Tom McKay seeks sole power to fill positions but lacks "any legal basis," says the firm he's seeking to replace.
The law firm Lopatcong Township's embattled mayor is trying to replace says he has no legal basis to do so.
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) A response to Mayor Tom McKay's lawsuit against three council members and other township officials was filed Friday by the Hackettstown law firm McKay has said he no longer recognizes.
"It is submitted that (the mayor's) application is utterly devoid of any legal basis" and is "frivolous," says the response filed by Lavery, Selvaggi, Abromitis & Cohen. The firm has represented Lopatcong since 2004.
In the suit filed this week, McKay and his attorney, William Caldwell, argue that the mayor should be able to make certain appointments without the council's consent. On Wednesday, McKay acted to make those appointments -- including naming Caldwell the township's interim municipal attorney. Caldwell said there is no conflict of interest.
McKay is facing a recall effort that launched in December.
Why Lopatcong's mayor is suing council members
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, including attorney Michael Lavery himself. Councilwoman Donna Schneider, an ally of McKay's, is the only council member not named as a defendant.
Michael Lavery (lehighvalleylive.com file photo)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.
The response on Lavery's behalf -- filed by partner Lawrence Cohen -- says the law is not on McKay's side. State statute "clearly demonstrates that an attorney cannot be appointed as municipal attorney unless the attorney ... receives the advice and consent of council. That clearly has not occurred."
If the lawsuit is honored, the filing says, the township will be left without an attorney because "no replacement has been properly appointed."
The legal response also objects to the mayor's claim that the firm was an improper "holdover" appointment. Though its appointed term ended in 2014, no replacement was named and the firm continued representing Lopatcong in 2015, without objections or challenges by the mayor until Wednesday, the firm says.
The response was filed with superior court Judge Thomas Miller in Somerville. Caldwell has said he hopes the court will hear the case next week.
Steve Novak may be reached at snovak@lehighvalleylive.com. Follow him on Twitter @type2supernovak. Find lehighvalleylive.com on Facebook.
