The specter of legal action is once again hanging over the township. The possible lawsuit on this occasion concerns a payment made to out-going Township Clerk Kevin Byrnes for $9775.77 to cover his legal costs in an open government records case. The alleged controversy centers on the interpretation of the town code and New Jersey state statute which guides township employees and elected officials on legal and procedural matters. The statute advises when an official should receive reimbursement in a legal action, as confirmed by township attorney Fred Semrau, under section 40A:9-134.1. The section says the municipality will provide legal defense to its clerk provided the complaint is not made by the municipality. The statute also says when an official should receive reimbursement, “If any such disciplinary or criminal proceeding shall be dismissed or finally determined in favor of the municipal clerk, the municipality shall reimburse the municipal clerk for the reasonable costs of the defense.” The problem with the decision to reimburse Byrnes is that the case he is involved with has not been dismissed or finally determined. Township Administrator Rich Kunze approved the payment which was then agreed to by the five members of the council present at the Aug. 11 meeting. The following day a check was issued to Byrnes, $9600 for the legal defense provided by Salvatore Alfano and $175.77 for travel costs. Kunze defended the timing of the payment saying “Township Code Section 4.10 deals with indemnification and defense of public employees. The particular section concerning waiting periods for reimbursements of legal costs (4.10.5) applies to the defense of claims not at issue in the Paff v. Byrnes case and which are set forth in code section 4.10.3. Thus, the waiting period for reimbursement does not apply.” Byrnes, who is due to officially retire at the end of this year, is the defendant in a case against John Paff, President of New Jersey Citizens for Justice, Inc. Paff requested a copy of the form disclosing the ethical background of former township attorney William DeMarco which Byrnes duly did. Paff complained, however, that while Byrnes did produce the form, almost all of the document’s content had been blacked out by Byrnes, and therefore did not disclose any of the background information. The Passaic County Superior Court found in favor of Byrnes on October 15, 2004 but Paff appealed to the New Jersey Appellate Division and a judgment remains pending. Martin O’Shea is the man responsible for uncovering the alleged discrepancy in the township’s actions. O’Shea is a West Milford resident and board member of New Jersey Foundation for Open Government, a non-profit organization seeking to increase accountability and honesty in government by defending and expanding public access to government records and meetings. O’Shea has taken several legal actions against the various municipal bodies in town concerning open government most of which have been settled with the exception of an ongoing case with the planning board. “State and local statutes are passed for reasons. One of the reasons is to protect taxpayers from potential fraudulent activity by elected and appointed officials and government employees. The council and the administrator consistently have ignored what are intended to be safeguards and this payment to Byrnes is just the latest example,” said O’Shea earlier this week. On whether he intends to pursue legal action this time around O’Shea said “I believe that reasonable people can settle problems reasonably and that it’s possible to resolve this without me going to court. If I sue, I believe I will win hands down.” Town attorney Semrau was playing his cards close to his chest when asked to comment on the matter saying “We’re looking into it but due to possible legal ramifications I’d be reluctant to say anything further at this time.”