(Photo: freshidea - Fotolia) (Photo: freshidea – Fotolia)

The mayor of the Warren County municipality Lopatcong has lost a battle with the township counsel, as a state appeals court says he overstepped his authority in appointing municipal counsel.

A two-judge Appellate Division panel on Monday said Thomas McKay, though in a “strong mayor” form of government, was not authorized to unilaterally seek to appoint a township attorney to replace a holdover attorney, a labor counsel and a municipal auditor.

Appellate Division Judges Allison Accurso and Francis Vernoia said that, while Lopatcong was organized under the Faulkner Act, which presumes a strong mayoral form of government, all appointments must be made with the advice and consent of the township council.

After taking office as mayor on Jan. 1, 2015, McKay appointed William Caldwell of Carter, Van Rensselaer and Caldwell in Clifton on an interim basis to replace holdover Michael Lavery, of Hackettstown’s Lavery, Selvaggi, Abromitis & Cohen; Ryan Carey, of Apruzzese, McDermott, Mastro & Murphy in Liberty Corner to be labor counsel; and Robert Morrison as the municipal auditor.

The council refused to confirm the appointments, and Lavery continued as the municipal attorney.

McKay filed a lawsuit in Warren County Superior Court, claiming he had the authority to make the appointments under the Faulkner Act, and demanded that the Lavery firm repay the township money it was paid while Lavery was acting as a holdover. McKay also asked for counsel fees and costs.

A Superior Court judge granted the council’s motion to dismiss the case on summary judgment. The judge said McKay’s arguments were “based on an over-simplified and unsupported legal theory that is also based upon a misreading of applicable law,” and an attempt “to provide him with dictatorial powers.”

McKay appealed, but the Appellate Division sided with the township council.

“Neither party can usurp the authority of the other,” the panel said in a per curiam ruling, adding that the Faulkner Act presumes that the mayor and the council will act on a cooperative basis.

On the issue of who would be the municipal attorney, the appeals court turned to a published 1964 Appellate Division ruling, Woodhull v. Manahan.

In Woodhull, the appeals court said “the law is … that until a successor is appointed … the preexisting office holder serves in a holdover capacity.”

The panel also said that McKay apparently invented the position of labor counsel—a position that was not authorized by statute or local ordinance.

Caldwell represented McKay in the litigation. Lawrence Cohen, of Lavery, Selvaggi, issued a statement of behalf of the firm: “We were pleased to see that the court upheld the decision of the lower court that decided that the mayor could not appoint separate counsel without the advice and consent of the council.  That was well-settled law.

“The important part of this decision is that where a municipality may have separate attorneys specializing in areas such as labor or tax appeal work, and the municipality appoints one general municipal attorney and separate attorneys for labor and tax, as well as potential other specialties, all of those must be appointed by the mayor with the advice and consent of the council,” Cohen said.

Carey, reached by phone, said he was unaware of the ruling and declined to comment.

The council’s attorney, Joseph Bell of Bell & Shivas in Rockaway, did not return a telephone call.