On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Coleman, J.
The opinion of the Court was delivered by
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.
On August 16, 1993, City police officers Andy Pronovost, who is white, and Mark Rassmann, who is African-American, were patrolling Gardner's Basin, the site of the City's annual "Harborfest" celebration. At approximately 12:15 a.m., Pronovost observed Karins drive his automobile into the Gardner's Basin area and stop to speak with a parking attendant. Pronovost spoke with the same parking attendant who informed him that Karins appeared to be intoxicated. Pronovost then followed Karins's car for a short distance and made a routine traffic stop.
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 [Editor's note: originally released as 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.
The City asserts that the Appellate Division erred because it did not resolve the constitutional issues presented by the City's application of N.J.A.C. 4A:2-2.3(a)(6) and the A.C.F.D. rules and operational procedures to Karins's racial slur. The City argues that the court should have applied the balancing test enunciated in Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and applied by the New Jersey courts in Pietrunti v. Board of Educ., 128 N.J. Super. 149 (App. Div.), certif. denied, 65 N.J. 573, cert. denied, 419 U.S. 1057, 95 S. Ct. 640, 42 L. Ed. 2d 654 (1974). The City maintains that 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.
The City argues that there was no constitutional impediment to disciplining Karins pursuant to its regulations and N.J.A.C. 4A:2- 2.3(a)(6) for his private racial epithet made while off-duty. Karins maintains that the regulations are void for vagueness, overbreadth, or both, and that disciplining him for off-duty private speech infringed upon his First Amendment right to freedom of speech.
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 ...