Editor’s Note: This opinion piece originally ran in the Times of Trenton on July 1, 2011.
Township council members, complaining about a lack of communication, voted 3-0 last night to subpoena [the administration’s records]. ‘We’ve been asking for information … for months and haven’t gotten anything …’ [a member of council] said. [The council president] said he respects the role of the administration … [but] ‘we should be informed.’ [The mayor responded:] ‘I think it’s a waste of taxpayer money to hire a lawyer to get a subpoena.’ ”
The foregoing was not written to describe the current dispute between me, a West Windsor council member, and the mayor. Rather, it is text from an article published March 16, 1999, by The Times of Trenton, describing a dispute in which then-Council President Shing-Fu Hsueh voted to subpoena then-Mayor Carole Carson’s administration. Mayor Hsueh’s flip-flop about his understanding of council duties, now that he is mayor, exposes a flaw in our government structure that makes it easy, although undesirable, for the mayor and township administrator to obstruct council.
Little has changed in the intervening decade. Under the mayor-council form of government in West Windsor, the administrative power and executive function are assigned to the directly elected mayor, whereas the power to approve expenditures and legislate resides with directly elected members of council.
During 12 years on the West Windsor council, I have observed a tendency by the mayor to view council as an obstacle to be overcome. Getting the information council members need to undertake the due diligence required of our jobs when approving expenditures has proven difficult. Sometimes, the only way I could get information was to file an Open Public Records Act request.
The mayor-council form of government enables conflict between the council and the mayor. For example, a New Jersey statute says “council shall deal with employees of the department of administration and other administrative departments solely through the mayor or his designee.” This makes it illegal for any member of council to talk to township staff. Thus, a member of council seeking information must go through “the mayor or his designee.”
Council members have one tool they can use, short of a subpoena or lawsuit, to get information from the mayor when his administrator ignores questions from council. That tool is described in a key New Jersey statute: “Any council member may, at any time, require a report on any aspect of the government of the municipality by making a written request to the mayor.”
When requesting information in meeting my due diligence obligations on council matters, I have asked Mayor Hsueh’s designee, the township administrator, for information. Unfortunately, he ignored many of my requests. Consequently, I tried using my right to “require a report … by making a written request to the mayor.” Incredibly, Mayor Hsueh also ignored those requests for information, which he has admitted in a sworn statement.
As an elected official obligated to perform council due diligence on behalf of West Windsor residents, I asked a court to enforce my right to the information needed to undertake that due diligence, once my due diligence requests were ignored.
The court stated orally from the bench, “I think it’s fair to read [in the statute] that the response has to be within a reasonable time” (the clear implication being that the mayor cannot ignore a council member’s request). But inexplicably, the judge dismissed all of my claims in his written order, including those two claims.
Several months ago, in an effort to find a solution without further litigation, I suggested to Mayor Hsueh and council that we amend our ordinance to clarify the rules and promote good government.
I proposed that the report responding to the “written request to the mayor” be 1) a written report, 2) signed by the mayor, although it could be prepared by staff, 3) provided within a reasonable period of time, 4) directed to the council member making the request, but 5) copied to the rest of council and the clerk. Mayor Hsueh declined my suggestion and failed to suggest his own solution.
We need a written report for obvious reasons. Memories fade and disputes inevitably will arise about the contents of the report. Disputes about the contents are avoided by requiring a written report. Avoiding disagreements over what the report said or did not say properly limits any disputes to actions taken or not taken in response to the report.
Requiring that the mayor sign the report ensures he has approved it and council members will know they can rely on it, thus avoiding the delays and acrimony that can arise if the mayor subsequently disapproves the contents.
Amending the West Windsor ordinance will solve a problem that has bedeviled council members and mayors for more than a decade and save future council members and mayors from similar altercations. Once done, I will drop the lawsuits and maybe history will not continue to repeat itself.
Charles C. Morgan
Member, West Windsor Council.
In a previous op ed piece, I explained the importance of township council members having access to pertinent information from the township administration in order to make informed decisions for the benefit of West Windsor residents. I noted Mayor Hsueh’s frequent stonewalling of council by refusing to provide requested information in a timely manner. I suggested an obvious solution to the problem – adopting an ordinance requiring the mayor to provide such information in writing within a reasonable period of time, a request he has subsequently refused despite its obvious benefits to the community.
My op ed also outlined the reasons why I have a fiduciary duty to sue the mayor when the mayor ignores his own fiduciary duty by obstructing a council person’s fiduciary duty to make informed votes on behalf of residents.
Since then, a number of people have asked me to give examples of the mayor’s intransigence and further clarify the status of our current litigation.
Council has been subjected to repeated instances in which key information has been either withheld or misrepresented by the mayor and his administrator. The result has been that council has made decisions on proposals from the administration with either incomplete knowledge or under false pretenses.
One example is a resolution designating the redevelopment area as a transit village, which the administration put on the council agenda on June 14, 2010. This resolution came as a complete surprise since many residents would want to debate the wisdom of such a designation.
When I requested that we defer the resolution so that we could get more information about its purpose, the administration insisted on immediate approval by council. They asserted that we would miss the deadline for a grant of money if we did not pass the resolution that evening. The resolution passed on a 4-1 vote.
After the vote, I asked for information about the grant, including a copy of the application and the deadline for submission. I made repeated requests for that information that were ignored. Finally, after nearly five months of waiting for an answer, I filed an OPRA request on November 12th. The administration responded on December 9th that there was no grant deadline. Rather, there had been a preliminary meeting on January 22, 2010 to discuss an application for transit village designation. The deadline was a deadline for the transit village designation application, not a deadline for a grant application.
Council passed that resolution under false pretenses. Given its misrepresentation from the mayor and administrator upon which council relied in approving it, I have to ask whether the resolution passed by council was even legal. I also have to ask why the resolution was not brought to council in February, March or April instead of at the last minute on June 14th with an immediate, urgent deadline. The answer is obvious – Mayor Hsueh did not want the application for transit village designation to be disclosed and debated by concerned residents.
A more current and continuing misrepresentation involves the status of my litigation against Mayor Hsueh to enforce his fiduciary obligation to provide information to council. The mayor and his supporters would have people believe that I have filed four lawsuits. The truth is that I have filed only two lawsuits and there has only been only one decision—a split decision, not the four rulings against me that Mayor Hsueh and his friends have touted in the press. That decision affirmed Mayor Hsueh’s fiduciary duty to respond to council requests.
John Adams once said, “Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence.”
These are the facts no matter how hard Mayor Hsueh and his friends would like to alter them: He has repeatedly stalled or refused to give council access to the information it needs to make informed decisions. When he has given information to council, he has misrepresented the facts (as in the case of the transit village designation resolution). He has seriously misrepresented my intentions in continuing to seek legal confirmation of his obligation to provide accurate information. And he has confused my criminal allegations (not lawsuits) with my lawsuits about his fiduciary obligations to council.
I did not file my request for a criminal investigation until after I retained a former prosecutor to advise me whether crimes had, in fact, been committed. He confirmed that, yes, Hsueh had violated criminal law but it was unlikely that the Attorney General’s office would pursue those crimes given the existing political climate (the mayor and I were not playing on a level playing field, there being a Democratic Governor at the time, a Democratic County Executive and Mayor Hsueh being a Democrat himself) and given resource priorities.
My former-prosecutor advisor was correct the playing field being tilted in favor of the mayor. The Attorney General’s office declined to file a complaint. After finding that they had not been given key information by the persons they interviewed, I asked a court to give me a probable cause hearing so that those facts could be brought to light. The court declined to give me that hearing.
The criminal matters never resulted in any complaints being filed and any docket numbers being assigned. Consequently, there were no lawsuits and no court decisions regarding the actual status of those crimes. The simple reality is that neither the Attorney General’s office nor the court wanted to devote scarce resources to my criminal allegations arising from an election. We all know that prosecutors do not expend resources pursuing crimes that, in fact, are crimes when there are more egregious crimes to pursue.
I have carried the burden of bringing the lawsuits about Hsueh’s fiduciary obligation to provide information to council without any financial support from West Windsor Township. I have not had the benefit of a law firm to assist me even though I have brought the lawsuits as part of my job as a council person. I am the one spending my own personal funds and my own time for the benefit of taxpayers while the mayor is using tax dollars to defend his obstruction of informed votes by council. Despite this handicap of again not being able to play against the mayor on a level playing field, I am pursuing my right to appeal the issues that I did not win in the split decision (and the only court ruling so far).
I am confident that I will establish that Mayor Hsueh’s refusals to respond to requests for information were, in fact, violations of his fiduciary duties. His fiduciary duties are so obvious and the fact that he has withheld information is so irrefutable, that I am confident that the court of appeals will rule in my favor eventually based on the following judgment rendered by the New Jersey Supreme Court, quoting the United States Supreme Court:
“Experience has taught that mere requests for … information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed…. State courts quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the purpose.”
Still, as I stated in my earlier op-ed piece, I will drop all litigation if council amends the West Windsor ordinance by requiring that the mayor provide information in writing to council members upon request so that they can perform their fiduciary duty to make informed votes on behalf of the community.
An amended ordinance will be an important step toward establishing an open township government based on a constructive working relationship between administration and council. The issue is bigger than council president Hsueh and Mayor Carson in 1996 when Hsueh tried to use compulsory process against a mayor and bigger than me and Mayor Hseuh in 2011 when I am trying to use compulsory process against a mayor.
Either my prevailing in the lawsuits or amendment of the ordinance is for the benefit of West Windsor. That is why the issue is important.
