Somerset County judge rejects Loptacong mayor's lawsuit

Judge said Mayor saw his authority as akin to that of the President of the United States or the Governor of New Jersey.

Loptacong Mayor Thomas McKay (lehighvalleylive.com)

SOMERVILLE -- Somerset County Superior Court Judge Thomas Miller ruled against Lopatcong Mayor Thomas McKay's nine-count lawsuit against the Township Council on Friday.

Miller reaffirmed his ruling made last month that the Warren County mayor cannot unilaterally appoint a new municipal attorney without township approval.

McKay sued members of the council and other township officials, claiming that state statute granted him the authority to make certain appointments without their consent. The suit was heard in Somerset County to avoid any conflicts of interest.

Miller's ruling means Hackettstown-based law firm Lavery, Selvaggi, Abormitis & Cohen will continue to represent Lopatcong, with Michael B. Lavery remaining township attorney. William Caldwell, who had been appointed by McKay, will no longer serve as township attorney.

"We're disappointed in the court's legal analysis," said Caldwell, who also represented McKay in the case. "I need to evaluate the judge's decision and have a conversation with my client."

Mayor facing recall efforts

McKay, who is facing a recall effort, declined to comment on the judge's decision.

The judge also denied McKay's request to have Beth Dilts, who serves as township clerk and administrator, removed from her post. The mayor had been censured by the council in October of 2015 after an investigation concluded that McKay had  violated of the township's anti-harassment policy after spreading rumors about Dilts sexuality.

The investigation also said the township is politically paralyzed because of an ongoing feud between the clerk and the mayor, according to prior coverage on Lehigh Valley Live. It recommended various actions, including the mayor's censure.

"I think it's clear that at all times my client has complied with all of her statutory and legal obligations under the law as it relates to her duties," said Dilt's attorney Michael "Mickey" Marcus of the DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum law firm. "There have been some serious difficulties between the mayor and my client as she fought this baseless, meritless and frivolous lawsuit.

"But it's my client's hope that she'll be able to perform her duties in the best interest of the people of Loptacong moving forward."

McKay can't appoint a labor counsel, municipal auditor or oversee the township's budget and finance without the consent of the council because it would keep the council from "exercising its independent and discretionary functions," Miller wrote in his ruling.

The nine-count civil lawsuit named as defendants council members Joseph Pryor, Louis Belcaro and Maureen McCabe; Dilts and the law firm of Lavery, Selvaggi, Abromitis and Cohen.

Caldwell argued that the 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.

"The court interpreted the law properly in holding that we're the lawfully constituted attorneys for the township of Loptacong and will continue to be until the appointment of an attorney with the advise and consent of the council," Cohen said.

McKay and his attorney felt the mayor's ability to appoint positions should override dissent from council.

Miller wrote that the mayor "sees his authority as akin to that of the President of the United States or the Governor of New Jersey. The mayor cities that proposition without authority."

While the judge acknowledged there is some degree of separation of powers within the Faulkner Act, the structure is "significantly different than our State and Federal constitutional form of government," he wrote.

Miller said McKay's claim is based on an "over-simplified and unsupportive legal theory that is based upon a misreading of the applicable law."