SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3180-21

IN THE MATTER OF 

THOMAS VALENTE,

WEST MILFORD, 

POLICE DEPARTMENT.

______________________

Argued September 19, 2022 – Decided October 14, 2022

Before Judges Currier, Mayer and Enright.

On appeal from an interlocutory decision of the New 

Jersey Civil Service Commission, Docket No. 2022-

913.

Deena B. Rosendahl argued the cause for appellant 

Township of West Milford (Decotiis, Fitzpatrick, Cole 

& Giblin, LLP, attorneys; Deena B. Rosendahl, on the 

briefs).

Charles Sciarra argued the cause for respondent 

Thomas Valente (Sciarra & Catrambone, LLC,

attorneys; Frank C. Cioffi, of counsel and on the brief).

Matthew J. Platkin, Acting Attorney General, attorney 

for respondent New Jersey Civil Service Commission 

(Pamela N. Ullman, Deputy Attorney General, on the 

statement in lieu of brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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By way of leave granted, the Township of West Milford (Township) 

appeals from an April 6, 2022 decision by the New Jersey Civil Service 

Commission (Commission) remanding a disciplinary matter involving Thomas 

Valente to the Office of Administrative Law (OAL) for a hearing. Because we 

conclude the parties had an enforceable settlement agreement, the Commission 

acted arbitrarily and capriciously in its final order overturning a decision by an 

administration law judge, we reverse.

In 2021, the Township received an anonymous complaint regarding 

Valente, who was then a member of the West Milford Police Department 

(Department). After investigating the allegations in the complaint, the 

Department charged Valente with neglect of duty, neglect of supervision, 

violation of departmental policy, and lying during an internal affairs 

investigation. On May 12, 2021, Valente received the results of the 

investigation.

On May 27, 2021, Valente's attorney at the time, Michael J. Mitzner, 

entered a not guilty plea to the Department's charges and requested a hearing. 

The Department scheduled a hearing for June 21, 2021. About a week prior to 

the hearing, counsel for Valente and the Township had a telephone conference. 

During this conference, Mitzner proposed a settlement of the charges against 
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Valente. The Township attorney asked Mitzner to submit the settlement 

proposal in writing. 

In a June 15, 2021 email transmitted at 12:53 in the afternoon, Mitzner 

sent a detailed document to the Township attorney containing the essential terms 

of the settlement. The document included a date for Valente's resignation such 

that Valente would achieve a pension based on fifteen years of service with the 

Department. The agreement also contained provisions allowing Valente to 

obtain an identification card as a retired police officer, a permit to carry a 

weapon, and assistance from the Department if Valente sought future 

employment in the security field. 

The Township responded the same day in an email transmitted to Mitzner 

at 5:18 in the evening. According to the email, the Township accepted some 

terms, rejected some terms, and modified some terms.

Mitzner telephoned the Township attorney the following day, June 16, 

2021, and accepted the terms of the settlement per the Township's June 15 email. 

The Township again requested Valente's attorney provide written confirmation 

of the settlement. 

In a June 16, 2021 email sent to the Township attorney at 2:44 in the 

afternoon, Mitzner confirmed the terms of the settlement were "acceptable to Lt. 
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Valente, subject to working out the actual language and preparing a formal 

Agreement." In the same email, Mitzner included the following statement: "We 

understand that the June 21, 2021 Hearing has been adjourned and that you will 

get us a draft of a proposed formal Agreement within the next few days." 

On June 18, 2021, the Township attorney forwarded the agreement to 

Mitzner, indicating the document would be revised upon receipt of a list of

specific equipment to be returned by Valente to the Department. Mitzner did 

not respond to the Township attorney's June 18 email. 

On June 21, 2021, the Township attorney sent an email with the settlement 

document, including the specific equipment to be returned by Valente. The 

document otherwise remained unchanged from the document accepted by 

Valente's attorney on June 16. Mitzner did not respond to the Township 

attorney's June 21 email. Consistent with Mitzner's June 16, he and Valente did 

not appear at the disciplinary hearing scheduled for June 21, 2021 because 

Mitzner "underst[ood] that the June 21, 2021 hearing ha[d] been 

adjourned . . . ." 

Thereafter, Valente retained a new attorney, Frank Cioffi, who signed a 

formal substitution of attorney on July 1, 2021. On July 9, 2021, Cioffi sent a 
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letter to the Township attorney enclosing the substitution, entering a not guilty 

plea to the disciplinary charges against Valente, and requesting a hearing.

In a July 15, 2021 letter, the Township attorney advised Cioffi the matter 

was settled. Cioffi maintained the matter was not settled and repeated his 

demand to schedule a disciplinary hearing. In a July 21, 2021 letter, the 

Township attorney maintained a settlement was reached but agreed to hold a 

hearing on August 11, 2021 without prejudice. The Township attorney stated 

the Township was not waiving any rights by conducting a hearing and 

"reserve[d] the right to continue to assert a settlement ha[d] been reached." 

At the start of the disciplinary hearing on August 11, 2021, the Township

attorney stated the following:

I would like the record to . . . reflect that the Township 

has agreed to proceed with the disciplinary hearing 

today but reserves its right to maintain that we don't 

owe [Valente] the hearing because a settlement was in 

fact reached and we do intend to pursue enforcing the 

terms of the settlement, but in the interest of due 

process and preserving the record, we've agreed to 

conduct the hearing this morning.

At the conclusion of the hearing, the hearing examiner sustained the 

Department's imposition of discipline, resulting in Valente's termination. The 

hearing examiner found Valente lied during the internal affairs investigation. 
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As a result of that finding, the hearing examiner determined the Attorney 

General Guidelines mandated termination. 

Because the hearing officer sustained the disciplinary charges and 

imposed termination, the Township issued a Final Notice of Disciplinary Action 

and removed Valente from his position with the Department effective October 

4, 2021. The next day, Valente appealed to the Commission and the 

Commission referred the matter to the OAL. Thereafter, the Township filed a

separate declaratory judgment action in the New Jersey Superior Court seeking 

to enforce the settlement.

The OAL assigned the matter to an Administrative Law Judge (ALJ) for 

a hearing. During a status conference, the ALJ learned of the Superior Court 

action. Rather than litigate in two separate forums, the parties consented to the 

ALJ hearing a future motion seeking to enforce the settlement. 

The Township filed a motion to enforce the settlement and the ALJ 

considered the written submissions and arguments of counsel on February 11, 

2022. The Township argued a full and final settlement had been reached with 

Valente based on Mitzner's actions. Valente contended Mitzner lacked actual 

or apparent authority to settle the matter on his behalf and therefore no 
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settlement was reached. Valente did not submit a certification or affidavit in 

support of his arguments. 

In a February 28, 2022 written decision, the ALJ concluded Valente 

authorized Mitzner to enter into the settlement, the agreement included all of the 

essential terms of the settlement, and there was no contrary evidence offered by 

Valente creating a genuine dispute of material fact to warrant a plenary hearing. 

The ALJ found Mitzner had both actual and apparent authority to enter into the 

settlement based on the June 15 and 16 email exchanges. In reviewing Mitzner's 

June 16 email to the Township attorney, the ALJ found "it is clear that Lt. 

Valente was not only aware of the settlement negotiations, but also had been 

apprised of and had approved the revisions to the original settlement proposal 

by [the Township]." The judge noted the June 21 disciplinary hearing was 

adjourned "as a direct consequence of this e-mail." The judge wrote:

This is not a case of a passive, uninvolved party whose 

attorney ran amok. Rather, per the e-mails, there had 

been very specific discussions concerning reasoning 

behind the terms of the agreement, which was to 

achieve an outcome most favorable to [Valente's] future 

employment. When a counterproposal was propounded 

by [the Township], per Mr. Mitzner, this was 

specifically discussed and approved by Lt. Valente.

The ALJ found Valente presented no evidence to infer: (1) "[Mitzner] did 

not represent Lt. Valente"; (2) "[Mitzner] was not authorized to enter into 
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settlement negotiations with [the Township]"; and (3) "[Mitzner] was not 

authorized to accept the settlement terms offered by [the Township]."

Based on these findings, the ALJ held "Mr. Mitzner had, at the very least, 

implied actual authority from Lt. Valente to not only enter into settlement 

negotiations on his behalf, but also to enter into a settlement agreement." Even 

if no actual authority existed, the ALJ determined "the manner in which the 

negotiations played out would lead [the Township] to believe that . . . Mr. 

Mitzner had such (apparent) authority."

After determining Mitzner had authority to enter into a settlement on 

Valente's behalf, the ALJ then considered whether the agreement "was sufficient 

to constitute a settlement." In reviewing the email exchanges, specifically 

Mitzner's June 16 email to the Township attorney, the ALJ found: 

There is no legitimate question that the document 

attached to the emails . . . , upon which both parties 

commented on and revised, contained all the "essential 

terms" of any potential settlement. It was very detailed, 

covering topics such as liability admissions, 

administrative closure of charges, terms of employment 

separation, accrued time, waivers, confidentiality, 

return of property, non-disparagement, attorney's fees, 

etc.

While the ALJ acknowledged the agreement was subject to review by the 

Township's mayor, he found the subsequent actions by the Township attorney, 
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including the updated agreement with a list of property to be returned by 

Valente, and the July 15 and July 21 letters, "clearly indicated that a settlement 

had been reached." The ALJ concluded "there is no legitimate question of fact 

that [the Township] considered this matter settled, subject to what is clearly 

mandatory approval by the governing body and that this was unequivocally 

communicated to [Valente]."

Lastly, the ALJ held there was no need for a hearing "to flesh out the 

positions of the part[ies]" because Valente failed to provide evidence suggesting 

Mitzner lacked authority to settle the matter on his behalf, failed to communicate 

the terms of the settlement, or that Valente did not agree to the settlement per 

the June 15 and 16 emails. Nor was there a certification or affidavit from 

Mitzner creating a factual issue regarding the settlement. The ALJ concluded 

"the manner in which this unfolded is indicative of a party having second 

thoughts about what he had agreed to and not that he had never authorized or 

agreed to the settlement." 

Based on these findings, the ALJ granted the Township's motion to 

enforce the settlement and dismissed Valente's appeal. 

Valente filed exceptions with the Commission and the Township 

responded. In an April 6, 2022 decision, the Commission declined to adopt the 
10 A-3180-21

ALJ's determination. Notably, the Commission did not reject the ALJ's factual 

findings. 

In its decision, the Commission acknowledged settlements are strongly 

favored and should be set aside only where there is fraud or other compelling 

circumstances. Because the Department proceeded with the disciplinary hearing 

on August 11, 2021, the Commission found "[t]he actions by the [Township] cut 

against its argument that a valid settlement had been reached as there would be 

no need for a such a hearing if there was truly a settlement." The Commission

also noted "while [Valente]'s prior attorney may have had the authority to settle 

the matter, there is no indication that [Valente] ever signed any document 

memorializing the terms of the settlement." While recognizing Valente's failure 

to physically sign the document was not dispositive, the Commission concluded 

"given the [Township]'s contrary actions . . . , to dismiss [Valente]'s appeal on 

this basis would be inequitable." The Commission remanded the matter to the

OAL for a hearing on the merits of the disciplinary charges against Valente. 

The Township filed a motion for leave to appeal the Commission's 

decision. In a June 20, 2022 order, we granted leave to appeal and accelerated 

the matter on the calendar. 
11 A-3180-21

On appeal, the Township argues that the Commission's decision was 

arbitrary, capricious, and unreasonable, contrary to established case law, and not 

based on substantial evidence in the record. Further, the Township contends the 

Commission acted beyond the scope of its authority by directing a hearing on 

the merits. We agree and reverse.

We have "a limited role" in reviewing agency decisions. Henry v. Rahway 

State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will 

reverse the decision of [an] administrative agency only if it is arbitrary, 

capricious or unreasonable or it is not supported by substantial evidence in the 

record as a whole." Id. at 579-80 (citing Campbell v. Dep't of Civ. Serv., 39 

N.J. 556, 562 (1963)). An agency action is arbitrary, capricious, or unreasonable 

if it violates the law, if the record does not contain substantial evidence to 

support it, or if the agency's conclusion could not reasonably have been reached 

on a showing of the relevant factors. George Harms Constr. Co. v. N.J. Tpk. 

Auth., 137 N.J. 8, 27 (1994) (citing Campbell, 39 N.J. at 562). 

The burden is on the appealing party to demonstrate grounds for reversal. 

Matter of State & Sch. Emps.' Health Benefits Comm'ns' Implementation of 

I/M/O Yucht, 233 N.J. 267, 285 (2018); see also Bowden v. Bayside Prison, 268 

N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing 
12 A-3180-21

the agency's action was arbitrary, unreasonable[,] or capricious rests upon the 

appellant."). 

In reviewing an agency's decision on a question of law, we apply a de 

novo standard. In re N.J. Dep't of Env't Prot. Conditional Highlands 

Applicability Determination, 433 N.J. Super. 223, 235 (App. Div. 2013) (citing 

Russo v. Bd. of Trs., Police & Fireman's Ret. Sys., 206 N.J. 14, 27 (2011)). We 

are "in no way bound by the agency's . . . determination of a strictly legal issue." 

Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). If our review of 

the record satisfies us the agency's finding is clearly mistaken or erroneous, the 

decision is not entitled to judicial deference and must be set aside. L.M. v. N.J. 

Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). 

Here, the two issues raised on appeal address matters of law. The first 

issue is whether Mitzner had authority to enter into a settlement on behalf of 

Valente. The second issue is whether the parties agreed on the essential terms 

to render the settlement enforceable. 

We first address Mitzner's authority to negotiate and enter into a 

settlement. It is well-settled that "an attorney is presumed to possess authority 

to act on behalf of the client, and the party asserting the lack of authority must 

sustain 'a heavy burden to establish that [the] attorney acted without any kind of 
13 A-3180-21

authority.'" Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div. 2005)

(citations omitted) (quoting Sun Ins. Co. of Cal. v. Williams, 729 F.2d 581, 583 

(8th Cir. 1984)).

We are satisfied there was apparent authority for Mitzner's actions. 

"Apparent authority arises 'when a third party reasonably believes the actor has 

authority to act on behalf of the principal and that belief is traceable to the 

principal's manifestations.'" AMB Property, LP v. Penn Am. Ins. Co., 418 N.J. 

Super. 441, 454 (App. Div. 2011) (quoting Restatement (Third) of Agency § 

2.01 (2006)). 

Based on the June 2021 emails between Mitzner and the Township 

attorney, Mitzner had apparent authority to enter into the settlement on Valente's 

behalf. Mitzner's June 15 email to the Township attorney attached a twelveparagraph settlement document. In his June 16 email, Mitzner confirmed the 

agreement in the June 15, 2021 email from the Township attorney was 

"acceptable to Lt. Valente, subject to working out the actual language of 

preparing a formal Agreement." Under these circumstances, the Township 

reasonably believed Mitzner had authority to act on Valente's behalf and the 

Township's belief in Mitzner's authority is supported by the inclusion of 

Valente's specific settlement conditions in the document.
14 A-3180-21

The emails clearly established Valente was not only aware of the 

settlement discussions but affirmatively accepted the Township's settlement 

document. The emails, coupled with the non-appearance of Valente and Mitzner

at the disciplinary hearing on June 21, 2021, support Mitzner's authority to enter 

into the settlement on Valente's behalf. 

Significantly, Valente offered no evidence, affidavit, or certification in 

opposition to the Township's motion to enforce the settlement. Valente never 

provided a certification or any other evidence that Mitzner lacked actual or 

apparent authority to settle with the Township on his behalf. Nor did Valente 

offer a certification or affidavit from his previous attorney stating Mitzner had 

no authority to settle the matter. 

Because Mitzner had authority to settle on behalf of Valente, we next 

consider whether the parties agreed to the essential terms to constitute an 

enforceable settlement agreement. The burden of proving that the parties 

entered into a settlement is on the party seeking to enforce the settlement. 

Amatuzzo v. Kazmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997). Settlements 

are governed by contract law and require assent to the essential terms to be valid.

Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. Super. 423, 438 

(App. Div. 2016) (citing Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 
15 A-3180-21

126 (App. Div. 2002)). A contract is enforceable when the parties agree on the 

essential terms and agree to be bound by those terms. Weichert Co. Realtors v. 

Ryan, 128 N.J. 427, 435 (1992). "Where the parties agree upon the essential 

terms of a settlement, so that the mechanics can be 'fleshed out' in a writing to 

be thereafter executed, the settlement will be enforced notwithstanding the fact 

the writing does not materialize because a party later reneges." Lahue v. Pio 

Costa, 263 N.J. Super. 575, 596 (App. Div. 1993) (citing Bistricer v. Bistricer, 

231 N.J. Super. 143, 145 (Ch. Div. 1987)). 

Here, the document attached to the emails exchanged between Mitzner 

and the Township attorney contained all of the essential terms of the agreement. 

Among the essential terms contained in the document were liability admissions, 

administrative closure of the charges, terms of employment separation, accrued 

time, confidentiality, return of property, non-disparagement, and attorney's fees. 

Valente never claimed any essential or material terms were missing from the 

settlement document. 

Rather, Valente claimed there was no agreement as to the essential terms 

because the matter was "subject to review by the mayor." We reject Valente's 

contention the matter could not be considered settled until the Township's 

governing body held a hearing and officially authorized its attorney to execute 
16 A-3180-21

the settlement document. Where a municipal attorney has the authorization of 

the governing body, the attorney may effectuate a settlement. Cf. City of Jersey 

City v. Roosevelt Stadium Marina, Inc., 210 N.J. 315, 327 (App. Div. 1986) 

(holding "unauthorized consent of a municipal attorney cannot bind the 

governing body"). 

The Township authorized its attorney to enter into settlements on its 

behalf as part of her appointment as municipal counsel. Although the settlement 

agreement was pending formal approval by the Township, that did not permit 

Valente to reject the settlement agreed to by his attorney. If we accepted 

Valente's reasoning, no agreement reached between a municipal attorney and a 

litigant prior to municipal approval would be binding, bringing to a halt the 

favored policy of settlement. We see no support for Valente's argument. 

Nor was there a need to conduct a hearing on the motion to enforce the 

settlement. A plenary hearing is only necessary to resolve genuine issues of 

material fact. See Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004). 

Here, there were no disputed facts regarding the settlement. Valente submitted 

no evidence his attorney lacked the authority to negotiate and accept a settlement 

on his behalf. Therefore, there was no need for a hearing. 
17 A-3180-21

Contrary to the Commission's decision, the fact that the Township 

conducted a disciplinary hearing, as demanded by Valente's substitute counsel, 

did not "cut against [the Township's] argument that a valid settlement had been 

reached." The Commission erroneously concluded "there would be no need for 

such a hearing if there was truly a settlement." 

The Commission's decision lacks support in the record. It is undisputed 

the Township's July 21, 2021 letter maintained a settlement was reached and 

placed Valente on notice that the Township would proceed with a hearing on 

August 11, 2021 without prejudice to claiming the parties had a settlement. In 

that letter, the Township attorney expressly advised Valente's attorney that the 

Township was not waiving any rights by conducting a hearing and "reserved the 

right to continue to assert a settlement has been reached." Additionally, the 

Township's attorney reiterated this position at the outset of the August 11, 2021 

hearing, stating the Township intended to pursue enforcing the settlement, "but 

in the interest of due process and preserving the record, we've agreed to conduct 

the hearing this morning."

Having reviewed the record, we are satisfied the Commission's findings 

of fact lacked substantial evidence in the record and its conclusions were based 

on a misapplication of the law. Therefore, the Commission's decision was 
18 A-3180-21

arbitrary, capricious, and unreasonable. Consequently, we reverse the 

Commission's final order and remand for the entry of a final order affirming the 

ALJ's decision.

Reversed and remanded. We do not retain jurisdiction.