ETHICS IN SCHOOL LAW AND PURCHASING:
RESPONSIBILITIES, PUBLIC INTEREST, INTEGRITY, OBJECTIVITY
AND INDEPENDENCE, DUE CARE, SCOPE AND NATURE OF
SERVICES FOR QUALIFIED PURCHASING AGENTS IN PUBLIC
SCHOOLS
NEW JERSEY ASSOCIATION OF SCHOOL BUSINESS OFFICIALS
Presented by
Hope R. Blackburn, Esq.
I. The Public Policy of Public Contracting and the Role of the Qualified
Purchasing Agent
A. The public policy of public contracting:
The purpose is to secure competition and to guard against favoritism,
improvidence, extravagance and corruption. Statutes directed toward
these ends QIC for the benefit of the taxpayers and not the bidders; they
should be construed with sole reference to the public good; and they
should be rigidly adhered to by the courts. Weinacht v. Board of Chosen
Freeholders of County of Bergen, 3 N.J. 330, 333 (1949)
B.
The Role of the Qualified Purchasing Agent (CCQPA")
, 1.
Purchasing Agent - Means the individual duly assigned the
authority, responsibility, and accountability for the purchasing activity of
{00623234:
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the contracting unit, and who has such duties as are defined by an
authority appropriate to the form and structure of the contracting unit; or
in the case of a board of education, the secretary, business administrator or
the business manager of the board of education duly assigned the
authority, responsibility and accountability for the purchasing activity of
the board of education and having the power to prepare advertisements, to
advertise for and receive bids and to award contracts as permitted by
N.J.S.A. 1SA:1SA-1 etseq., N,J.S.A.AQA:ll-9,N.J.A.C.5:34-l.2,
2.
Enhanced Auth o r ity
Once a public officer has met the regulatory training and experience
requirements to become a qualified purchasing agent, that person may
exercise the supplemental authority as set forth N.J.S.A. 18A:18A-3 and
N.J.S.A. 18A;18A-4.3 upon meeting the criteria relevant to the individual
as set forth in N.J.S.AAQA:l\-9.
a. Elevated bid threshold and the ability to award bids up to that
threshold if the board of education chooses to adopt the higher
threshold and/or delegate that authority. N.J.S.A.l$A:18A-3
b. Administer the competitive contracting process which permits
boards of education to award certain limited types of contracts
based upon a determination of price and other factors rather than to
the lowest responsible bidder. N.J.S.A.18A: 18A-4.1 et seq.
C. Fiduciary Responsibility - Process Integrity. The requirements of the
public bidding laws must be adhered to so that the public body may be
assured that its contracts will be entered into and performed in accordance
with their terms and that no actions are taken which are capable of giving one
vendor an advantage over another. This means compliance with the Public
School Contracts Law.
1.
The Purpose of the Public Bidding Laws
The public bidding laws themselves are also designed to foster the public
good. They work hand in hand with the responsibilities and obligations of
the qualified purchasing agent.
•
Bidding statutes are for the benefit of the taxpayers and are
construed as nearly as possible with sole reference to the public
good.
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•
Their objectives are to guard against favoritism, improvidence,
extravagance and corruption; their aim is to secure for the public
the benefits of unfettered competition.
•
To achieve these purposes, all bidding practices which are capable
of being used to further corrupt ends or which are likely to affect
adversely the bidding process are prohibited and all awards made
or contracts entered into where any such practice may have played
a part will be set aside.
•
This is so even though it is evident that in fact there was no
corruption or any actual adverse effect upon the bidding process.
Terminal Construction Corporation v. Atlantic County Sewerage
Authority, 67 N.J. 403, 409 (1975), See also, Meadowbrook
Carting Co, v. Borough of Island Heights, 138 N.J. 307, 313
(1994), citing Township of River Vale v. R.J. Longo Constr. Co.,
127 N.J. Super. 207, 215 (Law Div. 1974).
D. Fidelity - Personal Integrity. The qualified purchasing agent must act
without direct or indirect personal or professional conflicts of interest.
See, Scrivio, Thomas P., New Jersey Local Government
Deskbook, Section 7 (2014).
Common Law Standards - Predating the School Ethics Act:
a. Public servants shall not be interested, directly or indirectly, in any
contract made with public agencies of which they are members.
Public service demands an exclusive fidelity. The law tolerates no
mingling of self-interest. Ames v. Board of Education of
Montclair, 97 N.J. Eg. 60, 64 (Ch. 1925).
b. As fiduciaries and trustees of the public weal they are under an
inescapable obligation to serve the public with the highest fidelity.
In discharging the duties of their office they are required to display
such intelligence and skill as they are capable of, to be diligent and
conscientious, to exercise their discretion not arbitrarily but
reasonably, and above all to display good faith, honesty and
integrity. City of Newark v. N.J. Turnpike Authority, 1 N.J. 377,
381-382(1951).'
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c. They must be impervious to corrupting influences and they must
transact their business frankly and openly in the light of public
scrutiny so that the public may know and be able to judge them
and their work fairly. When public officials do not so conduct
themselves and discharge their duties, their actions are inimicable
to and inconsistent with the public interest, and not only are they
individually deserving of censure and reproach but the transactions
which they have entered into are contrary to public policy, illegal
and should be set aside to the fullest extent possible consistent with
protecting the rights of innocent parties. Jersey City v. Hague, 18
N.J, 584 (1955).
II. Fidelity - Personal Integrity Under The School Ethics Act
A.
In 1991, the Legislature adopted the School Ethics Act governing the
ethical conduct of board members and district administrators in their dealing with
public maters. The Ethics Act also created a School Ethics Commission with the
power to:
•
•
•
•
•
B.
issue advisory opinions,
receive complaints filed pursuant to the act,
receive and retain required financial and personal disclosure
statements,
conduct investigations, hold hearings, and
compel the attendance of witnesses and the production of
documents as it may deem necessary and relevant to such matter
under investigation.
Legislative Findings
1.
In our representative form of government it is essential that the
conduct of members of local boards of education and local school
administrators hold the respect and confidence of the people. These board
members and administrators must avoid conduct which is in violation of
their public trust or which creates a justifiable impression among the
public that such trust is being violated.
2.
To ensure and preserve public confidence, school board members
and local school administrators should have the benefit of specific
standards to guide their conduct and of some disciplinary mechanism to
ensure the uniform maintenance of those standards among them.
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NJ.S.A. ISA: 12-22.
C.
Select Definitions:
"Administrator" means any officer, other than a board member, or
employee of a local school district who (i) holds a position which requires
a certificate that authorizes the holder to serve as school administrator,
principal, or school business administrator; or (ii) holds a position which
does not require that the person hold any type of certificate but is
responsible for making recommendations regarding hiring or the purchase
or acquisition of any property or services by the local school district; or
(iii) holds a position which requires a certificate that authorizes the holder
to serve as supervisor and who is responsible for making
recommendations regarding hiring or the purchase or acquisition of any
property or services by the local school district;
"Business" means any corporation, partnership, firm, enterprise, franchise,
association, trust, sole proprietorship, union, political organization, or
other legal entity but shall not include a local school district or any other
public entity
"Interest" means the ownership or control of more than 10% of the profits,
assets, or stock of a business but shall not include the control of assets in a
labor union;
"Member of immediate family" means the spouse or dependent child of a
school official residing in the same household;
"Political organization" means a "political committee" or a "continuing
political committee" as those terms are defined in "The New Jersey
Campaign Contributions and Expenditures Reporting Act," P.L.1973, c.83
(C.19:44A-1 et seq,);
"Relative" means the spouse, natural or adopted child, parent, or sibling of
a school official;
"Spouse" means the person to whom a school official is legally married
under New Jersey law.
NJ.S.A. ISA: 12:23
D.
Prohibitions -
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1. Section a. No school official or member of his immediate family shall
have an interest in a business organization or engage in any business,
transaction, or professional activity, which is in substantial conflict with
the proper discharge of his duties in the public interest;
2. Section b. No school official shall use or attempt to use his official
position to secure unwarranted privileges, advantages or employment for
himself, members of his immediate family or others;
3. Section, c. No school official shall act in his official capacity in any
matter where he, a member of his immediate family, or a business
organization in which he has an interest, has a direct or indirect financial
involvement that might reasonably be expected to impair his objectivity or
independence of judgment. No school official shall act in his official
capacity in any matter where he or a member of his immediate family has
a personal involvement that is or creates some benefit to the school official
or member of his immediate family;
4. Section d. No school official shall undertake any employment or
service, whether compensated or not, which might reasonably be expected
to prejudice his independence of judgment in the exercise of his official
duties;
5. Section e. No school official, or member of his immediate family, or
business organization in which he has an interest, shall solicit or accept
any gift, favor, loan, political contribution, service, promise of future
employment, or other thing of value based upon an understanding that the
gift, favor, loan, contribution, service, promise, or other thing of value was
given or offered for the purpose of influencing him, directly or indirectly,
in the discharge of his official duties. This provision shall not apply to the
solicitation or acceptance of contributions to the campaign of an
announced candidate for elective public office, if the school official has no
knowledge or reason to believe that the campaign contribution, if
accepted, was given with the intent to influence the school official in the
discharge of his official duties;
6. Section f. No school official shall use, or allow to be used,-his public
office or employment, or any information, not generally available to the
members of the public, which he receives or acquires in the course of and
by reason of his office or employment, for the purpose of securing
financial gain for himself, any member of his immediate family, or any
business organization with which he is associated;
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7. Section g, No school official or business organization in which he has
an interest shall represent any person or party other than the school board
or school district in connection with any cause, proceeding, application or
other matter pending before the school district in which he serves or in any
proceeding involving the school district in which he serves or, for officers
or employees of the New Jersey School. Boards Association, any school
district. This provision shall not be deemed to prohibit representation
within the context of official labor union or similar representational
responsibilities;
8. Section h. No school official shall be deemed in conflict with these
provisions if, by reason of his participation in any matter required to be
voted upon, no material or monetary gain accrues to him as a member of
any business, profession, occupation or group, to any greater extent than
any gain could reasonably be expected to accrue to any other member of
that business, profession, occupation or group;
9. Section i. No elected member shall be prohibited from making an
inquiry for information on behalf of a constituent, if no fee, reward or
other thing of value is promised to, given to or accepted by the member or
a member of his immediate family, whether directly or indirectly, in return
therefore;
10. Section j. Nothing shall prohibit any school official, or members of his
immediate family, from representing himself, or themselves, in
negotiations or proceedings concerning his, or their, own interests; and
11. Section k. Employees of the New Jersey School Boards Association
shall not be precluded from providing assistance, in the normal course of
their duties, to boards of education in the negotiation of a collective
bargaining agreement regardless of whether a member of their immediate
family is a member of, or covered by, a collective bargaining agreement
negotiated by a Statewide union with which a board of education is
negotiating.
NJ.S.A. 18 A: 12-24
E. Discussion of Select School Ethics Advisory Opinions and Decisions
III. Process Integrity
The Purchasing Agent (QPA if there is one) is the person charged with the direct
responsibility of ensuring appropriate purchasing on behalf of the board of
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education. That starts with designing a system of procedures to be used clearly
establishing the responsibility of all staff in the purchasing process.
A. The initial requirement for a qualified purchasing agent in ensuring the
Integrity of the procurement process is to make certain that there is a system of
purchasing rules that contain appropriate procedures and clear internal controls.
1.
Internal Controls
N.J.A..C. 6A:23A-6.4 requires that the school district develop and
implement Internal Controls to govern its business and purchasing
activities. The regulation provides:
(a) As a condition of receiving State aid, each school district and
county vocational school district shall establish specific policies
and procedures on internal controls designed to provide
management with reasonable assurance that the district's goals and
objectives will be met and that meet the requirements of N.J.A.C.
6A:23A-6.5 through 6.13. Internal controls shall promote
operational efficiency and effectiveness, provide reliable financial
information, safeguard assets and records, encourage adherence to
prescribed policies and comply with law and regulation.
(b) The specific internal controls contained in this subchapter shall be
established together with other internal controls contained in
N.J.A.C. 6A and other law and regulations, required by
professional standards and as deemed necessary and appropriate by
district management. Any district may submit a written request to
the Commissioner to approve an alternative system, approach or
process for implementing the internal controls required in this
subchapter. The application must include documented evidence
that includes but is not limited to, an independent, third-party
written assessment that the alternative system, approach or process
will achieve the same safeguards, efficiency and other purposes as
the specified internal control requirement(s),
2.
Standard Operating Procedures:
N.J.A.C. 6A:23A-6.6 The Accountability Regulations require that the
school district develop and implement standard operating procedures for
business functions The regulation provides:
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(a) By December 31, 2009, each school district and county vocational
school district shall establish SOPs for each task or function of the
business operations of the district.
(b) An SOP manual shall include sections on each routine' task or
function of the following areas:
...5. Purchasing including such tasks as preparation of requisitions,
approval of purchase orders and encumbering of funds, bid and
quote requirements; and verification of receipt of goods and
sendees;
...(c) An SOP shall be established that ensures office supplies are
ordered in appropriate quantities, maintained in appropriate storage
facilities and monitored to keep track of inventory.
B, The District must certify that it is complying with certain business practices as
part of the Annual Statement of Assurance for New Jersey Quality Single
Accountability Continuum, N.J.A. C, 6A:30-5.4:
The District must give an annual assurance that it "approves purchase orders
approved only by the purchasing agent and issued in advance of goods received or
services rendered and encumbered for the full contractual amount. There are no
confirming orders."
C, The District must also demonstrate compliance as part of the required District
Performance Review, N.J.A.C. 6A:30-3.2. The district follows a standard
operating procedures manual for business functions (N.J.A.C. 6A:23A-6.6), which
includes a system of internal controls (NJ.A.C. 6A:23A-6.4) to prevent the overexpenditure of line item accounts, to safeguard assets from theft and fraud and to
ensure an adequate separation of duties.
IV. Ethical Business Practices: Compliance with the Public Bidding Laws.
It is the ethical and legal duty of the Qualified Purchasing Agent to engage in
sound business practices by complying with all of the legal and ethical statutes,
rules and regulations relating to the purchasing function of boards of education.
A significant part of that responsibility is to comply with the Public School
Contracts Law. That responsibility ranges from the
• identification of the appropriate procurement methodology for a particular
purchase
• engaging in ethical and legal solicitations regardless of the method used
from requests for quotes, requests for proposals to formal bids
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analyzing quotes, proposals and bids
making ethical and legal recommendations for award to appropriately
qualified, responsive and responsible vendors.
A, Identification of the Appropriate Purchasing Methodology
1.
Determine whether the procurement is under or over the bid
threshold
PSCL as
NJ.S.AJSA:18A-3(a)and(c)
T
of
.
January I ,
2011
Bid threshold with a QPA*
$35 QOO
Quote Threshold with a QPA (15% of bid threshold)
$5,400
Bid Threshold without a QPA
526 000
Quote threshold without a QPA (15% of bid threshold)
$3 900
2.
Multi Year Contracts. Determine whether a multi year agreement
where the amount to be procured annually is under the bid threshold is
required to be bid.
The regulation requires that "All multi-year contracts, including all multiyear leases and multi-year leases with option to purchase, which are
authorized under ...18A:18A-42(f), and other multi-year contracts subject
to 18 A: 18A-42 for the procurement of goods or services shall be subject to
competitive bidding if the cumulative amount to be expended during the
duration of the multi-year lease or contract exceeds the threshold for
competitive bidding for the contracting unit."
NJ.A.C. 5:34-3.2
3.
Aggregation. Determine whether the procurement for related
goods or services that are required to be aggregated and subject to bid or
competitive contract.
To determine if goods or services mat are expected to be used will reach
the bid threshold during the contract year, the contracting agent or
purchasing agent, as defined at NJ.A.C. 5:34-1.2, shall use professional
judgment based on prior experience of the contracting unit, estimates and
plans for the upcoming contract year based on information such as the
contracting unit's budget and purchasing history, and the amount
purchased in the previous contract year. When calculating the amount
purchased in the previous contract year, the calculation shall be based on
the period of 12 consecutive months following the award of a contract.
N.J.A.C.5-34-&.2
4.
Determine whether the good or service may be procured through
the competitive contracting process and use the appropriate process to
enter into a competitive procurement. Remember-Competitive proposals
MAY NOT BE NEGOTIATED. The following goods and services may
be procured through the competitive contracting process if permitted by
the board of education:
a. The purchase or licensing of proprietary computer software
designed for board of education purposes, which may include
hardware intended for use with the proprietary software. This shall
not be utilized for the purpose of acquiring general purpose
computer hardware or software;
b. The hiring of a for-proflt entity or a not-for-profit entity
incorporated under Title 15A of the New Jersey Statutes for the
purpose of:
(1) the operation, management or administration of recreation or
social service facilities or programs; or
(2) the operation, management or administration of data processing
services;
c. Services performed by an organization engaged in providing
energy conservation education and training services to train
employees of a board of education to reduce consumption of
energy;
d. Telecommunications transmission or switching sendees that are
not part of a tariff or schedule of charges filed with the Board of
Public Utilities;
e. The purchase of specialized machinery or equipment of a technical
nature, or servicing thereof, which will not reasonably permit the
drawing of specifications;
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f. Food services provided by food service management companies
when not part of programs administered by the New Jersey
Department of Agriculture, Bureau of Child Nutrition Programs;
g. Driver education courses provided by licensed driver education
schools;
h. Any good or service that is exempt from bidding pursuant to
N.J.S.18A:18A-5;
i. Laboratory testing sendees;
j.
Concessions;
k. The operation, management or administration of other services,
with the approval of the Division of Local Government Services in
the Department of Community Affairs.
5.
Determine if the good or service is exempt from public advertising,
and if so, what process, if any is required to be used under the Public
School Conn-acts Law, N.J.S.A.l$A:l%A-5 and NJ.S.A.1SA:18A-31,
under Pay to Play Laws and Accountability Regulations, N.J.S.A. 19: 44A
20.26 and N.J.A.C. 6A:23A-6.3 or recommended for use as a "Best
Practice" identified by the New Jersey State Comptroller and adopted as
Board Policy.
N.J.S.A.\SA:18A-5 permits a contract to be awarded without advertising
for and receipt of bids if it is either with the United States of America, the
State of New Jersey, county or municipality or any board> body, officer,
agency, authority or board of education or any other state or subdivision,
or for one of the following subjects
a. Professional services.
b. Extraordinary unspecifiable services which cannot reasonably be
described by written specifications pursuant to the procedures in
the Department of Community Affairs regulations,
c. The doing of any work by employees of the board of education;
d. The printing of all legal notices; and legal briefs, records and
appendices to be used in any legal proceeding in which the board
of education may be a party
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Q. Library and educational goods and services;
f. Food supplies, including food supplies for home economics
classes, when purchased pursuant to rules and regulations of the
State board and in accordance with the provisions of
N.J.S.18A:18A-6;
g. The supplying of any product or the rendering of any service by a
public utility, which is subject to the jurisdiction of the Board of
Public Utilities, in accordance with the tariffs and schedules of
charges made, charged and exacted, filed with said board;
h. The printing of bonds and documents necessary to the issuance and
sale thereof by a board of education;
i.
Equipment repair service if in the nature of an extraordinary
unspecifiable sendee and necessary parts furnished in connection
with such services, which exception shall be in accordance with
the requirements for extraordinary unspecifiable services;
j.
Insurance, including the purchase of insurance coverage and
consultant services, which exception shall be in accordance with
the requirements for extraordinary unspecifiable services;
k. Publishing of legal notices in newspapers as required by law
1. The acquisition of artifacts or other items of unique intrinsic,
artistic or historic character;
m. Those goods and services necessary or required to prepare and
conduct an election;
n. The doing of any work by persons with disabilities employed by a
sheltered workshop;
o. Expenses for travel and conferences;
p. The provision or performance of goods or services for the support
or maintenance of proprietary computer hardware and software,
except that this provision shall not be utilized to acquire or upgrade
n on-proprietary hardware or acquire or update non-proprietary
software;
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q. Purchases of goods and services at rates set by the Universal
Service Fund administered by the Federal Communications
Commission;
r. Goods and services paid with funds that: are raised by or collected
from students to support the purchase of student-oriented items or
materials, such as yearbooks, class rings, and a class gift; and are
deposited in school or student activity accounts; and require no
budget appropriation from the board of education;
s. Food services provided by food service management companies
pursuant to procedures established by the New Jersey Department
of Agriculture, Bureau of Child Nutrition Programs; or
t. Vending machines providing food or drink.
6.
Determine if the good or service is available under an existing
cooperative and, if so, determine the appropriate method to use the various
cooperative contracts.
a. State Contract.
b. State authorized GSA/FSS pursuant to the Method of Operation
posted on the Department of Treasury, Division of Purchase and
Property website,
NOTE: the contract and any payments
thereunder may ONLY be with the State contractor, not an
"authorized" dealer.
c. State authorized national cooperative contract with the restrictions
or limits in the State Participating Addendum and the posted
Method of Operation on the Department of Treasury, Division of
Purchase and Property website.
d. Governmental Issued National Cooperative Contract with the
limitations and Method of Operation and required analysis in the
Local Finance Notice 12-10 governing the use of National
Cooperatives and the prohibition against use for public works
contracting.
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e. Local Cooperative Joint Purchase or Cooperative Pricing Contact
with the limitations based upon the actual award and contract
language
B.
Analyzing Defects
1.
The majority of cases dealing with process integrity involve bid
protests regarding material defects in bids.
Any anarysis of potentially defective bids should begin with consideration
of the Standards for Public Bidding in Section I, above. A defect or action
need not actually have resulted in undue advantage or corruption, it need
only have the POTENTIAL for undue advantage or corruption in order to
be material and not waivable.
2.
Materiality - Meadowbrook Two Prong Test for Rejection
The New Jersey Supreme Court adopted a two-pronged test for materiality
in its decision in Meadowbrook:
•
•
Would waiving the defect deprive the Board of its assurance that
the contract will be entered into, performed and guaranteed
according to its specified requirements.
Would waiving the defect adversely affect competitive bidding by
placing a bidder in a position of advantage over other bidders or by
otherwise undermining the necessary common standard of
competition.
3.
Sample of Defects Requiring Automatic Rejection
•
Bid Proposal or failure to sign the proposal (in certain
circumstances)
Failure to provide a required Bid Bond
Failure to provide or providing a defective Consent of Surety
Failure to submit an Ownership Disclosure Form
Affirmative Action statement or form (but not both)
•
•
•
•
There may be other nonwaivable defects. In the event the Board chose to
make an item mandatory in its bid specifications., the omission of that item
in a bid or competitive proposal may be determined to constitute a
nonwaivable material defect if it.
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4.
Nonmaterial defects. New Jersey Courts have recognized that:
"where the irregularity is not substantial, it may well be the duty as well as
the right of the .municipality to waive it." Township of River Vale v. R.J.
Longo Constr. Co., 121 NJ.Super. 207, 222 (LawDiv. 1974).
E. Determining Bidder Responsibility
Integrity in assessing bidders/proposers. In addition to rejecting a bid for failure
to comply with mandatory procedures or materially deviating from specified
requirements, bidders/proposers may also be disqualified for prior negative
experience. N.J.S.A. 18A:18A-4(b).
1,
Determine whether the elements of prior Negative Experience
Apply to the bidder/proposer
a. Within past 10 years, as reported in a contractor evaluation
b. Must show
1) adjudication or other contractually stipulated alternate dispute
resolution mechanism of having failed to provide goods and/or
services (can be judicial determination, arbitration, mediation,
settlement, ADR); or
2) bidder defaulted- failed to provide goods and/or services, failed
to complete a contract in a timely manner, or otherwise
performed unsatisfactorily under a prior contract with a board
or the Economic Development Authority;
3) bidder defaulted and a board completed the contract with
another contractor; or
4) bidder defaulted- Surety to complete contract; or
5) Contractor has been debarred or suspended,
•
•
Board need not disqualify (other than suspension or disbarment)
Requires notice and an opportunity to be heard (other than
suspension or disbarment)
2.
Determine whether the bidder is appropriately classified pursuant
to;Y./.6'.^.18A:18A-26 or N.J.S.A.7G-33 etseq.
3.
Qualification of Bidder (N.J.S.A.IZA:\SA-27)
•
Subject to state regulations
•
Relates to dollar limit contractor who is classified in certain trade
can undertake
•
Relates to ability to bond (financial ability based upon experiences,
capital or equipment of contractor)
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•
Established by State Treasurer
•
* Applies to Contracts for public works exceeding the bid
threshold
V. Possible Consequences of Noncompliance
The consequences for noncompliance for lack of fidelity and breach of the
Qualified Purchasing Agent's fiduciary responsibility fall into two broad
categories
•
•
Board of Education Consequences; and
Qualified Purchasing Agent, Superintendent and Other District Employee
Consequences
A, Consequences for the Board of Education. The following are some of the
potential consequences and penalties for violation of the Public School Contracts
Law. The list is just a sampling and does not include all of the possible statutory
or regulatory consequences. In general there are implications for both the District
and the Qualified Purchasing Agent.
Some of the penalties for the District may be:
1.
Withholding of State Aid
NJ.S.A. 18A:55-2. Withholding of fluids from district
The commissioner shall direct the State treasurer to withhold funds
payable by the State from any district which fails to obey the law or
the rules or directions of the State board or the commissioner.
The executive county superintendent with the approval of the
commissioner may direct the secretary or treasurer of the school
moneys, as appropriate, of a school district to withhold all moneys
received by him from the State treasurer and then remaining in his
hands to the credit to the district, whenever the board of education of
the district, or any officer thereof, or the legal voters of any school
district, or any board or officer of the municipality in which any such
school district is situate, shall neglect or refuse to perform any duty
imposed upon such board, officer, or legal voters by this title or by the
rules of the State board. The secretary or treasurer, as appropriate,
shall withhold such moneys until he shall receive notice from the
county superintendent that the board, officer, or legal voters have
performed such duty.
Withholding Limitations (EUS first offense)
N.J.S.A. 18A:18A-46.1. Limitation on withholding of State funds from
school districts for certain violations of public school contracts law
a. Notwithstanding any law to the contrary, except as otherwise
provided in this section, the Commissioner of Education shall not
withhold State funds from any school district, or require any school
district to remit any State funds previously paid to that district, because
of any act or omission by the district which the commissioner
determines to have been taken or permitted to occur in violation of the
extraordinary unspecifiable services exception to the requirements for
public advertisement and bidding as set forth in NJ.S.18A.T8A-5,
unless the commissioner determines that: (1) the act or omission was
the result of any collusion between any officer or employee of the
district and any contract vendor; or (2) the act or omission was
prompted by an. intent on the part of any officer or employee of the
district to evade the public advertisement and bidding requirements of
the "Public School Contracts Law," NJ.S.18A:18A-1 et seq,; or (3) a
prior act or omission resulted in a withholding of State funds or a
remission of State funds due to a violation of the extraordinary
unspecifiable services exception to the requirements for public
advertisement and bidding as set forth in N.LSJ8A;18A-5.
b. If the commissioner determines that the violation was caused by
negligence and none of the provisions in paragraph (3) in subsection a.
are met, the amount of State funds withheld shall not exceed 10% of
the contract amount, or in the case of multiple contracts, 10% of the
total amount of the contracts, or $ 25,000, whichever is less.
c. Any school district from which the commissioner withheld funds or
has sought to collect funds prior to the effective date of this act due to
a determination that the district acted or permitted an action to occur in
violation of the extraordinary unspecifiable services exception to the
requirements for public advertising and bidding as set forth in
NJ.S, 18A:18A-5 may apply to the commissioner for restoration of
funds so withheld. If the commissioner determines that none of the
provisions set forth in paragraph (1), (2) or (3) in subsection a. or in
subsection b. applies, the commissioner shall remit to the school
district the applicable funds previously withheld or forgive any
amounts pending collection.d. The limitations placed upon the
commissioner pursuant to this act shall not restrict the commissioner's
authority to supervise the compliance by school districts with the
requirements of the "Public School Contracts Law," N.IS.18A:18A-1
et seq., and to seek all other remedies pursuant to Title 18A of the New
Jersey Statutes.
2.
Loss of or required reimbursement of Federal Aid
Page 19
3.
Loss of State monitoring points and lack of compliance with the
annual Statement of Assurances
4.
Office of Fiscal Accountability and Compliance Investigation
5.
State Comptroller Investigation
6.
Possible State Intervention (ranging from partial - highly qualified
professional assistance/oversight, State Fiscal Monitor with the ability to
veto Board Action to full intervention and diminution/loss of local control)
N.J.S.A. 18A:7A-55. Appointment of State monitor in certain school
districts; duties
a. In addition to the powers provided pursuant to P.L.2005, c.235
[C.18A:7A-53 et al], P.L.1996, c.138 (C.18A:7F-1 et al.), and
PX.2007, c.260 (C.18A:7F-43 et al.) or any other law, the
Commissioner of Education shall have the authority to appoint a State
monitor and additional staff, as necessary, to provide direct oversight
of a board of education's business operations and personnel matters if:
the school district receives an adverse or a disclaimer of opinion by its
independent auditor in the annual audit required pursuant to
NJ.S.18A:23-I; or any two or more of the following circumstances
apply to the school district:
(1) the school district ends the fiscal year with a deficit balance as
calculated for budgetary purposes in the general fund, special
revenue fund, or capital projects fund, with the exception of a
capital projects fund deficit caused by the issuance of bond
anticipation notes;
(2) the school district receives a qualified opinion by its
independent auditor in the annual audit required pursuant to
NJ.S.18A:23-l;
(3) the school district receives an adverse, disclaimer, or qualified
opinion by its independent auditor under the single audit
section for State or federal awards in the annual audit required
pursuant to NJ.S.18A:23-1;
(4) the school district receives any audit findings by its
independent auditor identified as material weaknesses in
internal controls;
Page 20
(5) the school district fails to develop and implement a plan
acceptable to the commissioner or his design.ee to address a
potential or actual deficit balance in the general fund, special
revenue fund, or capital projects fund, with the exception of a
capital projects fund deficit caused by the issuance of bond
anticipation notes;
(6) the school district fails to implement a plan from, the prior year
which causes any findings from the independent auditor to be
repeated;
(7) the school district is required to return federal funds once it is
determined that the school district's expenditures are not in
compliance with the grant requirements; or
(8) the school district submits the annual audit after the submission
date required pursuant to NJ.S.18A:23-1.
b. The State monitor shall:
(1) oversee the fiscal management and expenditures of school
district funds, including, but not limited to, budget
reallocations and reductions, approvals of purchase orders,
budget transfers, and payment of bills and claims;
(2) oversee the operation and fiscal management of school district
facilities, including the development and implementation of
recommendations for redistricting and restructuring of schools;
(3) ensure development and implementation of an acceptable plan
to address the circumstances set forth in. subsection a. of this
section which resulted in the appointment of the State monitor.
The plan shall include measurable benchmarks and specific
activities to address the deficiencies of the school district;
(4) oversee all district staffing, including the ability to hire,
promote, and terminate employees;
(5) have authority to ovenide a chief school administrator's action
and a vote by the board of education on any of the matters set
forth in this subsection, except that all actions of the State
monitor shall be subject to the education, labor, and
employment laws and regulations, including the "New Jersey
Employer-Employee Relations Act," P.L.1941, c.100
(C.34:13A-1 et seq.)5 and collective bargaining agreements
entered into by the school district;
(6) attend all meetings of the board of education, including closed
sessions; and
(7) meet with the board of education on at feast a quarterly basis to
discuss with the members of the board the past actions of the
board which led to the appointment of the State monitor and to
provide board members with education and training that
address the deficiencies identified in board actions.
c. The Commissioner of Education shall notify the State Board of
Education following the appointment of a State monitor pursuant to
subsection a. of this section. The State monitor shall report directly to
the commissioner or his designee on a weekly basis. The State monitor
shall also report monthly to the board of education and members of the
public at the regularly scheduled board of education meeting.
d. For puiposes of the "New Jersey Tort Claims Act," N.IS.59:1-1 et
seq., the State monitor shall be considered a State officer, but for all
other purposes the State monitor shall be considered an employee of
the district.
e. The State monitor shall provide oversight in the school district
until the commissioner determines that all remedial actions required
under the. plan have been implemented and the necessary local
capacity and fiscal controls have been restored to school district
operations.
f. The salary of the State monitor shall be fixed by the commissioner
and adjusted from time to time as the commissioner deems
appropriate. The school district shall assume the total cost of the State
monitor and necessary additional staff appointed pursuant to
subsection a. of this section. The State monitor shall have the authority
to appoint legal counsel if legal action is taken against him while
acting in his official duties as a State monitor or as needed upon
approval of the commissioner.
B.
Consequences for the Individual Qualified Purchasing Agent
1.
Loss of QPA certification resulting in a lower bid. threshold and the
ability to oversee the competitive contracting from both the Commissioner
of the Department of Community Affairs and the loss of certification from
the State Board of Examiners
2.
N.J.S.AAOA: 11-9. The director may revoke or suspend a qualified
purchasing agent certificate for dishonest practices or willful or intentional
failure, neglect, or refusal to comply with the laws relating to
procurement, or for other good cause. The governing body, together with
the chief executive officer of any contracting unit, or a board of education,
may request the director to review the behavior or practices of a person
holding a qualified purchasing agent certificate. Prior to taking any
adverse action against a person, the director or the director's designee shall
convene a hearing, upon due notice, affording the person an opportunity to
be heard. If the qualified purchasing agent certificate held by a person
serving as a purchasing agent is revoked, the director shall order that
person to no longer perform the duties of purchasing agent, and the person
shall not be eligible to serve as a purchasing agent or to make application
for recertification for a period of five years from the date of revocation.
3.
Certificate Suspension or Revocation,
N.J.A.C. 6A:23A-3.3
requires the State Board of Examiners to review the certification of the
Superintendent and the School Business Administrator when a State
Monitor is appointed pursuant to NJ.S.A. ISA:6-38,2.
4.
Tenure Charges
5.
School Ethics Act Violation findings
6.
In extreme cases -Criminal Liability
a. Bribery: NJ.S.A. 2C:27-2. Bribery in official and political matters
A person is guilty of bribery if he directly or indirectly offers,
confers or agrees to confer upon another, or solicits, accepts or
agrees to accept from another:
(1)
Any benefit as consideration for a decision, opinion,
recommendation, vote or exercise of discretion of a public
servant, party official or voter on any public issue or in any
public election; or
Page 23
(2)
Any benefit as consideration for a decision, vote,
recommendation or exercise of official discretion in a
judicial or administrative proceeding; or
(3)
Any benefit as consideration for a violation of an official
duty of a public sen-ant or party official; or
(4)
Any benefit as consideration for the performance of official
duties.
For the purposes of this section "benefit as consideration" shall be
deemed to mean any benefit not authorized by law.
It is no defense to prosecution under this section that a person
whom the actor sought to influence was not qualified to act in the
desired way whether because he had not yet assumed office, or
lacked jurisdiction, or for an}' other reason.
In any prosecution under this section of an actor who offered,
conferred or agreed to confer, or who solicited, accepted or agreed
to accept a benefit, it is no defense that he did so as a result of
conduct by another constituting theft by extortion or coercion or an
attempt to commit either of those crimes.
Any offense proscribed by this section is a crime of the second
degree. If the benefit offered, conferred, agreed to be conferred,
solicited, accepted or agreed to be accepted is of the value of S
200.00 or less, any offense proscribed by this section is a crime of
the third degree.
b. Unlawful official business transaction where interest is involved;
N.J.Sji. 2C:27-9.
A public servant commits a crime of the fourth degree if, while
performing his official functions on behalf of a governmental
entity, the public servant knowingly transacts any business with
himself, a member of his immediate family, or a business
organization in which the public servant or an immediate family
member has an interest For purposes of this section, an interest in
a business organization shall not include aggregate familial
ownership or control of one percent or less of an interest in the
capital or equity of the business organization. A public servant
shall not be guilty of an offense under this section if the public
servant's performance of official functions would not affect the
Page 24
public servant, family member or business organization differently
than such performance would affect the public generally, or would
not affect the public servant, family member or business
organization, as a member of a business, profession, occupation or
group, differently than such performance would affect any other
member of such business, profession, occupation or group.
c. Acceptance or receipt of unlawful benefit by public servant for
official behavior. N.J.S.A. 20:27-10.
A public servant commits a crime if, under color of office and in
connection with any official act performed or to be performed by the
public servant, the public servant directly or indirectly, knowingly
solicits, accepts or agrees to accept any benefit, whether the benefit
inures to the public servant or another person, to influence the
performance of an official duty or to commit a violation of an official
duty.
A public servant commits a crime if, under color of office and in
connection with any official act performed or to be performed by the
public servant, the public servant directly or indirectly, knowingly
receives any benefit, whether the benefit inures to the public servant or
another person, to influence the performance of an official duty or to
commit a violation of an official duty.
In addition to the definition set forth in N.J.S. 2C:27-1, "benefit" as
used in this act includes any benefit from or by reason of a contract or
agreement for goods, property or services if the contract or agreement
is awarded, made or paid by the branch, subdivision, or agency of the
government that employs the public servant.
The provisions of this section shall not apply to:
(1)
Fees prescribed by law to be received by a public servant or
any other benefit to which the public servant is otherwise
legally entitled if these fees or benefits are received in the
manner legally prescribed and not bartered for another
benefit to influence the performance of an official duty or
to commit a violation of an official duty;
(2)
Gifts or other benefits conferred on account of kinship or
other persona], professional or business relationship
independent of the official status of the recipient if these
gifts or benefits are within otherwise legally permissible
Page 25
limits and are not bartered for another benefit to influence
the performance of an official duty or to commit a violation
of an official duty; or
(3)
Trivial benefits the receipt of which involve no risk that the
public servant would perform official duties in a biased or
partial manner.
An offense proscribed by this section is a crime of the second degree.
If the benefit solicited, accepted, agreed to be accepted or received is
of a value of S200.00 or less, any offense proscribed by this section is
a crime of the third degree.
d. Official misconduct. NJ.S.A. 2C:30-2.
A public servant is guilty of official misconduct when, with purpose to
obtain a benefit for himself or another or to injure or to deprive
another of a benefit:
(1)
He commits an act relating to his office but constituting an
unauthorized exercise of his official functions, knowing
that such act is unauthorized or he is committing such act in
an unauthorized manner; or
(2)
He knowingly refrains from performing a duty which is
imposed upon him by law or is clearly inherent in the
nature of his office.
Official misconduct is a crime of the second degree. If the benefit
obtained or sought to be obtained, or of which another is deprived or
sought to be deprived, is of a value of $ 200.00 or less, the offense of
official misconduct is a crime of the third degree.
C.
Consequences to Boards of Education and Members Thereof
1.
Disbursing moneys, incurring
appropriations. NJ.S.A. 2C:30-4.
obligations
in. excess
of
A person or member of a board or body charged with or having the control
of a State office, division, department or institution or a member of a
county or municipal governing body or a member of a board of education,
commits a crime of the fourth degree if he purposely and knowingly:
Page 26
a. Disburses, orders or votes for the disbursement of public moneys, in
excess of the appropriation for that office, division, department,
institution, board or body; or
b. Incurs obligations in excess of the appropriation and limit of
expenditure provided by law for that office, division, department,
institution, board or body.
Nothing contained in this section shall be construed to prevent a board of
education from keeping open the public schools.
2.
Racketeering. NJ.S.A. 2C: 41-1
"Racketeering activity" means (1) any of the following crimes which are
crimes under the laws of New Jersey or are equivalent crimes under the
laws of any other jurisdiction: ., .(2) any conduct defined as "racketeering
activity" under Title 18, U.S.C. § 1961(1)(A), (B) and (D).
3.
Prohibited activities. N.J.S.A. 2CAI-2.
It shall be unlawful for any person who has received an}' income derived,
directly or indirectly, from a pattern of racketeering activity or through
collection of an unlawful debt in which he has participated as a principal
within the meaning of N.J.S. 2C:2-6 to use or invest, directly or indirectly,
any part of the income, or the proceeds of the income, in acquisition of
any interest in, or the establishment or operation of any enterprise which is
engaged in or the activities of which affect trade or commerce. A purchase
of securities on the open market for purposes of investment, and without
the intention of controlling or participating in the control of the issuer or
of assisting another to do so, shall not be unlawful, under this section,
provided that the sum total of the securities of the issuer held by the
purchaser, the members of his family, and his or their accomplices in any
pattern of racketeering activity or in the collection of an unlawful debt
does not amount in the aggregate to 1% of the outstanding securities of
any one class, or does not, either in law or in fact, empower the holders
thereof to elect one or more directors of the issuer, provided further, that
if, in any proceeding involving an alleged investment in violation of this
section, it is established that over half of the defendant's aggregate income
for a period of 2 or more years immediately preceding the investment was
derived from a pattern of racketeering activity, a rebuttable presumption
shall arise that the investment included income derived from a pattern of
racketeering activity.
Page 27
It shall be unlawful for any person through a pattern of racketeering
activity or through collection of an unlawful debt to acquire or maintain,
directly or indirectly, any interest in or control of any enterprise which is
engaged in or activities of which affect trade or commerce.
It shall be unlawful for any person employed by or associated with any
enterprise engaged in or activities of which affect trade or commerce to
conduct or participate, directly or indirectly, in the conduct of the
enterprise's affairs through a pattern of racketeering activity or collection
of unlawful debt.
It shall be unlawful for any person to conspire as defined by N.J.S. 2C:5-2,
to violate any of the provisions of this section.
4.
Conditions precedent to disbursement of State aid.
6A:23A-6.1
N.J.A.C.
The Commissioner shall not disburse any State aid to a school district or
county vocational school district that fails to comply with the standards set
forth at NJ.S.A. 18A:55-3 and the requirements concerning nepotism,
contributions to board members and contract awards, and internal controls
set forth in this subchapter.
5.
Contributions to board members and contract awards. N.J.A.C.
6A:23A-6.3
As a condition of receiving State aid, school districts and county
vocational school district shall have policies that comply with the
provisions of this section to ensure that the district shall maintain honest
and ethical relations with vendors and shall, guard against favoritism,
improvidence, extravagance and corruption in its contracting processes
and practices. Such policies shall be adopted by the school district and
implemented by October 1, 2008, except that districts previously subject
to N.J.A.C. 6A:10 and 6A:10A shall adopt and implement such policies on
July 1, 2008. The terms "business entity" and "interest" as used below are
defined as set forth in P.L. 2004, a 19.
6.
Violation of public school contracts law, N.J.A.C.6A;23A.-5A.
a. Pursuant to the authority granted the Commissioner under NJ.S.A.
18A:55-2 and 18A:7F-60, the Commissioner shall subject to review
for the withholding of State funds any school district or county
Page 28
vocational school district which fails to obey the provisions of the
Public School Contracts Law, NJ.S.A. 18A:18A-1 et seq.
b. The amount of funds withheld shall equal the amount of the
conn-act awarded in violation of the provisions of NJ.S.A. 18A:18A-1
et seq., except for violations related to the award of contracts under the
extraordinary unspecifiable services (BUS) provision which shall be
governed by the pro vis ions of NJ.S.A. 18A:18A-46.1.
7.
Withholding of State support for non-compliance (Facilities
Funds).NJ.A.C 6A:26-14.1
a. Pursuant to NJ.S.A. l8A:55-2, the Commissioner shall direct the
State Treasurer to withhold funds payable by the State from any school
district that fails to obey the law or the rules or directions of the State
Board of the Commissioner. "Funds payable by the State" include
State support under EFCFA. A failure to obey the rules includes noncompliance with this chapter. The non-compliance may:
1. Constitute an event of default under a grant agreement between
the Authority and the school district for the school district
receiving State support under NJ.S.A. 18A:7G-5 (predevelopment activities), 13(a), or 15 and subject the school
district to Authority remedies for the default, including the
reimbursement or the withholding of State support under
EFCFA, and if the Authority refers the matter to the
Department in lieu of withholding State support under EFCFA,
the Department may upon review of the matter direct the State
Treasurer to withhold funds payable by the State from such
school district;
2. In the case of a school district receiving debt service aid under
NJ.S.A. 18A:7G-9 or 10, subject the school district to a
withholding of State support under EFCFA; or
3. In the case of a school district for which the Authority
constructs the school facilities project, subject the school
district to a withholding of funds payable by the State,
including State support under EFCFA.
b. Pursuant to the supervisory authority vested in the Commissioner
under NJ.S.A. 18A:4-233 the Commissioner shall enforce these rules
by any means permitted by law, including, but not limited to, issuing
Page 29
an order to the school district to show cause under N.J.A.C. 6A:3-3.1
why the reimbursement or withholding of State support should not be
imposed.
c, A school district may appeal a final determination by the
Commissioner of non-compliance with this chapter pursuant to
N.J.A.C. 6A:26-16.1.
8.
PROCEDURES TO WITHOLD OR RECOVER STATE AID
NJ,A.C.6A:23A-5.l Order to show cause to withhold or recover State aid
due to excessive, unreasonable, ineffective or inefficient expenditures
a. If the Department of Education identifies ineffective or inefficient
expenditure(s) by a school district or county vocational school district,
including, but not limited to, the practices prohibited in NJ.A.C.
6A:23A-5.2 through 5.9, the Commissioner shall, except as otherwise
provided in (h) below, provide the school district or county vocational
school district the opportunity to be heard as to why the amount of the
ineffective or inefficient expenditure(s) shall not be withheld from
State aid or refunded to the Department.
b. The proceeding shall be instituted by an Order to Show Cause filed
by the petitioner. The filing shall include a statement of factual
findings along with a letter memorandum setting forth the basis for the
position that the expenditure(s) were ineffective or inefficient.
c. The respondent(s) to whom the order is directed shall file, within
15 days, a response to the letter memorandum and an answer that
meets the filing, service and format requirements for answers as set
forth in N.J.A.C. 6A:3, Controversies and Disputes,
d. The petitioner may file a reply to the response within 10 days,
e. Upon review of the filings, the Commissioner may decide to hear
the matter directly pursuant to N.J.S.A. 52:14F-8 or refer the matter to
the Office of Administrative Law. If the Commissioner decides to
transmit the matter to the Office of Administrative Law, such
transmission shall be done on an expedited basis.
f. If the Commissioner is hearing the matter directly, upon receipt of
the filings set forth above, or upon expiration of the time for their
Page 30
submission, the Commissioner shall review the total record before him
or her and render a written decision,
g. The Commissioner's decision shall include a determination of
whether the expenditure was ineffective or inefficient and, if so, the
amount of funds to be withheld from State aid or refunded by the
district
h. Nothing shall preclude the Commissioner from immediately and
summarily withholding State aid, consistent with NJ.S.A. 18A:55-23
if, at any time, it is determined that the fiscal practices, actions or
expenditures of a school official, board member, board or any other
party under the Commissioner's jurisdiction are in violation of any
statute, regulation, rule or directive of the State Board of Education or
Commissioner of Education.
9.
State Intervention Consequences - N.J.A. C. 6A:30-6.2
a. The Commissioner may seek to initiate partial State intervention in
a public school district when the public school district satisfies less
than 50 percent of the weighted quality performance indicators in one
to four of the five components of school district effectiveness, and at
least one of the following factors is present:
1. The public school district has failed to submit its District
Performance Review and Statement of Assurance and/or failed
to provide other documentation in connection with the
comprehensive review as requested by the Department within
the established timeframe, pursuant to N.J.A.C. 6A:30-3;
2. The public school district has failed to develop a NJQSAC
district improvement plan that can be approved by the
Commissioner, pursuant to N.J.AC. 6A:30-5.4;
3- The public school district has failed to implement the NJQSAC
district improvement plan approved by the Commissioner,
pursuant to N.J.A.C. 6A:30-5.6;
4. Other circumstances exist that warrant immediate action by the
Commissioner to ensure that the public school district will
provide a thorough and efficient education to the students in
the public school district; or
Page 31
5. Other circumstances indicate insufficient local capacity to
ensure that the public school district will provide a thorough
and efficient education to its students and an unwillingness or
inability on the part of the public school district to develop
such local capacity without State intervention.
b. The Commissioner may seek to initiate full State intervention in a
public school district when the public school district satisfies less than
50 percent of the weighted quality performance indicators in each of
the five components of school district effectiveness or in a public
school district which is under the direct oversight of a State fiscal
monitor appointed by the Commissioner pursuant to N.J.S.A. 18;7A55 et al. and which satisfies less than 50 percent of the weighted
quality performance indicators in the instruction and program,
operations, personnel, and governance components of school district
effectiveness and at least one of the following factors is present:
1. The public school district has failed to submit its District
Performance Review and Statement of Assurance and/or failed
to provide other documentation in connection with the
comprehensive review as requested by the Department within
the established timeframe, pursuant to N.J.A.C. 6A:30-3;
2. The public school district has failed to develop a NJQSAC
district improvement plan that can be approved by the
Commissioner, pursuant to N.J.A.C. 6A:30-5.4;
3. The public school district has failed to implement the NJQSAC
district improvement plan approved by the Commissioner,
pursuant to N.J.A.C. 6A:30-5.6;
4. Other circumstances exist that warrant immediate action by the
Department to ensure that the public school district will
provide a thorough and efficient education to the students in
the public school district; or
5. Other circumstances indicate insufficient local capacity to
ensure that the public school district will provide a thorough
and efficient education to its students and an unwillingness or
inability on the part of the public school district to develop
such local capacity without State intervention.
Page 32
D. Consequences to Others Attempting to Unduly Influence a Public
Officer or Employee
It is also a crime for anyone to directly or indirectly threaten a public
servant in order to influence a vote or action
Threats and other improper influence in official and political matters.
N.J.S.A. 2C:27-3.
a. Offenses defined. A person commits an offense if he directly or
indirectly:
(1) Threatens unlawful harm to any person with pivrpose to
influence a decision, opinion, recommendation, vote or
exercise of discretion of a public servant, party official or voter
on any public issue or in any public election; or
(2) Threatens harm to any public servant with purpose to influence
a decision, opinion, recommendation, vote or exercise of
discretion in a judicial or administrative proceeding; or
(3) Threatens harm to any public servant or party official with
puipose to influence him to violate his official duty.
It is no defense to prosecution under this section that a person whom
the actor sought to influence was not qualified to act in the desired
way, whether because be had not yet assumed office or lacked
jurisdiction, or for any other reason.
b. Grading. An offense under this section is a crime of the third
degree.