Township attorney Michael J. Herbert, who died of pancreatic cancer on September 12, left more than just a physical void as many in the administration expressed condolences (WW-P News September 23, 2011). Herbert was a longtime township professional who actually held two designations in West Windsor: township attorney and head of the law department. Although Herbert’s son Michael W. Herbert has stepped into his father’s place, former Councilmember Charles Morgan questions the legality of the township’s standing legal expert. He attests that the appointment of Michael J. Herbert as township attorney was personal only to him, and a specific person must be confirmed by council.
Morgan took up the point with the administration, contacting business administrator Robert Hary via E-mail to suggest the township resolve the issue of a technically vacant position.
“We have a situation here where an attorney is serving on an informal basis and not as the Township attorney. When I was on Council, I saw no evidence that Herbert, Van Ness, Cayci & Goodell had provided a written consent to substitution of a successor in all legal actions and proceedings in which the Township is a party. Without certification there’s risk that the current informal arrangement does have conflicts. That is not in the best interest of the township,” he said.
Morgan, quoting the township’s code, wrote to Hary:
“Upon the termination of the township attorney’s service with the Township, the township attorney shall promptly surrender to the successor all such property, together with a written consent to substitution of the successor in all legal actions and proceedings then pending in which the Township is a party.”
Michael W. Herbert said his father’s firm remains the designated township attorney so team members from the firm are conferred the same position as Herbert held until his death. Herbert Sr. was supplanted in his role as township attorney from August to November, 2011, by his former colleague, Karen Cayci. However at the council meeting on Monday, December 19, Herbert “Junior” — as he says people like to call him — announced that he would be the sole person taking over township attorney responsibilities for West Windsor until (at least) the end of the firm’s current contract, which expires on June 30. Junior also stated that he will serve as the interim head of the West Windsor Law Department until that date.
Herbert explains that in essence the current contract is “being finished up.” As of July 1 Mayor Hsueh will make a choice as to who should be designated the township attorney, followed by a vote from council to confirm the selection.
Morgan argues that the firm’s professional services contract should not be interpreted as an appointment. He says therefore the office of Township Attorney became vacant when Herbert passed away.
Herbert Junior, meanwhile, said there was no provision in place for a township attorney’s death, which is not equal to termination.
“The department head was not terminated; he died. It’s not necessary to replace him until the contract is up,” Herbert says.
Business Administrator Hary says that it is not uncommon in a smaller town to have some department head titles without a person to fill them, as he currently holds three positions himself (director of human services and health officer as well).
At his final council meeting, Morgan also commented on the heart of the issue. Hary spoke about various RFQs (requests for proposals) so Morgan questioned why the administration doesn’t let Council evaluate town professionals before they are hired.
While Morgan clearly and directly expressed to Herbert that he does not mean to be disrespectful, he used this situation as an example of West Windsor’s lack of order.
“I don’t know what the process is for finding a new attorney, but perhaps the issue should require the advice and consent of Council. If there is not a member of council involved in the hiring or screening process then there’s a challenge involved in providing consent,” Morgan said.
He added that changing auditors every couple of years would be an important step for the township to make to ensure that financial reporting does not become complacent.
“This becomes a question for the new council coming aboard. How often should you go and review these positions and ask other firms or people to put together a bid? Things have changed, the market and economy have changed dramatically, but we’ve had the same folks doing the same things for many years. What are we doing around those factors and how much advance notice is Council getting of our choices,” he says.
Morgan feels that Council’s input earlier in hiring processes “would be healthier and create a better product.”
Diane Ciccone, the other recently replaced member of council, also weighed in. “Someone from Council should be part of the evaluation of professionals so that Council can feel that they have some sort of input into the recommendations the mayor is going to make. That would be a good way to create a balance,” she said.
Herbert Junior is also the township attorney for Plainsboro, although Rachel Goodell has recently substituted for him at township committee meetings. He and other members of his firm are involved in other municipalities, including East Windsor, Robbinsville, and Cranbury.
Herbert says that prior to December he was attending to commitments in both East Windsor and Cranbury on Monday nights, keeping him from attending West Windsor Council meetings. As council has now eliminated agenda sessions in the week between business sessions, Herbert will now alternate between East Windsor and West Windsor each Monday night.
As director of West Windsor’s Law Department Michael J. Herbert was charged with overseeing both the township prosecutor and public defender.
