[HISTORY: Adopted by the Mayor and Council of the Borough
of Penns Grove as indicated in article histories. Amendments noted
where applicable.]
[Adopted 3-1-2011 by Ord.
No. 2011-1 (Ch. 48 of the 1986 Code)]
As used in this article, the following terms shall have the
meanings indicated:
A business entity whose contributions are regulated by this
article means:
An individual, including the individual's spouse and any
child/children;
A firm, corporation, professional corporation, partnership,
limited liability company, organization, association, and any other
manner and kind of business entity;
All partners or officers of such an entity, in the aggregate,
and their spouses and child/children;
Any person, subcontractor, subsidiary, corporation, firm, partnership, limited liability company, organization or association which has received, or indefeasibly acquired the right to receive, from a person described in Subsection A 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
Every candidate for Borough of Penns Grove elective municipal
office;
Every candidate committee established by or for the benefit
of a candidate for the Borough of Penns Grove elective municipal office;
Every joint candidate committee established in whole or in part
by or for the benefit of a candidate for the Borough of Penns Grove
elective municipal office;
Every political party committee of the Borough of Penns Grove;
and
Every political committee, continuing political committee, or
other form of association or organization that regularly engages in
the support of candidates for the Borough of Penns Grove municipal
elective offices or Borough of Penns Grove municipal political parties
or political party committees. The terms in the foregoing subsection
have the meaning prescribed in N.J.A.C. 19:25-1.7.
[Amended 7-5-2017 by Ord.
No. 2017-5]
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 Borough of Penns Grove 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 unspecified 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 unspecified services"), from any business entity if such business entity has solicited or made any contribution to a candidate, candidate committee or joint candidate committee of any candidate for elective municipal office in the Borough of Penns Grove or a holder of public office having ultimate responsibility for the award of a contract, or to any Borough of Penns Grove political committee or political party committee, or to any Borough of Penns Grove political committee that regularly engages in the support of Borough of Penns Grove municipal elections and/or Borough of Penns Grove municipal candidates, candidate committees, joint candidate committees, political committees, political parties, or 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 which submits a proposal for or enters into negotiations
for the rendition of professional services or extraordinary unspecified
services shall knowingly solicit or make any contribution to a candidate,
candidate committee or joint candidate committee of any candidate
for elective municipal office in the Borough of Penns Grove or a holder
of public office having ultimate responsibility for the award of a
contract, or to any Borough of Penns Grove political committee or
political party committee, or any PAC, between the time of first communication
between that business entity and the municipality regarding a specific
agreement for professional services or extraordinary unspecified 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.
Monetary thresholds.
(1)
The
monetary thresholds of this article are:
(a)
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 candidate committee for Mayor or governing body,
or $300 per calendar year to a political committee or political party
committee of the Borough of Penns Grove; and
(b)
Five
hundred dollars maximum per calendar year to any PAC.
(2)
However, for each business entity party to a contract for professional or extraordinary unspecified services as defined in Subsection A, or engaged in negotiations for a contract defined in Subsection A, when each business entity's contribution is aggregated with all persons defined in the definition of "business entity" in § 21-1, Definitions, above, by virtue of its affiliation to that business entity party, the maximum shall be $2,500 to all Borough of Penns Grove candidates, candidate committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all Borough of Penns Grove political committees and political party committees as described herein combined, without violating Subsection A.
[Amended 7-5-2017 by Ord.
No. 2017-5]
D.
For purposes of this section, the office that is considered to have
ultimate responsibility for the award of the contract shall be:
(1)
The Borough of Penns Grove Mayor or governing body, if the contract
requires approval or appropriation from the Mayor or governing body;
or
(2)
The Mayor of the Borough of Penns Grove, 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 unspecified services from any business entity, the Borough of Penns Grove 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 § 21-2 of this article. The Borough of Penns Grove, its purchasing agents and departments 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 article, prior to awarding the contract or agreement.
B.
A business entity shall have a continuing duty to report to the Borough
of Penns Grove any contributions that constitute a violation of this
article that are made during the negotiation, proposal process or
the duration of a contract. The Borough of Penns Grove, 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 Borough 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 Borough of Penns
Grove, 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 unspecified services may cure a violation of § 21-2 of this article if, within 30 days after the date on which the applicable New Jersey Election Law Enforcement Commission (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.
The contribution limitations prior to entering into a contract in § 21-2A 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 an 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 Borough of Penns
Grove agreement or contract for professional services or extraordinary
unspecified 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 candidate committee of any candidate for elective municipal
office in the Borough of Penns Grove, or a holder of public office
having ultimate responsibility for the award of a contract, or any
Borough of Penns Grove 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, or 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 Borough of Penns Grove.[1]
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 this article or any taxpayer or resident of the Borough
of Penns Grove 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 attorney fees
and costs, arising from or related to a violation of this article.
If any provision of this article, or the application of any
such provision to any person or circumstances, shall be held invalid,
the remainder of this article, to the extent it can be given effect,
or the application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected thereby,
and to this extent the provisions of this article are severable. The
drafters of this article, the persons signing the petition in support
of this article, and the persons who cast votes in favor of this article
declare that they would have supported this article and each section,
subsection, sentence, clause, phrase, or provision or application
thereof, irrespective of the fact that any one or more other sections,
subsections, sentences, clauses, phrases, or provisions or applications
thereof may be held invalid.