Seconds before Council’s August 6 meeting began, Township Attorney Michael W. Herbert left the dais, walked up the aisle, and leaned over to whisper to former Councilman Charles Morgan. Herbert delivered news that an amendment to create more transparency in government and require written responses from the administration — stemming from a petition that Morgan promoted (WW-P News, June 22) — had been temporarily sidelined.
“It’s a mess,” Herbert told Morgan.
At the start of Council’s business session, Herbert announced the delay: “The resolution authorizing the amendment to the town ordinance must be postponed to the next Council meeting. There needs to be a hearing on the ordinance itself, and as such it should be publicly noticed,” he said.
Herbert’s decision ignited a debate on whether the item — requiring the administration to provide answers within 30 days when requested by Council members — would appear on voter ballots on election day in November. Ultimately Herbert’s opinion prevailed by a party line, 3-2 vote, to not send the ordinance to the county. Instead the ordinance will be the subject of a public hearing on Monday, August 20.
Herbert told the audience and the public the point — and the vote — was moot. He says the resolution passed at Council’s July 23 meeting “did not accurately reflect” the action that was taken that night. An amended resolution coming back to Council will clarify the action taken.
Those backing the initial petition felt Herbert’s move was a tactic to keep the amendment off November ballots. [See letter to the editor, page 2.] Past 10 p.m. at the August 6 meeting, residents’ reactions turned the end of the Council meeting into a show of dissatisfaction on par with this year’s budget proceedings. Morgan pointed out that Council will soon run out of time as deadlines for November’s ballot approach.
“You are proposing a substantive amendment to the ordinance, and that means at the next Council meeting (Monday, August 20) you’re going to have a first reading; then you will have a second reading. Then it will be beyond the deadline for sufficient notice to give it to the clerk for the question to appear on the November ballot,” Morgan said.
Some residents said litigation may ensue as they filed out of the municipal building while expressing their frustration. During and after public comments, Herbert was the object of remarks from residents including Sandra Donovan of Sapphire Drive and Debbie Hepler of Dean Court. Hepler, who was involved in circulating the original petition, said the verbiage it contained “clearly stated that it would go to the ballot if approved by Council.
“Mr. Herbert took it upon himself to change the rules of the game and the stipulation of the resolution. He went back and forth a few times, which suggests one of two things. Either he doesn’t know what he’s doing, or he’s got a hidden agenda and he is trying to please someone in the administration whom the petition would harm — the mayor,” she said.
Hepler said that if Herbert changed the resolution, he would ensure that in one year Mayor Hsueh could re-visit the resolution and change it back.
Councilman Bryan Maher, also frustrated by the turn of events, explained the concern.
“I don’t understand for one second why we wouldn’t want this to go to the county for it to appear on the ballot. The big difference is, if it goes to the way (Herbert) wants to amend it to, one year from now Council can just vote it down. If it goes to a petition it cannot be changed for three years, and only after three years if it goes to a referendum again and gets voted down can it be changed. This has much more oomph going to a ballot than it does the way the Council and administration want to change it,” Maher explained.
Donovan pointed out the need for residents to be informed while making voters aware of changes.
“Although the counsel said if Council passes it, it doesn’t have to go to the voters, that is not what the resolution —which was never read to the public — said. The resolution said it is going to the voters. All five Council members passed the resolution in support of transparency in government. The mayor approved the petition, and 500 voters stated that they approve transparency — it’s best practices to have transparency and good communication whether in government or the private sector,” Donovan said.
“We have to get out of this morass of attorneys changing their mind — our counsel unfortunately has changed his mind three times: first council can do it, then it has got to go to the voters, now council can do it, and now let’s postpone it for a couple of weeks because you won’t be able to get it on the ballot in time,” Donovan said.
She added that the resolution approved on July 23 was a win-win for everyone, and the mayor and Council would look good by supporting transparency. But Herbert told Council and members of the community that there was no legal footing for the original petition to make it onto ballots.
“The county clerk will not take it unless it is signed off on by the township attorney, which is me. Unless I sign off on it as legal, and the county will also review its legality, then the county clerk will not put it on the ballot,” Herbert said.
Before the vote, Council Vice President Linda Geevers disputed Herbert’s statement that the Mercer County Clerk would not accept the provision for this year’s ballot.
“Our township attorney is saying we will send this off to the county clerk’s office, but maybe the county clerk will not put it on the ballot because West Windsor already approved it. I spoke to the county clerk, who is an attorney herself, and I would rather send it off to her office and they will decide there,” Geevers said.
“The Mercer County Clerk told me she will put this on the ballot if our municipal clerk certifies it. We have certified it, and it says ‘for placement on the official ballot’ three times,” Geevers said.
Herbert admitted telling Township Clerk Sharon Young, who was not present at the August 6 meeting, that the resolution could not yet be sent to Trenton. Councilwoman Kristina Samonte jumped in, saying that the township clerk is supposed to be autonomous and follow the rules. But Councilman Bryan Maher said he saw an E-mail from Herbert instructing Young to keep the resolution back. Herbert confirmed that action, but he also countered Geevers’ comments.
“We can’t send something off that does not exist. Under the statute it is something that doesn’t exist — it’s a moot matter. My memos to Council are very clear. It was stated right here on July 23 — if you vote up on this, the matter is over and it does not go to the ballot. If it was voted down, it would go to the ballot. The resolution was illegal under the statute,” he said.
Maher then questioned Herbert: “Can you just get up here and state any old thing that you want, and that becomes law? That’s ludicrous,” he said.
