The following document was distributed at the Monday, July 23 West Windsor Township council meeting before council voted 4-1 to disallow its distribution.
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MEMORANDUM
DATE: July 23, 2007
TO: The Honorable Shing-Fu Hsueh, Mayor
The Honorable Will Anklowitz, President of Council
The Honorable George Borek, Vice President of Council
The Honorable Linda Geevers, Member of Council
The Honorable Heidi Kleinman, Member of Council
FROM: Charles C. Morgan, Member of Council
SUBJECT: Appointment of Michael J. Herbert, Esq. as Township Attorney
Advice of Charles C. Morgan, Member of Council
Mayor Hsueh, has asked for Council’s advice and consent with respect to his proposed appointment of Mr. Herbert as Township Attorney.
Advice Summarized
I urge that Mayor Hsueh withdraw this appointment of Mr. Herbert as Township Attorney. I urge that my fellow Council Members join me in not providing consent to the reappointment of Mr. Herbert as Township Attorney in the event that Mr. Hsueh does not withdraw the appointment.
Neutral, Apolitical, Accurate Advice
This is not about Mike Herbert. I like Mike Herbert.
This is about an attorney for West Windsor Township, not an attorney for Mayor Hsueh. This is about having an attorney who will give balanced interpretations of the law rather than one-sided interpretations. This is about retaining an attorney who will provide neutral, apolitical advice.
There are three things that we should expect from our Township Attorney:
1. Objective, unbiased, and apolitical interpretations of the grey areas of the law.
2. Accurate interpretations of the law in the black and white areas of the law.
3. Careful crafting of legal documents to protect the interests of West Windsor.
Instead of being a neutral referee on the law, Mr. Herbert has given us one-sided, political interpretations. His memos have ranged from being downright wrong to being seriously misleading. And he has been careless in the crafting of important documents.
Would You Rehire an Attorney Personally Who has Misled You in the Past?
Would you want to hire a lawyer again for a new real estate closing if you discovered that the last time you hired him he didn’t tell you about all the rules that affected your decision? Would you hire him again if he misled you about the rules when he did tell you about them? Would you trust him to be your lawyer if you discovered that he had a personal interest in the outcome of your transaction?
Shooting the Messenger, Ignoring the Facts
I have been attacked for changing my reasons for opposing Mr. Herbert. I have never changed my reasons for opposing Mr. Herbert. The only thing that has changed is the continuing revelations that have reinforced my reasons. Rather than being dismayed by the messages, those people have shot the messenger. They should be ashamed.
In my efforts at being diplomatic, I have been attacked for being political. Indeed, I have said that my opposition to Mr. Herbert was political as a subtle way of saying that Mr. Herbert has failed to meet his responsibilities to us. I was being diplomatic.
My recent statements that Mr. Herbert had been too effective in advocating one-sided views of the law were not so subtle. They were direct statements that Mr. Herbert has failed to meet his obligations under section 1.4 of the Rules of Professional Conduct governing the behavior of all members of the bar. But I tried to be diplomatic in the way I said it.
Why have people focused on my continuing discoveries of poor lawyering and my communications of the recurring failings of this attorney rather than focusing on the failings themselves?
Clearly, I need to be more direct and less diplomatic. I am going to give you documented facts, not my opinions. The facts speak for themselves.
Taking our Oaths of Office Seriously
Each Member of Council, as well as the Mayor, has taken an oath of office in which we have sworn to uphold the laws of the State of New Jersey. What is our responsibility to that oath? How do we fulfill that obligation?
What is “the law” that we have sworn to uphold? How do we know what the law is so that we can execute on our responsibility to uphold it? What is the Township Attorney’s role in assuring our compliance with our oath?
We cannot uphold our oaths of office if we have an attorney who shows a pattern of repeatedly giving us misleading or unbalanced analyses of the law. We cannot uphold our oaths of office if we have an attorney who repeatedly violates the Rules of Professional Conduct governing the behavior of all members of the bar.
Consent to the reappointment of Mr. Herbert cannot be reconciled with our obligation to upholding our oaths of office.
Mr. Herbert and the Redevelopment Process
Mr. Herbert’s advice, as well as failure of advice, is one of the root causes why we have had to pause our redevelopment process while we regroup and why we had the election results that we had in May.
Promoting a Transit Village. Mr. Herbert has been a key player in promoting a transit village without regard to what West Windsor residents might or might not want.
We hired Hillier Architecture to write a redevelopment plan. Mr. Hillier has said that he thought he was hired to build a transit village. A transit village certainly is one outcome that could be delivered by a redevelopment plan, but it’s not the only outcome that the redevelopment plan might dictate. A redevelopment plan could dictate a less dense, less urban development than would be characteristic of a transit village. A redevelopment plan could be suburban rather than urban in character.
Definition of a Transit Village. The NJ DOT website specifies the criteria that are used to determine if a municipality is ready to be designated a transit village. Those criteria emphasize a commitment to grow jobs, housing, and population. The criteria also emphasize a transit hub that features a compact, transit-supportive, mixed-use development that includes a strong residential component.
For practical purposes, Mr. Hillier’s various concept plans and his continuing emphasis on the need for 1,”000 housing units articulated his understanding of those criteria and defined the meaning of a transit village for our purposes.
The process that resulted in the several Hillier plans certainly has emphasized the creation of a regional transit hub with a strong residential component without our residents’ input whether that is something that we want.
Mr. Herbert’s Failure to Act. Where did Mr. Hillier get this idea that he was hired to build a transit village? He didn’t get it from the written resolutions written by Mr. Herbert and passed by Council. Given Mayor Hsueh’s promotion of the transit village concept, it is obvious that Mr. Hillier got it from him in one way or another. But where was Mr. Herbert when it became apparent that we were wandering away from the terms of our contract with Mr. Hillier?
The objective of writing a redevelopment plan using a blank slate rather than starting from a predetermined result, such as a transit village, is documented in several Council resolutions. Mr. Herbert was intimately involved in the crafting of those Council resolutions. Mr. Herbert was the primary author of our contract with Hillier Architecture.
Where in those documents does it say that we were hiring Hillier Architecture to build a transit village? Why didn’t Mr. Herbert act quickly to redirect us and especially Mr. Hillier when the objective of writing a redevelopment plan from a blank slate was abandoned in favor of building a transit village?
If Mr. Herbert had reminded Mr. Hillier and us that the Hillier contract dictated the drafting of a redevelopment plan from a blank slate that could allow for an outcome determined by residents rather than from a slate that denied our residents a choice and assumed a transit village, it is undeniable that our redevelopment process would not have been so inefficient with our time and money and would not have left the public and the members of the government with more questions than answers.
Delegation of the Redevelopment Plan to the Planning Board. There was also the public debate over the question whether Council should delegate the writing of the redevelopment plan to the Planning Board or keep that responsibility at Council.
Council held a special meeting to discuss that very subject. We brought several experts in redevelopment to give us advice. The sense of that meeting was that Council is the redevelopment authority under New Jersey law and should retain this responsibility rather than sending it to the Planning Board.
A One-Sided Memo From Mr. Herbert. A few days later, Mr. Herbert wrote a memo to Mayor Hsueh, at his request, listing the reasons why Council should send responsibility for writing the redevelopment plan to the Planning Board. The existence of this memo was not disclosed to Council until six months later, just as Council was about to make this important decision. Mr. Herbert refused a request that he write a balancing memo listing the reasons why Council should retain this responsibility and not send it to the Planning Board.
Why did Mr. Herbert refuse to give the Township a balanced summary of the pros and cons rather than merely the pros bearing on this important decision? His refusal meant that Council made a decision based on a one-sided perspective with regard to an issue of great significance to West Windsor.
If Mr. Herbert had given us the balanced advice that we should have expected and that the Rules of Professional responsibility mandate, it is very possible that our redevelopment process would not have been so inefficient with our time and money and would not have left the public and the members of the government with more questions than answers.
Turning a Blind Eye to Lawyers’ Rules of Conduct. The Rules of Professional Conduct (RPC) govern the behavior of all lawyers who practice law in New Jersey.
Mr. Herbert’s actions with respect to his memo pose questions with respect to the RPC.
RPC 1.4(b) states that “a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”
RPC 1.4(c) states that “a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
Mr. Herbert’s six month delay in providing a copy of the memo to Council failed to meet the 1.4(b) “keep a client reasonably informed” standard. His refusal to provide the requested balancing memo violated the 1.4(b) “promptly comply with reasonable requests for information” standard.
His refusal also violated the 1.4(c) “explain a matter … to permit … informed decisions” standard.
The election on May 8th was about Mr. Herbert as much as it was about the redevelopment process itself. Replacing Mr. Herbert with another attorney for redevelopment does not erase the May 8th vote and does not assure us that he will provide us balanced legal opinions in the future. On the contrary, consent to Mr. Herbert’s reappointment will condone his past practices and encourage his continuing them in the future.
Conflicts of Interest
RPC 1.7(a) provides that a lawyer “shall not represent a client if the representation involves a concurrent conflict of interest.”
RPC 1.7(a)(2) states that a concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited … by a personal interest of a lawyer.”
RPC 1.7(b)(1) allows a client to waive a conflict of interest by providing written consent after full disclosure and consultation except that “a public entity cannot consent to any such representation.”
All of us should be concerned about Mr. Herbert’s continued presence during the debate over the last few months with respect to his status as Township Attorney in light of RPC 1.7. He clearly has had a personal interest in the outcome of the debate about his continuing provision of legal services to West Windsor.
Why hasn’t Mr. Herbert done what Mr. Muller and Mr. Schmierer have done for years? When Mr. Muller has a conflict of interest that calls into question his objectivity, Mr. Schmierer will sit with the Planning Board until the matter giving rise to the conflict is resolved. Similarly, Mr. Muller will sit in for Mr. Schmierer at the Zoning Board for the same reasons.
Why has Mr. Herbert not recused himself during this debate? Why hasn’t he recommended that Mayor Hsueh bring another attorney to these meetings for these discussions, an attorney who does not have a conflict of interest? An independent, objective attorney should be sitting here with us at our meeting this evening for this discussion.
Much of the current debate over Mr. Herbert’s status has been over the meaning of the law as it applies to him individually. Why has Mr. Herbert failed to promote an objective legal opinion?
The answer to this question is simple: Mr. Herbert does not want to take the risk that would come with that legal opinion.
Inaccurate Legal Work
Mr. Herbert’s legal work has displayed a continuing pattern of errors, ranging from being simply wrong to being seriously misleading. These errors occur so often that it is impossible to take anything presented by Mr. Herbert at face value.
Erroneous Legal Advice. A prominent example of wrong legal advice is Mr. Herbert’s flip flop with respect to the Chabad of the Windsors Menorah. The Princeton Packet headline on December 2, 2005 read: “WW changes its mind, allows Menorah.” Mr. Herbert wrote a memo on November 4, 2005 telling us that we should deny the request to erect the Menorah. Mr. Herbert wrote another memo on December 1, 2005 telling us that we should comply with the request.
Absent an error in the legal work, a legal conclusion can change only if there is a change in the law or a change in the facts. Neither the law nor the facts changed between the times of these two memos. Mr. Herbert’s first memo simply was wrong.
Misleading Legal Advice. Too often, Mr. Herbert presents court decisions in a way that it makes it difficult for us to make informed decisions. Only four months ago, he referred to the Concerned Citizens v. Princeton case and said that we cannot have a referendum concerning our redevelopment area. What Mr. Herbert didn’t say is that the Princeton case involved citizens attacking the decisions of both the Mayor and the Council.
Our situation is different. It would involve the Council initiating the referendum in order to obtain community input for its decision-making process with respect to redevelopment. It would not have involved a group of citizens trying to reverse a Council decision as was true in the Princeton case. Mr. Herbert could, instead, have presented a balanced explanation of the law by outlining the counter-arguments establishing the legal basis why a referendum would be permitted under our very different set of facts so that we could make an informed decision about a referendum.
This raises concerns under the RPC 1.4(c) “explain a matter … to permit … informed decisions” standard.
A year ago April, Mr. Herbert updated his January 2006 advice on the redevelopment process. Mr. Herbert told us that he thought it would be helpful, as the Township moves forward, particularly in the redevelopment process, to know that the New Jersey Supreme Court decision in Council v. James recently had defined the term “governing body” in our Faulkner Act “form of government as both the Mayor and the Council.”
Mr. Herbert does not mention that Governor Kean’s August 28, 1985 conditional veto of the Lynch Amendment and his statement to the Senate objected to a similar statement in the original version of the Lynch Amendment to the Faulkner Act. The sentence to which Governor Kean objected was: “In each municipality adopting the mayor-council plan of government, the term ‘governing body’ shall be construed to include both the mayor and the municipal council.”
In objecting to that sentence, Governor Kean said:
I am opposed to defining the term “governing body” in mayor-council Faulkner Act municipalities to include both the mayor and the municipal council. I am advised that the language is not necessary because the Optional Municipal Charter Law currently contains no ambiguous use of the term “governing body.” Current law adequately and clearly expresses the form of government in question, and to infer that the mayor is a member of the governing body is misleading in that he has no voting rights and, indeed, need not attend council meetings. Therefore, my suggestions include amending the legislation to continue to define the term “governing body” in a manner consistent with the intent of the Optional Municipal Charter Law.
Mr. Herbert also did not mention that the New Jersey redevelopment law defines “governing body” for purposes of our redevelopment as “the body exercising general legislative powers in a county or municipality according to the terms and procedural requirements set forth in the form of government adopted by the county or municipality.” (§ 40A:12A-3. Definitions).
That would be Council, not both the Mayor and Council with respect to our redevelopment project. Given the redevelopment project context, Mr. Herbert’s advice about the governing body being both the Mayor and Council is highly likely to confuse us regarding the respective roles of the Mayor and Council in the redevelopment process.
How could Mr. Herbert cite the Council v. James definition of “governing body” in our Faulkner Act “form of government as both the Mayor and the Council” without also discussing the removal of explicit language to that effect from the Lynch amendment and without mentioning the definition in the redevelopment law? What was his purpose?
This failure to address the definition of the “governing body” thoroughly in our context raises significant concerns under the RPC 1.4(c) “explain a matter … to permit … informed decisions” standard.
Only ten days ago, Mr. Herbert described the Murphy v. Board of Chosen Freeholders of Hudson County case as having “nothing to do with disqualifying the county counsel because he had failed to take an oath.”
Compare the words of the Supreme Court of New Jersey:
Where an oath is required, it is a prerequisite to full investiture with the office. * * * If I am right, there was a vacancy in the office now in question from December, 1916, to January 7th, 1918. This was not cured by the taking of the oath at eleven A.M. on January 7th, 1918. Section 2 only authorized the taking of the oath before the commencement of the term. * * * It is manifestly desirable that public officers should act under the sanction of an official oath, and there is no hardship in treating their failure to take an oath as equivalent to a vacation of the office, especially as it is probable that the taking of the oath is in most cases the only formal acceptance of the office.
The absence of an oath of office was the key substantive issue in the case. The Court of Errors and Appeals reversed the Supreme Court decision quoted above because the Board of Freeholders used the wrong process in addressing the absent oath. The Court of Errors and Appeals did not address the substantive question whether the absence of the oath of office would be a sound basis to remove the attorney on these facts under the right process.
Mr. Herbert’s statement in his memo that the Murphy decision had “nothing to do with disqualifying the county counsel because he had failed to take an oath” simply misrepresents the case.
Failing to Comply With the Law
Ignoring the Oath of Office Rules. Two separate New Jersey statutes (N.J.S.A. 41:1-3 and N.J.S.A. 40A:5-33) require that the Township Attorney be sworn into office upon being appointed by the Mayor and receiving the Consent of Council.
Yet Mr. Herbert says that his oath as an attorney is an appropriate substitute for the oath of office as Township Attorney. This idea is absurd. It raises concerns under the RPC 1.4(c) “explain a matter … to permit … informed decisions” standard.
The Township Code creates the position of Township Attorney and it assigns permanent public duties to the position. An oath of office is required.
For ten years, Mr. Herbert has not taken his oath of office. Mr. Herbert was sworn into office after his first appointment on September 15, 1997. He has not been sworn into office in any of the ten years since then. For the first time in ten years, he now intends to take his oath if his appointment receives our consent.
Ignoring the Advice and Consent Rules. There are also the legal requirements of appointment by the Mayor and the advice and consent of Council. Under the legal guidance of Mr. Herbert, we have ignored those legal requirements ever since 2005.
Ignoring the Statutory Compensation Rules for the Township Attorney. There is the statutory requirement that, as the head of our Department of Law, the Township Attorney must be paid pursuant to an ordinance. (N.J.S.A. §40:69A-43a, N.J.S.A. §40A:9-165, and N.J.S.A. §40A:5-19.) Under the legal guidance of Mr. Herbert, we have ignored this requirement for ten years.
The Myers v. Worrick case said that when a statute provides that an ordinance is required, a resolution will not suffice and a resolution fixing the compensation of a municipal attorney is invalid. The court also said that an ordinance like West Windsor’s ordinance authorizing council to set the attorney’s compensation by contract is invalid.
Mr. Herbert told us during our Council meeting on July 16th that the Lynch Amendment overruled the Worrick case. He has not said how the Lynch Amendment overruled Worrick. I have read the Lynch Amendment.
In his August 28, 1985 statement to the Senate, Governor Kean said:
I am suggesting technical amendments to ensure that where general law now clearly requires action by council resolution in these Faulkner Act municipalities, this legislation will not modify that procedure.
There were not any provisions of the general law, whether before the Lynch Amendment or after the Lynch Amendment, that “clearly requires council action by resolution” with respect to the setting of salaries for department heads. The Lynch amendment did not overrule Worrick. I will give you a copy for you to read for yourselves if you wish.
I have included a detailed analysis of the statute in the Addendum to this document.
This raises concerns under the RPC 1.4(c) “explain a matter … to permit … informed decisions” standard.
Under the legal guidance of Mr. Herbert, we have ignored the Worrick decision for ten years.
If you don’t believe me that Worrick remains good law after reading my analysis in the Addendum, then you should demand a third party opinion. The legal conclusion upon which we rely should come from an objective source that explores all possible interpretations of the law as it has evolved since Worrick was decided.
Regardless of what we might think, our Township Auditor needs to audit our payments to Mr. Herbert as Township Attorney to establish whether they have been legal.
Careless Drafting of Documents
The drafting of contracts is another area of risk for the Township. The Hillier contract is a good example. Mr. Herbert insisted that he was just trying, in his words, to “be accurate” when he defended the description of the January through September 30, 2007 timeline for completion of the redevelopment plan as a “ten month” period of time. He refused to accept an amendment to the contract that would have eliminated this discrepancy, even though he was pressed repeatedly on the issue.
What were we to do if Hillier didn’t complete the project by September 30th and Hillier pointed to the ten month reference as their defense that the real deadline was October 31st instead? We would not have been able to enforce the September 30 deadline.
Why would an attorney tolerate a one month, eleven percent discrepancy in conflicting ten month and nine month descriptions of the duration of a contract?
Mr. Herbert’s careless approach to important paperwork also is reflected in the May 3, 2004 Council Agenda Session discussion of 2004-R126 taken from the minutes verbatim as follows:
Ms. Alberts noted that the Resolution of Memorialization and the Council resolution have discrepancies. Mr. Herbert requested that Council adopt both resolutions this evening and that an amendment can be made regarding the calculation of the transportation improvement district funds.
Ms. Alberts requested that the transportation improvement district obligation be calculated strictly by the Resolution of Memorialization approved by the Planning Board. President Appelget requested that Mr. Parvesse check the calculations with the Resolution of Memorialization and let Council know the outcome.
Ms. Alberts requested that the amendment read as follows: Be It Further Resolved that any credits for off-tract improvements strictly adhere to the provisions of the Resolution of Memorialization.
Council ignored Mr. Herbert’s request for a delay deferring the amendment for another time by passing the resolution unanimously, as amended.
How could an attorney advise a client to take contradictory actions that would have to be resolved at a later time?
Performance Concerns Since 2002
Concerns about Mr. Herbert’s performance are not new. Those concerns were raised publicly on July 8, 2002 as recorded in the Council minutes for that date.
The closed session minutes contain the following: “There was general discussion and it was agreed between Council and Mr. Herbert to enhance communications between the two parties. Council also asked to review all draft documents before they were sent to the recipient.”
The open session minutes that day continued on the subject as follows: “Ms. Alberts expressed her concerns about Mr. Herbert’s past performance. Ms. Miller also expressed her concerns about Mr. Herbert’s past performance. She requested that going forward Mr. Herbert make every effort to inform Council immediately on urgent matters that arise.” The vote providing Council consent to Mr. Herbert’s appointment as Township Attorney passed 3-2.
Failure to Meet Commitments
Mr. Herbert has not lived up to his commitment that he would make every effort to inform Council immediately on urgent matters that arise. The most recent example was only a month ago when the New Jersey Supreme Court handed down a decision on June 13, 2007 in the Gallenthin v. Paulsboro case regarding the validity of Paulsboro’s designation of an area in need of redevelopment.
We learned about the case that same day from a third party. We should have heard about it from either Mr. Herbert or one of his law firm associates immediately that day. Mr. Herbert delivered his memorandum five days later on June 18, 2007.
Five days may not seem like a long time, but it is an eternity in our context of having designated an area in need of redevelopment. Mr. Herbert’s delay meant that those of us facing questions from residents had to equivocate when asked about the impact of the decision on West Windsor during those five days.
Past is prologue
It should be abundantly clear, without my having to continue this litany for a while longer, which I certainly could do, that Mr. Herbert should not be reappointed as Township Attorney.
If Mr. Herbert cannot keep track of the laws that are important to him personally in his job as Township Attorney, can we really rely on him to keep track of the laws that are important to our jobs as elected officials?
Given the history, when can we know whether we are receiving balanced opinions? When are we going to know whether we are receiving accurate opinions? How are we going to know? Who is going to double check the work? How are we going to live up to our oaths of office?
Are we to request a second opinion for every opinion given to us by Mr. Herbert? If not, how can we say that we are living up to our oaths of office when we are faced with this track record?
Based on all of the foregoing, my advice to Mayor Hsueh is that he should withdraw the appointment of Mr. Herbert as Township Attorney.
If he is inclined not to withdraw this appointment at this time, I suggest that it is in our collective best interests to delay any Council vote on consent to this appointment so that we can obtain objective third party advice that will give us the assurance we all need that this appointment is appropriate.
If Mayor Hsueh insists on a vote, up or down, with respect to an appointment of Michael J. Herbert, Esquire as the Township Attorney for West Windsor, I will withhold my consent. All of us should withhold our consent.
The Individual as Township Attorney Distinguished from the Law Firm
Please note that my opposition to providing my consent does not speak to a professional services agreement with Herbert, VanNess, Cayci & Goodell. My opposition to Mr. Herbert is not to say that the law firm has not served the township competently in various cases. On the contrary, as I have said on numerous occasions, I support the law firm’s continuing work for West Windsor.
I have supported the law firm’s continuing role with the Cable Television Advisory Board because of Mr. Goodell’s excellent work there. I have also supported the law firm’s continuing with its current load of litigation.
My support for the law firm should not be confused with my opposition to Mr. Herbert’s appointment as Township Attorney. They are not the same thing.
Being Faithful to West Windsor Voters
If I vote for Mr. Herbert, the voters who have supported me and have been vocal in opposing 1,”000 housing units at the train station will have good reason to fear that I am shifting away from representing their best interests.
It is very easy for us to sit up on the Council chamber dais and say one thing while doing the opposite in small increments as we justify each little step that we take in the opposite direction. If Council gives its consent to Mr. Herbert’s appointment, the voters had better watch us with a suspicious eye.
The law will govern much of what we do over the next few years as we struggle with redevelopment, particularly the implementation of redevelopment. I guarantee you that Mr. Herbert will make every effort to marginalize the role of the new redevelopment attorney under claims that Faulkner Act jurisdictional issues trump Council’s role and the new attorney’s role in the redevelopment process, as he has tried to do when he told us that the governing body is both the Mayor and the Council.
Professional Responsibility as Lawyers
Those of us who are members of the bar, are confronted with the question of our compliance with RPC 8.3 which requires that “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” There may well be a reporting obligation under RPC 8.3.
Conclusion
We cannot depend on Mr. Herbert to give us the kind of accurate, balanced legal advice that we need in order to meet our obligations under our oaths of office.
We should not consent to this Appointment.
Addendum
NJSA §40:69A-43a. Administrative department salaries provides that:
… the salary, wages or other compensation paid the director of each department shall be fixed by the council pursuant to subsection (c) of section 17-31 of P.L. 1950, c. 210 (C. 40:69A-180), and except that salaries of officers which are required by law to be fixed by ordinance shall be fixed by ordinance.
NJSA §40A:9-165. Salaries, wages or compensation of mayor or other chief executive; officers and employees; exceptions; referendum provides that:
The governing body of a municipality, by ordinance, unless otherwise provided by law, shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the municipality, including the members of the governing body and the mayor or other chief executive, who by law are entitled to salaries, wages, or compensation.
NJSA §40A:5-19. Payment of salaries and wages provides that:
The governing body of any local unit may provide by ordinance for the manner in which and the time at which salaries, wages or other compensation for services shall be paid, and prescribe the form and manner in which checks upon the treasury shall be drawn and signed for that purpose. The local unit may, by resolution, provide for the bi-weekly payment of the salaries, wages and compensation of officers and employees, both elective and appointive.
NJSA §40:69A-43a mandates an ordinance for setting of the salaries of Department Heads where “required by law to be fixed by ordinance.” NJSA §40A:9-165 is the “law” that requires the setting of the salaries of Department Heads by ordinance that is invoked by NJSA §40:69A-43a.
The “unless otherwise provided by law” provision in NJSA §40A:9-165 could not be interpreted to negate the NJSA §40:69A-43a mandate of an ordinance in the absence of another statutory provision expressly on point. Another such statutory provision does exist. That other statutory provision is NJSA §40A:5-19.
NJSA §40A:5-19 permits either an ordinance or a resolution for setting the manner in which the salaries are paid. NJSA §40A:5-19 comes within the “unless otherwise provided by law” provision in NJSA §40A:9-165. The “unless otherwise provided by law” permission in NJSA §40A:9-165 allows a resolution rather than an ordinance for purpose of setting the manner in which salaries are paid. It does not provide any such permission to “fix and determine the salaries, wages or compensation to be paid to the officers and employees” as otherwise mandated by the NJSA §40:69A-43a mandate operating in conjunction with NJSA §40A:9-165.
As noted above, the NJSA §40:69A-43a mandate that “salaries of officers which are required by law to be fixed by ordinance shall be fixed by ordinance” invokes the requirement of NJSA §40A:9-165 that “[t]he governing body of a municipality, by ordinance…shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the municipality.” The combined effect of NJSA §40:69A-43a and NJSA §40A:9-165 is to reinforce the ordinance mandate in each of the sections. There is no counterpart to NJSA §40A:5-19 with respect to which the “unless otherwise provided by law” permission in NJSA §40A:9-165 could operate and permit a lesser standard than an ordinance, such as a resolution, for purposes of setting the amount of those salaries.
Mr. Herbert’s vague reference to the Lynch Amendment permitting the setting of the amount of those salaries begs answers to four questions:
Does Mr. Herbert acknowledge that he is the Head of the Department of Law?
On what basis does Mr. Herbert maintain that the “unless otherwise provided by law” could be invoked by a resolution of a municipality rather than a statutory provision such as NJSA §40A:5-19 expressly permitting a resolution setting the manner of compensation payments, rather than an ordinance, in light of the interplay of NJSA §40:69A-43a and NJSA §40A:9-165 as outlined above?
What section of the Lynch Bill overrides the statutory interplay of NJSA §40:69A-43a and NJSA §40A:9-165 mandating that the amount of the salaries must be set by ordinance in light of the absence of a counterpart to NJSA §40A:5-19 permitting the amount of salaries to be set by resolution?
How does Mr. Herbert explain the absence of any permission in NJSA §40A:5-19 to set the amount of the Township Attorney’s compensation by resolution?
Mr. Herbert’s failure to address these questions speaks for itself.
