I am not an attorney myself, but in my opinion West Windsor should not be retaining any attorneys from Michael Herbert’s firm. A principle reason would be that we have numerous existing and potential conflicts between the county and the town. One of Herbert’s firm’s clients is the Mercer County Board of Chosen Freeholders as shown on the firm’s website, hvcglaw.com.
Such conflicts could include the new solar farm at Mercer County Community College, any changes to Cranbury or Washington roads in case redevelopment proceeds at the latter, and the Howard Hughes property. In particular, anything significant happening with Howard Hughes would impact both Clarksville and Quakerbridge roads, which are county roads. Whose side would the Herbert firm be on in case of controversies?
With the solar farm, the county (and therefore all 12 municipalities) is responsible for paying off the bonds and any operational deficits. Tax increases from the county to cover these issues would come right back into our lap.
Separately, regarding approval of the attorney and also his fees, in the past this has always been done by two resolutions at the beginning of a new term. These require only three council votes and cannot be vetoed by the mayor. (Vetoes are reserved for ordinances only.) By both state and local law, approval of the attorney requires that the mayor ask council for its advice and then for its consent. Neither of these has happened.
The mayor might say that he is relying on Chapter 4 of the Township Code, Article III, Section 4-11, Part E and Section 4-12, Part D regarding the removal of a township officer for cause. Pursuant to NJSA 40:69A-37(b), removal for cause requires a two-thirds vote of council, which is four votes in our case. Removal for cause in the legal sense is “taking away the position of a public official for cause, such as dishonesty, incompetence, conviction of a crime, or successful impeachment.”
But council would not be removing Herbert for cause. They would simply not be reappointing him at the beginning of a mayor’s new term, which they have the full right and power either to do or not do. This was shown by their procedure at the beginning of Mayor Hsueh’s third term on July 1, 2009, Resolutions 2009-R159 and 160. The administration should promptly proceed with drafting a Request for Proposal for a new attorney.
John A. Church
West Windsor
