Sunday, December 23, 2012

Publishing the "amount" of no-bid government contracts

Many local governments, annoyingly, do not publish the "amount" of their no-bid government contracts in the newspaper, even though such is required by statute.  Following is my letter to the Division of Local Government Services (within the Department of Community Affairs), seeking across-the-board enforcement of this requirement.

I explain in my letter how citizen enforcement of New Jersey's so-called "Pay to Play" laws is stymied when local governments do not publish the "amounts" of their no-bid contracts.
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December 23, 2012

Thomas Neff, Director
Division of Local Government Services
(via e-mail only)

Dear Mr. Neff:

As you are aware, N.J.S.A. 40A:11-5(a) requires local governments, each time they award a no-bid contract for professional services, to place a notice of the award in the local newspaper.  The statute specifies that the notice shall contain "the nature, duration, service and amount of the contract."  (Emphasis added).

Unfortunately, many municipalities do not report the "amount" of the no-bid contracts they award and instead only advise the public, through the local paper, that the no-bid contracts, which would disclose the amount, are available for inspection at the town clerk's office.

An example of this is found in the January 13, 2011 public notice published in the Gloucester County Times by the Township of Deptford (on-line here).  As you can see, the notice recites a number of no-bid contracts awarded to professionals, but does not disclose the "amount" of any of them.

Since the statute requires the "amount" of each no-bid contract to be published, your office, without more, should be willing to enforce that requirement against entities, such as Deptford, that violate the rule.  But, I would like to explain the practical difficulties  that I--as well as others--face when this requirement is not obeyed.

One of the professionals to which Deptford awarded a contract is Michael J. Silvanio, Esq., who was appointed on January 3, 2011 as Deptford's "conflict prosecutor."  Yet, Silvanio, on October 14, 2010, contributed $500 to Deptford Township Democratic Executive Committee (see the Election Law Enforcement Commission report, on-line here).

If Silvanio was awarded the contract under a "non fair and open process" (i.e. one without competitive proposals being received), then it would be legal for him to have made this contribution only if the amount of the awarded contract did not exceed $17,500.  Thus, in order for me or others to know whether or not the so-called "Pay-to-Play" laws have been violated, we need to know the "amount" of each no-bid contract that is awarded. 

Since Deptford has not abided by the statutory requirement, anyone who wants to determine whether or not the law has been violated needs to submit an OPRA request to Deptford in order to learn the amount of Silviano's contract--something that we should be able to learn simply by reading the newspaper.

Would the Division distribute a Local Finance Notice, or otherwise remind local governments of the statutory requirement to include the "amount" of each professional services contract they award within the legal notice published in the local newspaper?  If not, would the Division at least remind Deptford of this responsibility?

Thank you for your attention to this matter.  I look forward to hearing from you.

Sincerely,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Phone: 732-873-1251
E-mail: paff@pobox.com

cc. Hon. Paul Medany, Mayor and members of the Deptford Township Council (via e-mail to dzawadski@deptford-nj.org)

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