What follows is the text of the complaint that was filed on September 12th.   Read the responses from the defendants and the plaintiff. 

Petitioner Robert Nolan, a resident, taxpayer and voter in West Milford, New Jersey, does hereby state and verify as follows: 

FACTS RELEVENT TO ALL COUNTS

West Milford is a township located on 80 square miles in Passaic County, in a rural, mountainous, watershed area, in northwest New Jersey. 

As of the 2020 Census, West Milford had a population of 24,862, representing a decline of 5.9% over the previous twenty years. 

West Milford is located entirely within the Highlands Preservation Area and has restricted development under the Highlands Act of 2004. 

Since 2004, the Township has been served by a Mayor-Council-Administrator form of government which is provided for under the Optional Municipal Charter Law, N.J.S.A. 40:69A-1, et. seq. (hereinafter “Faulkner Act”).  The provisions of a Mayor-Council-Administrator plan are set forth at N.J.S.A. 40:69A-149.1, et. seq. The Township of West Milford is one of three municipalities in New Jersey using this form of government. 

5. The Faulkner Act sets forth the responsibilities and duties of each of the three roles (Mayor-Council-Administrator) of this form of government. There is no overlap among these separate and distinct roles and no provision for sharing the responsibilities of  Mayor, Council or Administrator. Unlike its counterparts under the Faulkner Act, the Mayor-Council-Administrator form is not subject to any variation whatsoever, outside its transformation via an amended or special charter grant as set forth in N.J.S.A. 40:69A-1, et. seq.

6. Under this form of government, West Milford’s mayor has been compensated with a stipend. The 2024 stipend is about $16,000.00.

7. West Milford mayors and council members have served while having employment outside of township government. 

8. The current mayor of West Milford is Michele Dale. She was initially elected in 2018 to fill the unexpired term of Mayor Bettina Bieri for one year. Ms. Dale was then elected to a full term as Mayor in 2019 and then reelected on November 8, 2023.

9. Michael Chazukow, Matthew P. Conlon, Ada Erik, Kevin Goodsir, Marilyn Lichtenberg and David Marsden are currently West Milford Township council members (hereinafter referred to collectively as “Council Defendants”). 

10. Upon information and belief, Mayor Michele Dale had full time employment while she previously served as Mayor, but became aware in 2023 or early 2024 that her employment would be terminated. The Council Defendants were aware of Ms. Dale’s impending loss of work and income. 

11. West Milford’s budget for 2023 appropriated $50,350.00 for the anticipated salaries of the Mayor and Council Members. 

12. West Milford’s budget line item appropriation for Mayor and Council salaries and wages for 2024, which was adopted April 17, 2024, was $177,500.00. This was an increase of $127,150.00, or 253% over the previous year’s appropriation. 

On February 14, 2024, the  West Milford Township Council introduced Ordinances 2024-009 and 2024-011 (Copies of the Ordinances are attached hereto as Exhibits “A” and “B” respectively). 

On March 20, 2024, Council Members Michael Chazukow, Matthew P. Conlon, Ada Erik, Kevin Goodsir, and David Marsden voted in favor of adopting Ordinances 2024-009. All Council Members, including Marilyn Lichtenberg, voted for Ordinance 2024—011. 

Ordinance 2024—009 amends the Township Code to create a new position, that of a “full-time Mayor.” The Ordinance provides the powers and duties of the mayor and establishes the township council’s authority to determine whether the mayor position is full-time or part-time. New duties and responsibilities are assigned to this position.   

As initially introduced and advertised and discussed during public sessions, the Ordinance provided for Section 1. §15-7B of the Township Code to be revised to state:

“The Township Council shall determine from the date of the reorganization meeting whether a full-time Mayor will be approved for that calendar year. Should a full-time Mayor be appointed by a majority of Township Council members, the full-time Mayoral duties and responsibilities shall include, but not be limited to: 1) Serving as Township liaison to the State and County on public works and health matters; 2) Managing grants; 3) Overseeing major projects and Township initiatives; 4) Coordinating economic development initiatives; 5) Managing all Township shared services agreements; 6) Managing Township public relations, including social media; and 7) Serving as Joint Insurance Fund and Health Insurance Fund Commissioner.”

As noted above, these are not “executive duties” and would otherwise be assigned to the administrator who reports to the Mayor. 

This mixing of executive and administrative duties was openly acknowledged in the public statement of Councilman Matthew Conlon in support of the passage of Resolution 2024-234, setting the Mayor’s annual salary at $130,000.00 during the West Milford Township Council’s meeting of June 12, 2024. 

This portion of the new Ordinance was amended just prior to the taking of the final vote to delete the sentence reading, “The Township Council shall determine from the date of the reorganization meeting whether a full-time Mayor will be approved for that calendar year.” The revised version of the Ordinance was then adopted without readvertising, re-noticing, or re-opening the public hearing. 

On March 20, 2024, the Township Council also adopted a companion piece of legislation, Ordinance 2024-011, which states that the current part-time Mayoral salary will not change, while a “full time mayor” is to have a salary range of $90,000.00 to $130,000.00.  

On June 12, 2024, the Township Council unanimously adopted Resolution 2024-234 appointing Mayor Michele Dale to the newly created Full Time Mayor position and established her salary at $130,000 per year (Copy of Resolution attached hereto as Exhibit “C”). 

The Resolution specifically states that the “Township Council seeks to increase the role and responsibilities of the Mayor to full-time, serving in place of filling the Deputy Administrator position…”

 FIRST COUNT 

(Invalidating Ordinances/Resolution/Violation of Faulkner Act)

22. Plaintiff repeats and realleges the allegations set forth in paragraphs 1-21 as if set forth at length herein. 

23. Ordinance 2024-009 purports to authorize the Township Council to appoint a “full-time mayor” and further assigns certain non-mayoral duties to the mayor. Ordinance 2024-011 amends the Township Code to provide for a salary range for a full-time mayor. 

24. There is no statutory authority under the specific form of government or general provisions of the Faulkner Act for the council to create a position designated as “full-time mayor,” or to otherwise limit, expand or modify the mayor’s role, whether by Ordinance or Resolution. 

25. Under the Mayor-Council-Administrator Plan, N.J.S.A. 40:69A-149.6, the mayor’s powers and duties are as follows: 

The executive [emphasis added] power of the municipality shall be exercised by the mayor. He shall enforce the charter and ordinances of the municipality and all general laws applicable thereto, and shall recommend such actions to the council as he may deem in the public interest.

26. Under the Mayor-Council-Administrator Plan, N.J.S.A. 40:69A-149.5, the council’s powers and duties are as follows:

The legislative power of the municipality shall be exercised by the council, except as may be otherwise provided by general law. The mayor shall preside over all meetings of the council except as herein provided, but shall not vote except to give the deciding vote in case of a tie. Three council members and the mayor, and in the absence of the mayor, four council members shall constitute a quorum for the transaction of business, but a smaller number may meet and adjourn from time to time. The council shall annually select from among the council members a president of the council who shall serve in place of the mayor in the event of the mayor's absence, disability or refusal to preside. The mayor shall, when necessary, call special meetings of the council. In case of the mayor's neglect or refusal, any four council members may call a special meeting upon due notice of the time and place to the mayor and all council members.

27. Under the Mayor-Council-Administrator Plan, N.J.S.A. 40:69A-149.9,  the powers and duties of the municipal administrator are as follows:

The municipal administrator shall administer the business affairs of the municipality and shall, as provided by ordinance, have such powers and perform such duties which are not required by this article or general law to be exercised by the mayor, council or other officer, board or body. The administrator shall receive such compensation as may be provided by ordinance. The municipal administrator shall serve during the term of office of the mayor, but may be removed by a vote of at least two-thirds of the members of the council. The resolution of removal shall become effective three months after its adoption. The council may provide that the resolution shall have immediate effect, but in that case the council shall cause to be paid to the administrator forthwith any unpaid balance of his salary and his salary for the next three calendar months following adoption of the resolution unless he is removed for good cause. For the purposes of this section, “good cause” shall mean conviction of a crime or offense involving moral turpitude, the violation of the provisions of section 17-14, 17-15, 17-16, 17-17 or 17-18 of P.L.1950, c. 210 (C. 40:69A-163 through 40:69A-167), or the violation of any code of ethics in effect within the municipality.

28. There is no legal authority under the Faulkner Act for the council to regulate the hours worked by the mayor, or to assign the duties of a Deputy Administrator to the mayor.

29. Under the Ordinances and Resolution, the Town Council has created both a new  financial and duty control over the Mayor which can be modified whenever the Council so decides, making it possible for the Town Council to demand that the Mayor carry out whatever function it wishes or it can immediately return the mayor to only mayoral duties at a stipend of $16,000.00. 

30. A Town Council’s ability to control the Mayor’s activities and decisions by the ability to terminate the Mayor’s “full time position” and lower the Mayor’s salary is antithetical to the separation of powers established under the provisions for the Mayor—Council—Administrator form of government. The mayor has executive power and the council has legislative power. Only the municipal administrator can administer the business affairs of the municipality, hence the use of “shall” in N.J.S.A. 40:69A-149.9.

31. The scheme devised by the elected officials is an illogical and thus not permissive statutory incompatibility of assignments. It places with the mayor, who has executive responsibility, administrative responsibility. Under the scheme, the mayor would be taking direction from the administrator, someone the mayor nominates for the position and whose employment the mayor can terminate. There is no provision to rectify this conflict.

WHEREFORE, the Plaintiff demands that the court grant the following relief:

1. Declare that West Milford Ordinances 2024-009 and 2024-011 and West Milford Resolution 2024-234, are invalid and void ab initio;

2. Declare that the Mayor of West Milford Township holds executive power with specified duties and responsibilities under the Mayor—Council—Administrator form of government under the Faulkner Act and that the Town Council may neither expand nor limit the mayor’s statutory duties and responsibilities;  

3. Declare that the Mayor under a Mayor—Council—Administrator form of government has the exclusive authority to determine what time to devote to carrying out the position of Mayor and the Town Council has no authority to require the Mayor to devote more time or less time to perform the functions of Mayor; nor does it allow the Mayor to assume non-executive administrative functions otherwise the domain of the administrator. 

4. Any funds paid to the Mayor pursuant to the void Ordinances and Resolutions shall be returned to the Township of West Milford with any credits toward pension benefits being voided;  

5. Declare that in the event the Town Council of West Milford takes any action with respect to the Mayor’s salary, that it be done exclusively by ordinance and that the time limit for the right to petition such ordinance shall be extended to sixty (60) days; and

6. Awarding attorney’s fees and expenses in this action. 

7. Granting such other relief as the Court deems just and proper.

SECOND  COUNT

(Violation of Local Government Ethics Law/Faulkner Act)

32. Plaintiff repeats and realleges the allegations set forth in paragraphs 1-31 as if set forth at length herein.  

33. All of the Council Defendants voted for Ordinance 2024-011 and the Resolution 2024-234. All Council Defendants voted for Ordinance 2024-009, with the exception of Marilyn Lichtenberg. 

34. In voting for the Ordinances and Resolution, the Council Defendants violated the Local Government Ethics Act and the Faulkner Act. 

35. In accepting the full-time position, Mayor Michele Dale also violated the Local Government Ethics Act and the Faulkner Act. 

36. The vote by the Council Defendants for the Ordinances and Resolution and acceptance of the full-time position falls squarely within the prohibition of N.J.S.A. 40A:9-22.5(e), which provides, “No local government officer or employee shall undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties.” 

37. The Mayor’s independence of judgment as mayor is clearly compromised by Council’s ability to decide at any time whether the Mayor is a full-time mayor performing the duties assigned to her by the Council at a salary of $130,000.00, or is a mayor performing only the duties of a mayor, at a stipend of $16,000.00. The Administrator is now compromised in the execution of his duties as his primary subordinate has the power to discipline him, notwithstanding the inherent necessity to provide direction, evaluate performance, and reassign duties in the best interest of the Township as is his prerogative.

38. In addition, elected officials such as Council Members and Mayors are directly prohibited from giving jobs and compensation to their friends and political allies and a mayor is ethically prohibited from accepting such a job, contract, compensation or other benefit, pursuant to N.J.S.A. 40:69A-163:

40:69A-163. Interest in contracts or jobs forbidden

No officer or employee elected or appointed in any municipality shall be interested directly or indirectly in any contract or job for work or materials, or the profits thereof, to be furnished or performed for the municipality, and no such officer or employee shall be interested directly or indirectly in any contract or job for work or materials or the profits thereof, to be furnished or performed, for any person operating any interurban railway, street railway, gas works, waterworks, electric light or power plant, heating plant, telegraph line, telephone exchange, or other public utility within the territorial limits of such municipality.

39. During the discussions surrounding the votes for the Ordinances and Resolution, certain Council Defendants repeatedly praised the hard work and successes of Michele Dale individually, making it very clear that the actions are to benefit the individual person, and not merely creating a structural benefit to the position of mayor for all future applications. 

40. In fact, the nature of the full time mayor position is temporary; the Council has not only granted itself authority to create the full time mayor position but it has reserved the right to “toggle” back and forth between a part time mayor and a full time mayor and adjusting the pay and work assignments pertaining to any particular mayor depending on which position the current council determines is needed at any given time. 

 WHEREFORE, the Plaintiff demands that the court grant the following relief:

1.  Finding that Michele Dale, Michael Chazukow, Matthew P. Conlon, Ada Erik, Kevin Goodsir, Marilyn Lichtenberg and David Marsden violated N.J.S.A. 40A:9-22.5(b), N.J.S.A. 40A:9-22.5(e) and N.J.S.A. 40:69A-163; 

2. Declare that West Milford Ordinances 2024-009 and 2024-011 and West Milford Resolution 2024-234, are invalid and void ab initio;

3. Declare that the Mayor of West Milford Township holds executive power with specified duties and responsibilities under the Mayor—Council—Administrator form of government under the Faulkner Act and that the Town Council may neither expand nor limit the mayor’s statutory duties and responsibilities;  

4. Declare that the Mayor under a Mayor—Council—Administrator form of government has the exclusive authority to determine what time to devote to carrying out the position of Mayor and the Town Council has no authority to require the Mayor to devote more time or less time to perform the functions of Mayor; nor does it allow the Mayor to assume non-executive administrative functions otherwise the domain of the administrator. 

5. Any funds paid to the Mayor pursuant to the void Ordinances and Resolutions shall be returned to the Township of West Milford with any credits toward pension benefits being voided;  

6. Declare that in the event the Town Council of West Milford takes any action with respect to the Mayor’s salary, that it be done exclusively by ordinance and that the time limit for the right to petition such ordinance shall be extended to sixty (60) days; and

7. Awarding attorney’s fees and expenses in this action. 

8. Granting such other relief as the Court deems just and proper.