NJ Lawmakers Wrangle Over Who Decides How TTF Billions Will Be Spent

John Reitmeyer | April 13, 2017 | Transportation
Senate President rejects Republican senator’s claim that new commission could politicize how projects are selected

Senate President Stephen Sweeney speaks during a news conference in Linden yesterday to announce state funding for a long-planned road project.
After last year’s renewal of the Transportation Trust Fund, there’s now $2 billion in state dollars to spend on infrastructure improvements every year in New Jersey. But that has also raised the question of exactly who decides which projects deserve top priority — the governor and his administration’s transportation officials or a special four-person commission that’s been championed by lawmakers?

A measure that’s expected to make it out of the Legislature in the coming weeks will ensure the new capital-project approval commission has the final say, though not until a year from now.

The passage of what’s being called the “TTF cleanup bill” will also make sure that a planned $2 billion in spending on infrastructure improvements during the state fiscal year that begins in early July can go forward even though the new commission has yet to be assembled.

And despite complaints from some lawmakers that the new commission could politicize New Jersey’s transportation-funding process and even be unconstitutional, Senate President Stephen Sweeney (D-Gloucester) said he remains committed to establishing the new format. He also disputed claims that the new selection method could be unconstitutional.

New four-member panel supposed to approve projects

“The cleanup bill will get done,” Sweeney said after an event in Linden yesterday at the site of a long-planned road project that is now getting new funding from the TTF.

“We just want to be sure that if there’s projects, we know where they’re coming from, why they’re there,” said Sweeney, the primary sponsor of the TTF cleanup legislation.

Under the TTF reauthorization approved by lawmakers and signed into law by Gov. Chris Christie last year, a four-member Capital Program Approval Committee is supposed to be established to develop and ultimately approve a list of road, bridge, and rail projects that will receive capital funding from the TTF each year. The panel would replace the current practice, which involves lawmakers getting a list of projects from the Department of Transportation just before the new state budget deadline in late June.

The panel’s members are supposed to be the DOT commissioner, and three others picked by the governor, Senate president, and Assembly speaker. Its mission is to take time to determine the best projects to receive funding through the TTF, which is supported primarily with constitutionally dedicated gas-tax revenue, money raised through bond sales, and federal matching dollars. In order to be cleared for funding, capital projects would have to get unanimous approval from the new panel’s members; this provision is supposed to encourage cooperation and ensure that projects are selected based on merit and not for political reasons.

Beck had a warning for her colleagues

But even though the TTF reauthorization bill was drawn up in June last year, it took Christie and lawmakers until the fall to strike a deal to renew the TTF because the Republican governor initially resisted a 23-cent gas-tax hike. Though he eventually signed the gas-tax increase into law in October, the delay meant there was not enough time for the commission to be assembled and take on what is supposed to be a lengthy project-review process in advance of the upcoming 2018 fiscal year.

If approved by Christie, the TTF cleanup bill will officially hold off the panel’s new role in the project-selection process until the 2019 fiscal year.

But when the cleanup bill came before the Senate Budget Appropriations Committee during a recent hearing, Sen. Jennifer Beck (R-Monmouth) had a warning for her colleagues. A legal opinion from the nonpartisan Office of Legislative Services indicates the new panel would be unconstitutional as currently drawn up because it would assume powers that only lawmakers have under the state constitution.

“If this group is not unanimous in deciding what the capital programs are for that year (then) no capital program will happen going forward,” said Beck, who was also an outspoken opponent of the gas-tax hike.

“The foundation of the legal opinion says that this provision is unconstitutional, that this panel is unconstitutional,” she said.

Beck also voiced concerns that the panel would open the door to political interference in a project-selection process that she said right now is capably handled by professionals at the DOT. “It’s actually a computer program that they use to determine the capital projects,” Beck said.

But Sweeney pointed yesterday to a different legal opinion, prepared by outside counsel who were asked by the Senate Democrats to review the constitutional issue. Citing a 1980 state Supreme Court ruling as precedent, the opinion from attorney Leon Sokol said lawmakers will still have the power to override the new panel through language in the annual budget. That’s because the budget process is authorized by the state constitution, while the new panel was created by a state law that can be suspended by lawmakers each year using budget language.

Sokol’s argument is similar to the logic that was used by the state Supreme Court in 2015 when it ruled a section of Christie’s signature 2011 pension-reform law was unconstitutional because it sought to bind future legislatures to a series of defined public-employee pension contributions.

“At the end of the day, the budget overrules everything, that’s the bottom line,” Sweeney said.

The Senate leader also pushed back against Beck’s claim that the new commission could politicize the project-selection process, noting a similar format is currently used to oversee all state lease agreements without such problems.

“We think the Legislature should ensure that the (transportation) projects aren’t just being rubberstamped, but are projects that are warranted and needed,” Sweeney said. “Right now, we don’t have that.”