Michael Herbert will continue as West Windsor’s de facto township attorney after a second West Windsor council vote against his reappointment. Following a drawn-out process, Mayor Shing-Fu Hsueh announced on August 1 that he had selected Herbert to continue representing the township, but council voted against the appointment, 3-2, at its August 4 meeting.
The township attorney issue first arose at council’s reorganization meeting in January, at which it voted 3-2 against reappointing Herbert. Instead, the township issued a request for proposals (RFP) to which nine firms responded.
At the conclusion of the RFP process two firms were unanimously selected by the five-person committee: Michael Herbert’s, and Roger McLaughlin, the current township attorney for Manalapan. Mayor Hsueh interviewed both finalists at their respective offices. Explained Hsueh, “I was impressed with both, but one stood out; the firm of Herbert, Van Ness, Cayci and Goodell,” the firm to which Herbert belongs.
Hsueh explained the basis for his selection in a memorandum distributed the members of the administration and the town council prior to the council’s August 4 meeting.
“As mayor, I consider the selection of the township attorney to be one of my most important duties, because the township attorney is involved on a daily basis in all aspects of the municipal government. For instance, his office defends us in court, helps negotiate contracts, and gives advice to the chief of police, the business administrator, and the mayor. The township attorney also represents the town council and attends council meetings,” Hsueh wrote.
Mayor Hsueh offered five reasons in support of his selection: 1) The firm specializes in representing municipalities and they are experts in their field; 2) retaining the firm will maintain continuity, because it has represented the township for 17 years; 3) The firm has done a good job in that regarding, by giving prompt, informed and reliable service; 4) their firm is much closer geographically, which means that they can be on site in 10 to 15 minutes in case of emergency; and finally, and this is an added benefit, they have offered to reduce their rates, from $165 per hour to $150 per hour.
Nonetheless, for the second time this year council voted against appointing Herbert.
Council Vice President Linda Geevers was one of the five people appointed by Hsueh to sit on the selection committee, along with Chief of Police Joe Pica, business administrator Marlena Schmid, township CFO Joanne Louth, and resident Andy Lupo. Though the committee had unanimously chosen Herbert as one of the two finalists, Geevers stated, “I do not agree with the Mayor’s reappointment of Mike Herbert as the township attorney. I urged the mayor to put Bryan Maher on the committee as well, and I would have liked to see more residents, including an attorney, on the committee. But it is the mayor’s prerogative to choose whom he wants. But I am not supporting this appointment.”
Council member George Borek fired back, saying, “We had a process in place, one which you were a part of, and Linda, you were on the committee that put forward these two finalists. If you were going to oppose the appointment, the time to do so would have been at the committee level. But you unanimously voted to put forward these two finalists, and, under our form of government, the mayor has the right to make the appointment. And I support his decision.”
Fellow Council member Kristina Samonte also strenuously opposed Linda’s decision. “It is the mayor’s decision to appoint the township attorney, and yet he was willing to put out a request for bids. You and Bryan Maher have complained that the process he employed in selecting the committee wasn’t fair. Yet you refused to support a resolution to hire an outside attorney from the League of Municipalities to review the process before its implementation. Why?”
“In addition, if we vote to reappointment Mike Herbert, his fees will be reduced. The old rate was $165 an hour; the new rate with be $150 per hour. That’s a 9 percent overall decrease, which is a significant savings.”
Council President Maher argued that the cost differential was not that significant in light of the reasons that he opposed the reappointment: that Herbert represents both the township and the county, and therefore there is a potential conflict of interest; 2) that Herbert has been too partisan over the years in his dealings with the council and the administration; 3) that the selection committee was “stacked” by the mayor, because three of the five members are part of the administration and therefore rely on the mayor for their jobs; and 4) that the Herbert firm has made mistakes.
To support this Maher pointed to an E-mail sent by Herbert late in the day on the preceding Friday, which had to be sent more than once because the memorandum it referred to was first not attached, and then needed to be corrected because of a typographical error.
Maher continued, “I reviewed the packets of all of the firms who answered the RFP, and I found three or four who were extremely qualified. Any one of them could have been chosen as finalists by the committee.”
Speaking to the residents who had made statements in support of Herbert’s appointment, including former Council President Kamal Khanna, longtime residents Al Lerner and Andy Bromberg, and new resident Grace Powers, Maher said, “You don’t see what we see, and why it is time for a change. We will end up with a stalemate because the administration was unwilling to compromise on this.”
Because the council voted against the reappointment, by law, Herbert remains in the position as a holdover, and will continue to serve the township at the higher rate of $165 per hour.
After the vote, Bromberg attempted to address Geevers, saying “I am very disappointed in you, and also in the comments that were made tonight about the administration, which were deplorable.” However, Maher interrupted Bromberg several times to argue with him, causing Samonte to intervene by reminding Maher that the public has the right to speak under the First Amendment.
Lerner also addressed council. “There are no winners here, but there is a real loser — the township. You [Maher] and the mayor are now waiting to see who will blink, and in the meantime we are now paying Mr. Herbert more than he is willing to accept.”
After the vote Hsueh commented on the RFP process. “I appointed Marlena, Joanne, and Chief Pica to the committee because they are the three department heads who work with the township attorney the most. I appointed Linda Geevers from the council because she has eight years of experience and understands how government is supposed to work. And I appointed Andy Lupo because he is a long-time resident who is well-respected and has volunteered his time to help out the town numerous times and in numerous capacities.”
Hsueh continued, “I asked Marlena Schmid to handle everything. I stayed completely out of the process until the end, when I interviewed the two finalists. Unlike the council, I never reviewed all nine submissions; I don’t even know who the other seven firms are. I only received the names of the two finalists, and those are the only packets that I reviewed. As I said, I was impressed with both firms, but felt that of those two firms, Herbert’s firm was the better choice. I cannot speak about any of the other candidates because I was only offered two finalists to choose from, and since the committee voted unanimously for each, I assumed that either one would be acceptable to all members of the selection committee.”
Regarding the extra attorney’s fees that will now be incurred, Maher had said, prior to the meeting, “Really the difference in fees is chump change in the grand scheme of things, because it is only applicable for this year. The council controls the budget, and, come January 1, we will be able to amend the budget to significantly reduce the line item for Hebert’s fees.”
When asked if that position wasn’t, in fact, exposing the township to possible litigation if the budget appropriation was too low, Maher responded, “Then the administration will have to take money from somewhere else to pay his fees. That’s their problem, not the council’s problem. Or they can choose to be less litigious and settle some of the ongoing litigation, such as the case involving the Animal Control Officer issue. If they propose a settlement in that case, I will happily put in on the agenda and support it.”
Though not on the agenda, the Howard Hughes Corporation, owners and potential developers of the American Cyanamid site, was also a topic of discussion at the August 4 meeting.
Council member Peter Mendonez, the council liaison to the school board, noted that representatives from Howard Hughes had met school officials, and that he would be meeting with school officials to talk about what was discussed with Howard Hughes.
Maher advised that he had spoken with Howard Hughes representative Chuck McMahon, who said the company would like to appear before council in September to give a presentation.
Samonte and Geevers argued that this would be a mistake. “We need to be very careful here,” said Geevers. “We have a procedure in place for developers. They submit a concept plan to the Planning Board first, before they come before the council. The Planning Board holds public hearings so that Planning Board members can review the proposals ask questions, and make recommendations, and the residents can express their opinions. This all needs to take place before the developer comes before the council, and to deviate from this process can cause us serious problems down the road.”
Maher expressed surprise: “Doesn’t everyone up here want to hear what they have to say? They’ve been contacting residents all over town to get their opinions; why shouldn’t the council members have a dialog with them as well?”
Council discussed the issue in closed session at the end of the meeting. No outcome has been publicly announced.
#b#Cranbury Road Meeting.#/b# Business Administrator Marlena Schmid announced that a public meeting to discuss the Cranbury Road Area Bicycle and Pedestrian Mobility Alternatives Study will be held Wednesday, August 13, at 7 p.m. in the municipal building. The consultants will provide an update on their work. The public is invited and will be able to offer comments.
#b#Other Business.#/b# Several ordinances were unanimously approved at the meeting.
• An amendment to the Princeton Junction Redevelopment Plan referencing the blighted property adjacent to the Ellsworth Center, which is owned by Jacinto Rodrigues, paving the way for the township to exercise the right of eminent domain through condemnation and take control of the property. However, explained Township Attorney Herbert, the condemnation itself would require a separate ordinance.
Township Planning Board and Planning consultant John Madden told council, “this property has been in a blighted condition longer than any other property in West Windsor. Despite the fact that the developer has made some noises recently about developing the property, he has walked away numerous times from his development. The township needs eminent domain in order to ensure that the property gets cleaned up.”
Maher noted: “I ran on a platform of cleaning up the blight. I am pro-business and pro-developer, but I have sat through Zoning Board meeting after meeting watching Rodrigues attempt to hold up Shawn Ellsworth’s redevelopment project.”
• An ordinance for capital improvements ($550,000) and a bond ordinance for capital improvements ($3,756,900) to be funded by the issuance of $3,578,000 in bonds. A full list of contemplated projects can be found at www.westwindsornj.org.
• Authorizing $50,000 in general capital improvements to be used at the Waterworks swimming pool complex, to be funded by the issuance of $47,500 in bonds.
• Amendments to the municipal code; including requiring more transparency regarding taxicab company ownership, as well as imposing stricter measures to ensure a professional appearance of taxi cabs; and amendments to the fees and licensing requirements.
Two ordinances were introduced. The township is seeking to acquire an easement from MKNDC LLC (Mark’s Auto center) at 880 Alexander Road, at a cost of $1,500 to install a sidewalk.
The second ordinance will grant a blanket variance to developers seeking to convert warehouse space into recreational uses, so that developers do not need to seek Planning Board approval (The News, July 11). Public hearings for both ordinances will be held at the council meeting on Monday, September 8.
Maher also commented on a story that appeared in the July 25 issue of WW-P News. The story noted that Maher had asked the administration about how Eagle and Girl Scout projects were decided upon and approved, and commented that he believed all scout projects should be brought to council’s attention before being approved. Maher denied making this statement, saying that he was merely seeking information regarding what the Eagle Scout project was supposed to be. “It was a simple and justifiable request. The council should be updated on what is going on around here.”
Maher criticized the News for relying on the administration for the information, rather than confirming the quote with him; saying that was “unprofessional and unacceptable.” He further accused the mayor and township staff of a “total fabrication. They have sunk to a new low. I am appalled at members of the administration.” He demanded that the mayor and the administration launch an investigation to find out who had provided the information about to the News.
#b#Town Hall Meeting.#/b# Mayor Shing-Fu Hsueh will hold a town hall meeting on Saturday, August 16, at 2:30 p.m. in the municipal building. He will discuss township projects and answer questions.
