State audit finds small town overcollected $106,000 in court fees, other 'questionable' actions
BY CURTIS KILLMAN World Staff Writer
Friday, April 13, 2012
4/13/12 at 7:24 AM
The town of Bernice has not properly published its penal ordinances since 1977, resulting in it overcollecting $106,308 in municipal court fines, according to a state investigative audit.
The audit, conducted by the state Auditor and Inspector's office, uncovered a host of other issues at the Delaware County town, including:
The audit recommended the town evaluate its policy of requiring new water customers to pay the unpaid bills of previous customers to receive service at an address. The audit also requested the district attorney review and address the town trustees' possible violations of the Open Meeting Act.
- "Questionable" compliance with the state Open Meetings Act
- An unjust, "if not illegal" policy regarding past-due water bills
- Failing to follow proper procedures for establishing a zoning code
In its response to auditors, the town cited a long list of processes it had followed and said it has maintained "substantial compliance" with state law regarding procedures dealing with penal ordinances.
The town, through its attorney, also defended its policies related to billing of water customers and indicated it would strive "to eliminate any action that could even be characterized as 'questionable,' " that related to Open Meetings Act violations.
The audit came as a result of a request led by Steve Miller, a Bernice resident.
"For more than a year, citizens of Bernice have repeatedly requested an open government, adherence to the Open Meeting Act and Open Records Act, fairness and integrity," Miller said, in a statement emailed to the World. "The State Auditor has now provided the public, the District Attorney, and the Attorney General a comprehensive and objective investigation and report."
State Auditor and Inspector Gary Jones' office launched the audit in July at the request of Miller, who submitted petitions signed by the required number of Bernice residents, said Richard Riffe, special investigative unit director for the state agency.
The 71-page audit was made public on Tuesday and includes a review of the Town of Bernice and the Bernice Public Works Authority of various issues raised by Miller and others.
The population of Bernice was 562 people in 2010.
Regarding the court fines, the audit found the town had failed to follow proper public notification procedures dating to 1977.
"As such, the municipal court should not have collected fines of more than $50," according to the audit. State law requires municipalities follow certain procedures before levying fines in excess of $50.
"There are certain steps that you have to go through to lay the foundation for charging the higher traffic tickets," Riffe said. "If not, then it's not legitimate for you to collect those amounts for traffic tickets."
The audit also found that proper procedures were not followed resulting in the town improperly collecting courts costs in excess of $40, causing an over-collection of about $7,895 since 2006.
In its response, the town claimed it has maintained "substantial compliance" with the state law requirements related to its penal code.
The town conceded it failed to publish in a newspaper a 2007 amendment to its fine schedule.
Still, the town maintained "the public clearly had constructive notice of the existence of the Bernice Penal Code and, at the very least, the fine schedule adopted in 2005," wrote David Jones, an attorney, in a 12-page response letter.
The town's response to the issues raised didn't cause the state auditor to change any of their findings, Riffe said.
"They were pretty much in agreement with most of the report," Riffe said. "It wasn't a response...that we felt like we needed to reply to."
The audit also reviewed the town's compliance with the state Open Meeting and Open Records acts.
The audit found that town officials failed to post sufficient notice of joint meetings in 2009 and 2010 of the zoning board and town board.
The audit said minutes of executive sessions were almost never taken or recorded for executive sessions as required by law. Public meeting agendas also listed either incorrectly or omitted the proper statutory authority that was required to consider possible executive sessions, according to the audit.
The audit also found that while the town had a fee schedule posted in its offices, it had not filed the schedule with the county clerk as required by law.
The audit said the district attorney's office should review and address the town trustees' possible violations of the Open Meeting Act.
A spokesman for the district attorney in Ottawa and Delaware counties declined to comment on the audit findings, saying it was still under review.
Ben Loring, first assistant to District Attorney Eddie Wyant, said a meeting has been scheduled for April 25 with the members of the Bernice Town Board to discuss the audit findings.
The audit also cited issues with the Bernice Public Works Authority utility billing procedures. Auditors also found that town officials beginning in 2009 "apparently" adopted its zoning code improperly "and is likely invalid, as a consequence."
Original Print Headline: Audit: Town overcharged $106,000 in court fines
Curtis Killman 918-581-8471