Judge Says He'll 'Butt Out' of Hockey Rink Decision
Basking Ridge resident Doug Wicks fails to convince a judge to order Bernards Township to further study plans for local roller hockey rink.
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A state Superior Court judge in Somerville on Friday said he will "butt out" of the Bernards Township Committee's decision to seek bids for an asphalt, rather than a tile, surface of a closed roller hockey rink.
Specifically, Judge John Coyle denied resident Doug Wicks' motion asking that the township's engineer, Tom Timko, be required to do futher study into whether there is a drainage problem at the rink at Harry Dunham park that could prevent plastic tiles from being placed on the surface now.
Wicks and his attorney, Jonathan Burnham of Glen Gardner, had argued that the township's taxpayers could save up to $100,000 if the township followed the manufacturer's directions properly for installing a plastic rink surface instead.
But, taking a larger view, Coyle said that from a legal viewpoint, "This court has no business telling the township what it's supposed to do." He said the Township Committee members, elected by the public, made a decision to resurface the rink with asphalt after hearing the recommendation of its licensed professional engineer.
Coyle also said it was a "moot" point to try to halt the acceptance of a bid submitted in mid-July, since that bid was rejected earlier this month. John Belardo, attorney for the township, said there has been no decision by the Township Committee whether another proposal will be sought.
Coyle said that Wicks failed to meet the legal requirement that Bernards Township's elected officials had acted in an arbitrary, capricious or unreasonable matter in selecting how to proceed with plans for fixing up the cracked hockey rink.
Attorneys for both sides sparred on the issue of Township Engineer Tom Timko's basis for recommending to the township that an underlying drainage problem must be addressed first before the rink could be resurfaced.
Burnham, arguing Wicks' motion, said that Timko's recommendation had been based on observation and that further study, such as conducting soil borings, should be required prior to spending taxpayer money on addressing drainage at the rink.
Belardo disputed Burnham's assertion, and he said that affidavits had been submitted with court documents showing how Timko had investigated conditions at the rink. Following the decision, he said the engineer had spent 18 months working on plans for the rink, closed for the past two years.
Belardo also said that Wicks had been given an opportunity at a public meeting to state his case for the tiles, and the engineer had fully researched installing tiles as an option. In 2011, one of two sets of bids that the Township Committee rejected last year for the project included an alternate bid for tiles, which came in at a higher cost than for the asphalt surface. That bid was rejected because even the lower bid came in at more than the $125,000 budgeted at that time.
He called Wicks' conclusions about the tiles the "conjecture" of a layman, and said that the resident should have hired his own professional engineer if he wanted to dispute the township's engineer's conclusions.
Wicks has steadfastly maintained that the township has not followed the manufacturer's specifications writing bid proposals for resurfacing with tile. After decision, he said he will consider his options.
This past Tuesday night, Township Administrator Bruce McArthur said that other than a mistake in the bid bond, the $115,000 bid received in mid-July was a legitimate proposal from a legitimate company.
This latest bid also was the first bid to fall within the township's budget, which has been changed over the past two years. The proposed limit on the project was set a $125,000 last year, then increased to $175,000 after initial bids in 2011 came in too high.
In order to bring costs down, the most recent bid advertisement called for the township's public works department assisting with a plan to resurface a cracked asphalt topping, address drainage and replace moldy sideboards, officials said earlier.
lu ann silveri
1:45 am on Saturday, July 28, 2012
I agree completely with Doug Wicks. Seems he is the ONLY person with a solution. and some common sense! It's maddening that a town with such highly educated population cannot get a simple thing like a roller rink fixed and open! You see these rinks in towns all over the state. As I have been following this, it seems silly and
embarrassing!
doug wicks
8:32 am on Saturday, July 28, 2012
What the judge wasn't presented with is the question of whether the town 's professional engineer complied with the requirements of the NJ Professional engineer's Code,Engineer’s code of Conduct NJAC 13:40-3.5. when specifying the tiles contrary to the manufacturer's established engineering standards that are required to be followed under the Code and the building code and what the Board of Professional Engineers is going to do about this violation. Also not brought out is the veracity of the Town Engineer's statement, made under oath and in a judicial proceeding, that he had contacted the professional engineer in the Monmouth county Park Commission, and was supposedly told that their experience with the tiles was unfavorable . Now if the Monmouth engineer does not support Timko's version of this and he didn't actually contact her as she told me then there is a very big problem with the town engineer's veracity.
We'll let the Board of Engineer's determine if Timko violated the Code and we'll also have Timko's version of his contact and discussion with the Monmouth Park's engineer likewise looked into because what we don't need is our town engineer providing false and misleading information to our township committee to rely on when making a decision about spending our taxpayer's hard earned dollars.
doug wicks
8:37 am on Saturday, July 28, 2012
Furthermore the Judge failed to consider the ruling of the NJ Supreme Court when it ruled that the courts have a responsibility to act in the public interest. In the ruling the NJ Supreme Court ruled: " Public officers must be imperious to corrupting influences and they must transact their business frankly and openly in light of public scrutiny so that public may know and be able to judge them and their work fairly, and when such officials do not so conduct themselves and discharge their duties, their actions are inimical and inconsistent with public interest, and not only are they individually deserving of censure and reproach but transactions which they have entered into are contrary to public policy, illegal and should be set aside to fullest extent possible, consistent with protecting rights of innocent parties Driscoll v Burlington-Bristol Bridge Co. 8 NJ 434 [1952]
So under this ruling the court could have acted.
Linda Sadlouskos
9:20 am on Saturday, July 28, 2012
I must note that whether there is disagreement with Mr. Timko's conclusions, there isn't any indication that he is acting other than as professional who is advising the township, and giving a professional opinion.
doug wicks
10:11 am on Saturday, July 28, 2012
Linda: let's have the proper authorities determine if Mr Timko's actions are limited to advising the township in a professional manner -that why these authorities exist. .
HG
1:15 pm on Saturday, July 28, 2012
Doug,
Who are the "proper authorities"? The "New Jersey Society of Professional Engineers" appears to be a private organization. If you have an ethics complaint against the township engineer, it looks like you should contact the New Jersey Society of Professional Engineers and file your complaint. None of this seems to have anything to do with the courts. At that point, I assume that you will be asked to present your evidence. I have only heard insinuation so far. http://www.njspe.org/
Maria
1:30 pm on Saturday, July 28, 2012
I re-iterate my previous point: While everyone bickers the kids are denied the use of the rink for years already while I have paid enough taxes to resurface it 5 times over.....just do it already!
doug wicks
1:36 pm on Saturday, July 28, 2012
The proper authorities are the professional boards in the Department of Community affairs that regulate the professions who have State codes such as Engineer’s code of Conduct that at NJAC 13:40-3.5 Enumeration of prohibited acts (a) Misconduct in the practice of professional engineering or professional land surveying clearly spell out what constitutes misconduct such as 3.5-2. Disregarding the safety, health and welfare of the public in the performance of his or her professional duties: preparing or signing and sealing plans, surveys or specifications which are not of a safe design and/or not in conformity with accepted standards. If the client or employer insists on such conduct, the licensee shall notil'y the proper authorities and withdraw from further servic.e on the
project. or 3.5-12. Rendering engineering or land surveying services
and/or professional opinions when not qualified by training, education and experience in the specific discipline of professional engineering and/or professional land surveying that is involved..
I have brought some professionals before these boards and they have sanctioned them with fines, admonishments and revocation of licenses-so I know it works.
doug wicks
1:42 pm on Saturday, July 28, 2012
Maria-it isn't the bickering that has stalled this project its the utter incompetence of the people specifying and bidding the project- It is obscene for a project to be bid four times without being awarded.
HG
1:49 pm on Saturday, July 28, 2012
Doug,
Then please stop suing the town and insinuating that this engineer has lied. You said, "Now if the Monmouth engineer does not support Timko's version..." when you discussed whether the engineered lied. If you have evidence to the contrary, please bring it to the appropriate authorities. If not, you owe him an apology.
Either way, I'm beginning to see this more as a resident who has a strong opinion not accepting that he 's not actually on the township committee. At some point, you should just stand for election. "Incompetence" (in your opinion) is not corruption. If you don't like who is there, run for office.
doug wicks
2:20 pm on Saturday, July 28, 2012
I'm in the process of bringing it to the authorities -I wanted the case to be ended before it will be brought to the authorities and let them get the evidence because its there. . As for standing for election I have been asked many times and had the support of the organization but I don't want to govern its not my interest-keeping them honest is my interest and in Bernards believe me that's hard work! Just look at the school district where $3 million of taxpayer's money was embezzled right under their noses and no one knew about it?????? Really !!!! Wake up and smell the roses!!!!
HG
3:36 pm on Saturday, July 28, 2012
Your embezzlement example supports my point. You’re not claiming that the township committee and the employees are stealing money. You’ve shown no evidence that anyone is monetarily benefiting from the decision that was made. You’ve shown no corruption. You’re claiming (amongst other things) that the township committee and the employees are incompetent because they won’t go along with your proposal.
As an example, suppose that the school board wanted to hire another language teacher. Someone shows up and states that they shouldn’t do that but should set up a room where all of the students can be monitored and use Rosetta Stone (a language learning software). The software proponent comes in with all sorts of evidence that the software way of learning language is superior to the teaching model. They also provide testimonials from other school districts that are using the software. They also show that the software is considerably cheaper than hiring a teacher. The school board consults with its experts and finds that they want to continue with their teacher-based model of teaching.
In that case, the school board is governing. They were elected by the people of the town. There is no impropriety. The committee made a choice that you don’t like. You want the power to govern (to change that choice) but you don’t want the responsibilities of governing. In doing so, you are costing me money. I don’t need any coffee to see that.
doug wicks
4:24 pm on Saturday, July 28, 2012
That simply was not the case. It’s a matter of the town engineer complying with the established law. The township committee agreed to bid out the tiles in June of 2011 and the tiles were included in the bid documents. So it is clear that the committee wanted the tiles included in the bid package But the town engineer failed to comply with the law and specify it in compliance with the engineering standards set forth by the tile manufacturer, as he is required to do by the NJ Engineer’s code and the NJ building code. The tile manufacturer ‘s recommendation and thus the engineering standard did not require any drainage work, but rather indicated to install the tiles directly on the existing asphalt surface, as was done in more than 200 other installations, but the town engineer ignored and circumvented the engineering standards set forth by the manufacturer by adding excessive and unneeded drainage work not required by the manufacturer’s engineering standards and thus made the bid for the tiles come in at a cost that exceeded the budget amount. Had the engineer simply complied with the manufacturer’s engineering standards the bid would have come in well below budget and been awarded and the project completed in 2011 for a cost less than $100,000 and likely about $80,000. And that was the thrust of my complaint.
With the school district stay tuned in!