A state Supreme Court justice has issued a preliminary injunction barring Suffolk from issuing new requests for proposals for county contracts until county officials and Comptroller John Kennedy can agree on a process for the comptroller to conduct performance audits during the bidding process.
Justice David T. Reilly found the comptroller had established “a probability of success on the merits,” as well as “a danger of irreparable harm.”
But “going forward, it is not for this court to craft the manner and extent of a performance audit of the RFP process ahead of the individual facts and circumstances that may arise under any given situation," Reilly wrote. "That mechanism is better left to the parties.”
Kennedy called the decision “a victory fo the taxpayers” providing for “independence and arms-length scrutiny” as allowed under state law and the county charter. “It’s a shame this administration can’t read the law or understand how to implement it,” he said.
Jason Elan, spokesman for Suffolk County Executive Steve Bellone, said their office is reviewing the ruling. Elan could not say whether the administration was considering an appeal or the possibility to entering into negotiations with Kennedy.
Elan said 14 requests for proposals are in the pipeline including those for insurance broker services and an outside auditor for the comptroller's office for a required annual review of county books.
Reilly’s decision, issued last Thursday , arose from a dispute last March in which Kennedy sought to conduct a performance audit during bidding involving a replacement for Beach Hut as the food concessionaire at county beaches.
Beach Hut was ousted after pleading guilty to tax fraud and paying the county $1.113 million for unpaid taxes and fees. Kennedy’s final audit found Beach Hut shortchanged Suffolk by an additional $1 million.
In the midst of the battle, both sides agreed to permit the bidding process to continue so concessions could open at four county beaches by the start of the summer. But Kennedy pressed for a declaratory judgment asserting his authority to conduct performance audits “in real time” during the bidding process.
Bellone and his parks department maintained the RFP process was an executive function and Kennedy only had the power to audit later.
Reilly, in his ruling, said Suffolk did not appear to contest the comptroller’s “authority to conduct performance audits generally.” Reilly said a review of the county charter “does not appear to limit ... the comptroller, who was seemingly already empowered to review the RFP process under its auditing and examining authority.”
“Should the comptroller be stripped of this authority,” Reilly said, “the possibility of perversion within the RFP process rises.”