Update: The Prosecutor's Office's December 2, 2014 response is on-line here.
November 12, 2014
Geoffrey D. Soriano, Esq.
Somerset County Prosecutor
40 North Bridge St
P.O. BOX 3000
Somerville, New Jersey
via e-mail to Bennett@co.somerset.nj.us and fax to 908-526-8634
Dear Prosecutor Soriano:
More than twenty years ago, I worked with Hillsborough resident Randy Enterline and the local chapter of the New Jersey Libertarian Party to challenge the Hillsborough Township school district's use of taxpayer money to produce a newsletter that urged voters to approve a referendum authorizing $54 million for a new high school. The effort resulted in a September 11, 1995 decision by Administrative Law Judge Solomon A. Metzger holding that the newsletter in question was "very much an advocacy piece." Accordingly, Judge Metzger held that the newsletter, even though it did not explicitly urge voters to vote "yes," was an impermissible expenditure of taxpayers' money because it attempted to sway voters' opinions.
Judge Metzger based his decision on Citizens to Protect Pub. Funds v. Board of Educ. of Parsippany-Troy Hills, 13 N.J. 172 (1953) in which then New Jersey Supreme Court Justice William J. Brennan, Jr. (who later became a Justice of the United State Supreme Court) ruled that school boards could use public funds to educate the voters on ballot initiatives provided that they didn't cross the line into advocating for or against the measure.
Fast forward approximately twenty years: On September 30, 2014, voters in Bound Brook approved a $27 million bond referendum. The school district's web site contains professionally produced fact sheets, flyers, newsletters and press releases that the Bound Brook school district distributed to voters and media prior to the election. My Open Public Records Act (OPRA) request disclosed the school district's $8,400 contract with Zander Consulting, LLC for a media and public relations campaign related to the referendum. A quick check of Zander's web site shows that its clients include several school districts across the state.
While the pieces Zander produced at taxpayers' expense are very carefully worded to not expressly exhort voters to vote in favor of Bound Brook's referendum, the material does accentuate the positives of the referendum while downplaying the negatives. For example, the back page of the Zander-produced newsletter asks "It sounds too good to be true. How will our taxes not increase if Bond Proposal #1 is approved?" The newsletter goes on to state: "The school district is paying off the previous bond. If approved, the new debt will replace the old bond with no additional tax increase to residents." The "Top 10 Referendum Facts" sheet produced by Zander discloses that the existing bond "is about to be paid in full."
An opponent of the referendum might would likely want to emphasize that while replacing the old bond with a new one might not greatly increase the amount of the tax burden, it would clearly extend the duration of the burden since the old bond would, regardless of the referendum's outcome, be soon paid off. But, the opponents of the referendum did not have the benefit of $8,400 of taxpayers' money to prepare and mail their newsletter out to every Borough household thus getting its spin of the facts in voters' hands. Likewise the opponents didn't have public funds available to it for professionally developed "talking points" prepared for presentation at professionally coordinated "referendum open houses" or for "backpack stuffers" to be distributed to parents through their children.
School districts that use public money to purportedly "educate" voters will invariably spend it to send a lopsided message that promotes passage of the referendum. They will hire professional public relations consultants who, being intimately familiar with the Parsippany-Troy Hills case, will come as close to the education-versus-advocacy line as possible to spin the message in favor of a "yes" vote while retaining a plausible claim that the school board's true intention for retaining them was merely to present the voters with neutral facts.
I bring this issue to your office's attention because I don't think that filing petitions with the Department of Education is a sufficient remedy for citizens who feel aggrieved by their school boards' hiring of professional media relations firms to promote their bond referenda. In the Hillsborough case, all that Judge Metzger did, after the bond was passed, was simply declare that the board was in violation and require it to have bond referenda that might to come up during the next year "reviewed in advance by the full Board in open session with the assistance of counsel." This is a slap on the wrist that I'm sure the Hillsborough Board was (or the Bound Brook Board would be) happy to accept in exchange for the bond referendum being ultimately approved.
Given that school boards in Somerset County will continue to campaign for new debt and, accordingly, will continue to use public relations firms to get their version of the facts presented to the voters, I believe that it would be appropriate for your office to take a position or issue some guidelines on this issue.
Thank you for your attention to this matter. I look forward to hearing from you.
Very truly yours,
Somerset, New Jersey