Charging a violation of state law, mayor says he is prepared to sue the Township Council
By: Greg Forester
WEST WINDSOR Mayor Shing-Fu Hsueh said Thursday he will sue the Township Council next week, asserting the governing body is unwilling to acknowledge state law giving the mayor the power to appoint the township attorney and determine the position’s pay.
Mayor Hsueh’s announcement followed the council’s July 1 3-1 vote with one abstention rejecting current Township Attorney Michael Herbert’s professional services agreement and its continued work on an ordinance giving the power to determine the attorney’s pay to the council, instead of the mayor.
Mayor Hsueh said the vote by the council majority forced him to move forward with litigation against council, following a month of haggling over the attorney.
"This has been going on now for a month, and this is unacceptable to me," said Mayor Hsueh. "The township attorney’s compensation has always been determined by the mayor through a contract, and this ordinance would change the kind of practice we have had in West Windsor since 1993."
A faction on Township Council has been seeking a replacement for Mr. Herbert for several weeks, following disagreements and a belief that Mr. Herbert wasn’t adequately representing the council’s views in his decisions.
The voting down of the professional services agreement was designed to force the mayor into appointing a new attorney the council could agree on.
Councilman Charles Morgan who was part of the faction that voted down Mr. Herbert’s services agreement and had disagreements with Mr. Herbert in the past called the mayor’s plan to take council to court unfortunate for West Windsor.
"I think he is being foolish, because he has had the power to avoid taking this issue to court," said Mr. Morgan. "He wants to play hardball, and he’s going to force both sides into hiring attorneys, with the taxpayers paying the bills for both sides."
Under New Jersey law, in West Windsor’s form of government the mayor is empowered to appoint a township attorney and determine compensation for the duration of his term, with the advice and consent of the Township Council.
Prior to the vote on Mr. Herbert’s professional services agreement, the faction on Township Council including Mr. Morgan and current President Will Anklowitz had expressed a desire for a new attorney, exchanging e-mails stating their intention to force the mayor to appoint a new one.
The two councilmen had earlier met with other law firms, searching for a replacement for Mr. Herbert.
With the re-election of Mr. Morgan and Mr. Anklowitz to council in May, along with the election of running mate George Borek, and Mr. Borek’s swearing-in on Sunday, the three had the majority of votes necessary to vote down the professional services agreement.
Mr. Morgan said the ordinance giving the Township Council the ability to set the township attorney’s compensation through ordinance was based on state law.
Laws governing the function of a government like West Windsor’s gives the council the ability to set compensation for the mayor, council members, and department heads, Mr. Morgan said.
"Basically, there is a court case that says the attorney’s compensation cannot be done by contract," said Mr. Morgan. "Mr. Herbert is a department head, giving council the ability to determine his compensation."
Mr. Herbert said previously that he believed disagreements between him and Mr. Morgan were the cause of the situation, and that Mr. Morgan believed he could eliminate Mr. Herbert by denying him compensation.
"The level of my compensation is determined by a professional services agreement through resolution, but that’s a technicality," said Mr. Herbert.
Mr. Herbert called current situation one where the council was stripping the mayor of some his most important duties.
"I’m very frustrated because there are so many things in this township that will require legal advice right now," said Mayor Hsueh. "The staff will have no idea what to do without Mr. Herbert."

