MORRISTOWN — Parsippany Mayor James Barberio and the Township Council were back in court this morning for oral arguments in the case Township Council vs. Mayor James R. Barberio. At issue was whether the Township Council is permitted to hire its own attorney to assist in an investigation of Mayor Barberio, Township Attorney John Inglesino and the billing practices of his law firm.
In April 2014, the Council voted to retain attorney Wilfredo J. Ortiz, II from the law firm of Dario, Albert, Metz & Eyerman to provide legal assistance in its investigation. When Mayor Barberio refused to authorize the contract, the Council sued. Mayor Barberio counter-sued, arguing that the Council had over-stepped its authority and that two Council members were conflicted from voting, thereby rendering the original resolution null and void.
During a conference in Superior Court in Morristown on July 10, Assignment Judge Stuart Minkowitz asked both sides to meet with their respective lawyers to come up with a list of attorneys that might perform the investigation. Judge Minkowitz recommended that Barberio provide a list of three possible candidates that the Council would chose from. The Council agreed, as did Mayor Barberio in comments made to the Star Ledger at the time.
Ultimately, Barberio refused to the compromise which led to oral arguments in front of Judge Minkowitz this morning.
After hearing arguments from both sides, Judge Minkowitz relied primarily on a 2005 case which landed in front of the NJ Supreme Court, MUNICIPAL COUNCIL OF THE CITY OF NEWARK v. SHARPE JAMES. In that case, the Newark Council had attempted to hire its own attorney without mayoral approval. The Supreme Court ruled in favor of James stating that the Council had over-stepped its authority under the Faulkner Act.
Judge Minkowitz ruled today that Parsippany’s Council did not have the authority under the Faulkner Act to unilaterally chose its own attorney, but he also noted that the Township Council required legal representation and had the legal authority to approve or disapprove of any attorney Barberio may put forward to the Council. In his decision, Judge Minkowitz ordered the mayor to provide the Council with an attorney and should the Council not approve his selection, the mayor must continue to put forth a name until the Council agrees.
Under the Faulkner Act the powers vested with the Township Council include:
a. The override of a veto of the mayor;
b. The exercise of advice and consent to actions of the mayor;
c. The conduct of legislative inquiry or investigation;
d. The expression of disapproval of the removal by the mayor of officers or employees;
e. The removal of any municipal officer for cause;
f. The adoption of rules for the council;
g. The establishment of times and places for council meetings;
h. The establishment of the council as a committee of the whole and the delegation of any number of its members as an ad hoc committee;
i. The declaration of emergencies respecting the passage of ordinances;
j. The election, appointment, setting of salaries and removal of officers and employees of the council, subject to any pertinent civil service requirements and any pertinent contractual obligations, and within the general limits of the municipal budget;
k. Designation of official newspapers;
l. Approval of contracts presented by the mayor;
m. Actions specified as resolutions in the “Local Budget Law” (N.J.S. 40A:4-1 et seq.) and the “Local Fiscal Affairs Law” (N.J.S. 40A:5-1 et seq.); and
n. The expression of council policies or opinions which require no formal action by the mayor.
