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WICHERT v. WALTER

April 22, 1985

ARTHUR WICHERT, Plaintiff,
v.
BRUCE D. WALTER, JOSE FUENTES, JOSEPH BONNACI, CHARLES BALDINI, CARLOS PEREZ, LOUIS FUSCO, GENEVIEVE GHIGNONE, LOUIS MERCHESANI, and FRANK CLARK, Defendants



The opinion of the court was delivered by: SAROKIN

 What distinguishes a democratic state from a totalitarian one is the freedom to speak and criticize the government and its various agencies without fear of government retaliation. It is difficult to envision any right more fundamental to the establishment and continuation of a free society.

 In this case, a tenured school teacher, one having twenty-five years of service, is threatened with disciplinary action for having spoken out at a political rally in criticism of the local board of education. Indeed his statement condemned the transfer of another teacher to a distant educational outpost allegedly for political reasons.

 If true, to utilize something as vital as teaching assignments as a means of punishing or rewarding political activity would be reprehensible enough, but to then punish one who purports to disclose such activity would be even a greater evil.

 Plaintiff contends that the mere existence of charges against him constitutes a form of intimidation and chills his rights of free speech. The court agrees. Defendant argues that to enjoin the normal disciplinary machinery would constitute an unwarranted invasion of the administrative process by the court. However, the court is satisfied based upon the undisputed facts, that no disciplinary proceeding or action is warranted or can even be tolerated under these circumstances. To permit the disciplinary machinery to grind on to its ultimate conclusion, whatever that might be, will, in the interim, intrude upon plaintiff's rights of free speech and presumably deter others who might otherwise be inclined to speak out.

 Whether the Board of Education of Union City is or is not operating under a Siberian mentality is not now before the court, but rather whether someone can be disciplined and squelched for saying that it is. The court concludes that one cannot be for the following reasons.

 FACTS

 Before the court is the motion of the plaintiff Arthur Wichert, brought by order to show cause, seeking declaratory and injunctive relief preventing the defendants from proceeding with tenure charges against him. Plaintiff is the Mayor of Union City and a tenured teacher in the Union City public schools for the past twenty-five years. Plaintiff is also a member and leader of "Your Operation Uplift" (Y.O.U.), which is a political organization in Union City. Defendants are the President of the Union City Board of Education, Bruce D. Walter, the Board itself, and its individual members.

 According to plaintiff's unrebutted affidavit, Aff. of Arthur Wichert, 3/11/85, there are two major political factions in the City of Union City, represented by the Y.O.U. organization and an organization known as the Alliance Organization. Individuals associated with the Alliance Organization presently control the majority of the city's Board of Education. Plaintiff claims that the Board has harassed public school teachers who are members of its political opposition by taking adverse employment actions against them. Specifically, plaintiff claims that he was transferred last year from Union Hill High School, where he had worked for many years, to an elementary school much further distant from the City Hall of Union City. Plaintiff filed suit alleging the transfer was politically motivated, which suit is currently pending before the New Jersey Office of Administrative Law and the Commissioner of Education. In addition, plaintiff's affidavit reveals that on February 26, 1985, a Commissioner Dragona was also transferred from the high school to an elementary school much further distant from City Hall. Dragona is a prominent Y.O.U. supporter who had previously filed an administrative claim against the Board of Education for its refusal to reinstate him in his former position of principal. That claim was pending at the time of Dragona's transfer.

 The action against plaintiff by the President of the Board, from which plaintiff seeks relief, arose as a result of certain comments made by plaintiff at a political rally on the same day that Dragona was transferred. Dragona's litigation and transfer were a major topic of concern at the rally, attended by 300 people, and plaintiff was approached by a reporter to give his opinion regarding Dragona's transfer. Plaintiff responded that "It was one of the most ridiculous, stupid and obvious political moves they have done." The comment was quoted the next day in the Hudson Dispatch in an article entitled "Dragona exiled far from City Hall." See Complaint, Exhibit A.

 On March 8, 1985, defendant Bruce Walter, the President of the Board of Education, filed written tenure charges with the Secretary of the Union City Board of Education pursuant to N.J. Stat. Ann. § 18A:6-10 et seq. Specifically, Walter charged that Wichert had intentionally and with malice verbally assaulted the Board of Education (Charge I), that he intentionally and/or with a reckless disregard for the truth made false and/or misleading statements "touching upon the daily operation of the school system by the Union City Board of Education with the intent of misleading the public on this issue" (Charge II), and that he intentionally made "derogatory, false and/or inaccurate statements, the truth of which could be easily ascertained" (Charge III). These actions were alleged to exhibit "insubordination and misbehavior" and to constitute "unbecoming conduct touching upon the entire Union City school system and the Board of Education of Union City." Walter demanded judgment against Wichert consisting of discharge from his tenured teaching position, reduction of his salary, and including "such other and further relief as the Commissioner deems in order and proper." The only specific comment of Wichert's referred to in connection with the charges was the statement quoted in the Hudson Dispatch. See Complaint, Exhibit A.

 Under New Jersey's Tenured Employee Hearing Law, N.J. Stat. Ann. § 18A:6-10 et seq., charges may be lodged against a tenured employee of a Board of Education by filing the charges in writing, along with a written statement of evidence under oath, with the Secretary of the Board. N.J. Stat. Ann. § 18A:6-11. After affording the employee an opportunity to respond, the Board of Education must consider the charges and the response and determine whether there is probable cause to support the charges, and whether the charges are sufficient to warrant either dismissal or reduction in salary. Id. If the Board determines that there is probable cause to support the charges, the Board must so notify the employee and forward the charges to the Commissioner of Education, together with a certification of determination as specified in N.J.A.C 6:24-5.2. Id. Upon certification of charges to the Commissioner, the Board may suspend the employee involved with or without pay. N.J. Stat. Ann. § 18A:6-14. After certification, the employee is given the opportunity to file an Answer to the charges with the Commissioner. N.J.A.C. 6:24-5.3 & 6:24-1.4. The Complaint and Answer are then transferred to the Office of Administrative Law for a hearing before an Administrative Law -Judge (ALJ). The ALJ renders an initial decision in the case at the conclusion of the hearing, which decision is forwarded to the Commissioner of Education. The Commissioner then has forty-five days within which to affirm, modify or reverse the ALJ's decision. N.J.A.C. 1:1-65(a). The Commissioner's action is final unless the case is appealed by either party to the State Board of Education within thirty days. N.J.A.C. 6:2-11.

 By consent of the parties, the usual fifteen-day period for plaintiff to file a response to Walter's charges against him was suspended pending the court's resolution of the question of (1) whether the court is required to abstain from granting the plaintiff the relief he seeks because of the pending tenure charges and (2) if not, whether plaintiff is entitled to declaratory or preliminary injunctive relief on the ...


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