February 23, 2011
Gennaro A. Marino P.E.
409 W. Main St.
Kutztown, Pa 19530
610-683-7977
Pennsylvania Office of Open Records
400 North Street, 4th floor
Harrisburg, Pa 17120 fax 717 425-5343
Attention Mr. Nathan J. Byerly, Chief Counsel
Dear Mr. Byerly,
Docket No. AP 2010-0899
Today I received Judge Jeffrey L. Schmehl’s Decision on my Petition for the Enforcement of the Office of Open Records Final Determination (attached).
It states GRANTED produce within 15 days un-redacted versions of all documents previously produced to the Plaintiff in a redacted form. Isn’t it strange that I have already received them, dated February 14, 2011, from the Borough before the Judge made his decision February 18, 2011. I have attached the Borough’s cover letter and a sample of the granted papers.
It then states DENIED insofar as, apart from the aforementioned un-redacted documents the Defendant has turned over everything they have in their possession that is responsive to the Plaintiff’s request. If this is true, it means the Borough does not have to publish financial reports or even produce or posses any financial records.
I am shocked by this decision which deprives the residents of reviewing what the Elected Officials are doing with our Borough revenue. Thank you.
Sincerely,
Gennaro A. Marino P.E.
Wednesday, February 23, 2011
Monday, February 21, 2011
Illegal Electric rates? 2-21-11
February 21, 2011
Gennaro A. Marino P.E.
www.marinoreport.com
Kutztown Mayor Green
Kutztown Borough Council
Dear Elected Officials,
In the Borough of Kutztown’s Answer to Petition to Enforce Final Determination of Office of Open Records, dated February 1, 2011, Borough Solicitor stated on page 2, para. 3.
It is admitted that the Office of Open Records ordered the Borough of Kutztown to provide the petitioner with any ordinances, resolutions or legislation authorizing the demand charge for electricity. It is further admitted that the Office of Open Records believed that the ordinance provided to the Petitioner establishing the electric rate charges to the Borough of Kutztown was not completely responsive. However, by way of further answer, the Borough has no further legislation, including ordinances or resolutions which have been enacted that provide for the monthly electric charges or demand charges other than section A231-1, Chapter 107, entitled “Electrical Standards”,
In the past this monthly electric charge has been called KW USAGE, SERVICE FEE AND NET RATE MINIMUM.
If no Resolutions, Ordinances or Legislation exist that authorize the Borough to bill the Electricity subscribers for the demand charges means it is an illegal charge without a Borough Council vote and the Mayor’s ratification. The Borough must return the demand charge to the electricity customers.
Sincerely,
Gennaro A. Marino P.E.
Gennaro A. Marino P.E.
www.marinoreport.com
Kutztown Mayor Green
Kutztown Borough Council
Dear Elected Officials,
In the Borough of Kutztown’s Answer to Petition to Enforce Final Determination of Office of Open Records, dated February 1, 2011, Borough Solicitor stated on page 2, para. 3.
It is admitted that the Office of Open Records ordered the Borough of Kutztown to provide the petitioner with any ordinances, resolutions or legislation authorizing the demand charge for electricity. It is further admitted that the Office of Open Records believed that the ordinance provided to the Petitioner establishing the electric rate charges to the Borough of Kutztown was not completely responsive. However, by way of further answer, the Borough has no further legislation, including ordinances or resolutions which have been enacted that provide for the monthly electric charges or demand charges other than section A231-1, Chapter 107, entitled “Electrical Standards”,
In the past this monthly electric charge has been called KW USAGE, SERVICE FEE AND NET RATE MINIMUM.
If no Resolutions, Ordinances or Legislation exist that authorize the Borough to bill the Electricity subscribers for the demand charges means it is an illegal charge without a Borough Council vote and the Mayor’s ratification. The Borough must return the demand charge to the electricity customers.
Sincerely,
Gennaro A. Marino P.E.
Wednesday, February 16, 2011
Court of Common Pleas letter to council 2-15-11
February 15, 2011
Gennaro A. Marino
www.marinoreport.com
Kutztown Mayor Green
Kutztown Borough Council
Dear Elected Officials,
The Agenda for the February 15, 2011 Borough Council meeting states;
“Take action to increase Internet service rates by $5 per month for each level of service.”
How was the increase of $5 per month for each level of service calculated when Borough Solicitor Keith Mooney indicated in Court that there are no financial reports on Telecom? The financial information he offered was the revenue and expenditures in Telecom in the Borough’s Annual Audit.
Then I went on the Borough’s website and into the agenda for the Telecommunications Advisory Commission January 24, 2011 meeting. Under updates I found;
Rates for 2011 – negative balance to make up $36,000 approximately $5.94 per customer
This clearly shows the Borough does have financial records on Telecom and you are knowingly and deliberately defying the Final Determination of the Pennsylvania Office of Open Records to make them public.
Your actions on this matter are going to have a serious impact on Borough finances. The Borough’s debt is $13 million and you will have to borrow $5.5 million for the sewer plant update, the debt service will be insurmountable.
I am patiently waiting for the Court of Common Pleas decision so you can tell the residents the true loss of Telecom and how you will handle the Borough’s finances in the future.
Sincerely,
Gennaro A. Marino P.E.
cc; Honorable Judge Jeffrey L Schmehl
Kutztown Solicitor Keith Mooney
Pennsylvania Office of Open Records
The Reading Eagle
Gennaro A. Marino
www.marinoreport.com
Kutztown Mayor Green
Kutztown Borough Council
Dear Elected Officials,
The Agenda for the February 15, 2011 Borough Council meeting states;
“Take action to increase Internet service rates by $5 per month for each level of service.”
How was the increase of $5 per month for each level of service calculated when Borough Solicitor Keith Mooney indicated in Court that there are no financial reports on Telecom? The financial information he offered was the revenue and expenditures in Telecom in the Borough’s Annual Audit.
Then I went on the Borough’s website and into the agenda for the Telecommunications Advisory Commission January 24, 2011 meeting. Under updates I found;
Rates for 2011 – negative balance to make up $36,000 approximately $5.94 per customer
This clearly shows the Borough does have financial records on Telecom and you are knowingly and deliberately defying the Final Determination of the Pennsylvania Office of Open Records to make them public.
Your actions on this matter are going to have a serious impact on Borough finances. The Borough’s debt is $13 million and you will have to borrow $5.5 million for the sewer plant update, the debt service will be insurmountable.
I am patiently waiting for the Court of Common Pleas decision so you can tell the residents the true loss of Telecom and how you will handle the Borough’s finances in the future.
Sincerely,
Gennaro A. Marino P.E.
cc; Honorable Judge Jeffrey L Schmehl
Kutztown Solicitor Keith Mooney
Pennsylvania Office of Open Records
The Reading Eagle
Monday, February 14, 2011
Court of Common Pleas Counc 2-14-11
February 14, 2011
Gennaro A. MarinoP.E.
www.marinoreport.com
Kmayor@ptd.net
Mayor Sandy Green
Kutztown Borough Council
Dear Elected Officials,
At the Court of Common Pleas February 8, 2011 Hearing Solicitor Mooney stated anyone who would like to see the financial status of the Telecommunications should go to the Borough’s Mandatory Annual Audit and figure the profit or loss by totaling the revenue and expenditures of Telecom. He stated that is all anyone needs to see the finances of Telecom. That is how municipalities provide financial records and budget.
If you go to the Borough’s website and click on Finance, then click on Cable Franchise Agreement with Service Electric 2010. You will see;
Page 5 Para. 2.3 QUARTERLY PAYMENTS. Each franchise fee payment shall be accompanied by a written report containing an accurate statement of the applicable Service Electric’s Gross Revenues received for Cable Services for the quarter in connection with the operation of Service Electric’s Cable System and a brief report showing the basis for computation of fees. The report shall contain a line item for every applicable source of revenue received from each applicable source. The report shall be verified by a financial representative of Service Electric.
Page 6 Para. 2.4 (a) AUDITS. On an annual basis, upon thirty (30) days prior written notice to Service Electric, the Municipality shall have the right to conduct an independent audit or franchise fee revenue of Service Electric’s records reasonably related to the sources, amounts and computation of Gross Revenues in accordance with Generally Accepted Accounting Principles. Such Financial records shall be kept or made available to the Municipality at the local notice location for Service Electric specified in Section 13.3 below. The municipality and its representatives reviewing Service Electric’s financial records shall take reasonable and prudent steps to comply with all Applicable Law governing subscriber privacy and confidentiality of personally identifiably information.
Page 6 Para. 2.4 (c) AUDITS. The Municipality’s right to audit and Service Electric’s obligation to retain financial records related to franchise fee audit shall expire four (4) years after each franchise fee payment has been made to the Municipality, after which period any such payment shall be considered final.
It seems like you and Solicitor Mooney know the proper scheme to incorporate the Right to Know Law into your agreement with Service Electric.
This agreement with Service Electric justifies my Right to Know Request and confirms the Final Decision of the Office of Open Records. This proves you and Solicitor Mooney know what a financial report is and in Court all Solicitor Mooney offered me was the Borough’s mandatory Annual Audit for the financial records of Telecom.
Solicitor Mooney did not fully address the part of the Office of Open Records Final Determination decision that the Borough shall give me financial records of revenue from outside the Borough and the Resolution or Ordinance that states when the Borough Council voted to charge Electric customers the revenue that was originally a statement of minimum charge.
You will have to address this situation sooner or later.
Sincerely,
Gennaro A. Marino P.E.
cc; Judge Jeffrey L. Schmehl
Kutztown Solicitor Mooney
Pennsylvania Office of Open Records
The Reading Eagle
Gennaro A. MarinoP.E.
www.marinoreport.com
Kmayor@ptd.net
Mayor Sandy Green
Kutztown Borough Council
Dear Elected Officials,
At the Court of Common Pleas February 8, 2011 Hearing Solicitor Mooney stated anyone who would like to see the financial status of the Telecommunications should go to the Borough’s Mandatory Annual Audit and figure the profit or loss by totaling the revenue and expenditures of Telecom. He stated that is all anyone needs to see the finances of Telecom. That is how municipalities provide financial records and budget.
If you go to the Borough’s website and click on Finance, then click on Cable Franchise Agreement with Service Electric 2010. You will see;
Page 5 Para. 2.3 QUARTERLY PAYMENTS. Each franchise fee payment shall be accompanied by a written report containing an accurate statement of the applicable Service Electric’s Gross Revenues received for Cable Services for the quarter in connection with the operation of Service Electric’s Cable System and a brief report showing the basis for computation of fees. The report shall contain a line item for every applicable source of revenue received from each applicable source. The report shall be verified by a financial representative of Service Electric.
Page 6 Para. 2.4 (a) AUDITS. On an annual basis, upon thirty (30) days prior written notice to Service Electric, the Municipality shall have the right to conduct an independent audit or franchise fee revenue of Service Electric’s records reasonably related to the sources, amounts and computation of Gross Revenues in accordance with Generally Accepted Accounting Principles. Such Financial records shall be kept or made available to the Municipality at the local notice location for Service Electric specified in Section 13.3 below. The municipality and its representatives reviewing Service Electric’s financial records shall take reasonable and prudent steps to comply with all Applicable Law governing subscriber privacy and confidentiality of personally identifiably information.
Page 6 Para. 2.4 (c) AUDITS. The Municipality’s right to audit and Service Electric’s obligation to retain financial records related to franchise fee audit shall expire four (4) years after each franchise fee payment has been made to the Municipality, after which period any such payment shall be considered final.
It seems like you and Solicitor Mooney know the proper scheme to incorporate the Right to Know Law into your agreement with Service Electric.
This agreement with Service Electric justifies my Right to Know Request and confirms the Final Decision of the Office of Open Records. This proves you and Solicitor Mooney know what a financial report is and in Court all Solicitor Mooney offered me was the Borough’s mandatory Annual Audit for the financial records of Telecom.
Solicitor Mooney did not fully address the part of the Office of Open Records Final Determination decision that the Borough shall give me financial records of revenue from outside the Borough and the Resolution or Ordinance that states when the Borough Council voted to charge Electric customers the revenue that was originally a statement of minimum charge.
You will have to address this situation sooner or later.
Sincerely,
Gennaro A. Marino P.E.
cc; Judge Jeffrey L. Schmehl
Kutztown Solicitor Mooney
Pennsylvania Office of Open Records
The Reading Eagle
Thursday, February 10, 2011
Court Of Common pleas 2-10-11
February 10, 2011
Gennaro A. Marino P.E.
kmayor@ptd.net
www.marinoreport.com
Kutztown Mayor Sandy Green
Kutztown Borough Council
Dear Elected Officials.
I did not see any of you in the Court of Common Pleas February 8, 2011 when I petitioned the Court to enforce the Office of Open Records Final Determination. But you sent Borough Solicitor Keith Mooney with your feeble and lame excuses which were the same feeble and lame as excuses he presented to the Office of Open Records which they rejected.
You are violating the Borough’s Right to Know Ordinance No. 16-2008 of which states under SECTION 3, Section 170-1D FINANCIAL RECORDS are described as;
1. Any account, voucher or contract dealing with a receipt or disbursement of funds by the Borough or the Borough’s acquisition, use or disposal of services, supplies, materials, equipment or property.
2. A financial audit report performed on behalf of the borough, however, this term does not include the work papers underlying the audit.
The above two paragraphs confirm that the Borough should fulfill my Right to Know Request.
I would also like to point out that the Borough Code states Service Electric, the Borough’s cableTV, internet and telephone provider, for the purposes of administering this ordinance shall;
A230-11 RECORD KEEPING, COMPANY OFFICE
A. Keep and render its books and records in a manner which will permit the drawing off of a detailed financial statement therefrom clearly disclosing the amount of rentals received by the company arriving at the determination of the gross receipts rentals as heretofore set forth.
Why don’t you follow Borough Code (above) that you legislated for Service Electric Cable. This also demonstrates you know the law and are knowingly and deliberately violating the Borough Code.
You have arrogantly decided to violate the Borough Code and a Borough Ordinance to keep the true financial status of the Telecommunications Department from the public.
There is no way that you will legally keep these financial records from the public.
Sincerely,
Gennaro A. Marino P.E.
cc: Judge Jeffrey L. Schmehl
Kutztown Solicitor Mooney
The Office of Open Records
The Reading Eagle
Gennaro A. Marino P.E.
kmayor@ptd.net
www.marinoreport.com
Kutztown Mayor Sandy Green
Kutztown Borough Council
Dear Elected Officials.
I did not see any of you in the Court of Common Pleas February 8, 2011 when I petitioned the Court to enforce the Office of Open Records Final Determination. But you sent Borough Solicitor Keith Mooney with your feeble and lame excuses which were the same feeble and lame as excuses he presented to the Office of Open Records which they rejected.
You are violating the Borough’s Right to Know Ordinance No. 16-2008 of which states under SECTION 3, Section 170-1D FINANCIAL RECORDS are described as;
1. Any account, voucher or contract dealing with a receipt or disbursement of funds by the Borough or the Borough’s acquisition, use or disposal of services, supplies, materials, equipment or property.
2. A financial audit report performed on behalf of the borough, however, this term does not include the work papers underlying the audit.
The above two paragraphs confirm that the Borough should fulfill my Right to Know Request.
I would also like to point out that the Borough Code states Service Electric, the Borough’s cableTV, internet and telephone provider, for the purposes of administering this ordinance shall;
A230-11 RECORD KEEPING, COMPANY OFFICE
A. Keep and render its books and records in a manner which will permit the drawing off of a detailed financial statement therefrom clearly disclosing the amount of rentals received by the company arriving at the determination of the gross receipts rentals as heretofore set forth.
Why don’t you follow Borough Code (above) that you legislated for Service Electric Cable. This also demonstrates you know the law and are knowingly and deliberately violating the Borough Code.
You have arrogantly decided to violate the Borough Code and a Borough Ordinance to keep the true financial status of the Telecommunications Department from the public.
There is no way that you will legally keep these financial records from the public.
Sincerely,
Gennaro A. Marino P.E.
cc: Judge Jeffrey L. Schmehl
Kutztown Solicitor Mooney
The Office of Open Records
The Reading Eagle
Wednesday, February 9, 2011
NEWSLETTER #3 2-8-11
NEWSLETTER # 3
February 8, 2011
I went to the Court of Common Pleas in Reading today to petition the Court to enforce the Final Determination by the Pennsylvania Office of Open Records which stated that the Borough of Kutztown shall give me the financial records I requested. All the Borough’s objections were the same excuses they presented and were rejected by the Office of Open Records. They presented no new objections. Judge Jeffrey L. Schmehl reserved decision.
It was very enlightening to hear the Kutztown Borough Solicitor Keith Mooney state:
a) Municipalities do not keep financial records as do private firm.
b) All you have to see is total revenue and expenditures and not show how and where they were listed and totaled up.
c) Telecom is not a separate entity but the same as other Borough Utilities.
Isn’t it amazing that the Borough refuses to make the finances of Telecom public and is in Court to avoid the enforcement of the Final Determination of the Pennsylvania Office of Open Records. It is ironic because the Kutztown Borough Code is very strict and specific in dealing with Service Electric Cable, the cable TV and internet provider, in the Borough. The Borough Code Chapter 230 reads as follow; I quote from the Code
A230-11 RECORD KEEPING; COMPANY OFFICE
FOR THE PURPOSES OF ADMINISTERING THIS ORDINANCE THE COMPANY SHALL;
A. KEEP AND RENDER ITS BOOKS AND RECORDS IN A MANNER WHICH WILL PERMIT THE DRAWING OFF OF A DETAILED FINANCIAL STATEMENT THEREFROM CLEARLY DISCLOSING THE AMOUNT OF RENTALS RECEIVED BY THE COMPANY ARRIVING AT THE DETERMINATION OF THE GROSS RECEIPTS RENTALS AS HERETOFORE SET FORTH.
The Borough just wants to simply draw off the information with no effort. The Borough stated in Court that if anyone wants the financial records of Telecom in the Borough they can pick the figures out of the Borough’s mandatory Annual Audit and calculate the difference.
Why doesn’t the Borough hold themselves to the same standards they demand from the local cable TV and internet provider?
Gennaro A. Marino P.E.
www.marinoreport.com
e-mail kmayor@ptd.net
February 8, 2011
I went to the Court of Common Pleas in Reading today to petition the Court to enforce the Final Determination by the Pennsylvania Office of Open Records which stated that the Borough of Kutztown shall give me the financial records I requested. All the Borough’s objections were the same excuses they presented and were rejected by the Office of Open Records. They presented no new objections. Judge Jeffrey L. Schmehl reserved decision.
It was very enlightening to hear the Kutztown Borough Solicitor Keith Mooney state:
a) Municipalities do not keep financial records as do private firm.
b) All you have to see is total revenue and expenditures and not show how and where they were listed and totaled up.
c) Telecom is not a separate entity but the same as other Borough Utilities.
Isn’t it amazing that the Borough refuses to make the finances of Telecom public and is in Court to avoid the enforcement of the Final Determination of the Pennsylvania Office of Open Records. It is ironic because the Kutztown Borough Code is very strict and specific in dealing with Service Electric Cable, the cable TV and internet provider, in the Borough. The Borough Code Chapter 230 reads as follow; I quote from the Code
A230-11 RECORD KEEPING; COMPANY OFFICE
FOR THE PURPOSES OF ADMINISTERING THIS ORDINANCE THE COMPANY SHALL;
A. KEEP AND RENDER ITS BOOKS AND RECORDS IN A MANNER WHICH WILL PERMIT THE DRAWING OFF OF A DETAILED FINANCIAL STATEMENT THEREFROM CLEARLY DISCLOSING THE AMOUNT OF RENTALS RECEIVED BY THE COMPANY ARRIVING AT THE DETERMINATION OF THE GROSS RECEIPTS RENTALS AS HERETOFORE SET FORTH.
The Borough just wants to simply draw off the information with no effort. The Borough stated in Court that if anyone wants the financial records of Telecom in the Borough they can pick the figures out of the Borough’s mandatory Annual Audit and calculate the difference.
Why doesn’t the Borough hold themselves to the same standards they demand from the local cable TV and internet provider?
Gennaro A. Marino P.E.
www.marinoreport.com
e-mail kmayor@ptd.net
Saturday, February 5, 2011
NEWSLETTER #2 2-6-11
NEWSLETTER #2
February 5, 2011
AT THE COURT ARGUMENT TUESDAY THE BOROUGH SHOULD MENTION THE FOLLOWING FROM THE BORUGH COUNCIL MINUTES OF 2002:
August 6, 2002 page 15896 “Mayor Marino stated that all residents are stockholders and that he wants to be updated monthly. Mr. Hill responded that if this is the direction in which Council would like to proceed, the Borough would need to hire a full time accountant”.
September 11, 2002 page 15937 Mr. Caruso stated “The paperwork that is done to justify what the Borough is spending is ridiculous. The idea of hiring a consultant is nonsense. Anyone that has a question concerning the spending should pick up a budget and follow the expenditures.
THE ABOVE MINUTES CLEARLY DEMONSTRATE THAT THE BOROUGH NEVER INTENDED TO MAKE THE FINANCES OF THE TELECOMMUNICATIONS DEPARTMENT PUBLIC.
THERE’S MORE. ( TO BE CONT’D)
Gennaro A. Marino
www.marinoreport. com
February 5, 2011
AT THE COURT ARGUMENT TUESDAY THE BOROUGH SHOULD MENTION THE FOLLOWING FROM THE BORUGH COUNCIL MINUTES OF 2002:
August 6, 2002 page 15896 “Mayor Marino stated that all residents are stockholders and that he wants to be updated monthly. Mr. Hill responded that if this is the direction in which Council would like to proceed, the Borough would need to hire a full time accountant”.
September 11, 2002 page 15937 Mr. Caruso stated “The paperwork that is done to justify what the Borough is spending is ridiculous. The idea of hiring a consultant is nonsense. Anyone that has a question concerning the spending should pick up a budget and follow the expenditures.
THE ABOVE MINUTES CLEARLY DEMONSTRATE THAT THE BOROUGH NEVER INTENDED TO MAKE THE FINANCES OF THE TELECOMMUNICATIONS DEPARTMENT PUBLIC.
THERE’S MORE. ( TO BE CONT’D)
Gennaro A. Marino
www.marinoreport. com
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