New Jersey engineering firm Birdsall Services Group realized the full consequences of violating state pay-to-play laws on August 30th after a state court judge ordered that the contractor pay $1M in criminal penalties, the maximum allowable by law.
Under the state’s pay-to-play law, which many agree requires an overhaul, business entities are prohibited from making reportable contributions (in excess of $300) to elected officials prior to the award of certain government contracts and during their pendency. See N.J.S.A. 19:44A-20.3 through 20.25. In a scheme designed to work around these restrictions, Birdsall bundled several non-reportable $300 contributions written by individual employees, sent them to elected officials as one contribution, and reimbursed the employees with bonuses. The scheme stretched over six years, during which Birdsall contributed over $1M to various campaigns and netted millions of dollars in revenue on public contracts subject to the restrictions – contracts for which Birdsall was technically ineligible under state law.
The recent $1M penalty ordered by the state court was only the most recent in a series of consequences faced by the company and its executives. Indicted on charges of money laundering and the making of false representations for government contracts in March of 2013, Birdsall declared bankruptcy just three days after the state moved to seize company assets, and the company pleaded guilty to such charges in June. Money laundering, conspiracy, and a laundry list of similar criminal charges against seven employees – including the firm’s largest shareholder and former CEO – are pending, and two marketing employees have already pleaded guilty to participating in the scheme. Potential penalties for these individuals include fines of up to $1M and 20 years in state prison. Birdsall has already paid the state $2.6M to settle a civil forfeiture action relating to the case and has agreed to be debarred from federal contracting for 10 years. News outlets have also obtained and published lists of the contribution recipients.
Birdsall’s case demonstrates the severe consequences of a contractor’s attempts to work around pay-to-play rules, even those with seeming loopholes or unclear restrictions. There is little doubt that the highly publicized scandal will spark election law reform in New Jersey and perhaps other states as they work to broaden their state-level “False Claims Acts” and similar restrictions on state contractors. (We also continue to await the Wagner case as it heads to oral argument before the en banc D.C. Circuit, which will decide the issue of whether the Federal Election Campaign Act’s more general ban on political contributions by federal government contractors is unconstitutional.)
Birdsall’s experience demonstrates the importance of reviewing business development practices and establishing internal controls that track compliance with state and local ethics rules, in addition to federal restrictions. Instituting such controls and consulting experts capable of advising on such state laws not only helps to ensure compliance, but also shows an intent to fully comply with relevant restrictions in the event an investigation arises.
