In our form of government, the executive and legislative branches do not have unlimited powers. This system of checks and balances insures that many key decisions have to be made by consensus, including major personnel appointments.
A time-honored federal example strikes the keynote. Article II of the U.S. Constitution states that the president “by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for.” Many candidates have failed to get the Senate’s consent and have been rejected. The drama that can arise was the subject of the 1962 film “Advise and Consent.”
Recent experience shows how this operates at the state level, Article V of the New Jersey Constitution again citing the advice and consent procedure. Governor Christie and Senate President Sweeney compromised in order to fill positions on our Supreme Court. Senator Sweeney was blocking one of the governor’s nominees until the governor agreed to reappoint the sitting chief justice. As of this writing, the story was continuing with still another position.
The Optional Municipal Charter Law, N.J.S.A 40-69A-1 et seq., better known as the Faulkner Act, describes, among others plans, the mayor-council plan under which West Windsor operates. Section A-43 (a) specifies the creation of municipal departments. A-43 (b) then states that “Each department shall be headed by a director, who shall be appointed by the mayor with the advice and consent of the council. Each department head shall serve during the term of office of the mayor appointing him and until the appointment and qualification of his successor.”
Building from this statutory base, the West Windsor Township Code (Chapter 4, Article II, Section 4-6 B) states: “The mayor shall appoint the directors of each department with the advice and consent of the council. Each director shall serve during the term of office of the mayor and until the appointment and qualification of a successor.” The mayor’s term is four years (Section 4-10); if he is re-elected, he is sworn in again and begins a new term.
With each new mayoral term, the township attorney has had to go through the confirmation process again and get the consent of council to both his appointment and contract. The most recent example was on July 1, 2009, with Resolution 2009-R159, where the advice and consent provision was specifically cited. The present Mr. Herbert’s late father was confirmed by a vote of 4 to 1, the senior Mr. Herbert advising that his appointment, by statute, was for a four-year term running concurrently with the mayor’s term. This is further confirmed by Section 4-52 of the Code, specifically referencing the Township Attorney position in language practically identical to Section 4-6 B above.
In summary, the advice and consent function of designated legislative bodies regarding major executive appointments is perfectly clear and consistent throughout all levels of government down to our own. It is firmly settled law and needs no further complicating by opinions from outside advocates. As we learned at Tuesday evening’s council meeting, nine responses have been received to the request for proposal for the township attorney position that was initiated by council. I am urging everyone concerned to work cooperatively on evaluating these responses to find a mutually acceptable candidate. This is essential if we are to move together and efficiently advance the town’s business.
John A. Church
West Windsor
