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Applying a Pay-to-Play Ordinance in Trenton
Tuesday, February 8th, 2011
Update: February 10, 2011 (see below)
Trenton's city attorney and mayor have been going through an elaborate dance in the last week, since the city attorney decided to void a contract between the city and a law firm that made a large contribution to a PAC that supported the new mayor's candidacy. The city attorney's decision was made pursuant to a 2006 Trenton pay-to-play ordinance (a searchable copy is attached; see below). The Pay to Pay Law Blog reported on this matter yesterday.
What makes the pay-to-play law so interesting with respect to this matter is the division of responsibility among the city, the contractor, and the candidate or political committee. The prospective professional contractor is required to disclose any contribution in violation of the pay-to-play law, but the contractor is allowed to cure the violation by obtaining the return of any excess contribution within 30 days after the election. Seeking the return is not enough. The money has to be received within the 30-day period. Hence the committee's role in the matter. The committee, which may be out of funds by the time the request is made, might be in the position of determining whether a contractor can cure its violation and get or keep a contract.
In this matter, the law firm says that it requested return of its $7,200 contribution to a PAC (the state maximum), which the PAC turned over to the mayoral candidate's campaign committee three days later. But it does not appear that the contribution was returned, probably because the PAC had no funds on hand.
Thinking Tactically
Letting the violation stand seems hard on the law firm, which appeared to have done its best to rectify the problem. But think of the situation tactically. A law firm wants to get a contract, or a candidate has let it be known that there is a price for getting a contract, and the firm, after looking up the law, realizes that it can give money to a minor PAC instead of directly to the candidate, and then argue that it's not the firm's fault the PAC lacked the funds to return the contribution.
Red Flags
The fact that the firm made its contribution indirectly raises a flag. The fact that it chose a minor PAC for its contribution raises another. The fact that it was not a local law firm, with partners having a personal interest in the race, raises a third. And later came three more flags: the lead partner was placed on the mayor's transition team, he was named chair of the mayor's inaugural ball and, according to an article in the Trenton Times, he said with respect to not disclosing the contribution when his firm applied for the contract, “I was of the mind that it was a void contribution.”
Following the Law
Lawyers well know that "being of the mind" and following the law are two different things. The law makes it clear that a violation can be voided or cured "if, within 30 days after the general election which follows the date of the contribution, the contract recipient notifies the municipality in writing and seeks and received reimbursement of the contribution." The law firm neither notified the city, nor apparently received reimbursement. That means the firm should have disclosed the violation. In other words, it did not deal responsibly, or legally, with the problem.
Appearance of Impropriety
Although technical rules such are these are what most people, especially lawyers, focus on, government ethics is really about appearances of impropriety. The lead attorney insists that his firm gave no money to the mayoral candidate, nor did it solicit money for the inaugural ball. This makes it legally clean on this account. But when your contract is before the city council two weeks before the inauguration and, after refusing to approve it, the council finally bows to pressure from the mayor-elect to get it through (in a 4-3 vote), being chair of the ball is more than enough of an appearance of impropriety to offset the legal scruples.
If you want a no-bid contract to appear to the public as an arm's-length transaction, you stay at arm's length. You don't join the transition team, you stay home from the ball, you don't play around with large gifts to a PAC, and you follow the letter and spirit of the law.
Once again, the mayor is trying to bully open the way for the contract to remain. He appears to want to override the city attorney's decision, and the city attorney has said that he will give his final determination to the council at its meeting today (but the matter is not on the agenda).
The Decision and Who Should Be Making It
It is true that such a law should not be applied so that a technical error voids a contract. But this was far more than a technical error. The city attorney really has no choice but to void the contract, due both to the many flags that have been raised in this matter, and to the fact that as a high-level official himself, a decision to make an exception to the law for the law firm would look like he was part of the favoritism in city hall.
This is one reason why a city attorney should not be enforcing a government ethics law. Nor should the mayor or the council. Only an independent individual or body should be doing this.
For those who want to delve into New Jersey's local pay-to-play laws, here's a complete list of them on the NJ Dept. of State site.
For more information about this matter, see the following articles from the Trenton Times and the Trentonian (the last two):
City attorney finds law firm violated pay-to-play
Trenton Mayor Tony Mack's link to Atlantic County firms was forged during private shore party
Trenton Mayor Tony Mack, city's law director remain at odds over 'pay-to-play' violation
Trenton Mayor Tony Mack could face more pay-to-play woes over $250K engineering bid
Trenton won't play (editorial)
Levenson flooded Trenton City Hall with phone calls to gain Mayor Mack's pay-to-play reversal
Today's humorous L.A. Parker column
Update: February 10, 2011
The law firm wrote the mayor on Tuesday, telling him that it would be in everyone's best interests to terminate the contract. The letter was posted by the Pay to Play Law Blog. It's unfortunate that the lead lawyer, who signed the letter, referred to the firm's "highest reputation for integrity and ethical probity," but did not make it clear that dealing responsibly with this situation was an example of that integrity, or acknowledging what the firm had did wrong, at least for educational reasons (the letter was made public before it was received). It is not a sign of ethical probity to keep insisting you didn't do anything wrong.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Trenton's city attorney and mayor have been going through an elaborate dance in the last week, since the city attorney decided to void a contract between the city and a law firm that made a large contribution to a PAC that supported the new mayor's candidacy. The city attorney's decision was made pursuant to a 2006 Trenton pay-to-play ordinance (a searchable copy is attached; see below). The Pay to Pay Law Blog reported on this matter yesterday.
What makes the pay-to-play law so interesting with respect to this matter is the division of responsibility among the city, the contractor, and the candidate or political committee. The prospective professional contractor is required to disclose any contribution in violation of the pay-to-play law, but the contractor is allowed to cure the violation by obtaining the return of any excess contribution within 30 days after the election. Seeking the return is not enough. The money has to be received within the 30-day period. Hence the committee's role in the matter. The committee, which may be out of funds by the time the request is made, might be in the position of determining whether a contractor can cure its violation and get or keep a contract.
In this matter, the law firm says that it requested return of its $7,200 contribution to a PAC (the state maximum), which the PAC turned over to the mayoral candidate's campaign committee three days later. But it does not appear that the contribution was returned, probably because the PAC had no funds on hand.
Thinking Tactically
Letting the violation stand seems hard on the law firm, which appeared to have done its best to rectify the problem. But think of the situation tactically. A law firm wants to get a contract, or a candidate has let it be known that there is a price for getting a contract, and the firm, after looking up the law, realizes that it can give money to a minor PAC instead of directly to the candidate, and then argue that it's not the firm's fault the PAC lacked the funds to return the contribution.
Red Flags
The fact that the firm made its contribution indirectly raises a flag. The fact that it chose a minor PAC for its contribution raises another. The fact that it was not a local law firm, with partners having a personal interest in the race, raises a third. And later came three more flags: the lead partner was placed on the mayor's transition team, he was named chair of the mayor's inaugural ball and, according to an article in the Trenton Times, he said with respect to not disclosing the contribution when his firm applied for the contract, “I was of the mind that it was a void contribution.”
Following the Law
Lawyers well know that "being of the mind" and following the law are two different things. The law makes it clear that a violation can be voided or cured "if, within 30 days after the general election which follows the date of the contribution, the contract recipient notifies the municipality in writing and seeks and received reimbursement of the contribution." The law firm neither notified the city, nor apparently received reimbursement. That means the firm should have disclosed the violation. In other words, it did not deal responsibly, or legally, with the problem.
Appearance of Impropriety
Although technical rules such are these are what most people, especially lawyers, focus on, government ethics is really about appearances of impropriety. The lead attorney insists that his firm gave no money to the mayoral candidate, nor did it solicit money for the inaugural ball. This makes it legally clean on this account. But when your contract is before the city council two weeks before the inauguration and, after refusing to approve it, the council finally bows to pressure from the mayor-elect to get it through (in a 4-3 vote), being chair of the ball is more than enough of an appearance of impropriety to offset the legal scruples.
If you want a no-bid contract to appear to the public as an arm's-length transaction, you stay at arm's length. You don't join the transition team, you stay home from the ball, you don't play around with large gifts to a PAC, and you follow the letter and spirit of the law.
Once again, the mayor is trying to bully open the way for the contract to remain. He appears to want to override the city attorney's decision, and the city attorney has said that he will give his final determination to the council at its meeting today (but the matter is not on the agenda).
The Decision and Who Should Be Making It
It is true that such a law should not be applied so that a technical error voids a contract. But this was far more than a technical error. The city attorney really has no choice but to void the contract, due both to the many flags that have been raised in this matter, and to the fact that as a high-level official himself, a decision to make an exception to the law for the law firm would look like he was part of the favoritism in city hall.
This is one reason why a city attorney should not be enforcing a government ethics law. Nor should the mayor or the council. Only an independent individual or body should be doing this.
For those who want to delve into New Jersey's local pay-to-play laws, here's a complete list of them on the NJ Dept. of State site.
For more information about this matter, see the following articles from the Trenton Times and the Trentonian (the last two):
City attorney finds law firm violated pay-to-play
Trenton Mayor Tony Mack's link to Atlantic County firms was forged during private shore party
Trenton Mayor Tony Mack, city's law director remain at odds over 'pay-to-play' violation
Trenton Mayor Tony Mack could face more pay-to-play woes over $250K engineering bid
Trenton won't play (editorial)
Levenson flooded Trenton City Hall with phone calls to gain Mayor Mack's pay-to-play reversal
Today's humorous L.A. Parker column
Update: February 10, 2011
The law firm wrote the mayor on Tuesday, telling him that it would be in everyone's best interests to terminate the contract. The letter was posted by the Pay to Play Law Blog. It's unfortunate that the lead lawyer, who signed the letter, referred to the firm's "highest reputation for integrity and ethical probity," but did not make it clear that dealing responsibly with this situation was an example of that integrity, or acknowledging what the firm had did wrong, at least for educational reasons (the letter was made public before it was received). It is not a sign of ethical probity to keep insisting you didn't do anything wrong.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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