[HISTORY: Adopted by the City Council of the City of Salem
as indicated in article histories. Amendments noted where applicable.]
[Adopted 3-7-2011 by Ord.
No. 11-03]
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 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 gift(s)], in any twelve-month period prior to the award of, or during the term of, a contract subject to this article; and
Shall mean:
Every candidate for City of Salem City elective municipal office;
Every candidate committee established by or for the benefit
of a candidate for City of Salem City elective municipal office;
Every joint candidate committee established in whole or in part
by or for the benefit of a candidate for City of Salem City elective
municipal office;
Every political party committee of the City of Salem City; and
Every political committee, continuing political committee, or
other form of association or organization that regularly engages in
the support of candidates for the City of Salem City municipal elective
offices or City of Salem City municipal political parties or political
party committees.
The terms in the foregoing subsection 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.Â
To the extent that it is not inconsistent with state or federal law, the City of Salem 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 (i) to a candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in Salem City or a holder of public office having ultimate responsibility for the award of a contractor, or (ii) to any Salem City political committee or political party committee, or (iii) to any continuing political committee or political action committee that regularly engages in the support of Salem City municipal elections and/or Salem City municipal 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.Â
No business entity who 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 (i) a
candidate, candidate committee or joint candidates committee of any
candidate for elective municipal office in Salem City, or a holder
of public office having ultimate responsibility for the award of a
contract, or (ii) to any Salem City 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.Â
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 City of Salem City; and (ii) $500 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 Subsection A, or engaged in negotiations for a contract defined in Subsection B, when such business entity's contribution is aggregated with all "persons" defined in § 13-1, Definitions, above, by virtue of their affiliation to that business entity party, a maximum of $2,500 to all City of Salem City candidates, candidate committees, joint candidate committees, and holders of public office having ultimate responsibility for the award of a contract, all City of Salem City political committees and political party committees as described herein combined, without violating Subsection A of this section.
D.Â
For purposes of this section, the office that is considered to have
ultimate responsibility for the award of the contract shall be:
(1)Â
The Mayor of the City of Salem or City Council as the governing body,
if the contract requires approval or appropriation from the Mayor
or governing body; or
(2)Â
The Mayor of the City of Salem, 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.Â
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.Â
Prior to awarding any contract or agreement to procure professional services or extraordinary unspecified services from any business entity, the City Clerk, CFO, 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 § 13-2 of this article. The City Clerk, CFO, purchasing agents and departments shall be responsible for informing the City 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.Â
A business entity shall have a continuing duty to report to the City
Clerk or CFO any contributions that constitute a violation of this
article that are made during the negotiation, proposal process or
the duration of a contract. The City Clerk or CFO, its purchasing
agents and departments shall be responsible for informing the governing
body within 10 business days after receipt of any such report from
the business entity, or at the next City Council meeting following
receipt of said report from the business entity, or whichever comes
first.
C.Â
The certification required under this section shall be made prior
to entry into the contract or agreement with the City of Salem, 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 § 13-2 of this article, 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.
A.Â
It shall be a material breach of the terms of a City of Salem agreement
or contract for professional services to extraordinary unspecified
services when a business entity that is a party to such agreement
or contract has:
(1)Â
Made or solicited a contribution in violation of this article;
(2)Â
Knowingly concealed or misrepresented a contribution given or received;
(3)Â
Made or solicited contributions through intermediaries for the purpose
of concealing or misrepresenting the source of the contribution;
(4)Â
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 Salem City, or a holder of public office having ultimate
responsibility for the award of a contract, or any Salem City political
committee or political party committee, or any PAC;
(5)Â
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)Â
Funded contributions made by third parties, including consultants,
attorneys, family members, and employees;
(7)Â
Engaged in any exchange of contributions to circumvent the intent
of this article; or
(8)Â
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.Â
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 City of Salem.
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 ordinance, or any taxpayer or resident of the City
of Salem 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.
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 the article,
declare that they would have supported the 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.