I have been following with interest the refusal of Mayor Shing-Fu Hsueh and Township Attorney Michael Herbert to release the legal advice they received from an outside law firm regarding the Mayor’s obligation under the Faulkner Act to appoint another Township Attorney after Council withheld its consent to the reappointment of Mr. Herbert more than a year ago.
What are they hiding? Were they advised that the mayor must make a new appointment within a reasonable period of time as mandated by the New Jersey Supreme Court? Curious minds would like to know.
In 1999 the New Jersey Supreme Court ruled in Casamasino v. City of Jersey City that, where one branch of government has been specifically vested with the authority to act in a prescribed manner, neither of the other branches may usurp that authority. The court said that the Faulkner Act requires both the mayor representing the executive branch and the council representing the legislative branch to perform separate roles in the appointment and reappointment of a tax assessor (and by analogy a township attorney). Further, the court said that neither can ignore the responsibility of the other in the appointment and confirmation of a tax assessor (and by analogy a township attorney) without violating separation of powers principles.
In Mayor Hsueh’s case, he is ignoring Council’s responsibility to provide advice and consent, including the responsibility to withhold consent, with respect to the appointment of a township attorney.
His failure to make another appointment has created an unending holdover of Herbert as township attorney. By doing so he has illegally shifted to himself Council’s responsibility to provide consent. Casamasino stands for the proposition that Mayor Hsueh may not “usurp the authority” of Council through the “unchecked power” of the mayor failing to make another appointment without violating separation of powers principles.
By failing to make another appointment the mayor is consenting to his own appointment, thereby usurping the consent role of Council, in clear violation of the law.
What exactly did their outside law firm tell them about the actions they must take pursuant to the Supreme Court decision in Casamasino and why are they hiding it? Curious minds would like to know.
Charles C. Morgan
Bonita Springs, Florida
Morgan was a member of West Windsor Council from 1999 through 2011.
