Freeholders: Pay-to-play reform plan is illegal

Freeholders: Pay-to-play reform plan is illegal
Tuesday, October 17, 2006 The Record

They've complained about no-bid contracts being awarded to party contributors, and in June, members of the Citizens' Campaign set out to do something about it in Bergen County.

First, they drafted an ordinance that would drastically revise the way contracts are awarded in the county -- and gave it to the Board of Freeholders to consider.

Next, they attended every freeholder meeting between June and October to check on their plan's progress.

And when the freeholders raised constitutional concerns about the proposal, the citizens group returned this month with a favorable legal opinion -- drafted by a panel of lawyers that includes a former justice of the New Jersey Supreme Court.

Now, four months later, members of the good government group find themselves a bit frustrated.

"It doesn't appear that they're interested," said Alex Adler of Cliffside Park, a member of the Citizens' Campaign.

Freeholders who reviewed and analyzed the proposal say that is hardly the case.

The ordinance proposed by the Citizens' Campaign, which bars those doing business with the county (and their relatives) from making campaign contributions to candidates or parties during the term of their contract, is illegal, said Freeholder Vice Chairman David Ganz, a lawyer.

"I have spent hundred of hours doing this," Ganz said of his personal legal analysis. "I've read the cases, I've analyzed the cases, and I've come to the conclusion that the Citizens' Campaign, however well-meaning, they have just missed the boat on this one."

Ganz said the proposed ordinance would create a situation similar to one that the U.S. Supreme Court declared illegal in June, when it struck down a Vermont law limiting campaign contributions and spending.

Ganz said he and Freehold- er Chairwoman Bernadette McPherson have been working on an ordinance pertaining to campaign finances and contracting. That ordinance, still being reviewed by the board counsel, would require would-be contractors to disclose every candidate, political committee and party (state, national and local) to whom they've donated money. It would not ban the awarding of contracts to contributors, however.

And even that ordinance, Ganz said, could run into problems, in that it might create a bias against those who disclose they've contributed to unpopular or fringe political parties.

"There is no question that if you judge somebody by the company that they keep, that violates the rules of freedom of association," he said.

The Citizens' Campaign ordinance aims to sever the perceived link between campaign contributions and the awarding of contracts, a practice commonly referred to as pay-to-play.

It comes before a Democratic-controlled Freeholder Board that in recent years has awarded millions of dollars in no-bid contracts to Democratic Party contributors.

In addition to barring existing government contractors from making political contributions, the proposed ordinance calls for a one-year waiting period between making a political contribution of more than $300 and getting a government contract.

The Citizens' Campaign has pitched its model ordinance statewide, and by its count, 71 municipalities, including Ramsey, Hillsdale and Fair Lawn, have approved it, said spokeswoman Heather Taylor.

Ganz, the former mayor of Fair Lawn, said that borough's ordinance is unconstitutional as well.

The freeholders' counsel, Ed Florio, is still reviewing the matter, McPherson said. He did not return calls for comment.

The legal opinion that the citizens group submitted this month mentions the Vermont case struck down by the Supreme Court this year and concludes that the federal ruling does not thwart the group's local efforts.

The proposed ordinance, she said, bars only contributions form a select class of people -- government contractors -- for a specified amount of time: the duration of their contract. And the restriction, she said, serves a greater good: "To prevent the appearance of or actual corruption in government contracting."

Taylor said that no one has challenged the legality of the ordinance in towns where it has passed.

"It's just a familiar excuse," she said. "Anyone who doesn't want to adopt pay-to-play [reform], the quickest thing to say is that it's unconstitutional.''

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