Herald leaves out "smoking gun" from its solar timeline

The New Jersey Herald's coverage of the Boxer report on the solar project has some people wondering why the newspaper is going to such lengths to cover-up the role played by former State Comptroller Matthew Boxer himself -- the fact that his office reviewed and approved the controversial solar project in August 2011.  On Sunday, the Herald ran a story that provided the following timeline for July and August of 2011:

July 27, 2011 -- The freeholder board introduced an ordinance guaranteeing the bonds to be issued to fund the project. According to freeholder meeting minutes, Eskilson "mentioned there are lots of safeguards built into this project" and referenced "minimum risk going forward." Zeoli, at the same meeting, stated he was "convinced that the risk to the County is minimal."

Aug. 17, 2011 -- The freeholder board unanimously approved the bond ordinance.

(NJ Herald, August 13, 2017)

In fact, the official timeline provided by government investigators is different:

July - Project RFP is submitted for review of Office of Comptroller.

July - Sussex County first reading of Guaranty Ordinance, Consent to MCIA Bonds & MCIA RFP for Project Developers.

August - MCIA Bond Issue and County Guaranty positive findings received from Local Finance Board.

August - Sussex County second reading of Guaranty Ordinance not to exceed $50,000,000.

August - State Comptroller provides signoff on RFP for Project documents.

(Investigation Update, July 27, 2016)

Why has the State Comptroller's role been scrubbed from the Herald's account?

In February 2011, the Board of Chosen Freeholders of Sussex County 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, although two officials were clearly involved -- Freeholder Boss George Graham and SCMUA Commissioner Dan Perez (a New York City lawyer, appointed by Graham, who is now himself a candidate for Freeholder).

. . .And yet, in Matthew Boxer's 62-page report  -- costing Sussex County taxpayers $500,000 ($8,064 per page) -- he never once mentions the role of the Office of the State Comptroller.  The word "comptroller" doesn't appear in his report, even once, despite the central role it played in the scam and in spite of the fact that Matthew Boxer ran the office when it was responsible for reviewing the solar contract.

In his own 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..."  WTF??? 

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 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 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 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?  And note that, at the time, this Freeholder -- as a member of the Board -- was Mr. Boxer's client.

The Freeholder wrote to the State Ethics Commission about the matter and noted the following:

"At the January 27th, 2016 regular Freeholder meeting, now, Freeholder Director George Graham admitted that he, solely, negotiated this agreement.

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:

"Mr. Boxer contacted this office to seek advice regarding whether the post-employment restrictions prohibit him from being involved in a review of the (solar) Program.  Mr. Boxer advised 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.  Mr. Boxer also advised that he contacted the Office of the State Comptroller, which performed a search of its records and emails and found no emails, correspondence or other documents indicating that he had any involvement in that office's review of the procurement for the Program.  Based on these facts, the State Ethics Commission concluded that Mr. Boxer was not substantially or directly involved in the Program during his State employment and that the post-employment restrictions therefore do not prohibit him (or derivatively Lowenstein Sandler) from being involved in the present review of the Program on behalf of Sussex County."

Note that the word "facts" is used when "representations" is 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.

It is unusual 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.  Is Mr. Boxer claiming that he was such a poor and disconnected "delegator" that he lacked direct, day-to-day knowledge of the office he was responsible for?  And 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? 

We are left with a situation in which the taxpayers of Sussex County must be content to take the word of Mr. Boxer.  Especially as he appears to be the only person to have benefitted from this fiasco -- to the tune of a half-million dollars!

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.


[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.