Mention the name Mike Herbert in West Windsor, Plainsboro, or any of another half dozen municipalities in central New Jersey and many people would immediately associate it with “township attorney.” Mike Herbert Sr. and his firm specialized in municipal law until his death in 2011 at the age of 73. His son, Mike Jr., pictured at right, was already following in his footsteps and upon his father’s death, the younger Herbert quickly resigned as Lawrence Township attorney to take the West Windsor position.
“Serving as the West Windsor township attorney was my father’s passion,” says Herbert. “My father owned a condo in West Windsor, and my uncle still lives there, and we have strong ties to West Windsor. Even though I live in Hamilton, representing West Windsor is my passion as well.”
But despite the Herberts serving as West Windsor attorney for 16 consecutive years, beginning with Republican mayor Carole Carson and now with Democratic mayor Shing-Fu Hsueh, the lawyers have also been controversial. Several political opponents of Hsueh have accused the attorney — father and son — of ruling in the mayor’s favor rather than the township’s best interest.
This year when Republicans took control of Town Council they ordered that Herbert no longer sit on the dais with the elected officials, but rather take a seat in the well below. Then they voted that the reappointment of the township attorney be made subject to a request for proposal (RFP), eliciting competitive bids for the position.
After some initial reluctance, Mayor Hsueh announced that he would be recruit bids for the position through the RFP process. Said Hsueh: “This will give us an opportunity to compare law firms and to ensure we are getting the most for our money.
At the January 28 Town Council meeting, the Mayor said that he would honor the Council’s request to solicit bids and “we will work with the League of Municipalities, which is an unbiased non-partisan agency, to guide us through the RFP process for this position.”
Despite the Mayor’s announcement, the Council passed a resolution, by a vote of 3 to 2, asking the Mayor to send out the RFP for township attorney within the next 30 days. Noted Council President Bryan Maher in a later interview: “We were willing to extend the deadline somewhat because of the weather and because the administration was working on the budget. Nonetheless, it is time for the administration to send out the RFP.”
Said Council Vice President Linda Geevers explained her support for the RFP process. “I have had no problems with Mike Herbert’s performance. The reason I pushed for an RFP for the township attorney position is simply because it is a best business practice. Mike Herbert Sr. was appointed approximately 16 years ago to this position under Mayor Carole Carson, a Republican, and in all of that time we have never issued an RFP. I think it is time to see what other options are out there. I intend to propose the same process for the township auditor position, again, because it is a best business practice.”
Maher went further. “My issues are both quality and cost,” he said. “During my two years on the town council, I have often been unhappy with the services that have been rendered [by Mike Herbert Jr.]. In all fairness, now that I have become council president, Mike has made a concerted effort to rectify that. Nonetheless, the RFP process is long overdue. If we only receive one bid, from the Herbert firm, that is going to be a problem. However, assuming we receive more than one bid, and assuming all things being equal, such as costs and services being offered, then I might consider choosing new counsel in order to get a fresh perspective.”
Added Maher: “People tend to underestimate the true power that the council has, because not only does the council have ‘advise and consent’ power, but we have budgetary control. While we cannot lower a township employee’s salary, we can lower the amount that we will pay for fees, such as legal fees. In fact, we have done just that in this year’s budget. We lowered the legal fees line item from $113,000 to $100,000. (See related budget article, page 14). And we have the authority to pay — or not to pay — every bill that comes in. People need to remember that.”
Until such time as a new attorney is picked, Herbert remains in the position of township attorney. By law, a municipality is not allowed to have a vacancy in the position of township attorney.
The idea of sending out an RFP to solicit bids for the position of township attorney is not unique; in fact, many surrounding towns follow this procedure, including Princeton and Plainsboro. Herbert’s firm filed nine RFPs in the last year. Said Herbert: “A lot of towns go through the RFP process, including many of the towns I represent. I am very comfortable with the RFP process and have no issue with West Windsor’s decision to follow suit.”
But the taxpayers should not expect that the RFP process will automatically lead to lower legal costs. Herbert’s hourly rate for serving as township attorney for Plainsboro, where he was hired through the RFP process, is $170 per hour. In West Windsor it is $165 an hour.
But while Plainsboro’s bill was approximately $60,000 in 2013, West Windsor’s was approximately $330,000. Why is there such a huge discrepancy? According to Herbert, there are a number of factors. “Plainsboro’s committee meetings are generally much shorter than West Windsor’s town council meetings. I prepare many more legal opinions for the council and the mayor of West Windsor than I do for the committee and mayor of Plainsboro. Many of those legal opinions are answers to queries posed by West Windsor residents,” he says.
“Plainsboro has fewer large-scale legal issues than West Windsor. Plainsboro is a smaller town, with less open space that is subject to development. The biggest difference between the two towns is the amount of litigation each town is involved in. Over the years, West Windsor has been involved in many long and costly lawsuits, many of which are tied to development and land use issues. Plainsboro tends to be more pro-active in seeking settlement agreements than West Windsor is.”
Herbert continued, “These are trends that have been in place a long time. Much of the litigation I have been involved in started under Carole Carson or Tom Frascella, two former mayors of West Windsor. And of course former councilman Charlie Morgan has sued the township a number of times as well.”
“We also had one of the biggest cases in the state of New Jersey, Yadav v. West Windsor. Mr. Raj Yadav is extremely litigious, and in the past has involved West Windsor in very costly litigation. Luckily, the township prevailed, and I was able to have the courts invoke sanctions of approximately $10,000 against Yadav, which was used to offset the town’s legal fees. I have also been successful in obtaining injunctions against Yadav in both state and federal court that prohibit him from filing suit against the township again. This will help reduce West Windsor’s legal fees in the future.”
In addition to being the township attorney for West Windsor, Herbert is currently the township attorney for Plainsboro; counsel for the Robbinsville Zoning Board; counsel for the Planning Boards of East Windsor, Ewing, and Marlboro; counsel for the Mercer County Freeholders (for the legislative body only); assistant counsel for the towns of Cranbury and Hopewell; assistant counsel for the New Jersey Interscholastic High School Athletic Association; and assistant counsel for the diocese of Trenton.
He is also special counsel for the borough of Seaside Park. “An attorney is appointed as special counsel when there may be a legal issue that can be a conflict for the township counsel. The position is usually issue-specific, rather than being a permanent position. In this case, I was appointed because a developer had begun building condominiums without permission, because he thought he controlled the town. I represented the borough in the litigation, and was able to stop the development, acquire the property through receivership, and turn it into a beautiful township park. It was very successful litigation, and even though that issue is resolved, the borough has kept me on as special counsel in the event that other issues arise.”
In addition, Herbert is involved with many community organizations. He recently ended a term as President of the Board of the Mount Carmel Guild, an organization serving the Trenton area’s disadvantaged by providing food and medical services. He has been on the board for approximately 25 years. Herbert provides training in municipal law for the League of Municipalities, and teaches municipal and land use law through the New Jersey Institute for Continuing Legal Education (ICLE).
Growing up Herbert recalls his father’s weekly grind as a lawyer, often attending meetings four nights a week. “As a kid I first wanted to be a fireman — both of my grandfathers were firemen,” Herbert says. “My father told me whatever I chose don’t be a lawyer — you have to work constantly and you don’t make that much money.” In his senior year at Rider University a career counselor noted his grades and told him he should consider being a college professor, which might take 8 to 10 years to attain, or a lawyer, which would require three years of further study.
Herbert opted for law at Seton Hall, and began his career in environmental law before being drawn into bankruptcy, land use, and then municipal law.
His wife, Kimberly, teaches at Mercer County special services, and his three children have all been involved in sports. “I have also coached the Hamilton Wildcats travel soccer league, and Hamilton PALS basketball for many years. My youngest daughter, who attends Ramapo College, is a national level swimmer, so I have been attending as many swim meets as I can. I’m as local as it gets,” Herbert says.
Herbert says that neither he nor his firm are glitzy players in the New Jersey legal scene. “I still drive my father’s Buick to meetings,” he says. “I like representing governments, because it means I am representing the people, and serving the community. That’s the type of lawyer I am; that’s the type of person I am. I could have decided to represent developers or corporations, but I prefer to work with communities, because it allows me to give back. That’s what lets me sleep at night.”
