Contractor ordinance vetoed by mayor
Council can override veto by two-thirds vote
BY ERIN O. STATTEL Staff Writer
The responsible contractor policy ordinance approved by the Matawan Borough Council may not become law in the borough after all.

Mayor Paul Buccellato submitted a letter of veto to Borough Clerk Jean Montfort dated Dec. 24 stating numerous reasons why he is in opposition of ordinance 08-27, which would require borough contractors to participate in Class A apprenticeships as well as other stipulations.

"The way this ordinance was presented to the council and the borough at a workshop meeting in November, and prior to that meeting was never discussed or mentioned, and to have it brought up and discussed so quickly, I have concerns about the speed it was being moved forward with by certain council members," Buccellato said in a Dec. 24 interview.

"I think the whole process that this ordinance went through is open to discussion. I question why it was put through in the last month when its chief proponent was stepping off the council."

Under ordinance 08-27, a responsible contractor policy will "require contractors and subcontractors to participate in established, formal apprenticeship training programs as a condition of bidding, for the purpose of both promoting successful project delivery and ensuring future workforce development."

Councilman William Malley, a 13-year member of the United Association of Plumbers and Pipefitters, proposed the ordinance.

The motion to adopt the ordinance passed by a unanimous vote by Malley, whose council term ends today, and Councilmen Robert Bunyon and Joseph Mullaney.

Councilwoman Linda Clifton abstained from the vote, citing a family member's affiliation with a union.

Councilman Michael Cannon stepped down during the discussion and the vote, citing a conflict of interest.

Councilman Kevin Mendes was absent from the meeting.

The ordinance requires that the contracting firm participate in a Class A apprenticeship program for each separate trade or classification in which it employs craft employees, and applies to any contractors performing work valued at more than $25,000 on any public works facility or public works project.

Buccellato said he did not understand why the ordinance had to be instituted so quickly.

"I just didn't understand why it had to be done so quickly since [Malley] was stepping off the dais Dec. 31," he said. "Furthermore, the Mercer County ordinance that he referenced differed dramatically from this ordinance, and that one doesn't even mandate a Class A apprenticeship."

In the letter of veto, Buccellato refers to the Mercer County ordinance that Malley said he researched as the basis for Matawan's responsible contractor policy.

"The Mercer County ordinance that Councilman William Malley referenced during the Dec. 2 workshop discussion differs from the one passed by the Matawan Borough Council on Dec. 16, 2008, as follows," Buccellato stated.

"The Mercer County ordinance was [established] and adopted as a policy. This is indicated in the title of the ordinance, which is: 'An Ordinance of the County of Mercer, New Jersey, to Establish and Adopt a Responsible Contractor Policy,' " Buccellato listed in the letter. "The Mercer County policy ordinance does not indicate or set a project dollar amount at which point the requirements would need to be [met], […]."

"The Mercer County policy ordinance does not require that a contractor participate in a Class A apprenticeship program […]; The Mercer County policy ordinance has no provision for a 30-day review process after a Notice of Intent contract is issued, as provided in the ordinance adopted by the Borough of Matawan on Dec. 16," the letter listed.

According to his letter, Buccellato cited "an undue financial burden" as a potential liability for the borough.

"The ordinance as written and adopted by the Borough Council could place an undue financial burden on the borough if the pool of contractors that would be allowed to bid on borough projects above $25,000 is limited to those contractors that participated in the required apprenticeship program indicated in the ordinance," the letter states.

"Additionally, no information was submitted by Councilman William Malley for review and discussion by both the governing body and public regarding the potential cost impact that the ordinance may or would have on the borough. This information was recommended by the borough attorney in an e-mail that was distributed to the mayor and council."

Buccellato also expressed concern over the legality of the borough turning away contractors simply because they do not participate in Class A apprenticeship programs.

"The ordinance could expose the borough to potential litigation regarding its validity and whether the borough has the right and authority to limit bidders to those that participate in an apprenticeship program," Buccellato stated in the letter.

The letter also addressed Buccellato's concern that Malley's argument against hiring non-apprenticed contractors was insufficient.

"No information or proof was submitted by Councilman William Malley that would indicate or substantiate the assertion that work performed by contractors that may not participate in an apprenticeship program would be substandard to those contractors that do participate in any program," Buccellato stated in the letter.

Buccellato referenced Borough Attorney James Aaron's advice to the council members prior to the Dec. 2 Borough Council meeting to step down from the dais should they have affiliations with unions that could benefit from the passage of such an ordinance.

"Additionally, my veto is also based on the fact that the Borough Attorney (James Aaron, Esq.) provided the governing body with his legal opinion on potential conflicts that Councilman William Malley had with this matter, since he is a member of Local 9 Plumbers and Steamfitters Union and which advice Councilman Malley chose to and elected to disregard," the letter states. "The fact that the original copy of the ordinance was faxed from the office of Local 9 should have further precluded him from participating and voting on this ordinance."

At the Dec. 2 meeting, Aaron, of Ansell Zaro Grimm and Aaron, Ocean Township, advised council members against speaking about the matter if they have an affiliation with unions that endorse Class A apprenticeships.

"There is an issue here, because there appears to be a conflict, because members of unions that could be affected by this ordinance sit on this council and therefore those council members should not participate in these discussions," Aaron explained at the Dec. 2 meeting.

Malley refused to abstain from the discussions and the votes, saying that he did not agree with some of the information about unions provided by the borough attorney.

In a Dec. 5 interview, Malley said a memo from the borough attorney's office was attached to the ordinance, reflecting percentages of union and nonunion participation in apprenticeship programs.

"The memo cited that 80 percent of participants in apprenticeship programs are union members and only 20 percent are nonunion," Malley explained in the interview. "I don't believe that to be true. I believe those numbers are wrong and that the numbers are actually reversed."

Malley also emphasized during the interview that the ordinance was not meant to be pro-union.

"The point of the ordinance is not whether contractors are union or nonunion," he said. "The driving force of the ordinance is that we have the best quality contractors working for the borough. We ask our staff to continue their educations and we reward them when they do, so why not ask that of our contractors?"

Buccellato said in the Dec. 24 interview that his reasoning behind the veto was not "anti-union."

"I believe the intent of this ordinance needs to really be discussed further so we can all understand any financial impact to the borough," Buccellato stated. "This veto is not anti-union by any means at all; it is about getting all the information necessary about its effect on the borough."

According to the Borough of Matawan Code Book, Chapter Two, Section 2-6.3, an adopted ordinance is presented to the mayor five days after its passage, Sundays excluded, and "if the mayor approves the ordinance, he shall sign it within five days after he receives it, Sundays excepted, and file it with the clerk. If the mayor does not approve the ordinance, he shall return it within five days after he receives it, Sundays excepted, with his objections in writing, to the clerk."

The borough's code book explains that the veto may be overridden with a vote from the council.

"If two-thirds of all the councilmen at the next meeting ... or at any subsequent meeting to which they postpone such reconsideration, vote to pass the ordinance or the vetoed part over the veto of the mayor, the ordinance will take effect."

Councilmen Bunyon and Malley step down at the conclusion of their terms Dec. 31. Councilmen-elect Tom Fitzsimmons and Joe Urbano, both Republicans, will replace the two Democrats at the reorganization meeting Jan. 1.