[Ord. No. 2011-8]
The Mayor and the Council of the Borough of Rockleigh (hereinafter
"Borough" or "Rockleigh" does hereby ordain:
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; and,
Whereas, pursuant to N.J.S.A. 40:48-2, a municipality is authorized
to adopt such ordinances, regulations, rules and by-laws as necessary
and proper for good government, as well as the public health, safety
and welfare; and,
Whereas, pursuant to P.L.2005, c.271 (codified at N.J.S.A. 40A:11-51)
a municipality is authorized to adopt by ordinance, measures limiting
the awarding 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 people and
the government of the Borough desire to establish a policy that will
avoid the perception of improper influence in public contracting and
local elections.
[Ord. No. 2011-8]
It shall be the policy of the Borough to create such a regulation
which states that a business entity which makes political contributions
to municipal candidates and municipal and county political parties
in excess of certain thresholds shall be limited in its ability to
receive public contracts from the Borough.
[Ord. No. 2011-8]
As used in this section:
Shall mean: (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 ten (10%) percent or more of the equity ownership
or income interests in a person or entity as defined in items (i)
and (ii) herein 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) herein, more than one hundred thousand
($100,000.00) dollars 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 (12) month period prior to the award of,
or during the term of, a contract subject to this section; and (vi)
all persons who are an "affiliate" of a business entity as defined
in items (i), (ii), and (v) herein, as such term is used in 11 U.S.C.
§ 101(2).
Shall mean (i) every candidate for Rockleigh elective municipal
office; (ii) every candidate committee established by or for the benefit
of a candidate for Rockleigh elective municipal office; (iii) every
joint candidate committee established in whole or in part by or for
the benefit of a candidate for Rockleigh elective municipal office;
(iv) every political party committee of the Borough; (v) every political
party committee of the Borough of Rockleigh; 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 Rockleigh or Bergen County elective offices or Rockleigh municipal
or 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.
Shall mean and include all contracts for "professional services"
and "extraordinary unspecifiable services" as such term is used in
N.J.S.A. 40A:11-5.
Shall mean as 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.
[Ord. No. 2011-8]
a.
To the extent that it is not inconsistent with State or Federal law,
the Borough 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(b) 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 (i) a candidate, candidate committee or
joint candidates committee of any candidate for elective municipal
office in Rockleigh or a holder of public office having ultimate responsibility
for the award of a contract, or (ii) to any Rockleigh or Bergen County
political committee or political party committee, or (iii) to any
continuing political committee or political action committee that
regularly engages in the support of Rockleigh municipal or Bergen
County elections and/or Rockleigh municipal or Bergen County candidates,
candidate committees, joint candidate committees, political committees,
political parties, political party committees, (hereinafter "PAC"),
in excess of the thresholds specified in paragraph g within one (1)
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 Borough or any
of its departments or instrumentalities, for the rendition of professional
services or extraordinary unspecified 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 Rockleigh, or a holder of public office having ultimate
responsibility for the award of a contract, or (ii) to any Rockleigh
or Bergen County 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 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.
The monetary thresholds of this section are: (i) a maximum of three hundred ($300.00) dollars per calendar year each for any purpose to any candidate or candidate committee for Mayor or Governing Body, or five hundred ($500.00) dollars per calendar year to any joint candidates committee for Mayor or Governing Body, or three hundred ($300.00) dollars per calendar year to a political committee or political party committee of the Borough; (ii) five hundred ($500.00) dollars maximum per calendar year to a Bergen County political committee or political party committee; and (iii) five hundred ($500.00) dollars maximum per calendar year to any PAC. However, for each business entity party to a contract for professional or extraordinary unspecified services as defined in paragraph a., or engaged in negotiations for a contract defined in paragraph a., when such business entity's contribution is aggregated with all "persons" defined in business entity of subsection 2-85.3 above, by virtue of their affiliation to that business entity party, a maximum of twenty-five hundred ($2,500.00) dollars to all Rockleigh candidates, candidate committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all Rockleigh or Bergen County political committees and political party committees as described herein combined, without violating paragraph a of this subsection.
d.
For purposes of this subsection, the office that is considered to
have ultimate responsibility for the award of the contract shall be
(i) the Borough of Rockleigh Mayor and Council, if the contract requires
approval or appropriation from the Mayor or Governing body, or (ii)
the Mayor of the Borough of Rockleigh, 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 section, if the subcontractor
would be disqualified by paragraph a from receiving the contract at
the time that the subcontract is awarded. Nor may any person who would
be disqualified by paragraph a from receiving the contract perform
substantially all of the obligations described in a contract for professional
or extraordinary services that is subject to this section.
[Ord. No. 2011-8]
No contribution or solicitation of contributions made prior
to the effective date of this section shall be deemed to give rise
to a violation of this section.
[Ord. No. 2011-8]
No contract subject to this section may be renewed, extended,
or materially modified unless the resulting renewal, extension, or
modification would be allowable under the provisions of this section
if it were an initial contract.
[Ord. No. 2011-8]
a.
Prior to awarding any contract or agreement to procure professional services or extraordinary unspecified services from any business entity, the Borough of Rockleigh 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 subsection 2-85.4 of this section. The Borough, 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 section, prior to awarding the contract or agreement.
b.
A business entity shall have a continuing duty to report to the Borough
any contributions that constitute a violation of this section that
are made during the negotiation, proposal process or the duration
of a contract. The Borough, its purchasing agents and departments
shall be responsible for informing the Governing Body within ten (10)
business days after receipt of said report from the business entity,
or at the next Mayor and Council meeting following receipt of said
report from the business entity, or whichever comes first.
c.
The certification required under this subsection shall be made prior
to entry into the contract or agreement with the Borough, 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.
[Ord. No. 2011-8]
A business entity that is a party to a contract for professional services or extraordinary unspecified services may cure a violation of subsection 2-85.4 of this section, if, within thirty (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.
[Ord. No. 2011-8]
The contribution limitations prior to entering into a contract is subsection 2-85.4a do not apply to contracts which (i) 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 (ii) 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.
[Ord. No. 2011-8]
a.
It shall be a material breach of the terms of a Borough agreement
or contract for professional services or extraordinary unspecified
services when a business entity that is a party to such agreement
or contract has: (i) made or solicited a contribution in violation
of this section; (ii) knowingly concealed or misrepresented a contribution
given or received; (iii) made or solicited contributions through intermediaries
for the purpose of concealing or misrepresenting the source of the
contribution; (iv) made or solicited 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 Rockleigh, or a holder of public
office having ultimate responsibility for the award of a contract,
or any Borough or Bergen County political committee or political party
committee, or any PAC; (v) 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 section; (vi) funded contributions made
by third parties, including consultants, attorneys, family members,
and employees; (vii) engaged in any exchange of contributions to circumvent
the intent of this section; or (viii) 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 section.
b.
Furthermore, any business entity that violates subsection 2-85.10a(i)
through a(viii) shall be disqualified from eligibility for future
Borough contracts for a period of four (4) calendar years from the
date of the violation.
c.
Any person who knowingly, purposely, or recklessly violates any provision of this section, or who conspires with another person to violate any provision of this section, or who, with the purpose of promoting or facilitating a violation of this section, 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 as stated in Borough Code Chapter 1, Section 1-5.
[Ord. No. 2011-8]
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 section, every person aggrieved by
a violation of the section, or any taxpayer or resident of the Borough
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 section 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 section.
[Ord. No. 2011-8]
If any provision of this section, or the application of any
such provision to any person or circumstances, shall be held invalid,
the remainder of this section, 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 section are severable.
[Ord. No. 2011-8]
The monetary thresholds of subsection 2-85.3, definition of Business Entity and subsection 2-85.4c of this section 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 $10.00. The Municipal Clerk of the Borough 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.
[Ord. No. 2011-8]
All ordinances or parts of ordinances which are inconsistent
with any provisions of this section are hereby repealed as to the
extent of such inconsistencies.
[Ord. No. 2011-8, adopted
10/3/2011]
This section shall become effective twenty (20) days following
the final adoption thereof by the Borough Council and publication
as required by law.
