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Mondsini v. Local Finance Board

Superior Court of New Jersey, Appellate Division

March 5, 2019

JOANN MONDSINI, Petitioner-Appellant,
v.
LOCAL FINANCE BOARD, Respondent-Respondent. ROCKAWAY VALLEY REGIONAL SEWERAGE AUTHORITY, Intervenor-Appellant.

          Argued December 17, 2018

          On 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 brief).

          Before Judges Messano, Gooden Brown and Rose.

          OPINION

          MESSANO, P.J.A.D.

         JoAnn 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 November 2.

         Certain 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.

         Bruce 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.

         While 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.

         An 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 waived.[1]

         Mondsini 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 decision.

         Among other things, the ALJ found Mondsini to be a credible witness and concluded she had not violated the LGEL.[2] 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 jobs."

         In its 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.

         We 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.

         I.

         We 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 knowledge ...


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