IN THE MATTER OF LYNDSAY V. RUOTOLO ACTING UNION COUNTY PROSECUTOR
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1607-20
A-2037-20
IN THE MATTER OF
LYNDSAY V. RUOTOLO,
ACTING UNION COUNTY
PROSECUTOR.
_______________________
Argued March 30, 2022 – Decided April 18, 2022
Before Judges Messano, Accurso, and Marczyk.
On appeal from the New Jersey Department of Law and
Public Safety, Office of the Attorney General.
Moshood Muftau, Deputy County Counsel, argued the
cause for appellant Lyndsay V. Ruotolo (Bruce H.
Bergen, Union County Counsel, attorney; Steven H.
Merman, Assistant County Counsel, and Miah Hagood,
admitted pursuant to Rule 1:21-3(b), on the briefs).
Austin W.B. Hilton, Deputy Attorney General, argued
the cause for respondent Office of Attorney General
(Matthew J. Platkin, Acting Attorney General, attorney;
Jane C. Schuster, Assistant Attorney General, of
counsel; Austin W.B. Hilton, on the brief).
PER CURIAM
We consolidate these two appeals, argued back-to-back, for the purpose
of issuing a single opinion. Both cases involve the same issue – specifically,
whether the Office of the Attorney General, New Jersey Department of Law and
Public Safety (OAG) is required to defend and indemnify Lyndsay Ruotolo in
her capacity as the Acting Union County Prosecutor in two underlying cases
alleging violations of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1, the Conscientious Employee Protection Act (CEPA), N.J.S.A.
34:19-1, and other related employment claims. The OAG denied Ruotolo's
requests for representation, determining the claims in the respective complaints
concerned alleged personnel decisions by Ruotolo, which involved her
administrative functions for which the State is not obligated to defend and
indemnify, thus leaving the obligation to Union County. We affirm.
I.
We review the OAG's administrative determination in accordance with a
deferential standard of review. An appellate court affords a "strong presumption
of reasonableness" to an administrative agency's exercise of its statutorily
delegated responsibilities. City of Newark v. Nat. Res. Council, Dep't of Envtl.
Prot., 82 N.J. 530, 539 (1980). The reviewing court "should not reverse the
Attorney General's determination unless it is arbitrary, capricious or
A-1607-20
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unreasonable or it is not supported by substantial credible evidence in the record
as a whole." Prado v. State, 186 N.J. 413, 427 (2006). "The burden of
demonstrating that the agency's action was arbitrary, capricious or unreasonable
rests upon the [party] challenging the administrative action." In re J.S., 431 N.J.
Super. 321, 329 (App. Div. 2013) (internal quotation marks omitted).
To determine whether an agency decision "is arbitrary, capricious or
unreasonable," an appellate court must determine:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In
re Carter, 191 N.J. 474, 482-83 (2007)).]
Although an appellate court defers to an administrative agency's findings
of fact, see Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25
(1995), it is not "bound by [an] agency's interpretation of a statute or its
determination of a strictly legal issue." Norfolk S. Ry. Co. v. Intermodal Props.,
LLC, 215 N.J. 142, 165 (2013) (internal quotation marks omitted). Thus, to the
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extent that the OAG's determination constitutes a legal conclusion, we review it
de novo.
II.
Lyndsay Ruotolo was appointed by the Attorney General to serve as a
Special Attorney General/Acting Prosecutor of Union County, pursuant to
N.J.S.A. 52:17B-106. Ruotolo argues the OAG should be required to defend
and indemnify her because, as the Acting Prosecutor, she was still an employee
of the OAG. Ruotolo argues the OAG erred in relying on Wright v. State, 169 N.J. 422, 435-57 (2001), and DeLisa v. Bergen County, 326 N.J. Super. 32, 39-
41 (App. Div. 1999). Ruotolo further contends the OAG failed to consider that
even in her capacity as Acting Prosecutor, she was an employee of the State
under N.J.S.A. 59:10-1 and N.J.S.A. 59:10A-1.
The OAG counters that under Wright and its progeny, the State has no
duty to defend and indemnify a county prosecutor when they are sued for
carrying out administrative, as opposed to classic, law enforcement, functions.
That is, while the State is obligated to defend and indemnify prosecutors for
their alleged misconduct involving the investigation and enforcement of
criminal laws, the County is ultimately responsible for defending prosecutors
against claims involving his or her conduct with respect to personnel decisions.
A-1607-20
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III.
Our Supreme Court in Wright determined that county prosecutors occupy
a "hybrid" role, serving both the county and the State, and clarified when the
State must defend and indemnify county prosecutors. 169 N.J. at 455-56. The
Court noted:
[b]ecause of their hybrid status, we need not regard as
determinative, whether the county prosecutors . . . have
been considered "State employees" within the meaning
of the defense and indemnification provisions, N.J.S.A.
59:10-1 and N.J.S.A. 59:10A-1. Instead, we focus on
whether the function that the county prosecutors . . .
were performing during the alleged wrongdoing is a
function that traditionally has been understood to be a
state function and subject to state supervision in its
execution.
[Id. at 454.]
In short, the Wright Court rejected the same argument advanced by Ruotolo that
defense and indemnification decisions are controlled by N.J.S.A. 59:10- -1 and
N.J.S.A. 59:10A-1. The Court ultimately determined that when county
prosecutors are involved in an investigation and enforcement of the State's
criminal laws, the State is obligated to pay for their defense and indemnification.
Id. at 455.
Significantly, the Wright Court relied on Coleman v. Kaye, 87 F.3d 1491
(3d Cir. 1996), to distinguish between a prosecutor's law enforcement activities
A-1607-20
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and administrative functions. Distinguishing the "dual or hybrid" status of
prosecutors, the Wright Court noted:
It is well established that when county prosecutors
execute their sworn duties to enforce the law by making
use of all the tools lawfully available to combat crime,
they act as agents of the state. On the other hand, when
county prosecutors are called upon to perform
administrative tasks unrelated to their strictly
prosecutorial functions, such as the decision whether to
promote an investigator, the county prosecutor, in
effect, acts on behalf of the county that is the situs of
his or her office.
[Wright, 169 N.J. at 451 (quoting Coleman, 87 F. 3d at
1499).]
In DeLisa, the court addressed the same issue presently before this court.
There, the county prosecutor was being sued for an alleged retaliatory discharge
of an employee under CEPA. 326 N.J. Super. at 35. Significantly, the county
prosecutor was also a deputy attorney general appointed to serve as the Bergen
County Prosecutor, just as Ruotolo was assigned to the Union County
Prosecutor's Office here. Id. at 39-40. The DeLisa court recognized the hybrid
or dual status of the prosecutor and noted he was serving "two masters" in his
capacity as a county prosecutor. Id. at 40. Because the county prosecutor was
being sued under CEPA, he was not acting in his capacity as a law enforcement
A-1607-20
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officer for the purposes of that litigation. Rather, he was acting in his
administrative role. Accordingly, we determined:
[I]n these circumstances, where a deputy attorney
general was performing a dual function for the benefit
of two governmental entities, the county cannot obtain
reimbursement for the cost of defending a claim
relating to his administrative conduct. We so hold,
given the action was based upon a personnel decision
of the acting county prosecutor, especially where the
record reflects no endeavor by the county to have the
state provide representation or consent to retention of
outside counsel . . . under a "reservation of rights"
approach.
[Id. at 40-41.]
Ruotolo attempts to distinguish DeLisa because she sought defense and
indemnification by directly requesting representation from the OAG. Ruotolo
focuses on the language in DeLisa, where we stated the OAG need not provide
a defense and indemnification, "given the action was based upon a personnel
decision of the acting county prosecutor, especially where the record reflects no
endeavor by the county to have the state provide representation . . . ." Ibid.
(emphasis added). Ruotolo essentially argues this language limits our holding
in DeLisa to those cases where a county fails to timely request representation
directly from the State. We are not persuaded by this argument. Judge Stern's
comment regarding the county’s failure to request representation from the State
A-1607-20
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or permission to retain outside counsel, is dicta. We were simply providing a
further reason—not the dispositive reason—why the State was not required, in
that case, to defend and indemnify the prosecutor. Both our court in DeLisa and
the Supreme Court in Wright clearly held that when a county prosecutor
(regardless of whether he or she is a deputy attorney general) acts in an
administrative capacity with regard to employment-related issues, the State is
not required to defend and indemnify the county. That is, the determinative
factor hinges on the administrative or law enforcement function of the
prosecutor that is at issue in a particular case, not the manner in which
representation is sought from the OAG.
Finally, while Wright was decided before DeLisa, our Supreme Court has
recently cited favorably to DeLisa. In Gramiccioni v. Department of Law &
Public Safety, the Court specifically referenced DeLisa and noted: "Thus, cases
[such as DeLisa] in which courts correctly have found that the state did not need
to indemnify and defend prosecutors have involved . . . internal operations of a
prosecutor's office." 243 N.J. 293, 313 (2020). The Supreme Court has in no
way indicated that our courts should consider the manner in which a county
prosecutor seeks representation from the OAG as determining whether the OAG
must defend and indemnify a county prosecutor.
A-1607-20
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Accordingly, for the reasons set forth above, the OAG is not required to
defend or indemnify Ruotolo.
Affirmed.
A-1607-20
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