[170 NJSuper Page 309] This is an action to review and set aside a five-day suspension of a police officer following a departmental hearing for violation of the Pennsauken Police Department's rules and regulations. Plaintiff seeks a judgment declaring certain of the rules and regulations unconstitutional; for compensatory and punitive damages and for counsel fees and costs. The matter was tried de novo on the record before the departmental board.*fn1
Prior to September 13, 1977 plaintiff received a preliminary notice of disciplinary action wherein he was charged with violation of Article I, § 10, of the Rules and Regulations of the Pennsauken Police Department which provided:
Article I -- Conduct unbecoming an officer
Section 10 -- Publicly criticizing the official action of a superior officer
On August 10, 1977 an article appeared in the Courier Post newspaper reporting that a suit had been instituted by the Chief of Police of the Township of Pennsauken, Nicholas J. Petitte, against the Camden County Welfare Board to ascertain whether any police officer of the Pennsauken Police Department had applied for welfare assistance. The article quoted Chief Petitte as stating that the suit involved "compelling interest in the integrity of the [township's] police officers." He indicated that if any officer improperly applied for welfare it would cast doubt on the moral character of the police officers.
At about 3 a.m. on August 10, 1977 plaintiff, while attending a convention in Rhode Island, received a telephone call from a newspaper reporter. He was advised by the reporter that Chief Petitte had filed the action, and during the course of the conversation it apparently was mentioned that plaintiff was considered to be a target of the lawsuit. He explained to the reporter that in 1974 four or five police officers with large families applied and qualified for food stamps, not welfare, because they were being paid a minimum wage. Neither plaintiff nor any other officer was mentioned in the lawsuit.
In commenting upon the action instituted by Chief Petitte the article stated:
Hall charged the suit was filed by Petitte in retaliation for a complaint Hall filed with the State Public Employees Relations Commission after he allegedly was bypassed for a promotion. The complaint is pending.
As a result of the departmental hearing plaintiff was found guilty of violation of the regulation. The disciplinary board concluded that public criticism on the part of a police officer does irreparable damage to the entire department and that plaintiff committed an irresponsible act in subjecting the department to public criticism without substantiated information.
Plaintiff contends that his actions did not constitute public criticism of the official actions of the Chief of Police; that the ordinance is unconstitutional in that it is an abridgement of plaintiff's right of speech; that the rule is invalid and the resulting suspension is a penalty for the exercise of constitutional right; that he was improperly suspended and that the ordinance is unreasonable.
Plaintiff, in contending that Art. I, § 10, is violative of the First and Fourteenth Amendment to the Constitution of the United States and unenforceable, relies basically upon Muller v. Conlisk , 429 F.2d 901 (7 Cir. 1970), and Gasparinetti v. Kerr , 568 F.2d 311 (3 Cir. 1977), cert. den. 436 U.S. 903, 98 S. Ct. 2232, 56 L. Ed. 2d 401 (1978). Defendants assert that Art. I, § 10, does not violate the First Amendment as made applicable to the states and its instrumentalities by the Fourteenth Amendment. They rely upon Arnett v. Kennedy , 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974); Kannisto v. San Francisco , 541 F.2d 841 (9 Cir. 1976), cert. den. 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775 (1977), and Aycock v. Police Comm. of Bd. of Aldermen , 133 Ga.App. 883, 212 S.E. 2d 456 (App.Ct.1975).
While members of a police department are necessarily subject to reasonable disciplinary rules and regulations and must surrender some individual rights and freedom Akridge v. Barres, supra , 118 N.J. ...