IN THE MATTER OF STEVEN J WINTERS, NORTH HUDSON REGIONAL FIRE AND RESCUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6436-08T1

IN THE MATTER OF STEVEN J.

WINTERS, NORTH HUDSON REGIONAL

FIRE AND RESCUE

________________________________

A

October 31, 2011

rgued telephonically November 9, 2010 - Decided

 

Before Judges Fuentes, Gilroy and Nugent.

 

On appeal from the New Jersey Civil Service Commission, Docket No. 2006-2792-I.

 

Catherine M. Elston argued the cause for appellant/cross-respondent Steven J. Winters (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the briefs).

 

David F. Corrigan argued the cause for respondent/cross-appellant North Hudson Regional Fire and Rescue (The Corrigan Law Firm, attorneys; Bradley D. Tishman, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent Civil Service Commission (Andrea R. Grundfest, Deputy Attorney General, on the statement in lieu of brief).

 

PER CURIAM

Petitioner Steven Winters appeals from the August 20, 2009 final decision of the Civil Service Commission (CSC) adopting the findings and recommendations of an Administrative Law Judge (ALJ) upholding Winters' sixty-day suspension and demotion from the rank of captain to firefighter for disclosing a confidential report. Respondent North Hudson Regional Fire and Rescue (NHRFR or the Department) cross-appeals, arguing that the ALJ's determination that Winters delivered the report to a clerical employee is not supported by the record, and seeking the imposition of a more severe penalty because Winters misrepresented that he delivered the report. We affirm.

I.

Winters was a fire captain with the NHRFR. On December 13, 2003, he prepared a "correspondence report" recounting an anonymous firefighter's allegations that an NHRFR battalion chief had sexually harassed the reporting firefighter and other firefighters. Winters claims that he addressed the report to the NHRFR Chief, placed the report in an envelope marked "confidential," and delivered the envelope containing the report to the Chief's secretary.

In late 2004, Teaneck firefighter William Brennan telephoned Winters and explained that he represented an NHRFR firefighter who allegedly had been the victim of retaliatory discipline for objecting to the battalion chief's sexual harassment. Brennan asked Winters about any reports concerning the battalion chief. Winters gave him a copy of the December 13, 2003 report, believing that it would be used only at a NHRFR confidential, closed hearing. Winters did not receive permission from his superiors to give the confidential report to Brennan.

Brennan subsequently gave the report to a television news reporter without Winters' knowledge. The reporter investigated the report's allegations, but never aired them. Nevertheless, the reporter's investigation resulted in a departmental investigation which failed to produce evidence supporting the allegations of sexual harassment by the battalion chief.

On September 28, 2005, the NHRFR served Winters with a Preliminary Notice of Disciplinary Action (PNDA), in which it proposed to suspend him for sixty days and demote him to the position of firefighter, based on violations of eight of NHRFR's Rules and Regulations. The PNDA specifications charged Winters with providing a copy of the December 13, 2003 report to Brennan without authorization; falsely testifying during an internal investigation that he had submitted the report to the Chief's secretary on December 13, 2003; submitting the report to the Chief's secretary without following the chain of command; and failing to follow up to ensure that the report was received by the Chief.

After Winters waived a hearing, the NHRFR served him with a Final Notice of Disciplinary Action (FNDA) on December 5, 2005, suspending him for sixty days and demoting him to the position of firefighter effective immediately. Winters appealed to the Merit System Board1 which transferred the matter on March 29, 2006, to the Office of Administrative Law as a contested case.

After eleven days of hearings, the ALJ assigned to the case found that Winters had delivered the December 13, 2003 report to the Chief's secretary, and thus did not testify falsely about delivering the report during the internal investigation. The ALJ also found that Winters bypassed the chain of command when he delivered the report to the Chief's secretary, and that he gave a copy of the report to Brennan without authorization from the NHRFR. Based on those factual determinations, the ALJ determined that Winters violated NHRFR Rule 16.130, which provides:

Members shall treat all official business and communications of the Department as confidential. They shall impart no information that has been published for Department use to any party or parties. They shall allow no transcript or copy to be made of any Department record, report, or journal without the approval of the Chief.

 

The ALJ concluded that by violating the regulation, Winters engaged in conduct unbecoming a public employee.

The ALJ also determined that Winters' conduct was reckless and egregious, and needlessly placed in jeopardy the effective operation of the NHRFR. Finding that Winters' conduct revealed a lack of proper judgment and integrity, essential elements demanded from those in leadership positions, warranting his demotion and suspension, the ALJ affirmed the FNDA decision, and ordered that Winters be suspended from the NHRFR for sixty days and that he be demoted to the position of firefighter.

Winters and the NHRFR filed exceptions with the CSC. On August 20, 2009, the CSC issued its final decision adopting the ALJ's findings and recommendations upholding the demotion and suspension.

II.

Our review of administrative agency decisions is limited. In re Stallworth, 208 N.J. 182, 194 (2011). The standard of review "requires that courts defer to the specialized or technical expertise of the agency charged with administration of a regulatory system." In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008). Consequently "an appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." Ibid. "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." In re Arenas, supra, 385 N.J. Super. at 443.

Our deference to agency decisions "applies to the review of disciplinary sanctions as well." In re Herrmann, 192 N.J. 19, 28 (2007). "In light of the deference owed to such determinations, when reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Id. at 28-29 (internal quotations and citations omitted). "The threshold of 'shocking' the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result." Id. at 29.

With those principles in mind, we turn to Winters' contentions. He first challenges the CSC's decision on constitutional grounds, asserting that Rule 16.130 is facially unconstitutional because it constitutes an overly broad restriction on free speech, and that disciplining him for giving Brennan a copy of the report violated his right to free speech. He also argues that the undisputed evidence demonstrates he did not disseminate his report outside of the Department, because Brennan was an authorized representative of a Department employee. Finally, Winters contends that the discipline is arbitrary, unreasonable and capricious because it is disproportionate to the charges.2

The NHRFR argues that Rule 16.130 is constitutionally valid. It also contends that the ALJ's finding that Winters delivered the report to the Chief's secretary is not based on credible evidence. Based on that argument, the NHRFR seeks an increased suspension for Winters.

We first address Winters' claim that NHRFR's Rule 16.130 is facially overbroad because it prohibits constitutionally protected conduct. Freedom of speech is protected by the Free Speech Clause of the First Amendment and the free speech clause of the New Jersey Constitution. U.S. Const. amend I; N.J. Const. art. I., 6. "We rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution . . . ." Karins v. City of Atl. City, 152 N.J. 532, 547 (1998).

The overbreadth doctrine "involves substantive due process considerations concerning excessive governmental intrusion into protected areas." Id. at 544 (quotations and citation omitted). Regulations that restrict a public employee's speech must be narrowly drawn so that they do not infringe upon the First Amendment rights of those employees. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. at 1731, 1734-35, 20 L. Ed. 2d 811, 817 (1968). "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." Karins, supra, 152 N.J. at 544. However, "courts have allowed the government more leeway in regulating conduct-related speech rather than prohibiting speech itself." Ibid. Additionally, a regulation should be construed to render it constitutional if the regulation is reasonably susceptible to such a construction. Id. at 546.

Rule 16.130 prohibits employees from "impart[ing] . . . information that has been published for Department use to any party or parties." The rule further prohibits employees from "allow[ing] transcripts or copies to be made of any Department record, report or journal without the approval of the Chief." Significantly, the rule does not constitute a blanket prohibition against speaking to the media or other outside agencies or persons. Rather, the rule has been drawn to restrict only the imparting of information published for Department use to any party or parties.

Winters relies upon Salerno v. O'Rourke, 555 F. Supp. 750 (D.N.J. 1983), In re Disp. Action Against Gonzalez, 405 N.J. Super. 336 (App. Div. 2009), and Ramirez v. Cnty. of Hudson, 167 N.J. Super. 435 (Ch. Div. 1979) in support of his argument that the rule is facially unconstitutional. Those cases are distinguishable.

In Salerno, the rules at issue prohibited jail employees from making disparaging remarks about the way the affairs of the jail were conducted, publicly discussing jail affairs when off duty, and giving information to newspaper representatives without the specific consent of the Sheriff. Supra, 555 F. Supp. at 757. The rule in this case does not prohibit the employees from engaging in such activities. Instead, it restricts the dissemination of information published for Department use and the copying of transcripts of Department records without prior approval of the Chief. In Gonzalez, the employer promulgated a policy that prohibited all staff members from initiating contact with the media without prior approval of the Executive Director. Supra, 405 N.J. Super. at 341. Here, no such prohibition exists. Employees are not prohibited from communicating with the media.

Finally, in Ramirez, plaintiff, a corrections officer, wrote a letter to a newspaper complaining about working conditions in the county jail. Supra, 167 N.J. Super. at 436-37. He was disciplined for violating a rule prohibiting the imparting of information to the newspaper "regarding the County Correctional Facilities[.]" Id. at 437 n.2. The trial court held that the regulation was invalid because it banned all comments, favorable, unfavorable or neutral, and "indiscriminately casts its net so as to catch, along with that speech which the Department may properly regulate, much speech in which the Department's legitimate interest is minimal." Id. at 440 (quoting Gasparinetti v. Kerr, 568 F.2d 311, 317 (3d. Cir. 1977), cert. denied, 436 U.S. 903, 98 S. Ct. 2232, 56 L. Ed. 2d 401 (1978)). Here, the rule at issue does not ban NHRFR employees from speaking about the Department. Instead, it serves the legitimate interest of maintaining the confidentiality of official business communications published for Department use.

In view of Rule 16.130's limited restriction against imparting internal, published department communications to third parties, we do not find the rule constitutionally overbroad.

We turn next to Winters' argument that he was disciplined for exercising his right to free speech. Winters is indisputably a public employee. "[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 1958, 164 L. Ed. 2d 689, 698 (2006). In determining whether a public employee's speech is entitled to First Amendment protection, the court must "arrive at a balance between the interests of the [public 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." Pickering, supra, 391 U.S. at 568, 88 S. Ct. at 1734-35, 20 L. Ed. 2d at 817. In determining whether an employee's speech is entitled to constitutional protection, a court must make two inquiries:

The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.

 

[Garcetti, supra, 547 U.S. at 418, 126 S. Ct. at 1958, 164 L. Ed. 2d at 699. (internal citations omitted).]

 

To determine 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.'" Karins, supra, 152 N.J. at 548-49 (quoting Pickering, supra, 391 U.S. at 573, 574, 88 S. Ct. at 1737, 1738, 20 L. Ed. 2d at 820, 820-21).

Winters did not act as a citizen when he provided a copy of the report to Brennan. By his own admission, he provided the report solely for Brennan's use in a departmental hearing. Winters testified:

Mr. Brennan and I spoke about what was the purpose of me turning this report over, and he said it was going to be used in the departmental hearing, and we did have discussions on that, and that was important to me, because any departmental hearings were confidential.

 

Accordingly, when Winters gave the report to Brennan, he was not acting with the intention of contributing to the public discourse.

"[E]mployees retain the prospect of constitutional protection for their contributions to the civic discourse. The prospect of protection, however, does not invest them with a right to perform their jobs however they see fit." Garcetti, supra, 547 U.S. at 422, 126 S. Ct. at 1960, 164 L. Ed. 2d at 702. Winters believed that his conduct was consistent with the departmental rules, and he also believed that his report would remain confidential, out of reach of the public domain. Indeed, Winters' position during the administrative hearings and in this appeal is that he did not violate Rule 16.130 because he maintained the confidentiality of his report and disclosed it only to a representative of a member of the department. Consequently, we reject his argument that his providing the report to Brennan was entitled to constitutional protection.

Winters also asserts that he did not violate the rule because Brennan was a representative of a NHRFR employee. The ALJ and CSC rejected this argument. We will not disturb that factual determination. Brennan was neither a member nor employee of the Department.

Winters next argues that his suspension and demotion were disproportionate to his offense. We disagree. "[W]hen reviewing administrative sanctions, appellate courts should consider whether the punishment is disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness." Stallworth, supra, 208 N.J. at 195 (internal quotations and citations omitted).

After carefully reviewing the record in light of Winters' arguments, we are satisfied that the discipline imposed upon Winters was not excessive. The ALJ concluded that Winters' conduct was reckless and egregious, and that he needlessly placed in jeopardy the operation of the NHRFR. The CSC, quoting In re Tuch, 159 N.J. Super. 219, 224 (App. Div. 1978), added that his conduct had a tendency to destroy public respect for public employees, and that "providing a confidential report that contained unsubstantiated allegations regarding a fellow employee to a third party violates the 'the implicit standard of good behavior which devolves upon one who stands in the public eye . . . .'" In view of those considerations, we do not find the discipline shocking to one's sense of fairness. Stallworth, supra, 208 N.J. at 195.

Finally, we review NHRFR's cross-appeal alleging that the ALJ's finding of fact that Winters delivered the report to a clerical employee is not supported by the record; and that Winters should be subjected to additional penalties because he misrepresented that he so delivered the report. We find NHRFR's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A

ffirmed.

1 The Merit System Board was replaced by the CSC effective June 30, 2008. N.J.S.A. 11A:2-1.

2 Winters also contends that he filed a summary judgment motion after the hearing before the ALJ. The NHRFR disputes that Winters filed a summary judgment motion. It does not appear that Winters included the motion as part of the record. See R. 2:5-4(a) (designating what constitutes "the record on appeal"); R. 2:6-1(a)(1)(C) (requiring the appendix prepared by the appellant to contain "the judgment, order or determination appealed from or sought to be reviewed"). In view of our disposition of Winters' other arguments, we need not address or resolve the parties' dispute about whether Winters filed a summary judgment motion.