[Adopted 10-19-2004 by Ord. No. 35-2004]
A.
Professional business entities are exempt from public
bidding requirements.
B.
There is the potential for professional business entities
to make substantial political contributions to the election campaigns
of the local government elected officers who are ultimately responsible
for awarding professional service contracts.
C.
Substantial local political contributions from professionals
receiving discretionary contracts from the elected officials who receive
such contributions raise reasonable concerns on the part of taxpayers
as to their trust in the process of local government, as well as the
quality or cost of services received.
D.
Pursuant to N.J.S.A. 40A:11-5 and N.J.S.A. 40:48-2,
municipalities have the right to establish rules and procedures for
contracting with professional business entities.
E.
The policy of the Borough of Spring Lake will be to
exclude professional business entities from contributing to individuals
or a political ticket running for office. If an individual or professional
entity makes a campaign contribution as defined herein they will be
ineligible to receive a public professional service contract from
the Borough of Spring Lake.
A.
Any other provision of law to the contrary notwithstanding,
the municipality or any of its purchasing agents or agencies, including
all boards and commissions, or any of its independent authorities,
as the case may be, shall not enter into an agreement or otherwise
contract to procure services from any professional business entity,
if that entity has solicited or made any contribution of money, or
pledge of a contribution, including in-kind contributions or purchase
of tickets, advertisements or the like, which proceeds will be used
by or on behalf of or, to a campaign committee of any candidate or
holder of the public office having ultimate responsibility for the
award of the contract, or to any municipal, county or state party
committee, which is designated for a local candidate.[1]
B.
No professional business entity which enters into
negotiations for, or agrees to, any contract or agreement with the
municipality or any department, board, commission or agency thereof
or of its independent authorities for the rendition of professional
services shall knowingly solicit or make any contribution of money,
or pledge of a contribution, including in-kind contributions or purchase
of tickets, advertisements or the like, which proceeds will be used
by or on behalf of or to:
(1)
Any candidate or holder of the public office having
ultimate responsibility for the award of the contract; or
(2)
Any municipal party committee; or
(3)
Any county or state party committee (unless during
the preceding calendar year no contribution of money or in-kind contribution
in an amount sufficient to require reporting on the local campaign
election law report has been made to the local candidate or municipal
party committee by the state or county committee to which the professional
business entity may have contributed); or
(4)
Any political action committee (unless during the
preceding calendar year no contribution of money or in-kind contribution
in an amount sufficient to require reporting on the local campaign
election law report has been made to the local candidate or political
action committee by the state or county committee to which the professional
business entity may have contributed) between the time of first communications
between that business entity and the Borough regarding a specific
professional services agreement and the later of the termination of
negotiations or the completion of the contract or agreement.
C.
For purposes of this article, a "professional business
entity" seeking a public contract means an individual including the
individual's spouse, if any, and any child living at home; person;
firm; corporation; professional corporation; partnership; organization;
or association. The definition of a "business entity" includes all
principals who own 10% or more of the equity in the corporation or
business trust; partner; and officers in the aggregate employed by
the entity as well as any subsidiaries directly controlled by the
business entity. This prohibition shall include contributions from
employees if the contribution was provided by the professional business
entity to the employee for the purpose of subverting the provisions
of this article.
D.
Office considered to have ultimate responsibility.
(1)
For purposes of this subsection, the office that is
considered to have ultimate responsibility for the award of the contract
shall be:
(2)
However, the restrictions of this article apply to
boards, commissions or agencies of the Borough whose appointments
of professionals either require the approval of the Mayor and/or Borough
Council or whose operating funds are subject to appropriation by the
Borough of Spring Lake.
No contribution of money or any other thing
of value, including in-kind contributions, made by a professional
business entity to any municipal candidate for Mayor or Council, or
municipal party committee, county or state party committee or political
action committee shall be deemed a violation of this article, nor
shall an agreement for property, goods, or services of any kind whatsoever,
be disqualified thereby, if that contribution was made by the professional
business entity prior to the effective date of this article.
A.
Prior to awarding any contract or agreement to procure services with any professional business entity, the Borough or any of its purchasing agents or agencies, as they case may be, shall receive a sworn statement from the professional business entity made under penalty of perjury that the bidder or offeror has not made a contribution in violation of § 82-2 hereof and has not made or solicited contributions through intermediaries for the purpose of concealing the source of the contribution(s).
B.
The professional business entity shall have a continuing
duty to report any violations of this article that may occur during
the negotiation or duration of a contract. The certification required
under this subsection shall be made prior to entry into the contract
or agreement with the Borough and shall be in addition to any other
certifications that may be required by any other provision of law.
It is anticipated that there may be some professional
business entities which determine to attempt a legalistic adherence
to the letter rather than the spirit of this article. It is the declared
intent of this municipal governing body to remain vigilant to recognize
such attempts to subvert the underlying purposes for which this article
was adopted. Any professional business entity which may attempt such
creative subversion does so at its peril. If and in the event creative
actions are taken in order to defeat the purposes of this article,
it is the intention of the governing body to enact appropriate clarification
of this article, which clarification shall be retroactive to the initial
effective date of this article thereby disqualifying such creative
professional business entities from serving the Borough. Changes to
this article which are not for purposes of clarification, but which
are amendments to the provisions hereto, shall become effective upon
adoption and publication according to law.
This article may be repealed only upon four
affirmative votes of full membership of the governing body.
A.
All Borough professional service agreements shall provide that it shall be a breach of the terms of the government contract for a professional business entity as defined in § 82-2C to violate § 82-2B or to knowingly conceal or misrepresent contributions given or received, or to make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution.
B.
Any professional business entity as defined in § 82-2C who knowingly fails to reveal a contribution made in violation of this article, or who knowingly makes or solicits contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution, shall be disqualified from eligibility for future Borough contracts for a period of four calendar years form the date of the violation.
