Some questions for the “transparency” committee…

With the fevered effort of a dog chasing its own tail, a so-called “transparency” committee (made up of Freeholder boss George Graham and his “entourage” to watch over a Freeholder Board dominated by Graham) has predictably produced a document claiming that said Freeholder Board is “transparent”.  Hey, they do this kind of crap in third world countries – appointing yourself and your cronies to keep watch on yourself and your cronies:

“The committee to watch the committee will be made up of members of the committee.”

Well, Sussex County isn’t the third world nation of Grahamistan.  Rather than spend any more tax dollars patting themselves on the back, they need to go back and answer the BIG question about the recent pissing away of $514,000 of taxpayers’ money and their continued failure to come up with a plan and to stop running out the clock on taking legal action against those who perpetrated the solar scam.

What is the BIG question?

Well, the truth is there are a number of BIG questions regarding this debacle.  But one really BIG, nagging question is the one that has been asked again and again by Byram Councilman Harvey Roseff:  Who selected Boxer?  How was the contract negotiated?  And was the Boxer report itself a cover-up of Boxer’s office's role in the solar scam?

Remember the Freeholder Board’s reliance on the report by New York City lawyer Matthew Boxer to assign blame and set a legal course of action.  It will be remembered that Boxer himself was a player in the scandal, his office having signed-off on the solar project and so ensuring that it would move forward with the State’s seal of approval.  We all know the result:  Suffer the taxpayers.

For those of you for whom this is a bit foggy, let’s go through it all, once again.  In February 2011, the Sussex County Freeholder Board authorized a shared services agreement with the Morris County Improvement Authority (MCIA) to implement the solar project.  In July 2011, the project was sent to the Office of the State Comptroller for review. At the time, Matthew Boxer was the State Comptroller and responsible for that office.  After reviewing all the project documents, the following month (August 2011), the project was given the okay by the Office of the State Comptroller. Based on this review, the Sussex County Freeholders went forward with the project.  

Later, in January 2016, Matthew Boxer would be given a no-bid contract to review the solar project that his office had signed-off on in August 2011.  How that contract came to be awarded to Mr. Boxer remains a mystery.

If you read Matthew Boxer's 62-page report on the solar scandal – which cost Sussex County taxpayers $500,000 ($8,064 per page) – he never once mentions the role of his former office, the Office of the State Comptroller, in the approval process.  The word "comptroller" doesn't appear in his report, even once, despite the central role it played in the scandal and in spite of the fact that Matthew Boxer ran the office when it was responsible for reviewing the solar contract.

In his 62-page report, Mr. Boxer lays bare his office's misfeasance:

"The ability of the County to intercede or assist in the dispute between Sunlight and PPM was further hindered by the County’s lack of legal standing in the operative contract documents.  For example, the County had no contract with 

Sunlight, only the MCIA did.  The County was even further removed contractually from PPM; neither the County nor the MCIA had a contract with PPM, only Sunlight did... In short, the County was underwriting the Solar Project, but was not in a position to affect it or protect it.

Typically, when a contractor on a public construction project is unable or unwilling, for financial reasons or otherwise, to complete the project, the public entity may resort to the performance bond that has been posted by the contractor.  A performance bond is a commitment made by an insurance company or bank, known as a 'surety,' to compensate the contracting entity financially or otherwise carry out the completion of the project in cases where the contractor defaults on its obligations...   In the case of the Solar Project, a surety bond was posted that contained a commitment from a well-known, national insurance company.  While the bond technically complied with legal requirements, the terms of the specific bond that was posted made the County’s invocation of the bond difficult, if not impossible.  First, despite the massive financial commitment the County had made on this project, the County was not listed as a beneficiary (known as the 'obligee') on the bond.  Instead, the MCIA and a Sunlight-related entity were listed as the obligees.  Thus, the County had no explicit standing to invoke the bond or to seek compensation under the bond.  It was reliant in this regard on the MCIA."  

In August 2011, Matthew Boxer's office (the Office of the State Comptroller) approved the terms of the 196-page contract. Below is a the table of contents of the contract forwarded to and approved by the Office of the State Comptroller:

THE MORRIS COUNTY IMPROVEMENT AUTHORITY

MORRIS COUNTY RENEWABLE ENERGY PROGRAM 

(COUNTY OF SUSSEX PROGRAM), SERIES 2011

__________________

______

REQUEST FOR PROPOSALS

For a Developer of Photovoltaic Systems with respect to certain Local Government Facilities in the County of Sussex, New Jersey

Dated [Post Date] 

TABLE OF CONTENTS

EXHIBITS

Exhibit 1          Notice of RFP  .................................................................................................... E1-1

Exhibit 2          Respondent Checklist ........................................................................................ E2-1

Exhibit 3          Proposed Schedule for Series 2011 Program .................................................... E3-1

ARTICLE I

INTRODUCTION, OVERVIEW, FINANCING OPTIONS

AND DEFINITIONS

Section 1.1      Introduction and Overview .................................................................................... 1

Section 1.2      Financing Options ................................................................................................... 9

Section 1.3      Authority Financing Option .................................................................................... 9

Section 1.4      Company Services Under the Authority Financing Option .................................. 21

Section 1.5      Company Financing Option .................................................................................. 21

Section 1.6      Company Services Under the Company Financing Option................................... 23

Section 1.7      Material Changes to RFP....................................................................................... 24

Section 1.8      Definitions............................................................................................................ 24

ARTICLE II

INITIAL ACTION BY RESPONDENTS

Section 2.1      RFP........................................................................................................................ 28

Section 2.2      Authority Contact Persons ................................................................................... 28

Section 2.3      Respondent Registration ...................................................................................... 29

ARTICLE III

PROPOSED SCHEDULE

Section 3.1      RFP and Notice of RFP .......................................................................................... 30

Section 3.2      Pre-Proposal Submission Meeting........................................................................ 30

Section 3.3      Site Tours of Local Unit Facilities .......................................................................... 30

Section 3.4      Proposed Schedule for Series 2011 Program ....................................................... 32

ARTICLE IV

CERTAIN INFORMATION TO BE INCLUDED IN PROPOSALS

Section 4.1      Pricing and Other Terms of Forms A-1-a and A-1-b ............................................. 34

Section 4.2      Renewable Energy Projects .................................................................................. 45

Section 4.3      Reserved............................................................................................................... 45

ARTICLE V

PROCEDURES FOR SUBMISSION OF PROPOSALS

Section 5.1      Substantive Requirements for Proposals ............................................................. 46

Section 5.2      Permitted Inclusions in Proposals ........................................................................ 48

Section 5.3      Proposals Governed by Applicable Law ............................................................... 49

Section 5.4      Procedural Requirements and Other Matters for Proposals ............................... 50

Section 5.5      Clarification of Proposals ...................................................................................... 54

Section 5.6      No Tax Advice Offered .......................................................................................... 55

ARTICLE VI

AWARD TO SUCCESSFUL RESPONDENT

Section 6.1      Submitted Proposals ............................................................................................. 56

Section 6.2      Evaluation Criteria ................................................................................................ 56

Section 6.3      Basis of Award ...................................................................................................... 58

Section 6.4      Rejection of Proposals........................................................................................... 59

Section 6.5      Conditional Award................................................................................................. 59

ARTICLE VII

CERTAIN GENERAL MATTERS

Section 7.1      Exhibit 2  Checklist ............................................................................................... 60

Section 7.2      Proposal and Construction Bonding ..................................................................... 61

Section 7.3      Insurance.............................................................................................................. 65

Section 7.4      Indemnification.................................................................................................... 66

Section 7.5      Labor...................................................................................................................... 66

Section 7.6      Licenses and Laws.................................................................................................. 71

Section 7.7      Background Check…………………………………………………………….....72

APPENDICES

Appendix A     Attach Forms of Program Documents and RFP Authorizing Resolution............. A-1

      Company Documents:

Appendix A-1              PPA............................................................................................ A-1-1

Appendix A-2              Company Lease Agreement..................................................... A-2-1

Appendix A-3              Company Continuing Disclosure Agreement........................... A-3-1

Appendix A-4              Company Pledge Agreement.................................................... A-4-1

Appendix A-5              Form of Master Local Unit License Agreement........................ A-5-1

      Other Program Documents:

Appendix A-6              Authority Bond Resolution....................................................... A-6-1

Appendix A-7              County Guaranty Agreement................................................... A-7-1

      Authority RFP Authorizing Resolution:

Appendix A-8              Authority Resolution adopted July 20, 2011 

            ........... Authorizing Issuance of RFP..................................................... A-8-1

Appendix B     Description of Projects......................................................................................... B-1

Appendix B-1              Renewable Energy Projects...................................................... B-1-1

                                          Conceptual Site Plans

                                          Site Roof Warranty Information

Appendix B-2              Reserved (No Capital Improvement Projects).......................... B-2-1

Appendix B-3              Estimated Load Data by Local Unit Facility............................... B-3-1

Appendix C     Scope of Work and Technical Specifications ..................................................... C-1

Appendix D     Forms to be Included in Exhibit A of Proposals................................................. D-1

Appendix D-A-1-a[i]       Proposal Form A-1-a;Authority Financing 

                                    PPA Price Quotation Sheet................................................ D-A-1-A-1

Appendix D-A-1-b[ii]      Proposal Form A-1-b; Company Financing 

                                    PPA Price Quotation Sheet …………………………….D-A-2-B-1

Appendix D-A-2          Proposal Form A-2; Respondent Information / 

                                    Cover Letter Form…………………………………………D-A-2-1

Appendix D-A-3          Proposal Form A-3; Consent of Surety and Surety Form..... D-A-3-1

Appendix D-A-4[iii]        Proposal Form A-4; Agreement for Proposal Security 

                                    In Lieu of Proposal Bond....................................................... D-A-4-1

Appendix D-A-5[iv]        Proposal Form A-5; Proposal Bond....................................... D-A-5-1

Appendix D-A-6          Proposal Form A-6; Ownership Disclosure Statement......... D-A-6-2

Appendix D-A-7          Proposal Form A-7; Non-Collusion Affidavit......................... D-A-7-1

Appendix D-A-8          Proposal Form A-8; Consent to Investigation....................... D-A-8-1

Appendix D-A-9          Proposal Form A-9; Statement of Respondent’s 

                                    Qualifications........................................................................ D-A-9-1

Appendix D-A-10        Proposal Form A-10; Acknowledgement of 

                                    Receipt of Addenda (if any)................................................ D-A-10-1

Appendix D-A-11        Proposal Form A-11; Sealed Proposal Checklist 

                                    (See Exhibit 2)..................................................................... D-A-11-1

Appendix D-A-12[v]       Proposal Form A-12; Authorization for Background 

                                    Check................................................................................... D-A-12-1

Appendix E     Estimated Basic Lease Payment Schedule (including sources and uses)............. E-1

                              Estimated Basic Lease Payment Schedule allocable to Series 2011A Bonds

                              Estimated Basic Lease Payment Schedule allocable to Series 2011B Note

                              Aggregate Basic Lease Payment Schedule, allocable to Series 2011 Bonds

                              Estimated Sources and Uses, Series 2011A Bonds

                              Estimated Sources and Uses, Series 2011B Note

                              Aggregate Sources and Uses, Series 2011 Bonds

Appendix F     County Deficiency Option..................................................................................... F-1

                              Option F-1

                              Option F-2

In light of his office's blatant failures, Matthew Boxer should be asked the following question: Do you believe that the Office of the State Comptroller let down the taxpayers of Sussex County?

In April 2015, the Office of the State Comptroller turned down Sussex County's request to review the solar project.  No official reason was ever provided.  However, there is an "unofficial" explanation provided in a May 26, 2015, memo from the MCIA.  It goes as follows:

"The County is still awaiting a written letter from the Office of the State Comptroller, as a follow up to the phone conference... on April 27, 2015.  In the absence of the written response, and as a reminder, the State representatives (OSC) advised the County that it undertook an internal review of the Solar II Program and conducted its own analysis and evaluation of the Solar II Program.  Following this review process, the Comptroller's Office concluded that, based upon the information... forwarded to them, it was not going to pursue a further review of the Solar II Program."

It seems the Office of the State Comptroller had conducted a review of the solar project it had signed-off on, but was unwilling to share said review. The memo continued:

"The Comptroller's Office noted several factors in its post-review decision not to review the matter further:

a. Noting that the Solar Programs and original agreements were a local policy decision, approved by the County Freeholders, and;

b. That in the view of the Comptroller's Office, both the change in the SREC Market, as well as the legal dispute between the developer and the contractor (SunLight/MasTec) contributed to the Solar II Program not proceeding as originally expected."

A "post-review decision not to review the matter...”  Mr. Boxer needs to explain why.

The Office of the State Comptroller's refusal to share the review that they had already conducted or to take that review further was a loss to the taxpayers of Sussex County, but a boon to former State Comptroller Matthew Boxer, who was now being touted as the onlyman to do a review that was to be paid for by fresh taxpayer's money.

In January 2016 a new Freeholder Board in Sussex County – now controlled by the very same individuals who had been for months advocating for the selection of Matthew Boxer as the onlyman to review the solar project – handed Matthew Boxer a contract for $500,000 to conduct said review.

The manner in which this contract was provided to Mr. Boxer was unusual, and remains unexplained to this day.  In a letter, dated January 19, 2016, a Sussex County Freeholder wrote to Mr. Boxer's firm inquiring how Boxer obtained the contract.  Here is what he wrote:

"Dear Mr. Boxer,

On New Years’ Eve, Dec 31, 2015, I received a phone call, about 5:00 PM, informing me that a resolution had been submitted to the Sussex County Clerk of the Board regarding an agreement with Lowenstein Sandler, LLC to provide professional services to conduct a review of the facts and circumstances involved in the Sussex County Renewable Energy Program.

This was the first time I had any knowledge of this negotiation and agreement.

I spoke to our Freeholder Director, the other sitting Freeholders, our County Administrator, our County Council, our Clerk of the Board, our County Treasurer, our Director of the Department of Central and Shared Services, our Purchasing Agent, and our assistant purchasing agent. 

None of these individuals, except Freeholder George Graham, admitted to having any knowledge of these negotiations, conversations, meetings or agreements with your law firm before 5:00 PM on New Years’ Eve 2015. 

...I believe that the governing body has had no part in negotiating an agreement with your firm.

 I would like to know, and now ask, who represented Sussex County in these negotiations, especially the negotiation of the 'blended' hourly rate and the understanding that the Board of Chosen Freeholders has provided that fees are not to exceed $500,000.00? "

To this day, this gentleman – who has since retired from the Freeholder Board – has never received the courtesy of a reply.  Why not? And note that, at the time, this Freeholder – as a member of the Board – was Mr. Boxer's client.  What fears would lead Mr. Boxer to ignore a perfectly legitimate request by his client?

Sussex County taxpayers lost over $20 million in the solar scandal.  Then they paid another half million dollars on a 62-page report authored by one of key players in the scandal – and nobody can say how this lawyer got hired!  Now that report is going to be used as the roadmap for future legal action by Sussex County that could cost taxpayers millions more in legal bills (and maybe let the culprits off the hook).

Councilman Roseff is right to raise questions.  These are basic questions that need to be answered… before any more taxpayers’ money is spent. 

---

[i]Required if Proposal utilizes Authority Financing Option.

[ii]Required if Proposal utilizes Company Financing Option.

[iii]Provide EITHER (i) Form A-4 (Proposal Funds) or (ii) Form A-5 (Proposal Bond); found in Appendices D-A-4 or D-A-5, as applicable.  See Section 7.2(a) of RFP.

[iv]See prior footnote.

[v]Provided by Successful Bidder only.  To be supplied upon award of Successful Bidder.

Was the Boxer report a cover-up of his office's role in solar scam?

With regards to the on-going problem of the Sussex solar scandal, there are indications that the Sussex County Board of Chosen Freeholders might use its lame-duck session to assign blame and set a legal course in order to tie-the-hands of the popularly elected, incoming Board.  This would explain the rush to sign a three-year contract with a new County Attorney, a lawyer so painfully conflicted that any objectively-minded person would need to question why he was chosen in the first place.  But when you control the lawyer you set the direction of the litigation.   

That’s the first part.  The second part is the Board’s reliance on the report by New York City lawyer Matthew Boxer.  It will be remembered that Boxer himself was a player in the scandal, his office having signed-off on the solar project and so ensuring that it would move forward with the State’s seal of approval.  We all know the result:  Suffer the taxpayers. 

For those of you for whom this is a bit foggy, let’s go through it all, once again.  In February 2011, the Sussex County Freeholder Board authorized a shared services agreement with the Morris County Improvement Authority (MCIA) to implement the solar project.  In July 2011, the project was sent to the Office of the State Comptroller for review. At the time, Matthew Boxer was the State Comptroller and responsible for that office.  After reviewing all the project documents, the following month (August 2011), the project was given the okay by the Office of the State Comptroller. Based on this review, the Sussex County Freeholders went forward with the project.   

Later, in January 2016, Matthew Boxer would be given a no-bid contract to review the solar project that his office had signed-off on in August 2011.  How that contract came to be awarded to Mr. Boxer remains a mystery. 

If you read Matthew Boxer's 62-page report on the solar scandal – which cost Sussex County taxpayers $500,000 ($8,064 per page) – he never once mentions the role of his former office, the Office of the State Comptroller, in the approval process.  The word "comptroller" doesn't appear in his report, even once, despite the central role it played in the scandal and in spite of the fact that Matthew Boxer ran the office when it was responsible for reviewing the solar contract. 

In his 62-page report, Mr. Boxer lays bare his office's misfeasance: 

"The ability of the County to intercede or assist in the dispute between Sunlight and PPM was further hindered by the County’s lack of legal standing in the operative contract documents.  For example, the County had no contract with 

Sunlight, only the MCIA did.  The County was even further removed contractually from PPM; neither the County nor the MCIA had a contract with PPM, only Sunlight did... In short, the County was underwriting the Solar Project, but was not in a position to affect it or protect it. 

Typically, when a contractor on a public construction project is unable or unwilling, for financial reasons or otherwise, to complete the project, the public entity may resort to the performance bond that has been posted by the contractor.  A performance bond is a commitment made by an insurance company or bank, known as a 'surety,' to compensate the contracting entity financially or otherwise carry out the completion of the project in cases where the contractor defaults on its obligations...   In the case of the Solar Project, a surety bond was posted that contained a commitment from a well-known, national insurance company.  While the bond technically complied with legal requirements, the terms of the specific bond that was posted made the County’s invocation of the bond difficult, if not impossible.  First, despite the massive financial commitment the County had made on this project, the County was not listed as a beneficiary (known as the 'obligee') on the bond.  Instead, the MCIA and a Sunlight-related entity were listed as the obligees.  Thus, the County had no explicit standing to invoke the bond or to seek compensation under the bond.  It was reliant in this regard on the MCIA."   

In August 2011, Matthew Boxer's office (the Office of the State Comptroller) approved the terms of the 196-page contract. Below is a the table of contents of the contract forwarded to and approved by the Office of the State Comptroller: 

THE MORRIS COUNTY IMPROVEMENT AUTHORITY

MORRIS COUNTY RENEWABLE ENERGY PROGRAM 

(COUNTY OF SUSSEX PROGRAM), SERIES 2011

_____________ 

REQUEST FOR PROPOSALS

For a Developer of Photovoltaic Systems with respect to certain Local Government Facilities in the County of Sussex, New Jersey

Dated [Post Date] 

TABLE OF CONTENTS 

EXHIBITS

Exhibit 1          Notice of RFP  ............................................................................................... E1-1

Exhibit 2          Respondent Checklist .................................................................................... E2-1

Exhibit 3          Proposed Schedule for Series 2011 Program ................................................. E3-1

ARTICLE I

INTRODUCTION, OVERVIEW, FINANCING OPTIONS

AND DEFINITIONS

Section 1.1      Introduction and Overview ............................................................................... 1

Section 1.2      Financing Options .............................................................................................. 9

Section 1.3      Authority Financing Option ............................................................................... 9

Section 1.4      Company Services Under the Authority Financing Option ............................. 21

Section 1.5      Company Financing Option ............................................................................. 21

Section 1.6      Company Services Under the Company Financing Option.............................. 23

Section 1.7      Material Changes to RFP.................................................................................. 24

Section 1.8      Definitions....................................................................................................... 24

ARTICLE II

INITIAL ACTION BY RESPONDENTS

Section 2.1      RFP.............................................................................................................. 28

Section 2.2      Authority Contact Persons ......................................................................... 28

Section 2.3      Respondent Registration ............................................................................ 29

ARTICLE III

PROPOSED SCHEDULE

Section 3.1      RFP and Notice of RFP ..................................................................................... 30

Section 3.2      Pre-Proposal Submission Meeting................................................................... 30

Section 3.3      Site Tours of Local Unit Facilities ..................................................................... 30

Section 3.4      Proposed Schedule for Series 2011 Program .................................................. 32

ARTICLE IV

CERTAIN INFORMATION TO BE INCLUDED IN PROPOSALS

Section 4.1      Pricing and Other Terms of Forms A-1-a and A-1-b ........................................ 34

Section 4.2      Renewable Energy Projects ............................................................................. 45

Section 4.3      Reserved.......................................................................................................... 45

ARTICLE V

PROCEDURES FOR SUBMISSION OF PROPOSALS

Section 5.1      Substantive Requirements for Proposals ........................................................ 46

Section 5.2      Permitted Inclusions in Proposals ................................................................... 48

Section 5.3      Proposals Governed by Applicable Law .......................................................... 49

Section 5.4      Procedural Requirements and Other Matters for Proposals .......................... 50

Section 5.5      Clarification of Proposals ................................................................................. 54

Section 5.6      No Tax Advice Offered ..................................................................................... 55

ARTICLE VI

AWARD TO SUCCESSFUL RESPONDENT

Section 6.1      Submitted Proposals ................................................................................... 56

Section 6.2      Evaluation Criteria ...................................................................................... 56

Section 6.3      Basis of Award ............................................................................................ 58

Section 6.4      Rejection of Proposals................................................................................. 59

Section 6.5      Conditional Award....................................................................................... 59

ARTICLE VII

CERTAIN GENERAL MATTERS

Section 7.1      Exhibit 2  Checklist .......................................................................................... 60

Section 7.2      Proposal and Construction Bonding ................................................................ 61

Section 7.3      Insurance......................................................................................................... 65

Section 7.4      Indemnification............................................................................................... 66

Section 7.5      Labor................................................................................................................. 66

Section 7.6      Licenses and Laws............................................................................................. 71

Section 7.7      Background Check……………………………………………….....72

APPENDICES 

Appendix A     Attach Forms of Program Documents and RFP Authorizing Resolution........... A-1 

      Company Documents: 

Appendix A-1              PPA....................................................................................... A-1-1

Appendix A-2              Company Lease Agreement................................................ A-2-1

Appendix A-3              Company Continuing Disclosure Agreement...................... A-3-1

Appendix A-4              Company Pledge Agreement............................................... A-4-1

Appendix A-5              Form of Master Local Unit License Agreement................... A-5-1 

      Other Program Documents:

Appendix A-6              Authority Bond Resolution.................................................. A-6-1

Appendix A-7              County Guaranty Agreement............................................. A-7-1

      Authority RFP Authorizing Resolution:

Appendix A-8              Authority Resolution adopted July 20, 2011 

            ........... Authorizing Issuance of RFP................................................ A-8-1

Appendix B     Description of Projects................................................................................... B-1 

Appendix B-1              Renewable Energy Projects................................................. B-1-1

                                          Conceptual Site Plans

                                          Site Roof Warranty Information 

Appendix B-2              Reserved (No Capital Improvement Projects).......................... B-2-1

Appendix B-3              Estimated Load Data by Local Unit Facility.............................. B-3-1

Appendix C     Scope of Work and Technical Specifications .................................................. C-1

Appendix D     Forms to be Included in Exhibit A of Proposals.............................................. D-1

Appendix D-A-1-a[i]      Proposal Form A-1-a;Authority Financing 

                                    PPA Price Quotation Sheet........................................... D-A-1-A-1

Appendix D-A-1-b[ii]      Proposal Form A-1-b; Company Financing 

                                    PPA Price Quotation Sheet ……………….D-A-2-B-1

Appendix D-A-2          Proposal Form A-2; Respondent Information / 

                                    Cover Letter Form……………………………D-A-2-1

Appendix D-A-3          Proposal Form A-3; Consent of Surety and Surety Form..... D-A-3-1

Appendix D-A-4[iii]        Proposal Form A-4; Agreement for Proposal Security 

                                    In Lieu of Proposal Bond.................................................. D-A-4-1

Appendix D-A-5[iv]        Proposal Form A-5; Proposal Bond.................................. D-A-5-1

Appendix D-A-6          Proposal Form A-6; Ownership Disclosure Statement....... D-A-6-2

Appendix D-A-7          Proposal Form A-7; Non-Collusion Affidavit.................... D-A-7-1

Appendix D-A-8          Proposal Form A-8; Consent to Investigation.................. D-A-8-1

Appendix D-A-9          Proposal Form A-9; Statement of Respondent’s 

                                    Qualifications.............................................................. D-A-9-1

Appendix D-A-10        Proposal Form A-10; Acknowledgement of 

                                    Receipt of Addenda (if any)...................................... D-A-10-1

Appendix D-A-11        Proposal Form A-11; Sealed Proposal Checklist 

                                    (See Exhibit 2)........................................................... D-A-11-1

Appendix D-A-12[v]       Proposal Form A-12; Authorization for Background 

                                    Check......................................................................... D-A-12-1

Appendix E     Estimated Basic Lease Payment Schedule (including sources and uses)............. E-1

                              Estimated Basic Lease Payment Schedule allocable to Series 2011A Bonds

                              Estimated Basic Lease Payment Schedule allocable to Series 2011B Note

                              Aggregate Basic Lease Payment Schedule, allocable to Series 2011 Bonds

                              Estimated Sources and Uses, Series 2011A Bonds

                              Estimated Sources and Uses, Series 2011B Note

                              Aggregate Sources and Uses, Series 2011 Bonds

Appendix F     County Deficiency Option.......................................................................... F-1

                              Option F-1

                              Option F-2

In light of his office's blatant failures, Matthew Boxer should be asked the following question: Do you believe that the Office of the State Comptroller let down the taxpayers of Sussex County? 

In April 2015, the Office of the State Comptroller turned down Sussex County's request to review the solar project.  No official reason was ever provided.  However, there is an "unofficial" explanation provided in a May 26, 2015, memo from the MCIA.  It goes as follows: 

"The County is still awaiting a written letter from the Office of the State Comptroller, as a follow up to the phone conference... on April 27, 2015.  In the absence of the written response, and as a reminder, the State representatives (OSC) advised the County that it undertook an internal review of the Solar II Program and conducted its own analysis and evaluation of the Solar II Program.  Following this review process, the Comptroller's Office concluded that, based upon the information... forwarded to them, it was not going to pursue a further review of the Solar II Program." 

It seems the Office of the State Comptroller had conducted a review of the solar project it had signed-off on, but was unwilling to share said review. The memo continued: 

"The Comptroller's Office noted several factors in its post-review decision not to review the matter further: 

a. Noting that the Solar Programs and original agreements were a local policy decision, approved by the County Freeholders, and;

b. That in the view of the Comptroller's Office, both the change in the SREC Market, as well as the legal dispute between the developer and the contractor (SunLight/MasTec) contributed to the Solar II Program not proceeding as originally expected." 

A "post-review decision not to review the matter...”  Mr. Boxer needs to explain why. 

The Office of the State Comptroller's refusal to share the review that they had already conducted or to take that review further was a loss to the taxpayers of Sussex County, but a boon to former State Comptroller Matthew Boxer, who was now being touted as the onlyman to do a review that was to be paid for by fresh taxpayer's money. 

In January 2016 a new Freeholder Board in Sussex County – now controlled by the very same individuals who had been for months advocating for the selection of Matthew Boxer as the onlyman to review the solar project – handed Matthew Boxer a contract for $500,000 to conduct said review. 

The manner in which this contract was provided to Mr. Boxer was unusual, and remains unexplained to this day.  In a letter, dated January 19, 2016, a Sussex County Freeholder wrote to Mr. Boxer's firm inquiring how Boxer obtained the contract.  Here is what he wrote: 

"Dear Mr. Boxer, 

On New Years’ Eve, Dec 31, 2015, I received a phone call, about 5:00 PM, informing me that a resolution had been submitted to the Sussex County Clerk of the Board regarding an agreement with Lowenstein Sandler, LLC to provide professional services to conduct a review of the facts and circumstances involved in the Sussex County Renewable Energy Program. 

This was the first time I had any knowledge of this negotiation and agreement. 

I spoke to our Freeholder Director, the other sitting Freeholders, our County Administrator, our County Council, our Clerk of the Board, our County Treasurer, our Director of the Department of Central and Shared Services, our Purchasing Agent, and our assistant purchasing agent. 

None of these individuals, except Freeholder George Graham, admitted to having any knowledge of these negotiations, conversations, meetings or agreements with your law firm before 5:00 PM on New Years’ Eve 2015. 

...I believe that the governing body has had no part in negotiating an agreement with your firm. 

I would like to know, and now ask, who represented Sussex County in these negotiations, especially the negotiation of the 'blended' hourly rate and the understanding that the Board of Chosen Freeholders has provided that fees are not to exceed $500,000.00? " 

To this day, this gentleman – who has since retired from the Freeholder Board – has never received the courtesy of a reply.  Why not? And note that, at the time, this Freeholder – as a member of the Board – was Mr. Boxer's client.  What fears would lead Mr. Boxer to ignore a perfectly legitimate request by his client?

Sussex County taxpayers lost upwards of $20 million in the solar scandal.  Then they paid another half million dollars on a 62-page report authored by one of key players in the scandal – and nobody can say how this lawyer got hired!  Now that report is going to be used as the roadmap for future legal action by Sussex County that could cost taxpayers millions more in legal bills (and maybe let the culprits off the hook).

These are basic questions that need to be answered… before any more taxpayers’ money is spent.  

---

[i]Required if Proposal utilizes Authority Financing Option.

[ii]Required if Proposal utilizes Company Financing Option.

[iii]Provide EITHER (i) Form A-4 (Proposal Funds) or (ii) Form A-5 (Proposal Bond); found in Appendices D-A-4 or D-A-5, as applicable.  See Section 7.2(a) of RFP.

[iv]See prior footnote.

[v]Provided by Successful Bidder only.  To be supplied upon award of Successful Bidder.

Why did Rose & Lazzaro hand a solar scam enabler a $518,000 no-bid contract?

Matthew Boxer was the State Comptroller from January 2008 until December 2013.  Before taking this position, Mr. Boxer was an associate with the New York City law firm of Lowenstein Sandler.  After leaving office, he returned to that firm as a partner.

Most residents of Sussex County are aware of the scandal that involved a public-private partnership to install solar panels on local government buildings, using federal subsidies.  As it turned out, the private entity responsible for the work was under-capitalized, failed to pay the contractor doing the work, was sued by the contractor, and the project stopped.  The cost to taxpayers in Sussex County is estimated at upwards of $40 million. 

Sussex was one of three counties involved in this project -- Somerset and Morris were the others. Lacking its own agency, Sussex County worked through the Morris County Improvement Authority (MCIA), although each county made its own individual contracts with the entity, called Sunlight General, a new creation with a board of directors drawn largely from a French bank.  

In February 2011, the Board of Chosen Freeholders of Sussex County authorized a shared services agreement with the MCIA to implement the solar project.  In July 2011, the project was sent to the Office of the State Comptroller for review.  After reviewing all the project documents, the following month (August 2011), the project was given the okay by the Office of the State Comptroller -- headed up by Mr. Matthew Boxer.  Based the affirmative review given by Mr. Boxer's office, the Sussex County Freeholders went forward with the project. 

Apparently, the project was so fashioned that by October 2011, Sussex County had received just one bid -- from Sunlight General.  And so, in that month, the Sussex County Freeholders awarded the contract to Sunlight General.

The Freeholder Boards of Morris, Somerset, and Sussex Counties all signed agreements -- reviewed by the Office of the State Comptroller (Mr. Boxer's office) -- that used taxpayer-secured debt to back up SunLight General's operations. Unfortunately, the contracts were poorly written, the expected flow of capital was fanciful, the projects poorly planned and executed.  Allow us to quote from the documents supplied by the federal court: 

- SunLight General Capital and its subsidiaries were formed "with virtually no assets, such that they were undercapitalized at the time of formation." 

- The SunLight Entities "have drawn on the Public Bond Funds and diverted such funds for non-trust purposes in violation of the New Jersey Trust Fund Statute." 

- The SunLight Entities have admitted that "millions of dollars of Public Bond Funds" have been used to "make lease payments" and to "fund the SunLight Entities' required contributions under the Program Documents, and to pay the 'soft' costs (including attorneys' fees) of the Authorities and the SunLight Entities." 

- "The SunLight Entities owe Power Partners millions of dollars as a direct beneficiary under the New Jersey Trust Fund Statute and there are no longer sufficient funds in the Public Bond Funds to pay Power Partners and to complete the projects." 

- The SunLight Entities "participated in an additional scheme to draw down over $6.3 million in Public Bond Funds and misdirected more than $2.7 million of such funds for non-trust purposes." 

- Those who controlled the SunLight Entities treated corporate assets as "their personal piggy banks, repeatedly transferring assets from one entity to the next for the purpose of ensuring that there would be insufficient assets in each entity to satisfy its obligations to Power Partners." 

- "The corporate form of the SunLight Entities was used to commit conversion, make fraudulent transfers, and other improper acts." 

Yes, the Office of the State Comptroller -- Mr. Matthew Boxer's office -- let down the taxpayers of Sussex County.  Matthew Boxer got to move on to his law partnership and the Office of the State Comptroller just keeps on reviewing what it reviews and the residents of Sussex County are left to deal with the $40 million loss in their (higher) property tax bills.  In March 2015, the Freeholder Boards of both Sussex and Morris Counties reached out to the Office of the State Comptroller and formally requested that the State Comptroller review the project -- for a second opinion. 

About this time, the name Matthew Boxer resurfaced again, only now it was as part of a proposal to bring in "outside counsel" to review the solar project and what went wrong.  Sussex County Freeholder Boss George Graham – the guy Freeholders Rose and Lazzaro follow -- pushed for Mr. Boxer to be brought in for this purpose. 

In April 2015, the Office of the State Comptroller turned down both Sussex and Morris Counties' requests to review the solar project.  No official reason was ever provided.  However, there is an "unofficial" explanation provided in a May 26, 2015, memo from the MCIA to the Morris County Freeholders.  It goes as follows: 

"The County is still awaiting a written letter from the Office of the State Comptroller, as a follow up to the phone conference with Morris County on April 27, 2015.  In the absence of the written response, and as a reminder, the State representatives (OSC) advised the County that it undertook an internal review of the Solar II Program and conducted its own analysis and evaluation of the Solar II Program.  Following this review process, the Comptroller's Office concluded that, based upon the information that Morris County had forwarded to them, it was not going to pursue a further review of the Solar II Program." 

So it appears that the Office of the State Comptroller had conducted a review of the solar project it had signed-off on, but was unwilling to share said review.  The memo continued: 

"The Comptroller's Office noted several factors in its post-review decision not to review the matter further: 

a. Noting that the Solar Programs and original agreements were a local policy decision, approved by the County Freeholders, and; 

b. That in the view of the Comptroller's Office, both the change in the SREC Market, as well as the legal dispute between the developer and the contractor (SunLight/MasTec) contributed to the Solar II Program not proceeding as originally expected." 

The "post-review decision not to review the matter..."  Wow.  

The Office of the State Comptroller's recalcitrance to share the review that they had already conducted or to take that review further was a loss to the taxpayers of Sussex County, but a boon to former State Comptroller Matthew Boxer, who was now being touted as the onlyman to do a review that was to be paid for by fresh taxpayer's money.

And so, it came to pass that in January 2016 a new Freeholder Board in Sussex County -- now controlled by the very same individuals who had been for months advocating for the selection of Matthew Boxer as the onlyman to review the solar project -- handed Matthew Boxer a contract for $500,000 to conduct said review. 

The guilty parties in handing out that ridiculous contract – Freeholders Graham, Rose, and Lazzaro. 

The manner in which this contract was provided to Mr. Boxer was curious, and remains unexplained to this day. In a letter, dated January 19, 2016, a Sussex County official wrote to Mr. Boxer's firm inquiring how he came by the contract.  Here is what he wrote: 

Dear Mr. Boxer,

On New Years’ Eve, Dec 31, 2015, I received a phone call, about 5:00 PM, informing me that a resolution had been submitted to the Sussex County Clerk of the Board regarding an agreement with Lowenstein Sandler, LLC to provide professional services to conduct a review of the facts and circumstances involved in the Sussex County Renewable Energy Program. 

This was the first time I had any knowledge of this negotiation and agreement. 

I spoke to our Freeholder Director, the other sitting Freeholders, our County Administrator, our County Council, our Clerk of the Board, our County Treasurer, our Director of the Department of Central and Shared Services, our Purchasing Agent, and our assistant purchasing agent. 

...I believe that the governing body has had no part in negotiating an agreement with your firm. 

I would like to know, and now ask, who represented Sussex County in these negotiations, especially the negotiation of the “blended” hourly rate and the understanding that the Board of Chosen Freeholders has provided that fees are not to exceed $500,000.00? 

To this day, this official -- a respected member of the community in Sussex County and a veteran of the Korean War -- has never received the courtesy of a reply.  Why not?   

So the official wrote to the State Ethics Commission and noted the following: 

He stated that this agreement was negotiated with two phone calls with a Matthew Boxer, Esq. 

In 2011 Matthew Boxer was the New Jersey State Comptroller.  

Matthew Boxer led a staff responsible for overseeing audits and performance reviews at all levels of New Jersey government. The office audited government finances, examined the efficiency of government programs and scrutinized government contracts.  

On August 23, 2011 the State Comptroller's office, after a review, signed off on the procurement of a Photovoltaic Systems Developer with respect to certain local government facilities in the County of Sussex and the RFP as approved for advertisement. 

I have been asked by many Sussex County residents if Matthew Boxer has a conflict of interest representing Sussex County as Special Counsel in order to review its participation in the Sussex County Renewable Energy Program. 

To which the State Ethics Commission replied that Mr. Boxer claimed that he “did not have any personal involvement in the Office of the State Comptroller's review or approval of Sussex County's procurement related to the Program.”   

It seems strange that the person in charge of the office directly charged with reviewing the contract -- the failsafe in the approval process – would claim no personal involvement.  That is a curious statement.  How about professional involvement?   

Was Mr. Boxer so lax as to have no knowledge of what was a three-county project involving -- to start -- $100 million? His office reviewed nearly a dozen similar contracts involving many more millions in public money.  Okay. let's accept that Mr. Boxer was a "delegator" without direct, day-to-day knowledge about the office he was responsible for.  How did he come to be recommended as the sole recipient of a $500,000 contract to review what his office failed in reviewing at the start?   

The answer to that is simple: Freeholders Graham, Rose, and Lazzaro.  

And now, Rose and Lazzaro are asking us to give them a second chance to make breathtakingly stupid decisions like this one. Decisions that have to do with spending our money.

Really?

The Definition of Insanity

By Sam Adams

No, it's not what you think, because in Sussex it takes on a whole new meaning. 

Here we have a solar program that has gone bad and cost us millions. But to add insult to injury, we are sold a bill of goods by the freeholder board, that they will investigate where the money went.  Except for some of them on the board its more about politics than getting your money, why? 

    You don’t hire someone with more conflicts than James Comey to do the investigation, and that’s what Matthew Boxer has.  He worked as someone who would have a hand in the review process for the State when he worked there before he returned to the private sector law firm that conducted this so-called investigation into the same deal he had to approve. 

    But at a recent Tea Party meeting, that’s what Freeholder Rose hung his hat on. The fact that they had a pile of documents to wade through that could be used for litigation to get back your money. That investigation cost you almost $518,000, by the way.   

     Remember when I said you don’t hire the guy that signed off on a deal to investigate it?  Yeah, how’s that going to work out?  About as well as a screen door on a submarine. Get your snorkel, it’s getting deep. 

    In no way will anything be uncovered that is incriminating by Mr. Boxer because to do so would be an implication to the fact he was incompetent when he did the initial review. So, Freeholder Rose is selling you a whopper with no beef, there are no documents. Freeholders Rose and Graham know that.   

     But queue up the twilight zone music folks, to add to the insanity, the democrat in sheep's clothing John McCann, gets an endorsement from Freeholder Rose. 

   Now, who is suing Freeholders Rose, Lazzaro, and Graham?   Sheriff Strada.  He is doing so because he is the constitutionally elected law enforcement in the county, he requires his budgetary needs to be met, and the Freeholders have been fighting him on this, why?  Probably politics.  Strada’s budgets have always been reasonable, and significantly less than they could have been.   But here is where it gets insane, did Freeholder Rose endorse McCann in the hope that in some way he could get out of the lawsuit??  Because McCann was legal counsel to the Sheriff's association when he worked with Sheriff Saudino in Bergen County, a Hillary supporter, and democrat himself, as well.  And as a result of that connection, he may have made a promise to Freeholder Rose that he could pull something off.  Make it all go away for Freeholder Rose. After all, McCann has as many endorsements as Charles Manson and needs any he can get. 

     I don’t see Sheriff Strada caving on the lawsuit, the sheriff’s department needs to be funded.

 This is nothing more than a very, very desperate move by both McCann, and Freeholder Rose to try to save each other.  The voters of Sussex county are smarter than that.

Perez, Boxer, and the $518,000 solar study scam

Matthew Boxer was the State Comptroller from January 2008 until December 2013.  Before taking this position, Mr. Boxer was an associate with the New York City law firm of Lowenstein Sandler.  After leaving office, he returned to that firm as a partner.

Most residents of Sussex County are aware of the scandal that involved a public-private partnership to install solar panels on local government buildings, using federal subsidies.  As it turned out, the private entity responsible for the work was under-capitalized, failed to pay the contractor doing the work, was sued by the contractor, and the project stopped.  The cost to taxpayers in Sussex County is estimated at upwards of $40 million.

Sussex was one of three counties involved in this project -- Somerset and Morris were the others.  Lacking its own agency, Sussex County worked through the Morris County Improvement Authority (MCIA), although each county made its own individual contracts with the entity, called Sunlight General, a new creation with a board of directors drawn largely from a French bank.

In February 2011, the Board of Chosen Freeholders of Sussex County authorized a shared services agreement with the MCIA to implement the solar project.  In July 2011, the project was sent to the Office of the State Comptroller for review.  After reviewing all the project documents, the following month (August 2011), the project was given the okay by the Office of the State Comptroller -- headed up by Mr. Matthew Boxer.  Based the affirmative review given by Mr. Boxer's office, the Sussex County Freeholders went forward with the project.

Apparently, the project was so fashioned that by October 2011, Sussex County had received just one bid -- from Sunlight General.  And so, in that month, the Sussex County Freeholders awarded the contract to Sunlight General.

The Freeholder Boards of Morris, Somerset, and Sussex Counties all signed agreements -- reviewed by the Office of the State Comptroller (Mr. Boxer's office) -- that used taxpayer-secured debt to back up SunLight General's operations.  Unfortunately, the contracts were poorly written, the expected flow of capital was fanciful, the projects poorly planned and executed.  Allow us to quote from the documents supplied by the federal court:

Yes, the Office of the State Comptroller -- Mr. Matthew Boxer's office -- let down the taxpayers of Sussex County.  Matthew Boxer got to move on to his law partnership and the Office of the State Comptroller just keeps on reviewing what it reviews and the residents of Sussex County are left to deal with the $40 million loss in their (higher) property tax bills.  In March 2015, the Freeholder Boards of both Sussex and Morris Counties reached out to the Office of the State Comptroller and formally requested that the State Comptroller review the project -- for a second opinion.

About this time, the name Matthew Boxer resurfaced again, only now it was as part of a proposal to bring in "outside counsel" to review the solar project and what went wrong.  Two members of the Sussex County Freeholder Board, who are very close to Democrat Freeholder candidate Dan Perez, pushed for Mr. Boxer to be brought in for this purpose.  Below is a memo from attorney Dan Perez (now himself a candidate for Sussex County Freeholder) to then Freeholder Gail Phoebus:

In April 2015, the Office of the State Comptroller turned down both Sussex and Morris Counties' requests to review the solar project.  No official reason was ever provided.  However, there is an "unofficial" explanation provided in a May 26, 2015, memo from the MCIA to the Morris County Freeholders.  It goes as follows:

So it appears that the Office of the State Comptroller had conducted a review of the solar project it had signed-off on, but was unwilling to share said review.  The memo continued:

The "post-review decision not to review the matter..."  Wow. 

The Office of the State Comptroller's recalcitrance to share the review that they had already conducted or to take that review further was a loss to the taxpayers of Sussex County, but a boon to former State Comptroller Matthew Boxer, who was now being touted as the only man to do a review that was to be paid for by fresh taxpayer's money.

And so, it came to pass that in January 2016 a new Freeholder Board in Sussex County -- now controlled by the very same individuals who had been for months advocating for the selection of Matthew Boxer as the only man to review the solar project -- handed Matthew Boxer a contract for $500,000 to conduct said review.

The manner in which this contract was provided to Mr. Boxer was curious, and remains unexplained to this day.  In a letter, dated January 19, 2016, a Sussex County Freeholder wrote to Mr. Boxer's firm inquiring how he came by it.  Here is what he wrote:

To this day, this Freeholder -- a respected member of the community in Sussex County and a veteran of the Korean War -- has never received the courtesy of a reply.  Why not? 

So the Freeholder wrote to the State Ethics Commission and noted the following:

To which the State Ethics Commission replied:

The word "facts" is used when "representations" might be more appropriate.  As the State Ethics Commission did not conduct its own review of the Office of the State Comptroller's "records and emails... correspondence... other documents", it is clear that they are simply accepting Mr. Boxer at his word.

Doesn't it seem strange to claim that the person in charge of an office was so lax as to have no knowledge of what was a three-county project involving -- to start -- $100 million.  And that his office reviewed nearly a dozen similar contracts involving many more millions in public money.  Okay. let's accept that Mr. Boxer was a "delegator" without direct, day-to-day knowledge about the office he was responsible for.  How did he come to be recommended as the sole recipient of a $500,000 contract to review what his office failed in reviewing at the start? 

In its reply, the State Ethics Commission expressly invited further inquiry:

It is time for the Freeholders to establish a citizen's commission to investigate this corrupt mess and call those who have benefited to account.  Make someone like Harvey Roseff the chairman and you won't need to spend a half million dollars of taxpayers' money (property tax money!) to get the job done.