NJ Government Contractors: Have You Begun to Prepare your ELEC Pay-to-Play Annual Disclosure?

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New Jersey’s annual pay-to-play filing deadline will be here at the end of the month. If your company received payments of $50,000 or more (in the aggregate) as a result of New Jersey government contracts during the 2020 calendar year, the time has come to begin preparing your Business Entity Annual Statement (“Form BE”).

After reading this column, you should mark your calendar, ask Siri to set a reminder or write yourself a note because Form BE must be filed electronically with the New Jersey Election Law Enforcement Commission no later than Tuesday, March 30, 2021.

Although this filing obligation has been in effect since 2006, many companies still have questions about the Form BE itself and what needs to be disclosed. So, we figured we would make things a little bit easier for you this year (you’re welcome) by highlighting some of the key factors you need to keep in mind:

  • The obligation to file arises whenever payments from NJ government entities to a business reach the $50,000 aggregate threshold, regardless of whether the contract was awarded prior to the 2020 calendar year and regardless of whether your company has any political contributions to report.

 

  • In reviewing your list of government contracts, in addition to determining whether your company holds State, County and Municipal contracts, you need to determine whether your company holds contracts with Boards of Education, Fire Districts and Independent Authorities. All contracts should be included on your list – regardless of method of contract award and regardless of the amount you were paid for each contract (remember: the $50,000 threshold is an aggregate (not per contract) threshold).

 

  • Detailed contract and contribution information must be disclosed whenever your company or a covered individual made a “reportable” contribution during the 2020 calendar year (although this is not school, hopefully you have been paying attention to our previous columns and know that a “reportable” contribution is a contribution greater than $300 per election or greater than $300 per calendar year depending on the recipient committee).

 

  • If you have no “reportable” contributions, but reach the $50,000 contracting threshold, you can simply check the box on Page 1 of the Form indicating that you received payments of $50,000 or more but have no contributions to report (pretty simple – right?) and the rest of the form disappears.

 

  • If you aren’t sure whether you have contributions to report, you need to review your company’s records and survey all covered individuals and entities (which may include subsidiaries, PACs, officers, partners, principals, directors and the spouses of your officers, partners, principals and directors).

 

  • If you determine you do have contributions to report, your company will need to file a detailed Form BE listing detailed contract and contribution information.

Although you may be thinking that you still have a few weeks to go and have been filing this form for years, the information you need to report and disclose changes from year-to-year based on contract and contribution information. Also, keep in mind that new individuals may be covered each year depending on changes in your company.

Compliance Tip: If you feel like you are starting from scratch every March when it is time to prepare and file your company’s Form BE and dread this looming deadline, implement a compliance plan that accurately tracks covered contracts and contributions and facilitates reporting. It may be seem daunting to get the plan up and running, but you will thank us in March of next year! And – while you’re at it – it is also a good time to conduct an annual audit to ensure that all contributions are in full compliance with applicable law and that no contributions jeopardize eligibility for any government contract.

Rebecca Moll Freed is Partner & Chair of Genova Burns, LLC’s Corporate Political Activity Law Practice Group.

This column is for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this column, but that professional advice be sought for individual matters.

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