Inside the Bergen PAC lawsuit

In a few days, Kathe Donovan will be on both ends of a lawsuit she filed this week seeking to negate a $2.6 million bandstand bailout.

The Bergen County executive-elect, who takes over in the New Year, is charging the freeholders and the county with duping the public out of a hearing and vote to buy a performing arts center in Englewood, Bergen PAC’s John Harms Center.

But the public advertising for the meeting where the vote took place was correct, at least in one instance, according to the freeholder clerk.

Donovan’s lawsuit alleges that the county violated the Open Public Meetings Act by conducting their business without properly noticing the public on Wednesday, Dec. 8. At the meeting the Democrat’s freeholder majority passed a $2.4 million bond ordinance that funded a $2.6 million bailout of Bergen PAC, and Donovan wants the vote invalidated.

The freeholders conducted their business at a 4:30 p.m. meeting, which was noticed in the newspaper per the law, including an open public comment session at 7:30.

And although the meeting started 15 minutes late, the board followed their normal schedule, nothing crafty claim Bergen Democrats. Every month the board meets at specified times; on the second Wednesday, at 4:30, as they did.

But the county must also advertise all ordinances for passage, and the ad announcing the hearing on the Bergen PAC bonding ordinance announced the meeting would be at 7:30.

Freeholder Board Clerk Jennifer Kleinman also confirmed that the agenda was posted the Friday prior with the correct time on it.

Unfortunately, the fact that the ordinance ad had the wrong time on it may bear on the court to cancel the meeting’s outcomes as a result of a OPMA violation.

And that means the clock has already expired on the board’s chance to cure their mistake.

Normally, the board can hold the meeting again, properly noticed, and re-conduct their business. But this board is changing in two days.

The timing of the lawsuit was strategic, according to a GOP source, not allowing the Democrats to re-vote the bonding before the end of the session.

“There’s no way in God’s green creation that they thought anybody in the Republican Party was going to vote for this,” said GOP Freeholder Rob Hermansen. “Seems like we rushed to judgment on this thing.”

The two Republican freeholders, John Driscoll and Hermansen, were not present at the meeting, but both were present at the first reading of the ordinance on Tuesday, Nov. 23.

Hermansen, at the time, was critical of the rushed bonding to cover for a potential loan default by the Bergen PAC management. The problem for the county: The Bergen PAC loan is on the Bergen County books at the Bergen County Improvement Authority.

“I should never have been done then,” Hermansen said of the original loan, nearly a decade ago. “They had everything figured out (then) they got behind on the payments.”

With a balloon payment lurking for the arts center, Bergen County planned a purchase and leaseback agreement, with bonding to cover the buy.

Hermansen said the county should have looked first at refinancing the loan, leaving the PAC on the hook going forward. “Make them continue to make the payments,” he said, “instead of taking them off the hook on this.”

“Keep on the onus on them,” he said of his objections. “Don’t put it on the taxpayer.”

And if the lawsuit nullifies the original bonding agreement – with new Republican Freeholders John Mitchell, Maura DeNicola, and John Felice being sworn in on Saturday – Hermansen said, “Everything should be on the table now.”

“What happens if they default, what happens if we refinance, what happens if we take it over,” he said quizzically. “I just don’t like the fact when something gets rammed down people’s throats to do it.”

Outgoing Freeholder Jim Carroll said, a proponent of the bonding bailout, said, “We thought it was the best solution. It’s amazing, they torpedo that yet they don’t say anything about sending out letters (terminating two dozen at-will employees).”

Inside the Bergen PAC lawsuit