West Windsor Mayor Shing-Fu Hsueh is threatening to sue township council to prevent the ouster of township attorney Michael Herbert.##M:[more]##
At the annual West Windsor council reorganization meeting, the newly-installed majority of Will Anklowitz, George Borek, and Charles Morgan departed from ceremony and got right down to business. Following the swearing in of the three on Sunday, July 1, the five-member governing body participated in lengthy discussions on several matters, resulting in a two-and-a-half hour meeting starting at 9 a.m. In the words of township business administrator Chris Marion: “I went to an inauguration and a council meeting broke out.”
As promised, Morgan, Anklowitz, and Borek voted not to renew the service agreement to pay township attorney Michael J. Herbert for the next year. Herbert was appointed for a four-year term by Mayor Shing-Fu Hsueh in 2005, with the advice and consent of council. The contract to pay Herbert’s firm, however, is renewed yearly.
Morgan, who has had multiple disagreements with Herbert in the past year, is using the legal loophole to wield council’s “power of the purse,” and appoint an attorney more to his liking.
The mayor is standing by Herbert, despite the 3-1-1 vote to disallow payment for the firm of Herbert, VanNess, Cayci, and Goodell.
The mayor said he hopes to resolve the issue with council out of court, but that he is prepared to file a lawsuit against council in Mercer County Superior Court as early as next week. He would not discuss the name of the attorney who will represent him in that case.
“I will have no choice,” said Hsueh. “I have to protect the system.”
Meanwhile, on July 5, Morgan said he believes that the township has been operating “illegally” with regard to appointing and paying its township attorney. According to Morgan, under state law, municipalities must adopt ordinances to set the pay scale for their township attorneys. He claims that West Windsor’s use of resolutions has been unlawful.
“It appears that the vote on July 1 was really smart. We have been doing it all wrong,” said Morgan. “We have had no authority to pay him all this time.”
Morgan says he made the discovery after the July 1 meeting, and that he spent his Fourth of July drafting an ordinance to change the township code. He will introduce the ordinance at the Monday, July 9, council meeting. Morgan says Herbert should have caught the error, and believes the apparent oversight is evidence that Herbert should be replaced.
“He is wrong,” says Herbert. “The statute he is referring to says a municipality should adopt a salary ordinance unless otherwise provided by law. The township’s code complies with the statute.”
Morgan says also that the Mayor’s 2005 appointment may have been for Herbert’s law firm, and not for Herbert as an individual. Morgan says Herbert should have been appointed, since the township attorney serves as the head of the Department of Law, and must be an individual. “I have asked the mayor for a copy of his appointment in 2005,” said Morgan. “We can’t find one.”
Herbert says Morgan’s interpretation of the law on this matter is also incorrect. “The services agreements are with my law firm, but the appointment acknowledges me as the township attorney. There have been 11 separate contracts entered into lawfully, all of which say the same thing.”
Upon receiving Morgan’s proposed changes to township code, Hsueh responded by sending a memo to council and local media.
“It appears that several members of Township Council are unwilling to acknowledge that the Township Attorney position is a four-year mayoral appointment covered by an annual professional services agreement,” wrote Hsueh. “It is both regrettable and unfortunate for the residents and taxpayers of West Windsor that the next step to resolve this matter will have to be litigation. I will forward the appropriate documentation to Township Council next week.”
Morgan issued a press release on July 5: “”I have reached out to Mayor Hsueh to find common ground with him and resolve the Township Attorney issue without a law suit. I think that the residents of West Windsor want to see the Council and the Mayor working together rather than fighting. We need a compromise that addresses the concerns of both Council and the Mayor. I will meet with the Mayor when and where he wants, just the two of us, to resolve this dispute for the good of West Windsor Township. Everyone loses except the lawyers when there is litigation.””
Morgan, Anklowitz, and Borek announced weeks ago that they planned to have Herbert replaced by the Trenton firm of GluckWalraith. At the reorganization meeting, Morgan seemed to have softened his position. “I am willing to consider anybody. Let’s find a process by which we can agree on someone who will give us advocacy for an interpretation of the law that goes either way,” said Morgan. “If I were a better politician, I would have kept that behind closed doors. Mentioning any firm by name was a mistake.”
Borek made a motion to extend the current contract for two months, saying he hoped in that time the township could reach a compromise. No one seconded the motion. Both Heidi Kleinman and Linda Geevers said the issue should be voted on that day. Geevers voted in favor of renewing the contract. Kleinman abstained.
“I hoped we would have a compromise. Finding an attorney that everyone can agree on may be unrealistic,” said Kleinman. “I’ve spent two years on council sandwiched between two attorneys, and it is rare they agree on anything.”
Morgan, who is also an attorney, has been opposed to Herbert’s interpretation of the law on many recent issues. “He has been a superb advocate for the mayor,” says Morgan. “This discussion is about council members feeling they are getting the representation that they want. Unless we get advocacy for an interpretation of the law that goes either way, I think the mayor needs to come to us with another choice. I’m willing to consider anybody. Let’s find a process we can all agree on.”
Hsueh gave Herbert, who is in his 10th year as township attorney, his full support. “Two years ago, I had strong support for Mr. Herbert from Mr. Morgan.” said Hsueh. “I appointed him for a four year term, and as far as I’m concerned, he is still the township attorney.”
Prior to the vote, Morgan said he does not believe a lawsuit between the mayor and council will be in West Windsor’s best interests. “If voting this down precipitates a lawsuit, it is not good for the community,” says Morgan.
Deborah Cole, an attorney for the New Jersey League of Municipalities, says she knows of no precedent for the case.
Herbert says he will continue to serve as township attorney at Hsueh’s request. “It’s really up to the mayor,” said Herbert. “The mayor is steadfast, and will enforce his rights.”
Herbert says Morgan’s power play undermines the township’s nonpartisan form of government. “In 1992 the voters decided to come up with a more stable form of government that would be nonpartisan, and allow the mayor to be the chief executive officer,” he said. “Morgan wants to inject partisanship and usurp the responsibilities of the mayor as it relates to his administrative responsibilities and also his appointment power. The action taken on Sunday was to subvert those basic principles.”
Herbert continued: “This issue is not one that concerns Charles Morgan and Mike Herbert, it goes to the integrity of the system the voters put in place. It’s regrettable that our attempt to convince the new majority on council that what they are doing is incorrect, and that our attempts to reach a compromise have been ignored.”
Herbert says he suggested that the mayor could appoint a different attorney to advise council on the redevelopment. “That was rejected,” said Herbert.
Herbert said he will attend the next council meeting on Monday, July 9.
The vote on the service agreement opened with what must have been a tense moment for Anklowitz and Morgan. Borek voted “yes,” when a no vote would have meant the contract was not renewed. Anklowitz’ name was called, and he registered a “no” vote, prompting Borek to ask for the question to be read. Borek’s vote was changed, and the service agreement was terminated.
Herbert, who in the past has sat on the dais for reorganization meetings, was in the first row of the audience. However, shortly after the contract was voted down, he was asked to give council advice on another issue. “Whether I’m a dead man walking or not,” quipped Herbert as he took the podium.
The issue at hand was whether or not council could remove one of the duties of the township attorney as stated in the township code. A rule on amending ordinances had stated that all ordinances had to be written by the township attorney. Council approved re-wording the language to allow any one to write the language, provided it adheres to legal standards. The motion passed, 3-2.
Anklowitz was made council president, and Borek was made council vice president, both by unanimous votes. Anklowitz was made the council’s representative on the affordable housing commission, and Morgan replaced Kleinman as a planning board member. Kleinman became the liaison to the Parking Authority, Geevers to the school board, and Borek to the Zoning Board of Adjustment. Morgan was named to the Cable TV Advisory Board, and Anklowitz was given the liaison to Emergency Management position.
Council members butted heads once again over the thorny issue of whether to tape executive sessions of council. West Windsor has done so for years, except for a period of a few months in the fall of 2006. At that time, Barbara Pfeifer, Kleinman, and Geevers voted to discontinue taping the sessions. That resolution was overturned when Anklowitz replaced Pfeifer in November.
Geevers and Kleinman once again voted to stop taping the sessions. “In these sessions, we are discussing some very sensitive personnel issues. If we are not being recorded, we don’t have to be so guarded about what we say.”
Morgan said: “If someone is going to speak differently when being taped as opposed to not being taped, perhaps they shouldn’t be saying those things.”
Morgan, Anklowitz, and Borek voted together. The vote was 3-2 in favor of continuing to record the sessions. The recordings are not available to anyone other than the people in the meetings. The recordings are destroyed as early as 80 days after the meeting. Under the Open Public Meetings Act, closed sessions are permitted for the purpose of discussing personnel issues.
The council also voted to begin recording meetings of the redevelopment steering committee. Borek will replace Geevers on the committee. Hsueh, Kleinman and Planning Board Chairman Marvin Gardner are the other members of the committee.
The council approved its schedule for the next year. It will hold regular business meetings on Mondays, July 9 and 23, on August 20, September 4, October 1 and 15, November 13, and 26, December 17, January 7, 2008, February 11 and 25, March 17, April 7, May 5 and 19, and June 23.
Its agenda sessions will be Mondays August 6, September 17, October 29, December 10, January 22, 2008, March 10, April 21, and June 9. The meetings on August 6, October 29, March 10, 2008, and June 9 will be preceded by Board of Health meetings.
