OFFICE OF OPEN RECORDS LETTER TO SOLICITOR MOONEY COMMENTS

Office of Open Records Letter to Borough Solicitor Mooney Comments 4-30-09
My last blog is a scan of a letter from the Office of Open Records to Kutztown Borough Solicitor Keith Mooney which was in reply to an appeal filed by me. This letter sets a precedent which means that Mayor Sandy Green, the Borough Council, Borough Solicitors Dietrich and Mooney along with some Borough will have to start making all Borough Books and Financial Records available to the public periodically and not by request. For instance Hometown Utilicom statistics such as the number of subscribers and the revenue from subscribers should be published monthly which would allow the residents to determine if this business venture is viable.
Last week under the Right to Know Law I made a request and yesterday I received a reply from Borough Secretary\Right to Know Officer Bonnie Bray which I stated and I quote, “I would like to see the start and completion dates of the Blonder Tongue Laboratories contract to update the head end to digital when they are available”.
Her reply was and again I quote, “Your request is denied because the contract does not exist and because there are no start and completion dates established for the head end project”. You have a right to appeal etc. She makes the statement that the Contract does not exist even though the bid for it was voted on in Committee and then voted on and accepted at the April 21, 2009 Council Meeting. She also states there are no start or completion dates established despite the fact that this work must be completed, as per a Federal regulation by June 12, 2009. Of course I will appeal this decision.
Gennaro A. Marino P.E.
www.marinoreport.com

Office of Open Record to Mooney

April 27, 2009
Keith Mooney, Esquire Barley Snyder LLC
50 North Fifth Street P.O. Box 942
Reading, PA 19603-0942
COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS
Via Facsimile & US J1ail

Re: AP 2009-0272, Marino v. Kutztown Borough ("Borough Dear Solicitor Mooney:
r roceiv@G-the al;lQ:v:e-appeal filedJJy Gennaro A. Marino with the Office of Open Records ("OOR") pursuant to the Right-to-Know Law, 65 P.S. §§67.101 et seq. ("RTKL") relative to a Purchase Order for the purchase of equipment from Blonder Tongue Laboratories set to be ratified at a Borough Council meeting.
The Denial of the Borough Open Records Officer reports that due to no [mal action being taken, the Purchase Order requested did not exist. However, that statement is in conflict with your letter dated April 16th, received by the undersigned April 20th in which you do not claim non-existence of the record. Rather, you advise that the Purchase Order does not qualify as a "record" under Section 102 of the R TKL. Please be advised that under the new R TKL, unlike its predecessor, to qualify as a public record, a record need not form the basis of a decision or final action. Rather, any information of an agency that documents its actions or business may be a "record" subject to disclosure. You have not asserted any exceptions to the disclosure of the Purchase Order requested, for which the Borough bears the burden of proof under Section 708(a) of showing its non-public nature.
As you have claimed the Purchase Order does not qualify as a "record," please confirm that argument as the Borough's sole defense to disclosure. To the extent that you claim the Purchase Order does not qualify as a record, please explain the reasons the Consent Agenda for the March 1 ih Borough Council meeting refers to its issuance, and supply your legal authority for your conclusion that the Purchase Order is not a "record." You may cite to Final Determinations of the OOR that support your conclusion.
Please note Docket No. AP 2009-0272 on all submissions related to that Appeal and send a copy to the requester. Kindly supplement the record as requested by May 1.2009. Submissions via facsimile are preferred.
Thank you in advance for your anticipated cooperation with this matter.
Very truly yours,
~~
Lucinda Glinn
Appeals Officer

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.state. pa. us

ATTORNEY GENERAL 4-28-09

Attorney General 4-28-09 Gennaro A. Marino P.E.
409 W. Main St.
Kutztown, Pa 19530
610-6683-7977
Attorney General Tom Corbett
Strawberry Square
Harrisburg, Pa 17120
Dear Sir,
In a letter to you dated April 13, 2009 (letter attached) I accused the Borough of Kutztown of rigging a bid and covering it up and have not received an acknowledgement or a reply from your office.
To up date you please find 2 letters I have sent to the Mayor and the Borough Council, dated April 21 and April 23, 2009 in which I question their actions and accuse them of bid rigging and lying. I have not received an answer to either letter. They are not responding to my letters because all my statements are true. My website www.marinoreport.com contains many more letters to the Borough which also were never answered.
There is more than enough evidence in my letters for you to conduct a criminal investigation into the Borough’s actions in this case. There are also rumors that the contract work is already completed. This incident is a clear case of the Borough Officials arrogantly agreeing on the price of a contract without a bid and then making it legal with a staged public bid. My attached letters are perfectly clear and all my accusations can be documented. I am available if you require any additional information. Thank you.
Sincerely,

Gennaro A. Marino P.E.

postscript: There is no way that your office can overlook this situation because it is a deliberate and intentional conspiracy by the Borough’s elected and appointed officials to give a contract to a preferred contractor at an agreed upon price without a bid or even an unofficial check price. To hide this fact they staged a fraudulent bid document and bid opening. Along with this incident there is no Audited Budget for 2008 available to the public at the Borough Hall. There are many criminal acts and lies in this incident and the Borough is intentionally withholding all financial records from the public. In the past the Borough also illegally awarded contracts in 2 other cases, New World Systems and Professional Computer Systems Company.

ATTORNEY GENERAL 4-13-09

Attorney General Blonder 4-13-09 Gennaro A. Marino P.E.
409 W. Main St.
Kutztown, Pa 19530
610-683-7977
Attorney General Tom Corbett
Strawberry Square
Harrisburg, Pa 17120
Dear Sir,
The Borough of Kutztown stated on the consent agenda for the March 17, 2009 Council Meeting I quote: ratify the issuance of a purchase order to Blonder Tongue Laboratories Inc., Old Bridge, N.J, in the amount of $119,511.87 for machinery and equipment for the transition of the head end to Digital (attached exhibit #1). I notified the Borough Council in writing (attached exhibit #2) that it was illegal to ratify the purchase order because it was for more than $10,000 and was not bid publicly. Note: As per the Borough Code contracts for more than $10,000 must be bid publicly.
The Borough Council removed the purchase order ratification from the agenda and did not vote on it. In a Right to Know Request I asked for a copy of the purchase order and received a reply from Borough Secretary Bonnie Bray which stated the Borough Council did nor ratify it, therefore it does not exist (attached exhibit 3).
This contract was for Hometown Utilicom which is not a Borough Utility, but a Borough Business Venture that sells internet, telephone and cable TV services to the public. And the Borough has been and is reluctant to divulge any financial information about the venture.
I approached Secretary Bray personally and asked to see a copy of the purchase order. She said it did not exist and referred me the head of Hometown Utilicom Frank Caruso who also stated it did not exist. I asked both of them where the exact amount like $119,511.87 came from and neither one could tell me. I contacted the contractor in N.J. and they e-mailed me stating they had no purchase order and stated they had a bid package for digital upgrade from Kutztown (attached exhibit#4).
On seeing the bid package I noticed it wasn’t dated and Secretary Bray stated it does not need a date. I stated the bid package should be dated and the date was deliberately omitted to hide the fact that it was made after the meeting date of the purchase order. This is a deliberate and arrogant act to cover up the attempt to let out a contract without bidding it legally by the Borough Council, Mayor Green, Borough Manager\Treasurer Khalife, Borough Secretary Bray, head of HU Caruso and Borough Solicitors Dietrich and Mooney.
April 8, 2009 the bids were received and opened. There were 2 bids. They were:
Advance Media Technology $104,858.51
Blonder Tongue laboratories $119,511.87
There was a question that maybe Advance Media may have excluded part of the contract. The Council President stated they would have to consult Counsel. The fact that the amount of Blonder Tongue Laboratories’ bid is exactly the same amount as the Purchase order that does not exist means the bid document was given to Blonder Tongue Laboratories Inc. weeks before the Council vote and a month before the bid opening. This is collusion to favor a bidder.
This is a bold and deliberate attempt by Kutztown Borough Officials to defraud the residents of the Borough by letting out such a huge contract without a legal bid. I request a complete investigation of this incident. I have documented all my charges to aid your investigation. Please feel free to contact me should you need any additional information. Thank you.
Sincerely,

Gennaro A. Marino P.E.

RIGGED BID

RIGGED BID 4-23-09 Gennaro A. Marino P.E.
409 W. Main St.
Kutztown, pa 19530
610-683-7977
Mayor Green &
Borough Council Members
Kutztown Borough Hall
45 Railroad St.
Kutztown, Pa 19530
Dear Elected Officials,
Awarding Blonder Tongue Laboratories Inc. a contract of $119,511.87 for the up dating of the head end was the culmination of your conspiracy to rig the bid and award it to a contractor you preferred at a price that was agreed upon before the official bid. In my recent letters to you I have pointed out all your lies and illegal actions you have taken in reference to this matter. To refresh your memory the following are some of the deceitful, illegal and arrogant actions taken by you.
Prior to the March 17,2009 Council Meeting you illegally agreed on a price of $119,511.87 to up date the head end with Blonder Tongue Laboratories Inc and confirmed it in a Purchase Order.
You then noted on the Agenda for the March 17, 2009 Council Meeting that you would ratify the Blonder Tongue Laboratories Purchase Order of $119,511.87.
After receiving my letter stating it was illegal you removed the Purchase Order ratification from the Agenda.
I made a Right to Know Law request to see the Blonder Purchase Order and was notified in writing by Borough Secretary\Right to Know Officer Bonnie Bray that the Purchase Order does not exist. I met personally with Secretary Bray and Information Technology Director Caruso and they both stated that the P.O. did not exist. Neither one of them would tell me where or how the price of $119,511.87 for the March 17, 2009 Council Meeting ratification was acquired.
I notified you that I received an e-mail dated March 21, 2009 from Blonder Tongue Laboratories Inc. that stated there were no open Purchase Orders with Kutztown.
I notified you that I received a copy of a letter from Borough Solicitor Keith Mooney to the Office of Open Records stating the Borough does not have to publish the Purchase Order because the Borough did not act upon it. His letter states the P.O. exists which disagrees with 2 Borough Officials and the contractor that state it does not exist.
Without a Council Meeting and a vote you then illegally decided to let the contract out for bid. The Bid Document contained no date to hide the fact that it was written after the meeting.
Again without a Council Meeting or a vote you called a meeting to open the bids on April 8, 2009. You advertised the meeting in the local newspaper and then ratified it at the April 21, 2009 meeting 13 days after the meeting. It is illegal to pay for a meeting notice, advertise it then ratify it at a later date.
At the April 8, 2009 Committee Meeting the bids were opened. There were 2 bids. One bid from Blonder for $119,511.87 and a bid from Advance Media Technology for $104,858.51. At the meeting I questioned the Bid Document and the bids. Committee Chairman Eidle stated Advance Media left something out and they would have to consult Counsel.
Your next action was to put it on the April 21, 2009 Council Meeting Agenda and without any clarification made a motion, seconded it and Council President Eidle stated before the vote that you all know what this is about meaning you all knew about my letter informing you that the vote was illegal. You have not clarified or explained the differences in the bids for the public and defiantly awarded the contract to Blonder Labs.
To sum up the Borough had agreed on a contract price of $119,511.87 with Blonder Laboratories before the March 17, 2009 Council Meeting. The Contract Price and the Agreement constitute a contract that can be confirmed by the Purchase Order which you and Solicitors Mooney and Dietrich refuse to make public. The price on the P.O. is the same price as the bid price, $119,511.87. This is a criminal act and you can also be sued personally because you knew the Contract award was illegal when you voted on it.
cc: www.marinoreport.com Sincerely,

BLONDER ILLEGAL CONTRACT AWARD

Blonder Labs bid Award 4-21-09 Gennaro A.Marino P.E.
409 W. main St.
Kutztown, Pa 19530
610-683-7977
Kutztown Borough Council &
Mayor Green
Dear Borough Elected Officials,
I see on page 4 of the agenda for the March 21, 2009 Council Meeting, I quote, “Award options one and 2 of the bid for up grading current head-end components from an analogue head-end to an analog and digital head-end to blonder Tongue Laboratories, Inc., Old Bridge New Jersey, in the total bid amount of $119,511.87.”
There was another bid from Advance Media Technology of $104,858.51 for option 1 that was not considered at the Committee Meeting bid opening. Committee Chairperson Eidle stated the committee would have to consult Counsel. The bids were not competitive and can not be justified. I stated at the Bid opening that the bid documents were flawed. There is much more involved with this bid. Namely where is the original Purchase Order for $119,511.87 which is the exact bid amount? Borough Solicitor Mooney states in a letter to the Office of Open Records, which you have, that the Borough does not have to release the P.O. to the public because it is not a Borough record. On the other hand Blonder Tongue Laboratories states that there are no open Purchases for Kutztown and Borough Secretary\Right to Know Officer Bonnie Bray and Information Technology Director Frank Caruso state that the Purchase order does not exist.
Being the amount of the bid and the amount on the Purchase Order were exactly the same ($119,511.87) the Purchase Order has to be made public to see if there is a difference in the bid document and the Purchase Order which could of led to the difference in the bid amounts.
This is the culmination of your actions to award a contract for over $10,000 without a bid to a certain contractor.
There is much more to this incident and this vote by you is illegal without the Purchase Order you all know it. The P.O. and the bid document have to read the same to arrive at the same price. Some of you have seen and have access to the P.O. Why don’t you make it public?
This bid is tainted and should not be approved.
Sincerely,

4-21-09 COUNCIL MEETING AGENDA

4-21-09 Council Meeting Agenda
Kutztown Borough Officials,
On Monday April 20, 2009 at 7:30 pm there was no agenda for tomorrow nights Council Meeting on the Borough website. This means that Council members will see the agenda shortly before they vote. They do not need an agenda because as usual the votes will be unanimous and without any discussions.
As per the Borough Code the Audited Budget for 2008 should be published in a local newspaper and be available for public review 90 days after the end of the fiscal year which was April 1, 2009. As of Friday April 17, 2009 the Budget was not available to the public. I was personally given double talk by assistant treasurer Samilo who could not tell me when the Budget was published in a local newspaper and why the Budget was not available at the desk in Borough Hall.
My last post was in reference to the Blonder Tongue Laboratories Inc. purchase order which the Borough does not want the public to see because it is illegal and possibly criminal. My previous post explains it. I have recently heard rumors that Mayor Sandy Green and some council members have the P.O. in their possession and some work has been already been illegally done by Blonder at the head end.
The above actions are a demonstration of your arrogant, ignorant and irresponsible conduct as to carrying out of your duties. You have no respect for the residents of the Borough, the Borough Code or the laws of the Commonwealth and the Federal Government. The laws are for every one to obey. No one is above the law.
Gennaro A. Marino P.E.