[HISTORY: Adopted by the Township Council of the Township
of Byram as indicated in article histories. Amendments noted where
applicable.]
GENERAL REFERENCES
Purchasing — See Ch. 55.
[Adopted 10-4-2011 by Ord. No. 13-2011]
As used in this article, the following terms shall have the
meanings indicated:
For purposes of this article, a business entity whose contributions
are regulated by this article means i) an individual, including the
individual's spouse and any child/children; ii) a firm; corporation;
professional corporation; partnership; limited liability company;
organization; association; and any other manner and kind of business
entity; iii) any person who owns 10% or more of the equity or ownership
or income interests in a person or entity as defined in items i) and
ii) above and their spouses and child/children; iv) all partners or
officers of such an entity, in the aggregate, and their spouses and
child/children; v) any person, subcontractor, subsidiary, corporation,
firm, partnership, limited liability company, organization or association
who has received or indefeasibly acquired the right to receive, from
a person described in item i) above, more than $100,000 in compensation
or income of any kind (including, by way of illustration, and not
limitation, wages, salaries, sums paid to independent contractors,
benefits, dividends, profit-sharing, pension contributions, deferred
contributions, stock, stock options or gifts), in any twelve-month
period prior to the award of, or during the term of, a contract subject
to this article; and vi) all persons who are an "affiliate" of a business
entity as defined in items i), ii) and v) above, as such term is used
in 11 U.S.C. § 101(2).
i) Every candidate for the Township of Byram elective municipal
office; ii) every candidate committee established by or for the benefit
of a candidate for the Township of Byram elective municipal office;
iii) every joint candidate committee established in whole or in part
by or for the benefit of a candidate for the Township of Byram elective
municipal office; iv) every political party committee of the Township
of Byram; v) every political party committee of the County of Sussex;
and vi) every political committee, continuing political committee,
or other form of association or organization that regularly engages
in the support of candidates for the Township of Byram municipal or
County of Sussex elective offices or the Township of Byram municipal
or County of Sussex political parties or political party committees.
The terms in the foregoing paragraph have the meaning prescribed in
N.J.A.C. 19:25-1.7.
All contracts for "professional services" and "extraordinary
unspecifiable services" as such terms are used in N.J.S.A. 40A:11-5.
Has the meaning prescribed in N.J.A.C. 19:25-1.7. By way
of illustration, and not limitation, this definition includes pledges,
loans, and in-kind contributions.
A.
To the extent that it is not inconsistent with state or federal law, the Township of Byram and any of its departments, instrumentalities or purchasing agents shall not enter into any agreement or otherwise contract to procure "professional services" as such term is defined at N.J.S.A. 40A:11-2(6) and used at N.J.S.A. 40A:11-5(1)(a)(i) and/or banking, insurance or other consulting service (hereinafter "professional services"), nor "extraordinary unspecifiable services" as such term is defined at N.J.S.A. 40A:11-2(7) and used at N.J.S.A. 40A:11-5(1)(a)(ii) and/or media, public relations, lobbying, parking garage management or other consulting and/or management service (hereinafter "extraordinary unspecifiable services") from any business entity if such business entity has solicited or made any Contribution to i) a candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in the Township of Byram or a holder of public office having ultimate responsibility for the award of a contract or ii) to any Township of Byram or County of Sussex political committee or political party committee or iii) to any continuing political committee or political action committee that regularly engages in the support of the Township of Byram municipal or County of Sussex elections and/or the Township of Byram municipal or County of Sussex candidates, candidate committees, joint candidate committees, political committees, political parties, political party committees (hereinafter "PAC"), in excess of the thresholds specified in Subsection C within one calendar year immediately preceding the date of the contract or agreement.
B.
No business entity who submits a proposal for, enters into negotiations
for, or agrees to any contract or agreement with the Township of Byram
or any of its departments or instrumentalities for the rendition of
professional services or extraordinary unspecifiable services shall
knowingly solicit or make any contribution to i) a candidate, candidate
committee or joint candidates committee of any candidate for elective
municipal office in the Township of Byram, or a holder of public office
having ultimate responsibility for the award of a contract, or ii)
to any Township of Byram or County of Sussex political committee or
political party committee or iii) any PAC between the time of first
communication between that business entity and the municipality regarding
a specific agreement for professional services or extraordinary unspecifiable
services and the later of the termination of negotiations or rejection
of any proposal, or the completion of the performance or specified
time period of that contract or agreement.
C.
The monetary thresholds of this article are i) a maximum of $300 per calendar year each for any purpose to any candidate or candidate committee for Mayor or governing body or $500 per calendar year to any joint candidates committee for Mayor or governing body or $300 per calendar year to a political committee or political party committee of the Township of Byram; ii) $500 maximum per calendar year to a Sussex County political committee or political party committee; and iii) $500 maximum per calendar year to any PAC. However, for each business entity party to a contract for professional or extraordinary unspecifiable services as defined in Subsection A or engaged in negotiations for a contract defined in Subsection A, when such business entity's contribution is aggregated with all "persons" defined in § 10-1 above, by virtue of their affiliation to that business entity party, a maximum of $2,500 to all Township of Byram candidates, candidate committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all Township of Byram or County of Sussex political committees and political party committees as described herein combined, without violating Subsection A of this section.
D.
For purposes of this section, the office that is considered to have
ultimate responsibility for the award of the contract shall be the
Township of Byram Mayor or governing body, if the contract requires
approval or appropriation from the Mayor or governing body, or the
Mayor of the Township of Byram, if the contract requires approval
of the Mayor or if a public officer who is responsible for the award
of a contract is appointed by the Mayor.
E.
Rules regarding subcontractors. No person may be awarded a subcontract to perform under a contract subject to this article if the subcontractor would be disqualified by Subsection A from receiving the contract at the time that the subcontract is awarded. Nor may any person who would be disqualified by Subsection A from receiving the contract perform substantially all of obligations described in a contract for professional or extraordinary services that is subject to this article.
No contribution or solicitation of contributions made prior
to the effective date of this article shall be deemed to give rise
to a violation of this article.
No contract subject to this article may be renewed, extended,
or materially modified unless the resulting renewal, extension, or
modification would be allowable under the provisions of this article
if it were an initial contract.
A.
Prior to awarding any contract or agreement to procure professional services or extraordinary unspecifiable services from any business entity, the Township of Byram or its purchasing agents and departments, as the case may be, shall receive a sworn statement from said business entity which is the intended recipient of said contract that he/she/it has not made a contribution in violation of § 10-2 of this article. The Township of Byram, its purchasing agents and departments shall be responsible for informing the Mayor and Council that the aforementioned sworn statement has been received and that the business entity is not in violation of this article, prior to awarding the contract or agreement.
B.
A business entity shall have a continuing duty to report to the Township
of Byram any contributions that constitute a violation of this act
that are made during the negotiation, the proposal process or the
duration of a contract. The Township of Byram, its purchasing agents
and departments shall be responsible for informing the governing body
within 10 business days after receipt of said report from the business
entity or at the next Byram Township Council meeting following receipt
of said report from the business entity, or whichever comes first.
C.
The certification required under this section shall be made prior
to entry into the contract or agreement with the Township of Byram
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.
A business entity that is a party to a contract for professional services or extraordinary unspecifiable services may cure a violation of § 10-2 of this article if, within 30 days after the date on which the applicable ELEC[1] 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.
[1]
Editor's Note: "ELEC" refers to the Election Law Enforcement
Commission.
The contribution limitations prior to entering into a contract in § 10-2A 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 are awarded in the case of emergency 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.
A.
It shall be a material breach of the terms of a Township of Byram
agreement or contract for professional services or extraordinary unspecifiable
services when a business entity that is a party to such agreement
or contract has:
(1)
Made or solicited a contribution in violation of this article;
(2)
Knowingly concealed or misrepresented a contribution given or received;
(3)
Made or solicited contributions through intermediaries for the purpose
of concealing or misrepresenting the source of the contribution;
(4)
Made or solicited any contribution on the condition or with the agreement
that it will be recontributed to a candidate, candidate committee
or joint candidates committee of any candidate for elective municipal
office in the Township of Byram; a holder of public office having
ultimate responsibility for the award of a contract; any Township
of Byram or County of Sussex political committee or political party
committee; or any PAC;
(5)
Engaged or employed 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 article;
(6)
Funded contributions made by third parties, including consultants,
attorneys, family members, and employees;
(7)
Engaged in any exchange of contributions to circumvent the intent
of this article; or
(8)
Directly or indirectly, through or by any other person or means,
done any act which if done directly would subject that entity to the
restrictions of this article.
C.
Any person who knowingly, purposely, or recklessly violates any provision
of this article; who conspires with another person to violate any
provision of this article; or who, with the purpose of promoting or
facilitating a violation of this article, solicits another person
to commit it or aids or agrees or attempts to aid another person in
planning or committing it shall be subject to punishment including
fines and/or imprisonment as fixed by law for violations of the ordinances
of the Township of Byram.
In addition to any rights that were heretofore available or
which may hereafter be available to citizens, taxpayers, or associations
to challenge violations of this article, every person aggrieved by
a violation of the article or any taxpayer or resident of the Township
of Byram has the right, consistent with the Rules of Court, to file
charges in a court of competent jurisdiction and/or to pursue a civil
action for a violation of this article in a court of competent jurisdiction,
and to seek and obtain declaratory, injunctive, or other legal or
equitable relief, including, but not limited to, attorneys fees and
costs, arising from or related to a violation of this article.
The monetary thresholds of the definition of "business entity" in § 10-1 and § 10-2C of this article shall be increased effective March 1 of each calendar year by the percentage increase, in the prior calendar year, of the consumer price index for all urban consumers (CPI-U) for the New York-Northern New Jersey-Long Island region, rounded to the nearest $10. The Clerk of the Township of Byram shall, by no later than April 1 of each calendar year, prepare and publish the revised thresholds on the official municipal website and in an official municipal newspaper.