Before Judges Baime, Eichen and Wecker.
The opinion of the court was delivered by: Baime, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2000
On appeal from Superior Court of New Jersey, Chancery Division, Sussex County.
This appeal presents novel questions concerning the extent to which a governmental employer may restrict its employees' freedom of speech in the setting of the workplace. At issue is whether the Green Township Board of Education's conflict of interest policy barring teachers from engaging in specified political activities infringes upon the right of free speech. An ancillary question is whether the Board may bar teachers from wearing a political button bearing the inscription "NJEA SETTLE NOW" while in the school premises in the presence of students. The Green Township Education Association sought a declaratory judgment and an injunction prohibiting the Board from enforcing its policy. The Chancery Division granted the Board's motion for summary judgment. The Association appeals. We affirm in part and reverse in part. We conclude that parts of the Board's conflict of interest protocol substantially restrict constitutionally protected conduct and are thus unenforceable. However, we perceive no constitutional impediment to enforcement of the Board's prohibition against the display of political buttons in the context of this case.
The Association is the certified collective negotiations representative for all teachers, librarians, nurses, and teaching assistants employed by the Green Township School District. Stephen Rowe is the superintendent of schools. The remaining defendants are members of the Board of Education. The school district consists of a single elementary school with grades from kindergarten to eighth grade. The school is housed in a single building.
In 1995, the Board adopted a conflict of interest policy that provided in pertinent part as follows:
All employees are prohibited from active campaigning on school property on behalf of any candidate for local, state or national office or actively promoting any opinions on voting issues.
All employees working in a facility of this district which is used as a polling place are prohibited on an officially declared election day from displaying any materials that would promote the election of any candidate or opinions on voting issues.
All employees are prohibited from engaging in any activity with students during performance of the employees' duties, which activity is intended or designed to promote, further or assert a position on any voting issue, board issue, or collective bargaining issue.
Violations of this policy may result in disciplinary action.
The Board's protocol apparently attracted little attention until the Association's collective bargaining agreement expired. At that juncture, teachers began displaying buttons reading "NJEA SETTLE NOW" while in the presence of students in the school building. Citing the conflict of interest policy, Rowe directed the Association's members to refrain from wearing the buttons in the presence of students while on school premises.
The Association then commenced this action. In their documentary submissions, the parties presented markedly different accounts of the history leading up to the Board's promulgation of its conflict of interest policy. It was undisputed that the Association's members had displayed similar buttons while in the presence of students in the course of an acrimonious labor dispute in 1992. Although the Board contended that the display ...