NJ Appeals Court Clarifies Intent Required to Violate Local Government Ethics Law

In Mondsini v. Local Finance Board, ___ N.J. Super. ___ (App. Div. 2019), the Appellate Division of the New Jersey Superior Court clarified the standard to assess when the conduct of public officials runs afoul of the Local Government Ethics Law (LGEL). The case involves whether the Executive Director of the Rockaway Valley Regional Sewerage Authority, JoAnn Mondsini, violated the LGEL when she allowed employees to use Authority gas to fuel their own personal vehicles during Super Storm Sandy. 

The Appellate Division concluded that the official’s intent is a component of the analysis and Mondsini did not violate N.J.S.A. 40A:9-22.5(c), which provides”[n]o 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 Court foundMondsini lacked the requisite intent as the use of the gasoline was to enable essential employees to keep the Sewerage Authority operable and to preserve the public’s safety in the wake of Hurricane Sandy. The Court clarified that any public official’s actions “must be carefully evaluated based on the circumstances of the specific case.” to disqualify officials on mere appearance of impropriety would seriously handicap local governments.

Facts of Mondsini v. Local Finance Board

JoAnn Mondsini became the Executive Director of the Rockaway Valley Regional Sewerage Authority (the Authority) just weeks before Super Storm Sandy struck New Jersey. The Authority lost electricity 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. 

Because of a statewide gasoline shortage, the Authority’s essential employees were unable to fuel their personal vehicles to drive to and from work. Mondsini authorized essential employees to fuel their personal vehicles from Authority gasoline. 

Bruce MacNeal, a member of the Authority’s Board of Commissioners and board secretary.arrived at the Authority to sign two checks in anticipation of a diesel oil delivery later that day.  Once present she requested his services to “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.  To further these aims, Mondsini also 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 apprised the Board of her actions at its next meeting on Thursday, November 8. An unknown informant complained to law enforcement authorities about Authority employees fueling their personal vehicles from an Authority gasoline pump during the crisis. The report was referred to the Local Finance Board (LFB) for investigation.  The LFB found Mondsini violated N.J.S.A. 40A:9-22.5(c) and assessed Mondsini a $100 fine, which it simultaneously waived.

Mondsini appealed to the Office of Administrative Law, where the Administrative Law Judge (ALJ) found that Mondsini had not violated the LGEL, concluding 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. 

The LFB rejected the ALJ’s decision, asserting subsection (c) does not “require[] a showing of intent.” It further 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. Mondsini appealed.

Appellate Division’s Decision in Mondsini v. Local Finance Board

The Appellate Division reversed. It held that N.J.S.A. 40A:9-22.5(c), unlike other provisions of the LGEL, requires proof of a specific intent on the part of the local officer to secure unwarranted privilege or advantage. 

In reaching its decision, the Appellate Division acknowledged that only two of its prior published decisions have addressed subsection (c). It went on to hold that the “mere public perception of impropriety does not violate subsection (c).” Rather, a violation requires proof that the public official intended to use his or her office for a specific purpose. 

“As a result, based on subsection (c)’s plain and unambiguous language, we conclude that a public official or employee only violates this provision of the LGEL if she uses or attempts to use her official position with the intent to secure unwarranted advantages or privileges for herself or another,” Judge Carmen Messano wrote.

“In this case, the ALJ found as a fact that Mondsini lacked such a purpose, and that her only purpose in allowing MacNeal to use the Authority’s gasoline was to keep the Authority operating during the crisis,” he continued. “The LFB accepted these factual findings. We therefore reverse the Agency’s decision.”

The court further held that the gasoline Mondsini secured for essential employees was not an “unwarranted privilege or advantage” under the statute.

 “Unwarranted,” Judge Messano explained, means “unjustified or unauthorized.”  In this case, because an emergency situation prompted Mondsini to ask MacNeal to try to obtain food and fuel for essential Authority needs, her action did not run afoul of the LGEL.  

The Appellate Division further held that the LFB’s argument that Mondsini had other options would force the court to engage in “Monday morning quarterbacking.”  

For more information about the court’s decision in Mondsini v. Local Finance Boardor the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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