(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 20, 1997 -- Decided February 18, 1998
COLEMAN, J., writing for a unanimous Court.
The issue raised in this appeal is whether the First Amendment prevents a municipality from
disciplining an off-duty firefighter for directing a racial epithet at an on-duty police officer.
Karins was stopped at Atlantic City's annual "Harborfest" celebration on suspicion of a DWI offense
after a parking attendant informed an Atlantic City police officer that Karins appeared intoxicated. Karins
immediately identified himself as a firefighter with the Atlantic City Fire Department (A.C.F.D.). The police
officer observed that Karins staggered, slurred his speech, and smelled of alcohol. Despite these
observations, the officer, in the exercise of his discretion, decided not to subject Karins to any sobriety tests.
Another police officer who is African-American approached the scene to provide backup assistance.
He greeted his fellow police officer, who is white. Karins turned to him and stated, "Oh no, don't start that
nigger shit!" and walked away. Karins was not arrested or charged with any offense that night. Although
upset that another City employee would use a racial epithet while speaking to him, the African-American
officer had no intention of including the racial epithet in his official incident report. Within a few days of the
incident, however, the police officers' superiors asked them to supplement their reports to include the
epithet.
Karins was served with a notice of disciplinary action, charging him with the following misconduct:
(1) conduct unbecoming a public employee; (2) violation of A.C.F.D. rules by not conducting oneself in the
customary rules of good behavior observed by law abiding and self respecting citizens; (3) violation of
A.C.F.D. rules by conduct for which one may be arrested; (4) repeated violation of A.C.F.D. rules by a
course of conduct indicating little or no regard for responsibility as a member of the A.C.F.D.; and (5)
violation of A.C.F.D. Operational Procedure #105, the Department's policy against discrimination,
harassment and hostile environments in the workplace. The repeat offender charge was based on Karins's
prior ten-day suspension for calling an African-American firefighter a "coon." Karins's conduct in that case
contributed to the promulgation of Operational Procedure #105.
The Personnel Director for the City held a disciplinary hearing, and found Karins guilty on all five
charges. Karins was suspended without pay for 48 days. Karins requested and received a de novo review
that was conducted before the Office of Administrative Law. The ALJ, without addressing the constitutional
issues, concluded that the City was impermissibly attempting to discipline Karins for a violation of an
unwritten speech code of which Karins did not have adequate notice. The ALJ held that the City failed to
sustain its burden of proof on all charges, and that Operational Procedure #105 applied solely to employees
in the workplace during working hours.
The Merit System Board adopted the factual findings and legal conclusions of the ALJ. The
Appellate Division affirmed in an unpublished opinion, holding that there was "nothing unreasonable,
arbitrary, or capricious about the agency's decision." The Court granted certification.
HELD: The regulations under which Karins was charged are not unconstitutionally vague or overly broad; the racial epithet uttered by Karins was not constitutionally protected free speech; and the charges against Karins were sustained by a preponderance of the evidence. The Merit System Board's decision dismissing
the charges therefore was arbitrary and capricious.
1. The Court rejects Karins's argument that the regulations are void for vagueness. The A.C.F.D.
regulations contain specifically enumerated offenses as well as catch-all provisions. It would be impossible
for the A.C.F.D. to predict every instance of proscribed conduct. Constitutionally protected, conduct-related
speech is impliedly excluded from the regulations. Furthermore, Karins knew that the use of racial slurs was
prohibited because he had been disciplined previously for making such remarks. (Pp. 9-13)
2. The regulations are not overbroad. They are clearly aimed at conduct rather than speech.
Constitutionally protected conduct, including speech, is implicitly excluded from that proscription. (Pp. 14-18)
3. Applying the standard established by the U.S. Supreme Court in Pickering v. Board of Education,
391 U.S. 563 (1968) for determining when conduct-related speech in public-sector employment is constitutionally
protected, the Court concludes that the discipline here does not infringe on Karins's freedom of speech. The
racial slur here was not remotely related to a matter of public concern. And, the City's interest in
maintaining order, discipline, harmony, and a professional working relationship between the police and fire
departments substantially outweighs Karins's right to make abusive, insulting, racially motivated comments.
(Pp. 18-26)
4. Because the agency's decision was based on a consideration of inappropriate factors, the Court must
make a de novo assessment of whether the charges have been sustained by a preponderance of the evidence.
After identifying himself as an A.C.F.D. employee, Karins used a racial epithet against a police officer who
was in the course of performing his duties and in public, without regard to who may have witnessed the
incident. The Court finds that by a preponderance of the evidence such conduct constituted "conduct
unbecoming." The Court also finds that Karins's conduct constitutes a repeat violation of the A.C.F.D.'s
rules. The Court also concludes that the City established by a preponderance of the evidence that Karins
engaged in conduct for which he could have been arrested, since probable cause existed for a DWI arrest.
Finally, the Court concludes that the racial epithet uttered by Karins is covered by Operational Procedure
#105, given the working relationship required between City police officers and firefighters, and the capacity
of the slur to exacerbate racial tensions among such employees. (Pp. 26-39)
The judgment of the Appellate division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
6 September Term 1997
JAMES KARINS,
Appellant-Respondent,
v.
CITY OF ATLANTIC CITY,
Respondent-Appellant.
Argued October 20, 1997 -- Decided February 18, 1998
On certification to the Superior Court,
Appellate Division.
Karen M. Williams argued the cause for
appellant (Jasinkski and Paranac, attorneys;
Ms. Williams and David F. Jasinski, on the
brief).
Jeffrey S. McClain argued the cause for
respondent (Jacobs & Barbone, attorneys;
Michael J. Pender, on the brief).
The opinion of the Court was delivered by
COLEMAN, J.
The issue raised in this appeal is whether the First
Amendment prevents a municipality from disciplining an off-duty
firefighter for directing a racial epithet at an on-duty police
officer. While James Karins, an off-duty firefighter employed by
the City of Atlantic City (“City”), was being interviewed by a
City police officer during a drunk driving traffic stop, he
uttered a racial epithet when an African-American policeman
arrived as a back-up officer. Karins was charged by the City
Fire Department (A.C.F.D.) with violating department rules and
regulations. The Personnel Director of the City, after
conducting a hearing, found that Karins had violated specified
rules and regulations and suspended him for 48 working days
without pay. The Merit System Board reversed and the Appellate
Division affirmed.
We reverse and hold that (1) the racial epithet uttered by
Karins is not protected by the First Amendment in this
disciplinary context, (2) the rules and regulations he was found
to have violated are not unconstitutionally vague or overbroad,
and (3) he was properly disciplined.
As Pronovost approached the car, Karins and two female
passengers exited the vehicle. Karins immediately identified
himself as a firefighter with the A.C.F.D. During Pronovost's
interview with Karins, he observed that Karins staggered, slurred
his speech, and smelled of alcohol. Despite those observations,
Pronovost in the exercise of his discretion, decided he would not
subject Karins to any of the standard sobriety tests. Pronovost
cautioned Karins and his companions about the dangers of driving
while intoxicated. During the lecture, Karins responded with
belligerence and sarcasm.
Rassmann observed those events and approached the scene to
provide backup assistance. Rassmann greeted Pronovost with
either “Hey Pronovost” or “Hey Bro.” Karins then turned to
Rassmann and stated “Oh no, don't start that nigger shit!” and
walked away.
After the outburst, Pronovost informed Rassman that Karins
was a City firefighter. Rassmann then approached Karins and
requested his name and identification. When Karins attempted to
discuss the racial epithet, Rassmann told him that they would
discuss it when Karins was not drinking. Although upset and
angered that another City employee would use a racial epithet
while speaking to him, Rassmann had no intention of including the
racial epithet in his official incident report because he wanted
to handle the matter “man-to-man” at a later time. Karins was
not arrested or charged with any offense that night.
Within a few days of the incident, both Pronovost and
Rassmann were asked by their superior officers to supplement
their reports to include the incident. On September 1, 1993,
Karins was served with a Preliminary Notice of Disciplinary
Action, charging him with the following misconduct:
1. Conduct Unbecoming a Public Employee; [contrary to
N.J.A.C. 4A:2-2.3(a)(6)];
2. Conduct Unbecoming an Atlantic City Firefighter:
Not conducting oneself in the customary rules
of good behavior observed by law abiding and
self respecting citizens, in or out of
uniform; [contrary to A.C.F.D. Art. VII, §2-A(a)];
3. Conduct Unbecoming an Atlantic City Firefighter:
[A firefighter shall not] violate any law, or
do anything for which they may be arrested;
[contrary to A.C.F.D. Art. VII, §2-A(c)];
4. Conduct Unbecoming an Atlantic City Firefighter:
Repeated violation of the A.C.F.D. rules and
regulations or any other course of conduct
indicating that a member has little or no
regard for his responsibility as a member of
the A.C.F.D.; [contrary to A.C.F.D. Art. VII,
§2-A(l)];
5. A.C.F.D. Operational Procedure # 105 - Policy
Against Discrimination, Harassment and Hostile
Environments in the Workplace:
It is against Department policy to engage in
verbal or physical conduct or otherwise to
engage in conduct directed at an individual
employee or class of employees which any
reasonable person would conclude:
* has the purpose or effect of creating an
intimidating, hostile, or offensive working
environment;
* has the purpose or effect of
unreasonably interfering with an individual's
work performance; or
* otherwise adversely affects an
individual's employment.
The repeat offender charge against Karins was based on the
fact that he had previously received a ten-day suspension for
racial epithets directed toward a fellow firefighter. The prior
incident occurred in September 1992 when Karins was disciplined
for calling an African-American firefighter a “coon.” For that
incident, the Chief of the A.C.F.D. found Karins guilty of
violating A.C.F.D. § 2-C(b): “Using profane or insulting language
to a superior, subordinate or any other A.C.F.D. member.”
Karins's conduct in that case contributed to the City's need
to promulgate Operational Procedure #105, which was the basis of
Karins's fifth charge in the present matter. Operational
Procedure #105 was issued in May 1993, and Karins received a copy
of the procedure in June 1993.
A disciplinary hearing was conducted by the Personnel
Director for the City, and he found Karins guilty on all five
charges. Karins was suspended without pay for 48 days. Karins
requested and received a de novo review that was conducted before
the Office of Administrative Law. The Administrative Law Judge
who heard the case recommended that: (1) Karins's suspension be
rescinded; (2) Karins's back pay, benefits and seniority for the
period of suspension be reinstated; and (3) Karins be awarded
reasonable attorney's fees and costs. Without addressing the
constitutional issues, the ALJ concluded that the City was
impermissibly attempting to discipline Karins for a violation of
an unwritten speech code of which he did not have adequate
notice. The ALJ concluded that the City failed to sustain its
burden of proof on all the charges, and that Operational
Procedure #105 applied solely to employees in the workplace
during working hours.
The Merit System Board adopted the factual findings and
legal conclusions of the ALJ. The Appellate Division affirmed in
an unpublished opinion, holding that there was “nothing
unreasonable, arbitrary, or capricious about the agency's
decision.” We granted certification,
147 N.J. 580 (1997), and
now reverse.
under the Pickering test, the racial epithet was a matter of
private concern and was therefore unprotected speech. The City
contends further that under the Pickering test, its interests in
maintaining a working relationship between the police and fire
departments, the morale within the departments, and the public's
perception and acceptance of its public servants far outweigh any
interest that Karins may have in using a racial slur.
Karins agrees that the Appellate Division was presented with
the constitutional issues but chose not to address them. He
maintains, however, that the issues were not properly before the
Appellate Division because they exceeded the scope of the ALJ's
decision. Karins maintains that if the Court considers the
merits of the constitutional claims, his conduct-related speech
was protected under the Pickering test.
It is well established that the judicial capacity to review
administrative agency decisions is limited. Public Serv. Elec.
v. New Jersey Dep't. of Envtl. Protection,
101 N.J. 95, 103
(1985)(citing Gloucester County Welfare Bd. v. New Jersey Civil
Serv. Comm'n,
93 N.J. 384, 390 (1983)). In reviewing the Merit
System Board's decision, the Court should not disturb the
agency's ruling unless it finds that the Board's action was
arbitrary, capricious or unreasonable. In re Warren,
117 N.J. 295, 296 (1989). Under the arbitrary and capricious standard,
the scope of judicial review is restricted to four inquiries:
(1) whether the agency's decision offends the State or
Federal Constitution; (2) whether the agency's action
violates express or implied legislative policies; (3)
whether the record contains substantial evidence to
support the findings on which the agency based its
action; and (4) 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.
[George Harms Constr. Co. v. New Jersey Turnpike Auth.,
137 N.J. 8, 27 (1994)(citations omitted).]
The City argues that in this disciplinary case Karins's utterance
is not protected under either the Federal or State Constitution,
and therefore the decision of the Merit System Board was
arbitrary and capricious.
The traditional standard appellate courts follow when
reviewing administrative agency determinations with respect to
constitutional issues cannot be applied to all the issues raised
in this case. The ALJ declined to address the constitutional
issues, deciding instead to leave those issues to “constitutional
judges.” Neither the Merit System Board nor the Appellate
Division addressed those issues. We have two options: either
exercise original jurisdiction and decide the issues or remand
them to the Appellate Division. Because of the public interest
in an expeditious disposition of the significant issues raised,
we have decided to exercise original jurisdiction pursuant to
Rule 2:10-5 and decide whether the racial utterance was
constitutionally protected free speech for which discipline may
be imposed. If it was not, then the Merit System Board's
decision dismissing the charges was arbitrary and capricious.
III
First, we address Karins's vagueness and overbreadth arguments. The ALJ concluded that Karins had no notice that his speech was subject to discipline because (1) the “fashions of behavior” are subject to change and differing interpretations, and (2) the City's speech code is unwritten, and therefore incapable of providing notice.
A statute or regulation is facially unconstitutional for vagueness if it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed.2d 322, 328 (1926); State v. Lashinsky, 81 N.J. 1, 17-18 (1979). Last term, we observed that a vague statute or regulation “creates a denial of due process because of a failure to provide notice and warning to an individual that his or her conduct could subject that individual to criminal or quasi-criminal prosecution.” State v. Hoffman, 149 N.J. 564, 581 (1997).
Because this case involves alleged vagueness in the First
Amendment context, the same standard of strict scrutiny that is
used for criminal prosecutions is to be applied. Smith v.
Goguen,
415 U.S. 566, 573,
94 S. Ct. 1242, 1247,
39 L. Ed.2d 605, 612 (1974). Otherwise, a slightly less critical scrutiny
would be permitted in this non-criminal case. State v. Cameron,
100 N.J. 586, 592 (1985); Town Tobacconist v. Kimmelman,
94 N.J. 85, 119 n.16 (1983). Even applying the higher standard does not
mean “that the rule or regulation cannot be drawn in broad terms,
provided it is controlled by a sufficient basic norm or standard.
It need not be minutely detailed to cover every possible
situation.” In re Gioglio,
104 N.J. Super. 88, 100 (Cty. Ct.
1968)(citing Moyant v. Borough of Paramus,
30 N.J. 528, 553
(1959); Ward v. Scott,
11 N.J. 117, 123-24 (1952)).
The existence of a “catchall” provision in a disciplinary regulation does not automatically render the regulation void on vagueness grounds. When confronted with a vagueness challenge to an employment regulation, the United States Supreme Court stated that “'it is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define
prohibited conduct of employees include 'catchall' clauses
prohibiting employee 'misconduct,' 'immorality,' or 'conduct
unbecoming.'” Arnett v. Kennedy,
416 U.S. 134, 161,
94 S. Ct. 1633, 1648,
40 L. Ed.2d 15, 37 (1974)(quoting Meehan v. Macy,
392 F.2d 822, 835 (D.C. Cir. 1968)). The Arnett catchall
provision permitted removal or suspension of nonprobationary
government employees “only for such cause as will promote the
efficiency of the service.” Arnett, supra, 416 U.S. at 140, 94
S. Ct. at 1637, 40 L. Ed.
2d at 25.
Arnett involved a federal employee who was dismissed for
publicly stating that his supervisor and an assistant attempted
to bribe a representative of a community organization. Id. at
137, 94 S. Ct. at 1636, 40 L. Ed.
2d at 23-24. The Court noted
that the statute was “not directed at speech as such, but at
employee behavior, including speech, which is detrimental to the
efficiency of the employing agency.” Id. at 162, 94 S. Ct. at
1648, 40 L. Ed.
2d at 38. The Court held that the statute was
not unconstitutionally overbroad because the language, “such
cause as will promote the efficiency of the service,” excluded
constitutionally protected speech. Ibid.
The District Court of Delaware, in Aiello v. City of
Wilmington,
426 F.Supp. 1272 (D. Del. 1976), applied the Arnett
Court's rationale to two fire department regulations that were
analogous to those at issue in this case. The pertinent
provisions there provided that every member of the fire
department was ordered:
To refrain from conduct unbecoming a fireman
and a gentleman whether on or off duty.
The court concluded that although the regulations “may not be
models of precision, [they] belong to a genre not unknown in the
realm of public employment, particularly with reference to the
uniformed services.” Id. at 1292-93. The court rejected the
vagueness argument, finding that the fireman's conduct of
becoming intoxicated and breaking into a retail establishment
while off-duty fell “within the narrow category of acts so
egregious that, despite any protestations to the contrary, he
could have had no doubt that they were proscribed.” Id. at 1293.
Similarly, the court rejected the overbreadth challenge because
“facial invalidation by application of the overbreadth doctrine
is inappropriate if the provision in question applies to a
'substantial number of situations to which it might be validly
applied.'” Id. at 1294 (quoting Parker v. Levy,
417 U.S. 733,
760,
94 S. Ct. 2547, 2563,
41 L. Ed.2d 439, 460 (1974)).
The same reasoning applies to the present case. The
A.C.F.D. regulations contain specifically enumerated offenses as
well as catch all provisions. It would be impossible for the
A.C.F.D. to predict every instance of proscribed conduct.
Constitutionally protected conduct-related speech is impliedly
excluded from the regulations. Furthermore, Karins knew that the
use of racial slurs was prohibited because he had been
disciplined less than a year earlier for making such remarks.
Indeed, Operational Procedure #105 was promulgated because of his
prior conduct, and he received a copy of it less than two months
before the present incident. Four of the five charges against
him were based on the use of the racial slur. The only exception
was the charge for engaging in conduct that either violated a law
or that could have led to his arrest. Hence, we reject the
vagueness argument.
Whereas the vagueness doctrine “involves procedural due
process considerations of fair notice and adequate warning,” the
overbreadth doctrine “involves substantive due process
considerations concerning excessive governmental intrusion into
protected areas.” Petition of Soto,
236 N.J. Super. 303, 324
(App. Div.), certif. denied,
121 N.J. 608 (1989), cert. denied,
496 U.S. 937,
110 S. Ct. 3216,
110 L. Ed.2d 664 (1990). “The
standard is not whether the law's meaning is sufficiently clear,
but whether the reach of the law extends too far in fulfilling
the state's interest.” Ibid.
Generally, courts have allowed the government more leeway in
regulating conduct-related speech rather than prohibiting speech
itself. See Arnett, supra, 416 U.S. at 162, 94 S. Ct. at 1648,
40 L. Ed.
2d at 38; Broadrick v. Oklahoma,
413 U.S. 601, 615,
93 S. Ct. 2908, 2918,
37 L. Ed.2d 830, 842 (1973); Janusaitis v.
Middlebury Volunteer Fire Dep't,
607 F.2d 17 (2d Cir. 1979). In
Janusaitis the Second Circuit held that a volunteer fire
department's bylaw prohibiting “unbecoming conduct detrimental to
the welfare or good name of the Department” was not
unconstitutionally overbroad. Id. at 28. The court reasoned:
The By-law does not make freedom of
expression its substantial target nor is
there any satisfactory way of severing the
By-law's constitutional from its
unconstitutional applications. There is no
formula by which the non-protected area for
governmental employees set forth in Pickering
v. Board of Education or in Meehan v. Macy,
can be defined with specificity. Since the
By-law in question involves conduct rather
than speech its “overbreadth” must not only
be real, but substantial as well, judged in
relation to the statute's plainly legitimate
sweep.
[Ibid. (citing Broadrick, supra, 413 U.S. at
615, 93 S. Ct. at 2918, 37 L. Ed.
2d at
842).]
As part of his vagueness and overbreadth argument, the fireman contended that he was dismissed because of an “unwritten rule . . . 'whereby members are prohibited from making public statements expressing opinions about the Department without prior approval within the Department.'” Id. at 27. Rejecting that argument, the court noted that although there was a theoretical discussion of the unwritten rule during testimony, it was not
stated as the specific ground for the fireman's dismissal. Ibid.
“In any event, it was apparently understood by all as a gloss on
the meaning of the [bylaw]” rather than a distinct basis for the
disciplinary charge. Ibid.
We find a similar set of circumstances present in this case.
Although the ALJ concluded that Karins was disciplined pursuant
to an unwritten speech code, it was never established that such a
code existed; nor was it cited as the basis for Karin's
suspension. The catch all phrase “unbecoming conduct” was a
“gloss” on the regulations rather than an additional ground for
discipline.
The court in Janusaitis found to be significant the fact
that the disciplined firefighter had received a specific prior
warning from the fire chief that his conduct of sending
complaints about the department to outside agencies was against
department regulations. Id. at 27. Similarly, Karins received
prior notice that racially discriminatory comments could subject
him to discipline after he was suspended the first time in 1992
for calling a fellow firefighter a “coon.” We reemphasize the
fact that Operational Procedure #105 was promulgated based on
Karins's 1992 conduct. Therefore, Karins's argument that he was
not provided adequate notice that such conduct was proscribed is
unfounded.
We must construe a regulation to render it constitutional if
the regulation is reasonably susceptible to such a construction.
State v. Mortimer,
135 N.J. 517, 533-534, cert. denied, 513 U.S.
970,
115 S. Ct. 440,
130 L. Ed.2d 351 (1994); State v. Afanador,
134 N.J. 162, 170 (1993); State v. Ramseur,
106 N.J. 123, 200
(1987). In accordance with that duty, we find that the
regulations under which Karins was disciplined are not void for
vagueness or overbreadth. Those regulations are clearly aimed at
conduct rather than speech. The express language of N.J.A.C.
4A:2-2.3(a)(6) and A.C.F.D. Art. VII, §2-A refers to “conduct
unbecoming.” The regulations are not overbroad because
constitutionally protected conduct, including speech, is
implicitly excluded from that proscription.
The catch all prohibition of conduct unbecoming a
firefighter is not isolated, but rather rounds out a lengthy
list of more specific provisions pertaining to proscribed
categories of conduct. The A.C.F.D. regulations included a list
of specific infractions that could constitute conduct unbecoming
an Atlantic City firefighter such as gambling on duty, engaging
in assaultive behavior, accepting or soliciting bribes or
gratuities, publicly criticizing a superior, committing any
criminal offense, or soliciting money for any cause without prior
approval. Art. VII, § 2A.
Moreover, it would be impossible and impracticable for the
A.C.F.D. to delineate every possible scenario that might subject
a firefighter to disciplinary charges. We approve of the
proposition stated by the Missouri Supreme Court, that “in the
regulation of a vast metropolitan police department the
necessities of discipline, morale and public confidence should
permit the establishment of a broad range of proscribed conduct,
without detailing every possible offense, and thus without the
precision required in criminal statutes and procedure.” Milani
v. Miller,
515 S.W.2d 412, 417 (Mo. 1974).
The Merit System Board's decision with respect to the
constitutional issues of vagueness and overbreadth rests on the
misapplication of constitutional principles and, therefore, is
arbitrary and capricious. The regulations under which Karins was
disciplined are not unconstitutional based on principles of
vagueness and overbreadth.
The protections of the Free Speech Clause of the First Amendment extend to all citizens. U.S. Const. amend. I. The First Amendment has been made applicable to the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed.2d 1213, 1218 (1940). We rely on federal constitutional principles in interpreting the free
speech clause of the New Jersey Constitution, art. I, ¶ 6.
Horizon Health Ctr. v. Felicissimo,
263 N.J. Super. 200, 214
(App. Div. 1993), modified and aff'd,
135 N.J. 126 (1994); Robert
F. Williams, The New Jersey State Constitution 34 (1990). But
cf. Sisler v. Gannett Co., Inc.,
104 N.J. 256, 271 (1986)
(stating that in defamation cases, the New Jersey Constitution
“has supported broader free speech rights than its federal
counterpart”).
Although the First Amendment was designed to assure that
debate on matters of public importance is uninhibited, and wide
open, Roth v. United States,
354 U.S. 476, 484,
77 S. Ct. 1304,
1308,
1 L. Ed.2d 1498, 1506 (1957), that amendment's guarantees
have never been absolute. Many exceptions to the free speech
guarantee have been carved out. In each of the exceptions, the
right of free expression must be balanced against some competing
governmental interest. The exception pertinent to the present
case involves the balancing of public employees' freedom of
expression against the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.
“Firemen, like policemen and teachers, are not relegated to
a watered-down version of constitutional rights.” Hasenstab v.
Board of Fire & Police Comm'rs,
389 N.E.2d 588, 591 (Ill. App.
Ct. 1979). Some governmental agencies, however, have a stronger
interest in regulating the conduct-related speech of their
employees than non-governmental employers, particularly when such
speech may disrupt governmental operations. Connick v. Myers,
461 U.S. 138, 140,
103 S. Ct. 1684, 1686,
75 L. Ed.2d 708, 715
(1983); Pickering v. Board of Education, supra, 391 U.S. at 568,
88 S. Ct. at 1734, 20 L. Ed.
2d at 817; see also Meehan v. Macy,
supra, 392 F.
2d at 833. Hence, the Pickering standard has
evolved for determining when conduct-related speech in public-sector employment is constitutionally protected.
In Pickering, the Supreme Court considered whether a public
school teacher could be disciplined for writing a letter to the
editor of a local newspaper, in which the teacher criticized the
board of education and the superintendent of schools for failing
to raise adequate new revenue for the schools. Pickering, supra,
391 U.S. at 566-67, 88 S. Ct. at 1733-34, 20 L. Ed.
2d at 815-16.
Recognizing that teachers do not automatically relinquish their
First Amendment rights based on public employment, the Court held
that it is necessary “to arrive at a balance between the
interests of the [employee] as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.” Id. at 568, 88 S. Ct. at 1734-35, 20 L. Ed.
2d at 817.
The Court in Pickering acknowledged that the “core value of
the Free Speech Clause of the First Amendment [is the] public
interest in having free and unhindered debate on matters of
public importance.” In formulating a test for determining when
conduct-related speech in public employment is not protected, the
Court stated that if “the fact of employment is only tangentially
and insubstantially involved in the subject matter of the
[employee's communication], it is necessary to regard the
[employee] as the member of the general public he seeks to be.”
Id. at 573, 574, 88 S. Ct. at 1737, 1738, 20 L. Ed.
2d at 820,
820-21. Recognizing that the letter authored by the teacher did
not impede the proper performance of his daily duties in the
classroom, the Court concluded that the school administration's
interest “in limiting teachers' opportunities to contribute to
public debate is not significantly greater than its interest in
limiting a similar contribution by any member of the general
public.” Id. at 572-573, 88 S. Ct. at 1737, 20 L. Ed.
2d at 819-820. Hence, the Court held that under a proper balancing test
the teacher could not be suspended for submitting the letter to
the local newspaper because the State's interest in controlling
the contribution of the teacher was not significantly greater
than controlling the general public. Id. at 574-75, 88 S. Ct. at
1738, 20 L. Ed.
2d at 821.
The threshold question in applying the Pickering balancing
test is whether the employee's speech may be “fairly
characterized as constituting speech on a matter of public
concern.” Connick, supra, 461 U.S. at 146, 103 S. Ct. at 1690,
75 L. Ed.
2d at 719. The Court in Connick considered whether an
assistant district attorney could be discharged for circulating a
questionnaire to fellow staff members concerning internal office
affairs. Id. at 140, 103 S. Ct. at 1686, 75 L. Ed.
2d at 715.
Relying on Pickering, the Court observed that “[w]hen employee
expression cannot be fairly considered as relating to any matter
of political, social, or other concern to the community,
government officials should enjoy wide latitude in managing their
offices, without intrusive oversight by the judiciary in the name
of the First Amendment.” Id. at 146, 103 S. Ct. at 1690, 75 L.
Ed.
2d at 719.
Once the public interest prong of the Pickering standard has
been satisfied, then a court must balance the employee's interest
in free speech against the “government's interest in the
effective and efficient fulfillment of its responsibilities to
the public.” Id. at 150, 103 S. Ct. at 1691-92, 75 L. Ed.
2d at
722. That standard was adopted because an employer should not be
forced “to allow events to unfold to the extent that the
disruption of the office and the destruction of working
relationships is manifest before taking action.” Id. at 152,
103 S. Ct. at 1691-92, 75 L. Ed.
2d at 723. The Court in Connick
found that the attorney's questionnaire touched on matters of
public concern in the most limited sense, and concluded that the
government employer properly discharged the attorney because it
was reasonably foreseeable that her actions could disrupt the
office, undermine authority, and destroy working relationships.
Id. at 154, 103 S. Ct. at 1694, 75 L. Ed.
2d at 724-25.
Thus, a two-part balancing test has evolved from Pickering
and Connick. First, can the employee's speech be fairly
characterized as relating to a matter of public concern? This is
known as the employee's interest prong because it focuses on the
interest of an employee, as a citizen, in commenting upon matters
of public concern. Second, is there a governmental interest, as
an employer, in the effective and efficient fulfillment of its
responsibilities to the public through its employees? This is
known as the public's interest or the governmental interest
prong.
To summarize, when private expression is involved, the
Pickering/Connick balancing test looks not only to the content of
the speech, but also the “manner, time, and place in which it is
delivered.” Ibid.; Givhan v. Western Line Consol. Sch. Dist.,
439 U.S. 410, 415 n.4,
99 S. Ct. 693, 696 n.4,
58 L. Ed.2d 619,
624 n.4 (1979). The Pickering/Connick balancing test “comes into
play only when a public employee's speech implicates the
government's interests as an employer.” Connick, supra, 461 U.S.
at 157, 103 S. Ct. at 1695, 75 L. Ed.
2d at 726 (Brennan, J.,
dissenting).
Courts in this State have applied the Pickering/Connick
standard a number of times. The Appellate Division, in
Pietrunti, supra,
128 N.J. Super. 149, applied the Pickering test
to determine whether a school teacher could be discharged for
making a speech attacking her supervisors at an orientation
session. The court stated:
[W]e observe at the outset of this discussion
that neither the constitutional right of a
teacher to speak freely on public issues nor
the statutory right of school employees to
bargain collectively for their own welfare
will override the basic obligation of an
employee to the employer. . . . The employer-employee relationship restrains the right of
the employee to the extent reasonably
necessary to retain that harmony and loyalty
which is necessary to the efficient and
successful operation of the educational
system.
The court concluded that the teacher could not claim
constitutional protection for attacking her superiors publicly.
Id. at 168.
Likewise in Hall v. Mayor & Dir. of Pub. Safety,
176 N.J.
Super. 229 (1980), the Appellate Division applied the same
balancing test to determine whether a police officer could be
suspended for making statements to a local newspaper criticizing
his superior. The court stated that
certain legitimate state interests may limit
a public employee's First Amendment right of
speech. Some of these interests are: (1) the
need to maintain discipline or harmony among
co-workers; (2) the need for confidentiality;
(3) the need to limit conduct which impedes
the public employee's proper and competent
performance of his duties, and (4) the need
to encourage close and personal relationships
between employees and their superiors.
Although the court found that the regulation under which the
police officer was disciplined was overbroad, the court held that
the statement made by the police officer was beyond
constitutional protection because it served to create disharmony,
thereby impeding the proper functioning of the department. Id.
at 233.
In the present case, the racial epithet expressed by Karins
was directed at Rassmann, a fellow public employee. The slur was
made by Karins, after he identified himself as a fireman, to a
person whom he knew to be performing his official duties as an
Atlantic City policeman. The racial slur was not remotely
related to any matter of public concern. Consequently, the first
prong of the Pickering/Connick standard has not been satisfied.
Under the second prong of the Pickering/Connick test, the City's
interest in maintaining order, discipline, harmony, and a
professional working relationship between the police and the fire
departments substantially outweighs Karins's right to make
abusive, insulting, racially motivated comments. Lives are at
stake when those departments are not cooperating and working
effectively and efficiently. Karins's statements exacerbated
racial tensions within the departments, and also within the
community in general. Such statements have a tendency to disrupt
morale and good working relationships.
Firefighters are not only entrusted with the duty to fight
fires; they must also be able to work with the general public and
other municipal employees, especially police officers, because
the police department responds to every emergency fire call. Any
conduct jeopardizing an excellent working relationship places at
risk the citizens of the municipality as well the men and women
of those departments who place their lives on the line on a daily
basis. An almost symbiotic relationship exists between the fire
and police departments at a fire. Each department depends on the
other to provide protection for the safety of all City employees
and members of the general public present at the scene of the
emergency. There are countless ways that bigotry in a fire
department can endanger lives: delayed response time, less than
careful assessment of risk, less than whole-hearted rescue
attempts, and dissemination of inaccurate or incomplete
information about a fire. Thus, a municipality has a significant
interest in the off-duty conduct of its firefighters because it
has a compelling interest in avoiding the consequences of
strained relationships within and between the departments.
We hold that the racial epithet uttered by Karins while off
duty is not constitutionally protected.
Now that we have concluded that the regulations under which Karins was charged are not unconstitutionally vague or overly broad, and that the racial epithet uttered by him is not protected speech under the First Amendment or art. I, ¶ 6 of the New Jersey Constitution, we must decide whether the charges against him have been sustained by a preponderance of the evidence. The ALJ's and the Merit System Board's erroneous legal conclusions caused them to conclude that the charges had not been established. The Appellate Division did not reject those erroneous legal conclusions; it found that the Merit System Board's decision was not arbitrary, capricious or unreasonable.
We are compelled to make a de novo assessment of those charges
because the agency's decision was based on a consideration of
inappropriate factors. In re Warren, supra, 117 N.J. at 297;
State v. Bender,
80 N.J. 84, 93 (1979).
The first charge was that Karins engaged in conduct
unbecoming a public employee, contrary to N.J.A.C. 4A:2-2.3(a)(6). The determination of what constitutes conduct
unbecoming a public employee is primarily a question of law.
Jones v. City of Pittsburgh,
476 A.2d 895, 898 (Pa. 1984).
The second charge of conduct unbecoming a City firefighter
is part-and-parcel of the first charge and they must be read
together. The first charge was based on a state regulation; the
second was based on a City regulation. Under the Civil Service
Act, rules may be adopted to carry out the Civil Service
objective and to effectively implement a comprehensive personnel
management system. N.J.S.A. 11A:2-6(d). The state regulation,
providing that a state employee may be subject to discipline for
conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6),
was promulgated pursuant to the Civil Service statute. The
second charge was based on Article VII, § 2-A(a) of the A.C.F.D.
rules and regulations that provides that “[n]ot conducting
oneself in [the] customary rules of good behavior observed by
other law abiding citizens, in and out of uniform,” constitutes
conduct unbecoming a City firefighter.
Conduct unbecoming a firefighter or other public employee,
in many ways, is reminiscent of the common-law offense of
misconduct in office and the statutory offense of official
misconduct, N.J.S.A. 2C:30-2. The contours of the common-law
offense were not always perfectly clear. State v. Hinds,
143 N.J. 540, 544 (1996). Before the common-law offense was
abolished in 1979 by the Code of Criminal Justice, courts brought
clarity to the offense by requiring as an element of the offense
that the alleged conduct “involved and touched” the public
employment of the accused. Id. at 546. Whether the offense was
committed off-duty or during the working hours was not relevant.
Ibid.; State v. Bullock,
136 N.J. 149, 153-55 (1994); State v.
Johnson,
127 N.J. 458, 462-63 (1992); Ward v. Keenan,
3 N.J. 298,
309-11 (1949). Unlike the criminal charges of misconduct in
office or official misconduct, the present disciplinary case
based on conduct unbecoming a public employee in the First
Amendment context does not require the contours of those charges
to be defined with the same level of precision as that required
for criminal offenses when the Pickering/Connick standard has not
been satisfied.
New Jersey courts have applied the standard of “conduct
unbecoming” in numerous cases involving the discipline of police
officers. For instance, in In re Emmons,
63 N.J. Super. 136
(1960), the Appellate Division confronted the issue whether an
off-duty police officer's refusal to cooperate and to submit to a
sobriety test following an automobile accident constituted
“conduct unbecoming an officer.” Id. at 140. The court observed
that “[t]he phrase is an elastic one,” that “has been defined as
'any conduct which adversely affects the morale or efficiency of
the bureau . . . [or] which has a tendency to destroy public
respect for municipal employees and confidence in the operation
of municipal services.'” Ibid. (quoting In re Zeber,
156 A.2d 821, 825 (Pa. 1959)).
The standard adopted in Emmons was enunciated by the Supreme
Court of Pennsylvania in a case in which a Pittsburgh firefighter
was charged with “unbecoming official or personal conduct” after
he was arrested and indicted for indecent assault, adultery, and
contributing to the delinquency of a minor. Zeber, supra, 156
A.
2d at 823. Following his acquittal, the fireman's request for
reinstatement was denied. Ibid. Noting the different burdens of
proof at a criminal proceeding and a disciplinary hearing, the
Pennsylvania Supreme Court emphasized that in determining whether
“[u]nbecoming conduct on the part of a municipal employee,
especially a policeman or fireman,” supports disciplinary action,
“[i]t is sufficient that the complained of conduct and its
attending circumstances be such as to offend publicly accepted
standards of decency.” Id. at 825.
More recently, the Appellate Division reiterated the
elasticity of the phrase “conduct unbecoming an officer,” in a
case in which two off-duty police officers were disciplined for
becoming inebriated and engaging in a fistfight and wrestling
match. Hartmann v. Police Dep't of Ridgewood,
258 N.J. Super. 32, 39-40 (App. Div. 1992). There, the court noted that a
finding of misconduct need not “be predicated upon the violation
of any particular rule or regulation, but may be based merely
upon the violation of the implicit standard of good behavior
which devolves upon one who stands in the public eye as an
upholder of that which is morally and legally correct.” Id. at
40 (citing City of Asbury Park v. Department of Civil Serv.,
17 N.J. 419, 429 (1955)).
Similarly, administrative agencies have imposed discipline
based on unbecoming conduct that involves offensive comments or
slurs that do not satisfy the Pickering/Connick exception. Such
conduct-related speech is treated the same as other unbecoming
conduct cases. See City of Newark v. Massey,
93 N.J. Super. 317
(App. Div. 1967)(finding police officer guilty of conduct
unbecoming for exhibiting disrespectful and contemptuous attitude
to superior officer); Tress v. Burlington County Dep't of Health,
93 N.J.A.R 2d (Vol. 2A) 698 (CSV)(concluding that religious slur
“stinking liar and a Jew” stated by Department of Health worker
to co-worker amounted to conduct unbecoming); Nance v. City of
Newark Police Dep't.,
92 N.J.A.R 2d (Vol. 2) 577 (CSV)(suspending
police officer for cursing at fellow officer who was in the
process of issuing him a citation).
In Finn v. Burlington County Jail,
95 N.J.A.R.2d 302 (CSV),
a corrections officer challenged his sixty-day suspension for
“unbecoming conduct” after the officer was involved in a minor
traffic accident and behaved belligerently toward two police
officers at the scene. The corrections officer directed abusive,
loud language toward the police, such as “those fucking police”
and “bastards!” Id. at 305. Based on his conduct and his
“greater duty than the average citizen” to demonstrate a level of
respect to the investigating officers, the presiding ALJ affirmed
the officer's suspension, and that decision was adopted by the
Merit System Board. Id. 308-09.
Likewise, in Rinnier v. Department of Transp.,
94 N.J.A.R 2d
(Vol. 2B) 440 (CSV), a Department of Transportation (“DOT”)
employee was disciplined for loud and belligerent remarks
directed at a police officer. In Rinnier, supra, several DOT
employees in a DOT repair truck howled at a woman being
transported in a marked police car. Ibid. The police sergeant
driving the car proceeded to stop the truck and request
identification, but the workers refused. Ibid. The ALJ
presiding over the disciplined employee's appeal reasoned that
“[i]f these individuals were not public employees, this conduct
would simply have been unwise and would likely have resulted in
their arrest. . . . Nevertheless, the conduct was highly
disrespectful to a police officer and clearly reflects poorly on
the agency.” Id. at 441. In the final agency decision, the
Merit System Board affirmed the suspension. Ibid.
Here, Karins did not simply use a racial epithet against a
private citizen, but against a police officer who was in the
course of performing his duties. To make matters worse, he
identified himself as an A.C.F.D. employee prior to conducting
himself in such a manner. He exhibited this behavior in public,
toward other City employees, and without regard to who may have
witnessed the incident. Such conduct adversely affects the
morale of both the police and fire departments. It also has the
tendency to destroy public respect for City employees and public
confidence in the operation of the respective departments. Such
behavior clearly offends accepted standards of decency. We find
that by a preponderance of the evidence Karins's conduct
constituted “conduct unbecoming” both a public employee and an
A.C.F.D. member, in violation of N.J.A.C. 4A:2-2.3(a)(6) and
Article VII, § 2-A(a) of the A.C.F.D. rules and regulations. The
two charges, however, are merged for dispositional purposes.
The ALJ failed to consider the seriousness of the charges against Karins given the context of his employment setting and
the necessity of the fire and police departments to rely upon one
another. Not only must firefighters fight fires, but they must
also display a certain level of discipline and an ability to work
well within the community. In light of those observations,
Karins's disruptive behavior indicated that he had little or no
regard for his responsibility as a City firefighter. The repeat
offender provision in the regulation does not require the second
violation to be identical to the first, although Karins's prior
disciplinary sanction was for uttering a racial epithet. We find
that Karins's conduct constitutes a repeat violation of
department rules and regulations. Thus, we conclude that Karins
violated A.C.F.D. Article VII, §2-A(l).
VII
Karins was also charged with engaging in conduct that violated the law or could have subjected him to an arrest. The ALJ concluded that there was insufficient evidence to prove that Karins had committed any offense on the night in question for which he could have been arrested. The City contends that but for the officers' exercise of their discretion not to file any charge against Karins, he might have been arrested for harassment pursuant to N.J.S.A. 2C:33-4 and for driving while under the influence of alcohol (DWI) pursuant to N.J.S.A. 39:4-50.
N.J.S.A. 2C:33-4 provides:
if, with purpose to harass another, he:
(a) Makes, or causes to be made, a
communication or communications anonymously
or at extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm;
In Hoffman, we held that “N.J.S.A. 2C:33-4(a) should generally be interpreted to apply to modes of communicative harassment that intrude into an individual's 'legitimate expectation of privacy.'” State v. Hoffman, supra, 149 N.J. at 583. We held further that because subsection (a) was aimed at the manner of communication and not the content of the speech, “in enforcing subsection (a) . . . , [the court] must focus on the mode of speech employed,” and the determination must be made based on the totality of the circumstances. Id. at 583, 585.
In this instance, Karins's slur does not appear to have been made in an attempt to annoy or harass Officer Rassmann. Also, the statement was not made in a confrontational environment or in a manner intended to cause a breach of the peace. Although the racial epithet used by Karins was extremely offensive, the record does not provide a basis to conclude that his intention was to harass Officer Rassman.
In dismissing the charge that Karins could have been arrested for DWI, the ALJ found that “[t]here was insufficient evidence that he was in violation of the drinking driving statute according to Pronovost who saw no erratic driving and did not administer any test.” That conclusory statement misses the point and is not entitled to any deference.
Karins was charged with conduct unbecoming a City
firefighter based on the violation of any law, or doing “anything
for which [he] may be arrested.” A.C.F.D. Art. VII, § 2-A(c). A
distinction must be drawn between: (1) whether there was
probable cause to arrest for an offense, and (2) if arrested,
whether the evidence was sufficient to establish guilt beyond a
reasonable doubt. The significant distinction between the two is
the quantum of proofs required. Although the fact finder in a
quasi-criminal trial may or may not have been convinced beyond a
reasonable doubt of Karins's guilt on a DWI charge, a showing of
probable cause to arrest for DWI only required proof by a fair
preponderance of the evidence. N.J.S.A. 39:40-50.4a; United
States v. Matlock,
415 U.S. 164, 178 n.14, 94. S. Ct. 988, 996
n.14,
39 L. Ed.2d 242, 253 n.14 (1974); State v. Slockbower,
79 N.J. 1, 16 n.1 (1979) (Schreiber, J., concurring); State v.
Whittington,
142 N.J. Super. 45, 50-51 (App. Div. 1976).
Here, there was a substantial basis to support a finding
that probable cause existed to believe that Karins had been
driving his vehicle while under the influence. State v.
Novembrino,
105 N.J. 95, 119-22 (1987). Pronovost observed
Karins driving his motor vehicle after Karins spoke with a
parking attendant at the Harborfest festival. The officer then
spoke to the same attendant who informed him that Karins appeared
intoxicated. Based on that information, Pronovost made an
investigatory stop of Karins's vehicle. Karins exited the
vehicle and immediately identified himself as a City firefighter.
While conversing with Karins, Pronovost observed that Karins
staggered, slurred his speech, and smelled of alcohol. In the
exercise of his discretion, Pronovost did not conduct a field
sobriety test and did not charge Karins with DWI, but that does
not mean that he lacked probable cause to do so. Futhermore, a
timely breathalyzer test showing a .10" blood-alcohol level would
have established guilt regardless of whether Karins passed or
failed a sobriety test conducted at the scene. State v. Tischio,
107 N.J. 504, 510 (1987).
We conclude, therefore, that the City established by a
preponderance of the evidence that Karins violated A.C.F.D. Art.
VII, § 2-(A)(c) because probable cause existed to arrest him for
DWI.
Finally, Karins was charged with violating Operational Procedure #105, which provides that it is a violation of A.C.F.D. policy to use “pejorative slurs to refer to a person's racial or ethnic background with the purpose or effect of harassing an employee or creating a hostile work environment.” The ALJ concluded that the policy did not apply to Karins's con