For many of the 50 people in attendance at the Monday, August 20, Council meeting, a 3-2 vote along party lines was a predictable but unfavorable outcome deciding the fate of an ordinance to require the mayor to provide written responses to council inquiries within 30 days. The newly amended ordinance was voted up by Council President Kamal Khanna, George Borek, and Kristina Samonte, and in doing so they kept it off the November ballot and put it into effect for just one-year period instead of three.
Because of the likelihood of this outcome, Councilman Charles Morgan, who spearheaded efforts for the petition that collected over 500 signatures to amend the township code (WW-P News, June 22), again sued West Windsor Mayor Shing-Fu Hsueh. But this time his case also names Township Attorney Michael W. Herbert and Business Administrator Marlena Schmid. Herbert is the central figure in the matter as he canceled adoption of an amendment that Council and Mayor Hsueh unanimously supported on July 23, after learning he made a critical mistake.
“It was my fault – the resolution was placed before Council, but I misread the resolution. The resolution language said IT SHOULD NOT HAVE BEEN REFERRED TO THE BALLOT if it was approved. It was my fault and I apologize to Council about this,” Herbert said at the August 20 meeting.
With a court reporter in attendance, Herbert spoke about Morgan’s proposed settlement of the most recent lawsuit, which requested one of two outcomes: either that the matter be placed on November’s ballot or that Council bind itself for three years to not amend the resolution, and at the end of three years the ordinance could only be placed for an initiative referendum.
Herbert provided a legal opinion based on state statute NJSA 40:69-A-191. “In my opinion as the township attorney, my legal interpretation — as well as that of the experts in initiative and referendum law with the League of Municipalities — is that if Council adopts the petition language, then the matter does not go to ballot. I thought I was being clear but maybe I wasn’t being clear, however the law is very clear on that,” he said.
The petition language was adopted by Council at its Monday, July 23, meeting, before Herbert realized his mistake. Some in attendance suggested that Herbert deliberately took this course of action from July 23 onwards. To silence criticism — that he only represents the mayor’s interests and not those of Council or the township — Herbert referenced a 2005 Supreme Court case which states that a municipal attorney under Faulkner Act municipalities does represent both the mayor and Council, and there is not a conflict unless one is suing the other.
Herbert said he didn’t understand why Hsueh and Schmid were involved in Morgan’s lawsuit as “they were not involved in any of this because it was a decision by Council.”
“I am the only one stopping this thing from going to the ballot. I haven’t gotten any orders from the mayor or the administration. It’s my interpretation that once the ordinance has been amended, it is over. There is nothing else out there. It would be nice for everyone who worked hard on the petition if the ordinance got a three-year protection, but you can only get that if it goes to voters on the ballot — if this Council turned it down,” he said.
Herbert delivered his legal opinion: the ordinance could not be submitted to the November ballot because it no longer exists, as the ordinance was amended. He says that conclusion was agreed to by the Mercer County Clerk’s counsel. Council Vice President Linda Geevers had spoken with the Mercer County Clerk in early August, and she debated that point with Herbert based on what she had heard.In a rebuttal to Morgan’s second criteria for dismissing his latest lawsuit (whether Council can bind itself for three years, and can it then require an amendment to the ordinance only through initiative and referendum) Herbert cited a 1977 case to demonstrate the basic point that Council is a “year-body” as each year it re-organizes and becomes a new body, or new Council.
“A Council cannot bind future actions on matters such as ordinances. You cannot bind yourself and future councils. There may be members of the audience that want to run for Council down the line, and I’m sure you would not want this Council binding your actions in the future,” Herbert said.
John Church of 11 Princeton Place contested Herbert on that point during public comments, as he told Herbert in the case of bond ordinances as the effects last for multiple years. Herbert countered that by saying the laws governing items such as municipal bonds and zoning laws are unique from regular ordinances, and that is why the township employs a separate bond counsel.
Church and Morgan later took Herbert to task about a detail that West Windsor did indeed overlook: the ordinance’s original hearing on July 23 was technically not noticed in one of the town’s official newspapers in time. Young confirmed that fact with a reluctant nod, but Herbert said under initiative and referendum law, notice requirements are different from regular ordinances.
James Solloway of 5 Monroe Drive said what he witnessed was the Democratic majority acting for the mayor and his positions.
“We saw it with the budget and we’ve seen it elsewhere. I urge Council to reconsider and allow the original petition initiative to go to the voters,” he said.
Debbie Hepler of 10 Dean Court challenged Council members to go on record and state their position on the ordinance for the long-term.
“If this does not go on the ballot, I want to know from each one of you how you will vote in a year from now. Are you going to vote for the mayor’s wishes and rescind it or are you going to do the right thing and put it on the ballot. If I don’t get an answer I will really have my answer, and so will everyone watching,” Hepler said.
Council members Bryan Maher and George Borek each directly responded to Hepler’s question and said they would not vote to rescind the ordinance in 2013.
Morgan pleaded with the township to settle with him, as the committee of petitioners he worked with “directed him” to drop the lawsuit. Morgan also announced that he would end his series of personal lawsuits against Mayor Hsueh, which have been unsuccessful in the past two years, if Council’s vote went his way. That didn’t happen.
“Let’s stop spending money on lawyers. Do what you did two weeks ago when you sent the open space tax question to the November ballot — no ordinance needed,” Morgan said.
