December 17, 2018
appeal from the New Jersey Department of Community Affairs,
Local Finance Board, Complaint #13-038.
Richard A. Gantner argued the cause for appellant (Cleary
Giacobbe Alfieri Jacobs, LLC, attorneys; Richard A. Gantner,
on the briefs).
Stephen E. Trimboli argued the cause for intervenor-appellant
(Trimboli & Prusinowski, LLC, attorneys; Stephen E.
Trimboli, of counsel and on the briefs; Lauren W. Kavanagh,
on the briefs).
Dominic L. Giova, Deputy Attorney General, argued the cause
for respondent (Gurbir S. Grewal, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney General, of
counsel; Melanie R. Walter, Deputy Attorney General, on the
Judges Messano, Gooden Brown and Rose.
Mondsini became the Executive Director of the Rockaway Valley
Regional Sewerage Authority (the Authority) in September
2012. Within weeks, Mondsini faced a natural disaster of epic
proportions, Super Storm Sandy, which struck New Jersey on
October 29, causing catastrophic damage to homes, businesses
and the State's infrastructure. The Authority lost
electrical power during the storm and maintained operations
by using diesel generators. If the generators failed,
millions of gallons of untreated sewage would discharge into
the Rockaway River. The situation grew critical as the
Authority anticipated it would run out of diesel fuel by
Authority employees were essential to keep the generators
operating. Because of a statewide gasoline shortage, these
employees were unable to fuel their personal vehicles to
drive to and from work. Mondsini authorized several employees
to fuel their personal vehicles from an Authority gasoline
pump. She contacted the Regional Operations Intelligence
Center, a statewide emergency management consortium, and
advised of the critical situation the Authority faced.
MacNeal was a member of the Authority's Board of
Commissioners and served as board secretary. As such, he was
an employee of the Authority and was authorized to sign the
Authority's checks. On November 2, MacNeal, who often
came to the Authority to sign checks and otherwise keep
abreast of its activities, arrived and offered his assistance
to Mondsini. She had MacNeal sign two checks in anticipation
of a diesel oil delivery later that day. She also asked if he
could "commandeer a gas station" in Boonton, where
MacNeal lived, to supply gas to the Authority's essential
personnel, and obtain food from restaurants that might be
open to feed Authority personnel on site.
discussing the gasoline shortage, MacNeal said he needed to
find gasoline himself. Mondsini authorized MacNeal to fuel
his personal vehicle from the Authority's pump.
Unbeknownst to Mondsini, MacNeal fueled two personal
vehicles with the Authority's gasoline. Mondsini advised
the Board of her actions regarding the crisis at its next
meeting on Thursday, November 8.
unknown informant complained to law enforcement authorities
about Authority employees using agency gasoline for personal
use during the storm. The report was referred to the Local
Finance Board (LFB). After investigation, the LFB found
Mondsini violated N.J.S.A. 40A:9-22.5(c) (subsection (c)), a
provision of the Local Government Ethics Law (LGEL), N.J.S.A.
40A:9-22.1 to -22.25, which provides: "No local
government officer or employee shall use or attempt to use
his official position to secure unwarranted privileges or
advantages for himself or others." The LFB assessed a
$100 fine against Mondsini, which it simultaneously
appealed, and the matter was transferred to the Office of
Administrative Law as a contested case. The Authority
intervened in support of Mondsini. After denying the
LFB's motion for summary decision, the Administrative Law
Judge (ALJ) conducted a hearing and rendered an initial
other things, the ALJ found Mondsini to be a credible witness
and concluded she had not violated the LGEL. He reasoned that
a violation of subsection (c) "requires a showing of
intent." The ALJ also rejected the LFB's contention
that Mondsini secured an "unwarranted" privilege
for MacNeal because he was not an "essential
employee" and obtained gasoline that was unavailable to
the public. Finding Mondsini's "sole intent was to
keep the plant up and running" during the crisis, the
ALJ concluded she "acted prudently. To permit the LFB to
use hindsight to say this was a violation of the [LGEL] would
have local government officials afraid to perform their
final agency decision, the LFB accepted the ALJ's
findings of fact, with only one modification, i.e., the
ALJ's assessment that the testimony of the LFB's
investigator was less than credible. The LFB, however,
rejected the ALJ's legal conclusions, asserting
subsection (c) does not "require a showing of
intent." In addition, the LFB rejected the ALJ's
suggestion that the LGEL includes a "crisis
exception." The LFB reinstated the violation and
penalty, but once again waived its enforcement.
consolidated the appeals filed by Mondsini (A-4482-16), and
the Authority, which intervened before the LFB (A-4504-16),
to issue a single opinion. Mondsini argues subsection (c)
requires proof of "specific intent" to violate its
provisions, and she never acted to "secure unwarranted
privileges or advantages" for MacNeal. The Authority
reiterates these arguments and further contends that the LFB
erred by concluding MacNeal was not an essential employee of
the Authority, duly authorized under the Sewerage Authorities
Law, N.J.S.A. 40:14A-1 to -45, to perform certain functions.
It also argues the LFB lacked jurisdiction in this matter
pursuant to N.J.S.A. 40:14A-35.
begin by noting "[j]udicial review of agency
determinations is limited." Allstars Auto Grp., Inc.
v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157
(2018) (citing Russo v. Bd. of Trs., Police and
Firemen's Ret. Sys., 206 N.J. 14, 27 (2011)).
"An administrative agency's final quasi-judicial
decision will be sustained unless there is a clear showing
that it is arbitrary, capricious, or unreasonable, or that it
lacks fair support in the record." In re
Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell
v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
"A reviewing court 'must be mindful of, and
deferential to, the agency's expertise and superior