Tom McKay and his attorney say the mayor's ability to appoint positions should override dissent from council.
When the mayor makes an appointment and the council doesn't like it, who gets the last word?
That is the question Lopatcong Township Mayor Tom McKay and his attorney say they want the court to answer with a lawsuit he filed against three council members and other township officials.
Lopatcong Township Mayor Tom McKay, who is facing a recall effort, has sued members of the township council and other officials, claiming they are defying his authority to make municipal appointments. (lehighvalleylive.com file photo)
After the litigation was filed this week, the mayor announced at Wednesday's council meeting that he was appointing an auditor and labor attorney as well as interim positions for the township attorney and municipal engineer without the council's consent.
At a prior meeting, council members opposed the mayor's nominations because of a perceived conflict of interest. The labor attorney and interim township attorney have personally represented the mayor in litigation involving other township officials.
"Having a prior personal or professional relationship with a member of the governing body does not constitute a conflict of interest," said William Caldwell, who filed the current lawsuit on the mayor's behalf and also was named by McKay as the township's interim municipal attorney.
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The mayor would not comment directly on the lawsuit. He said the effort is not a response to a recall campaign launched against him in December.
"It has to do with getting the township to operate the way the charter says it should operate," he said.
Appointments and consent
The structure of Lopatcong's government is set under a state law called the Faulkner Act, which specifies that "an assessor, a tax collector, an attorney, a clerk, a treasurer and such other officers as may be provided by ordinance" are appointed by the mayor with the council's consent. At Wednesday's meeting, the mayor cited a related part of the statute that allows the mayor to appoint positions not otherwise specified in the law.
The nine-count civil lawsuit filed Monday in state Superior Court in Belvidere names as defendants council members Joseph Pryor, Louis Belcaro and Maureen McCabe; township Clerk/Administrator Beth Dilts and the township's legal representation of the Hackettstown law firm Lavery, Selvaggi, Abromitis and Cohen. Councilwoman Donna Schneider, an ally of McKay's, is the only council member not named as a defendant.
At its crux, Caldwell said, it seeks to have the court define the mayor's authority to make appointments. He argued that municipalities are required to have legal representation, and that the mayor's appointment should be honored even without council consent.
The litigation contends that the Lavery law firm's term expired in 2014 and was never reappointed for 2015 when the mayor and council disagreed, and that the firm's retention as a "holdover" was improper.
On Wednesday, McKay said he would not recognize the firm and appointed Caldwell as an interim attorney for 90 days, which Caldwell said is within the mayor's authority.
The Lavery firm filed a legal response Friday.
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The other 90-day interim appointment the mayor made Wednesday was municipal engineer Paul Sterbenz. McKay had previously said he would not appoint Sterbenz until he could get assurance that the engineer's firm, Maser Consulting, would cease donations to a local political action committee that in turn aided the campaigns of McKay's opponents last year.
"It's not retaliation in any way," McKay said Friday, adding that Maser's PAC donations were "a sneaky way of doing things." He said he has not decided on a long-term engineer appointment.
Caldwell said the other appointments -- the auditor and labor attorney -- did not require council consent because they are not specifically identified in the law.
Council had objected to the labor attorney appointment because he represents the mayor in a harassment complaint filed against him by the township clerk.
Caldwell also defended the mayor's decision to file suit, then take action before getting a response from the court.
"The court didn't act; there was a meeting, the mayor acted," he said, later adding: "Government's got to move forward."
Action and reaction
McKay's action has raised hackles around Warren County.
Lopatcong's council president, Joe Pryor, said he find the mayor's litigation "wasteful" but within his rights.
"I think I speak for the majority of council when I say the mayor's lawsuit has no factual or legal basis," Pryor said Saturday. "Out of respect for Lopatcong's residents and the legal process, I'm not going to try and argue the case in the newspapers ... I'm going to let the process unfold and I look forward to hearing the decision of the court. I wish the mayor had done the same instead of rushing to take unilateral action at the Council meeting on Wednesday night."
A post on the recall campaign website calls the mayor "law-breaking" and "unstable," accusing him of trying to set up "a dictatorship."
"We are appalled and embarrassed for our township," the post says.
"The lawsuit is completely and utterly absurd," said Jeff Russo, the attorney representing the clerk in her pending harassment lawsuit. "But even worse, it directly continues the mayor's relentless retaliatory campaign against my client."
Robert Larsen, chairman of the Leadership PAC for Better Government to which the Maser engineering firm donated, objected to McKay's stance. He said that donations to political action committees are legal and monitored, and that any issues with the process should be brought up on the state level.
"At the end of the day, political donations are a part of politics and the process in place. To say that it's unfair for that firm to donate, you would have to preclude any potential company from donating to any political action committee," Larsen said.
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"At this point in time, more importantly than political donations in Warren County," he continued, "the citizens should be concerned with the mayor's competency and ability to lead. That's the real issue."
"We have an identical form of government to Lopatcong," Pohatcong Township Mayor James Kern III posted on Facebook. "My role as mayor is to preside over the meetings with a voice and vote. ... It is too bad for the taxpayers of Lopatcong that they have to pay for a lawyer to give them that same explanation."
Steve Novak may be reached at snovak@lehighvalleylive.com. Follow him on Twitter @type2supernovak. Find lehighvalleylive.com on Facebook.