Pay-To-Play Flies in Oakland 2

click for larger image

(The Oakland ordinance is available in a .doc format, and is also pasted below.)

After months of haggling, hours of discussion, and numerous revisions, Oakland has joined the ranks of New Jersey municipalities that have passed local pay-to-play ordinances.

The long, lengthy, and at times torturous debate, was often dominated by some council members having great difficulty in understanding the purpose of pay-to-play reform in Oakland. The accompanying diagram explains in very simple terms the purpose, and readers can click on the image to see it full size.

Basically, the purpose of pay-to-play is to limit the amount of money that can be contributed by contractors, vendors, and professionals who do business with the municipality. The premise is that vendors make contributions to political campaigns with the expectation that it will earn them an advantage with elected officials; pay-to-play limits what vendors/contractors can contribute.

Residents can review campaign reports for political candidates, committees, and both the Republican & Democratic clubs of Oakland on the NJ ELEC website. The website called StopPayToPlay.org is sponsored by a grassroots advocacy group,  and offers some very simple instructions with links to the ELEC database.

The NJ ELEC reports filed with respect to the primary season of 2012 show some fundraising activity on the part of the Republican candidates Chis Visconti and Pat Pignatelli, who chose this year to file separately. Prior to the June 5th primary in New Jersey, incumbent Pignatelli received $2,500 from the Oakland Republican Club on June 2, and $1000 from Frank DiMaria on June 2nd. Visconti’s filing showed $2,500 coming from the Republican Club on June 4.

Peter Kikot and Cheryl Piccoli, who filed jointly, did not show any fundraising activity prior to the NJ June primary where all local candidates from both parties ran unopposed.

Both Democrats and Republicans have held recent fundraisers, but those financial reports have yet to be filed with NJ ELEC.

The Ordinance

Section I: Prohibition on Awarding Public Contracts to Certain Contributors

A. Any other provision of law to the contrary notwithstanding, the Borough of Oakland or any of its purchasing agents or agencies, departments, instrumentalities or its independent authorities, as the case may be, shall not enter into an agreement or otherwise contract to procure:

• Professional, banking, insurance coverage or any other consulting services in any amount.

• Any and all other services not previously mentioned, including, but not limited to the provision of goods in an amount in excess of $17,500.00.

including those awarded pursuant to a “fair and open process”
if that entity has solicited or made any contribution of money, or pledge of a contribution, including loans, assumptions of liabilities and in-kind contributions, to any:

• candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in the Borough of Oakland or any person serving in an elective municipal office in the Borough of Oakland, or

• Borough of Oakland political committee or political party committee, or

• continuing political committee or political action committee that engages in or engaged in the support of Borough of Oakland elections and/or Borough of Oakland candidates, candidate committees, joint candidate committees, political committees, political parties, or political party committees, (hereinafter collectively “PAC”),

in excess of the thresholds specified in Subsection (D) within one (1) calendar year immediately preceding the date of the contract or agreement.

B. No entity which enters into negotiations for, or agrees to or enters into, any contract or agreement with the Borough of Oakland or any department or agency thereof or of its independent authorities for the rendition of:

• Professional, banking, insurance coverage or any other consulting services in any amount.

• Any and all other services not previously mentioned, including, but not limited to the provision of goods in an amount in excess of $17,500.00.

including those awarded pursuant to a “fair and open” process
shall solicit or make any contribution of money, or pledge of a contribution, including loans, assumptions of liabilities and in-kind contributions, to any:

• a candidate, candidate committee or joint candidates committee of any candidate for elective municipal office in the Borough of Oakland or any person serving in an elective municipal office in the Borough of Oakland, or

• Borough of Oakland political committee or political party committee, or

• “PAC”, which meets the requirements set forth in Subsection (A)
above,

in excess of the thresholds specified in Subsection (D) between the time of first communication between that entity and the Borough of Oakland or any of its departments, instrumentalities, purchasing agents or any independent authorities 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 Ordinance “entity” means:

• an individual or person acting on behalf of an individual, including the individual’s spouse, if any, and any child or children; or other person directed by the individual,

• person,

• firm;

• corporation;

• professional corporation;

• partnership;

• sole proprietorship;

• limited liability company;

• limited liability partnership;

• trade or labor union; trade or labor organization; trade or labor association; union; organization; association;

• any political organization organized under 26 U.S.C. § 527 that is directly or indirectly controlled by the entity, person or individual, other than a candidate committee, election fund, or political party committee;

• any other legal commercial entity organized under the laws of the State of New Jersey or of any other state or foreign jurisdiction.

The definition of an entity includes all principals who own 10% or more of the equity, profits, assets, shares, stocks, ownership or income interests in the corporation, partnership, firm, or company or business trust, partners, shareholders and officers in the aggregate employed by the entity as well as any subsidiaries directly or indirectly controlled by the entity, person or individual.

D. The monetary thresholds of this Ordinance are:

• a maximum of $300 per calendar year each for any purpose to any candidate or candidate committee for elective municipal office in the Borough of Oakland or any holder of elective municipal office in the Borough of Oakland, or $500 per calendar year to any joint candidates committee for elective municipal office in the Borough of Oakland, or $300 per calendar year to any political committee or political party committee of the Borough of Oakland; and

• $500 maximum per calendar year to any “PAC” which meets the requirements set forth in Subsection (A) above.

However, any individual or group of persons meeting the definition of entity provided in Subsection (C) above shall not annually contribute for any purpose in excess of $2,500 to all Borough of Oakland candidates, candidate committees, joint candidates committees, and holders of elective municipal office, and all Borough of Oakland political committees and political party committees and all “PAC’s” which meet the requirements set forth in Subsection (A)) above, combined without violating Subsections (A) and/or (B) above.

Section II: Anti-Circumvention Provisions. It shall be a material breach of the terms of the Borough’s professional service agreement or agreement for goods or services for an entity to:

• make or solicit a contribution in violation of this Ordinance;

• knowingly conceal or misrepresent a contribution given or received;

• make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution;

• make or solicit 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 the Borough of Oakland, or any holder of elective municipal office in the Borough of Oakland, or any Borough of Oakland political committee or political party committee, or any “PAC”;

• engage or employ 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 entity itself, would subject that entity to the restrictions of this Ordinance;

• fund contributions made by third parties, including consultants, attorneys, family members, and employees;

• engage in any exchange of contributions to circumvent the intent of this Ordinance; or

• directly or indirectly, through or by any other person or means, do any act which
would subject that entity to the restrictions of this Ordinance.

Section III: Contributions Made Prior to the Effective Date. No Contribution or solicitation of contributions made prior to the effective date of this Ordinance shall be deemed to give rise to a violation of this Ordinance.

Section IV: Contribution Statement by Entity. Prior to awarding any contract or agreement to procure professional, banking, insurance coverage, or any other consulting services in any amount or any and all other services not previously mentioned, including, but not limited to the provision of goods in an amount in excess of $17,500.00 with any entity, the Borough or any of its purchasing agents or agencies, departments, instrumentalities, or independent authorities, as the case may be, shall receive a sworn contribution disclosure statement from the entity detailing all reportable political contributions made within the immediately preceding 12 months and certifying under penalty of perjury that all reportable political contributions are set forth and that he/she/it has not made a contribution in violation of Section I of this Ordinance.
The Borough of Oakland or its employees, agents, or authorities shall be responsible for informing the Mayor and Borough Council, and simultaneously posting said contribution disclosure statement on the Borough website, informing all that the entity is not in violation of this Ordinance, . The entity shall have a continuing duty to report any violations of this Ordinance that may occur during the negotiation or duration of a contract.

Section V: Penalty. Any entity which violates any of the provisions of this Ordinance shall be disqualified from eligibility for any and all future contracts with the Borough of Oakland, its departments, instrumentalities, purchasing agents or any independent authority created thereby for a period of five (5) calendar years from the date of the violation.

Section VI: Exemptions. The contribution limitations applicable under this Ordinance shall 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.

Section VII. Severability and Effectiveness Clause.

A. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional, invalid, or unenforceable by a court of competent jurisdiction, such decision shall not affect the remaining portions of this Ordinance.

B. Any ordinance inconsistent with the terms of this Ordinance is hereby repealed to the extent of such inconsistency.

Section VIII. Effective Date. This Ordinance shall become effective immediately upon passage and publication in accordance with law.