The "Law"

What is the "law," anyway? I have pledged to act in accordance with the law. In fact, all elected officials take an oath of office pledging to uphold the law.

Sometimes knowing the "law" is not so simple.

My position:

In my judgment, we should stray from the recommendation of our attorney in very rare circumstances, and only if:

The Issue

This issue is not as simple as it first appears.

The liquor license example by way of illustration:

There are many grey areas of law. Take for example the controversy a while back over the idea of requiring new hotels to bid for their liquor licenses. This idea is based on a reasonably clear statute permitting such bids. It is also based on a recent court case, the Wildwood case.

The Wildwood case involved a situation where Wildwood tried to impose a bidding requirement for the first time only after a hotel had applied for its liquor license. The court said that Wildwood could not implement such a requirement after the hotel had already submitted its application. The court decision created an inference that such a requirement could be imposed as long as it was imposed prior to the application for the license.

The Wildwood decision is on appeal. No one knows what the final outcome will be.

So does that mean we can enact a similar requirement in West Windsor and still be in compliance with our pledge to uphold the law? What is the law, anyway, when the issue remains open before the courts?

The law is not always clear:

This conundrum leads us to a simple reality: the law often is ambiguous. There are grey areas. It is incumbent upon us, in the pursuit of our obligations as elected officials to uphold the law, to make choices.

Sometimes those choices demand that we take aggressive positions in the best interests of the Township, in an effort to "make law." This is perfectly legitimate, but it must be undertaken with great care and due regard to the real best interests of our residents.

Conflicts of interest:

But what if the Township attorney advises us to take one course of action under circumstances where the law is grey and there is a difference of opinion about the meaning of the law? What if we disagree with the attorney. Can we disagree with the attorney?

That question leads us to another conundrum under our form of Government in West Windsor. We have a strong Mayor - Council form of government. The Township attorney is appointed by the Mayor subject to the advice and consent of the Council. The Township attorney is obliged to represent the interests of the Township, but sometimes the Administration and the Council have different views. 

Just "who" is the Township, anyway, when there is a split perspective like this? The Township attorney then is placed in the difficult position of representing two different "clients" both of whom purport to "be" (or represent the best interests of) the Township but each of whom has different objectives or perspectives.

Attorneys are advocates. They are not arbitrators. As "hired guns," their job is to advocate one position or another and represent the best interests of their clients in an environment where the "right" interpretation of the law is open to reasonable doubt.

It is impossible for a lawyer to represent two different clients (or perspectives) with conflicting objectives at the same time. And yet our form of government requires that our Township attorney do just that on various issues.

This is truly an unenviable position for the attorney, but it leads occasionally to Council's need to disagree (legitimately) with the attorney where the attorney is advocating a position taken by the Administration with which Council disagrees and the "law" otherwise is not clear.