[HISTORY: Adopted by the Town Council of the Town of Newton
as indicated in article histories. Amendments noted where applicable.]
[Adopted 8-22-2011 by Ord. No. 2011-16]
As used in this article:
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 who 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 the Town of Newton elective municipal office;
every candidate committee established by or for the benefit of a candidate
for the Town of Newton elective municipal office; every joint candidate
committee established in whole or in part by or for the benefit of
a candidate for the Town of Newton elective municipal office; every
political party committee of the Town of Newton; and every political
committee, continuing political committee, or other form of association
or organization that regularly engages in the support of candidates
for the Town of Newton municipal or Sussex County elective offices
or Town of Newton municipal or Sussex County political parties or
political party committees.
The terms in the foregoing paragraph have the meanings 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 Town of Newton 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 services (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 services (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 Town of Newton, or a holder of public office having ultimate responsibility for the award of a contract, or to any Town of Newton or Sussex County political committee or political party committee or to any continuing political committee or political action committee that regularly engages in the support of Town of Newton municipal or Sussex County elections and/or Town of Newton municipal or Sussex County 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 who submits a proposal for, enters into negotiations
for, or agrees to any contract or agreement with the Town of Newton
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 a candidate, candidate
committee or joint candidate committee of any candidate for elective
municipal office in the Town of Newton, or a holder of public office
having ultimate responsibility for the award of a contract, or to
any Town of Newton or Sussex County 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.
The monetary thresholds of this article are 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 Town of Newton; a maximum of $500 per calendar year to a Sussex County political committee or political party committee; and a maximum of $500 per calendar year to any PAC; 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 such business entity's contribution is aggregated with all persons defined in the definition of "business entity" in § 10-1 above, by virtue of their affiliation to that business entity party, a maximum of $2,500 to all Town of Newton candidates, candidate committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all Town of Newton or Sussex County 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
Town of Newton Mayor or governing body, if the contract requires approval
or appropriation from the Mayor or governing body, or the Mayor of
the Town of Newton, 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 the 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 Town of Newton 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 Town of Newton, its purchasing agents and departments shall be responsible for informing the Town Council of the Town of Newton 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 Town
of Newton any contributions that constitute a violation of this article
that are made during the negotiation, proposal process or the duration
of a contract. The Town of Newton, 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 meeting of the Town Council of the Town of Newton 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 Town of Newton 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 § 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: The New Jersey 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 Town of Newton 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 Town of Newton, or a holder of public office having
ultimate responsibility for the award of a contract, or any Town of
Newton or Sussex County 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 Town of Newton.
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 Town
of Newton 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 in the definition of "business entity" in § 10-1 and in § 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 Town of Newton 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.
