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ORDINANCE 2013-49 Guidance for Borough Professionals Regarding Referrals

Adopted: December 17, 2013

AN ORDINANCE OF THE BOROUGH OF POINT PLEASANT BEACH, COUNTY OF OCEAN, STATE OF NEW JERSEY CREATING SECTION 2-47 OF CHAPTER II OF THE BOROUGH CODE, ENTITLED “ADMINISTRATION” TO PROVIDE GUIDANCE TO BOROUGH PROFESSIONALS REGARDING REFERRALS

Be it Ordained by the Mayor and Council of the Borough of Point Pleasant Beach, County of Ocean, and State of New Jersey, as follows

WHEREAS, professional business entities are exempt from public bidding requirements; and
WHEREAS, so as to protect the integrity of the professional positions, the Mayor and Council deem it appropriate to ban the practice of an appointed professional business entity referring business to a Governing Body member; and

WHEREAS, permitting such referrals from professionals receiving discretionary contracts from the elected officials who are the beneficiaries of such referrals raises reasonable concerns on the part of taxpayers as to their trust in the process of local government, if not the quality or cost of services received; and

WHEREAS, pursuant to NJSA 40A: 11-5 and NJSA 40:48-2, municipalities have the right to establish rules and procedures for contracting with professional business entities.

THEREFORE, be it resolved, that the policy of the Borough of Point Pleasant Beach will ban the practice of an appointed professional business entity referring business to a member of the Governing Body member or holder of public office, and if the professional business entity shall do so, it shall immediately become ineligible to receive a public professional service contract from the Borough of Point Pleasant Beach and shall forfeit any contract then in place.

Section 1: Prohibition on Awarding Public Contracts

(a) Any other provision of law to the contrary notwithstanding, the Municipality or any of its purchasing agents or agencies or those of its independent authorities, as the case may be, shall not enter into an agreement or otherwise contract to procure professional, banking, insurance coverage services or any other consulting services, including those awarded pursuant to a “fair and open” process, from any professional business entity, if that entity has referred business to any Governing Body member of or holder of public office having ultimate responsibility for the award of the contract within one year immediately preceding the date of the contract or agreement.
(b) A professional business entity wishing to enter into an agreement with the Borough shall be required to certify that to the best of their knowledge, information and belief, they have not referred business to a Governing Body member or holder of public office having ultimate responsibility for the award of the contract pursuant to subsection (a) above.
(c) No professional business entity which enters into negotiations for, or agrees to, any contract or agreement with the Municipality or any department or agency thereof or of its independent authorities for the rendition of professional, banking or insurance coverage services or any other consulting services, including those awarded pursuant to a “fair and open” process, shall refer business to any Governing Body member or holder of public office having ultimate responsibility for the award of the contract 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, and for a period of six (6) months thereafter.

Section 2: Definitions:
(a) A “Professional Business Entity” means any individual including the individual's spouse, if any, and any child living at home; person; firm; corporation; professional corporation; partnership; organization; limited liability company; or association. The definition of a business entity includes all principals who hold an equity interest in the firm; corporation; professional corporation; partnership; organization; limited liability company; or association, as well as any subsidiaries directly controlled by the business entity.
(b) “Governing Body Member” means the Mayor or any member of Council and shall include any firm; corporation; professional corporation; partnership; organization; limited liability company; or association in which the Governing Body Member has an interest. Governing Body Member shall also mean that member’s spouse and children.
(c) “Referral” or “Referred Business To” shall mean to direct to a source for help, information or for a service, for compensation. It shall not mean a commercial transaction entered into in the routine course of trade for an amount less than $300.00 for any specific transaction.
(d) For purposes of this section, the office that is considered to have ultimate responsibility for the award of the contract shall be:
(1) The Point Pleasant Beach Borough Council and the Mayor of Point Pleasant Beach, if the contract requires approval or appropriation from the Council.
(2) The Mayor of the Borough of Point Pleasant Beach, 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.

Section 3: Statement by Professional Business Entity

(a) Prior to awarding any contract or agreement to procure services, including banking or insurance coverage services, with any professional business entity, the Borough or any of its purchasing agents or agencies, as the case may be, shall receive a sworn statement from the professional business entity that to the best of the bidder’s knowledge, information and belief, the bidder or offeror has not made a referral in violation of Section 1 of this Ordinance;
(b) The professional business entity shall have a continuing duty to report any violations of this Ordinance 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.
(c) Any professional business entity who is currently operating under a contract or agreement with the Borough shall report any activity which would have violated this ordinance, if this ordinance had been in effect at the time said contract or agreement was awarded.
Section 4: Penalty
(a) It shall be a breach of the terms of the Borough of Point Pleasant Beach professional service agreement for a business entity to: (i) make or solicit a referral in violation of this ordinance; (ii) knowingly conceal or misrepresent a referral given or received; (iii) make or solicit referrals through intermediaries for the purpose of concealing or misrepresenting the source of the referral; or (iv) 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.
(b) Futhermore, any professional business entity who violates (a), above, shall be disqualified from eligibility for future Borough of Point Pleasant Beach contracts for a period of two (2) calendar years from the date of the violation.

Section 5: 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) And any ordinance inconsistent with the terms of this ordinance is hereby repealed to the extent of such inconsistency.


Section 6: Effective Date:

This ordinance shall become effective upon its adoption and shall apply to contracts or agreements presently in effect, except that any referrals of business prior to the date of introduction of this ordinance shall not cause those agreements to be subject to the provisions of Section 4.

Borough of Point Pleasant Beach
Vincent Barrella, Mayor

NOTICE

TAKE NOTICE that the ordinance entitled as of above was introduced and passed on first reading at a regular meeting of the Mayor and Council of the Borough of Point Pleasant Beach held on the 3rd day of December 2013 and will be further considered upon second reading for final passage at a regular meeting of the said Mayor and Council of the Borough of Point Pleasant Beach to be held on the 17th day of December 2013 at the Point Pleasant Beach Borough Hall, 416 New Jersey Avenue, Point Pleasant Beach, New Jersey, at 7:30 p.m. or as soon thereafter as the matter may be reached, at which time and place any person desiring to be heard thereon will be given such opportunity.



_________________________________
Maryann Ellsworth, RMC
Municipal Clerk


Published December05, 2013 | New Ordinances | 1733


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