, 2009 council meeting" ("Request"). Bonnie Bray, Right-to-Know Officer of the
Borough timely responded on April 1st and advised that Mr. Marino's Request "is denied
1
Wednesday, May 6, 2009
OOR LETTER TO B.BRAY AND I 5-5-09
COMMON\VEALTH OF PENNSYLVANL<\ OFFICE OF OPEN RECORDS
May 5, 2009
Gennaro Marino 409West Main Street Kutztown, P A 19530
RE: DOCKET # AP 2009-0359
Bonnie Brav
Open Records Officer Borough of Kutztown 45 Railroad Street
Kutztown, P A 19530
Thank you for writing to the Office of Open Records regarding the Right-toKnow law, 65 P.S. §§67.101, C«RTKL"). The OOR has received an appeal on May 5, 2009. This letter will explain our process and provide the Agency a copy of the appeal.
The OOR will assign an Appeals Officer to review the case. If all procedural requirements have been met the Appeals Officer will review the file, consult with agency counsel as appropriate, seek any necessary additional information and issue a Final Determination. The Appeals Officer may conduct a hearing, but that decision is nonappealable. If all procedural requirements have not been met the parties will receive a letter stating why the appeal has not been accepted and that no further action is needed.
If additional information is necessary to reach a Final Determination, the Appeals Officer will ask for it in writing with a deadline for submission. If either party would like to submit unsolicited information they must do so within seven (7) business days from the date of this letter and provide a copy to the opposing party. Agencies are reminded that the burden of proof rests with them in citing the exception, law, regulation, judicial order or privilege to deny a request.
The OOR has 30 calendar days to issue a Final Determination. If you would like more information, please see our Web site, http://openrecords.state.pa.us, where all Final Determinations will be posted.
Respectfully,
Terry Mutchler Executive Director
, ,\t
fi N )~'\i~
VI
Commonwealth Keystone Bl ,.J f'llorrh Street, 4th Floor
Harrisburg, Pen •• ,ylvania 17120-0225 (717)346-9903 I (717) 425-5343 (Fax)
May 5, 2009
Gennaro Marino 409West Main Street Kutztown, P A 19530
RE: DOCKET # AP 2009-0359
Bonnie Brav
Open Records Officer Borough of Kutztown 45 Railroad Street
Kutztown, P A 19530
Thank you for writing to the Office of Open Records regarding the Right-toKnow law, 65 P.S. §§67.101, C«RTKL"). The OOR has received an appeal on May 5, 2009. This letter will explain our process and provide the Agency a copy of the appeal.
The OOR will assign an Appeals Officer to review the case. If all procedural requirements have been met the Appeals Officer will review the file, consult with agency counsel as appropriate, seek any necessary additional information and issue a Final Determination. The Appeals Officer may conduct a hearing, but that decision is nonappealable. If all procedural requirements have not been met the parties will receive a letter stating why the appeal has not been accepted and that no further action is needed.
If additional information is necessary to reach a Final Determination, the Appeals Officer will ask for it in writing with a deadline for submission. If either party would like to submit unsolicited information they must do so within seven (7) business days from the date of this letter and provide a copy to the opposing party. Agencies are reminded that the burden of proof rests with them in citing the exception, law, regulation, judicial order or privilege to deny a request.
The OOR has 30 calendar days to issue a Final Determination. If you would like more information, please see our Web site, http://openrecords.state.pa.us, where all Final Determinations will be posted.
Respectfully,
Terry Mutchler Executive Director
, ,\t
fi N )~'\i~
VI
Commonwealth Keystone Bl ,.J f'llorrh Street, 4th Floor
Harrisburg, Pen •• ,ylvania 17120-0225 (717)346-9903 I (717) 425-5343 (Fax)
OFFICE OF OPEN RECORDS LETTER TO MOONEY ESQ.5-4-09
COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS
May 4, 2009
Via Facsimile
Keith Mooney, Esquire Barley Snyder LLC
50 North Fifth Street P.O. Box 942
Reading, PA 19603-0942
Re: AP 2009-0272, Marmov. Kutztown Borough ("Borough") Dear Solicitor Mooney:
I received your correspondence faxed on May I st which continues explaining your conclusion that the Purchase Order is not a "record" due to lack of official action upon it.
However, the Borough's responses remain unreconciled as to whether the requested Purchase Order, or record of the Purchase Order, exists or not. To.the extent that the record does not exist, kindly supply an attestation by the records custodian, or other person with knowledge, in conformity with 42 Pa. C.S. §6103 swearing to the lack of a record.
As your response to my request for supplementation focused upon the "record" definition defense, absent an attestation being faxed to my attention by close of business May 5th, the OaR will accept your May 1st Letter as confirming the definition as the Borough's sole defense.
Thank you in advance for your anticipated cooperation with this matter.
Very truly yours,
~6'L-.
Lucinda Glinn Appeals Officer
cc. Gennaro A. Marino
Mr. Gennaro A. Marino
409 West Main Street Kutztown, P A 19530
Commonwealth Keystone Building I 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225
I~~""''''",/ t"'\('\t"\.., I ''"1'"'1\ A"'lC' t:'')A? 1T":'_h\
May 4, 2009
Via Facsimile
Keith Mooney, Esquire Barley Snyder LLC
50 North Fifth Street P.O. Box 942
Reading, PA 19603-0942
Re: AP 2009-0272, Marmov. Kutztown Borough ("Borough") Dear Solicitor Mooney:
I received your correspondence faxed on May I st which continues explaining your conclusion that the Purchase Order is not a "record" due to lack of official action upon it.
However, the Borough's responses remain unreconciled as to whether the requested Purchase Order, or record of the Purchase Order, exists or not. To.the extent that the record does not exist, kindly supply an attestation by the records custodian, or other person with knowledge, in conformity with 42 Pa. C.S. §6103 swearing to the lack of a record.
As your response to my request for supplementation focused upon the "record" definition defense, absent an attestation being faxed to my attention by close of business May 5th, the OaR will accept your May 1st Letter as confirming the definition as the Borough's sole defense.
Thank you in advance for your anticipated cooperation with this matter.
Very truly yours,
~6'L-.
Lucinda Glinn Appeals Officer
cc. Gennaro A. Marino
Mr. Gennaro A. Marino
409 West Main Street Kutztown, P A 19530
Commonwealth Keystone Building I 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225
I~~""''''",/ t"'\('\t"\.., I ''"1'"'1\ A"'lC' t:'')A? 1T":'_h\
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