Town Ordinances

ORDINANCE NO.13 - 2011

ORDINANCE NO. 13-2011

AN ORDINANCE FOR PUBLIC CONTRACTING ("PAY-TO-PLAY") REFORM.

WHEREAS, large political contributions from those seeking or performing contracts with a municipality raise reasonable concerns on the part of taxpayers and residents as to their trust in government and its business practices; andWHEREAS, pursuant to N.J.S.A. 40:48-2, a municipality is authorized to adopt such ordinances, resolutions, rules and by-laws as necessary and proper for good government, as well as the public health, safety and welfare; and

WHEREAS, pursuant to N.J.S.A. 40A:11-51, a municipality is authorized to adopt, by ordinance, measures limiting the award of public contracts to business entities that have made political contributions, and limiting the contributions that the recipient of such a contract can make during the term of a contract; and WHEREAS, in the interest of good government, the Borough Council of the Borough of Morris Plains is desirous of establishing a policy that will avoid the perception of improper influence in public contracting and local elections.NOW, THEREFORE, BE IT ORDAINED, by the Borough Council of the Borough of Morris Plains, they being the Governing Body thereof, as follows:Section l:

Policy. It is the policy of the Borough of Morris Plains that any Business Entity which makes political contributions to municipal candidates for elective office in the Borough and municipal and county political party committees in excess of certain thresholds shall be limited in its ability to receive public contracts from the Borough of Morris Plains.

Section 2:Definitions. As used in this ordinance, the following terms shall have the meaning set forth below:

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    1. "Business Entity" shall mean an (i) individual, including the individual’s spouse and any child/children; (ii) association, organization, firm, corporation, partnership, limited liability partnership, limited liability company, any and all labor unions or other entity contracting with the Borough of Morris Plains. Such definition shall include any person who owns 10% or more of the equity or ownership or income interests in a person or entity as defined in (i) and (ii) above, including their spouse and children residing in the same household.
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    3. "Borough of Morris Plains" shall mean the municipality of the Borough of Morris Plains and all agencies, boards, utilities, authorities, departments and instrumentalities thereof.
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    5. Candidate Committee" shall mean every candidate committee or joint candidate committee established by or for the benefit of a candidate for elective municipal office in the Borough of Morris Plains pursuant to N.J.S.A. 19:44A-1 et seq. and any New Jersey Election Law Enforcement Commission regulations promulgated thereunder at N.J.A.C. 19:25-1.1 et seq.
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    7. "Continuing Political Committee" shall have the meaning prescribed by the New Jersey Election Law Enforcement Commission regulations promulgated at N.J.A.C. 19:25-1.1 et seq.
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    9. "Contribution" shall have the meaning prescribed by the New Jersey Election Law Enforcement Commission regulations at N.J.A.C. 19:25-1.7. By way of illustration, and not in limitation, this definition includes pledges, loans and in-kind contributions.
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    11. "Political Party Committee" shall mean any Political Party Committee established in the Borough of Morris Plains pursuant to N.J.S.A. 19:5-2 and any New Jersey Election Law Enforcement Commission regulations promulgated thereunder at N.J.A.C. 19:25-1.1 et seq.
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Section 3:

Prohibition on Awarding Public Contracts to Certain Contributors.

(a) To the extent that it is not inconsistent with state or federal law, the Borough of Morris Plains shall not enter into any agreement or otherwise contract for professional services with any Business Entity if such Business Entity has solicited or made any Contribution in excess of the thresholds specified in this Section 3 within one calendar year immediately preceding the date of the contract or agreement to (i) any candidate for elective municipal office in the Borough of Morris Plains, Candidate Committee of any candidate for elective municipal office in the Borough of Morris Plains, or holder of a public office in the Borough of Morris Plains having ultimate responsibility for the award of a contract; (ii) any Political Party Committee established in the Borough of Morris Plains; or (iii) any Continuing Political Committee that regularly engages in the support of municipal elections in the Borough of Morris Plains and/or municipal Political Party Committees organized in the Borough of Morris Plains.

(b) No Business Entity which enters into negotiations for, or agrees to any contract or agreement with the Borough of Morris Plains for the rendering of professional services shall knowingly solicit or make any contribution (i) to any candidate for elective municipal office in the Borough of Morris Plains, Candidate Committee of any candidate for elective municipal office in the Borough of Morris Plains, or holder of a municipal public office having ultimate responsibility for the award of a contract in the Borough of Morris Plains, or (ii) to any Morris Plains Political Party Committee; or (iii) to any Continuing Political Committee or PAC that is organized for the primary purpose of promoting or supporting Morris Plains candidates for elective municipal office in the Borough of Morris Plains between the time of first communication between that Business Entity and the Borough regarding a specific professional service agreement and the later of the termination of negotiations or the completion of the performance of the contract or agreement.

(c) Any Business Entity shall be permitted, without violating this Section 3 to contribute: (i) a maximum of $300 per calendar year to any candidate, Candidate Committee of any municipal candidate for elective municipal office in the Borough of Morris Plains, Morris Plains Political Party Committee; and (ii) a maximum of $500 to any Morris County Political Party Committee or Continuing Political Committee. Notwithstanding the preceding limitations, a Business Entity may not annually contribute, in the aggregate, more than $2,500 to all Morris Plains candidates, Candidate Committees, Political Party Committees and Continuing Political Committees and holders of public office having ultimate responsibility for the award of a contract in the Borough of Morris Plains as referenced herein, without violating this Ordinance.

(d) For purposes of this Section, the office that is considered to have ultimate responsibility for the award of a contract shall be (i) the Borough of Morris Plains Borough Council if the contract requires approval or appropriation from the Borough Council, or (ii) the Mayor of the Borough of Morris Plains if the contract requires approval of the Mayor, or if a public officer, board or agency that is responsible for the award of a contract is appointed by the Mayor.

Section 4:

Contributions Made Prior to the Effective Date. No Contribution or solicitation made prior to the effective date of this Ordinance shall be deemed to give rise to a violation of this Ordinance.

Section 5:

Contribution Statement by Business Entity. (a) Prior to the award of any contract or agreement to a Business Entity for professional services, the Borough of Morris Plains shall receive a sworn statement from said Business Entity that the Business Entity has not made a contribution in violation of this Ordinance. All departments of the Borough shall be responsible for informing the Borough Council that the aforementioned sworn statement has been received and that the Business Entity is not in violation of this Ordinance, prior to the award of the contract or agreement.

(b) A Business Entity shall have a continuing duty to report to the Borough of Morris Plains any Contributions that constitute a violation of this Ordinance that are made during the negotiation, proposal process or the duration of a contract.

(c) The certification required under this Section shall be made prior to entry into the contract or agreement with the Borough of Morris Plains, or prior to the provision of services or goods, as the case may be, and shall be in addition to any other certifications that may be required by any other provision of law. Section 6:Return of Excess Contributions. A Business Entity that is a party to a contract for professional services may cure a violation of this Ordinance, if, within 30 days after the date on which the applicable ELEC report is published, said Business Entity notifies the municipality in writing and seeks and receives reimbursement of the Contribution from the recipient of such Contribution. ?Section 7:Exemptions. The contribution limitations prior to entering into a contract in Section 3 of this Ordinance do not apply to contracts which are awarded to the lowest responsible bidder after public advertising for bids and bidding therefor within the meaning of N.J.S.A. 40A:11-4, or to any non-professional service contracts, or contracts awarded under exigent circumstances under N.J.S.A. 40A:11-6.?? There is no exemption for contracts awarded pursuant to a "Fair and Open Process" under N.J.S.A. 19:44A-20 et seq. Section 8:Penalty.

(a) It shall be a material breach of the terms of a Borough of Morris Plains agreement or contract for professional services to knowingly and intentionally: (i) make or solicit a Contribution in violation of this Ordinance; (ii) conceal or misrepresent a Contribution given or received; (iii) make or solicit Contributions through intermediaries for the purpose of concealing or misrepresenting the source of the Contribution; (iv) make or solicit any Contribution on the condition or with the agreement that it will be re-contributed to a candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in the Borough of Morris Plains, or a holder of public office having ultimate responsibility for the award of a contract in the Borough of Morris Plains; (v) engage or employ a lobbyist or consultant with the intent or understanding that such lobbyist or consultant would make or solicit any Contribution, which if made or solicited by the professional Business Entity itself, would subject that entity to the restrictions of this Ordinance; (vi) fund contributions made by third parties, including consultants, attorneys, family members, and employees; (vii) engage in any exchange of Contributions to circumvent the intent of this Ordinance; or (viii) directly or indirectly, through or by any other person or means, do any act which if done directly would subject that entity to the restrictions of this Ordinance.

(b) Furthermore, any Business Entity that violates this Section 8(a) of the Ordinance shall be disqualified from eligibility for future Borough of Morris Plains contracts for a period of four (4) calendar years from the date of the violation.

Section 9:

If any section, subsection, sentence, clause or phrase of this Ordinance is, for any reason, held to be invalid by Court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinances.Section 10:

This Ordinance shall take effect after final passage and publication in accordance with law.

Introduced: August 18, 2011

Adopted: September 1, 2011

Frank J. Druetzler, Mayor