July 3, 2007
STATE OF NEW JERSEY DIVISION OF STATE POLICE, PETITIONER-RESPONDENT,
SERGEANT ROBERT SOBOLUSKY BADGE NO. 4003, RESPONDENT-APPELLANT.
On appeal from a Final Decision of the Department of Law and Public Safety, Division of State Police.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 14, 2007
Before Judges Cuff, Fuentes and Baxter.
Defendant Robert Sobolusky is a Sergeant in the New Jersey State Police. He was suspended by the State Police for wearing a shirt with the words "Lords of Discipline" written on the front to a national police picnic. According to media reports and internal studies conducted by the Office of the State Attorney General, the "Lords of Discipline" was an informal group of State troopers accused of allegedly harassing and hazing new troopers that refused to conform to the group's standards. The group had gained national attention, and was the subject of several lawsuits against the State Police, although it had never been proven that the group actually existed.
After a plenary hearing in the Office of Administrative Law, an Administrative Law Judge (ALJ) recommended that defendant be suspended for thirty days for wearing the shirt. The ALJ found that, in wearing the shirt at the particular function, defendant violated multiple rules and regulations regarding the conduct of troopers. The Superintendent of the State Police accepted the ALJ's findings and recommendation, and imposed the suspension.
Defendant now appeals, arguing that (1) the State Police violated his First Amendment right to free speech; and (2) he was not given sufficient notice that wearing a shirt that said "Lords of Discipline" to a police picnic would lead to disciplinary action. We reject these arguments and affirm. The salient facts necessary to address the legal issues raised here are undisputed.
On September 25, 2003, Sobolusky attended the National Trooper's Coalition Picnic at Lums Pond in Newark, Delaware. Major Lanuel Ferguson of the New Jersey State Police described the picnic:
The National Trooper's Coalition Picnic is a picnic that is open to troopers both active and retired from the 50 states that converge on one particular day or two particular days at an event under the auspices of the National Trooper's Coalition which everyone -- each one of the 50 states -- I'm not sure if 50 states send all members but it's -- I realize that it's a national organization, you know, where all the troopers from the states have input and they meet regularly and this is their -- the summer picnic, their release where they get together, sell shirts, talk, tell war stories and things of that nature.
State Police Detective Sergeant Dennis Hallion, who serves as president of the State Troopers Non Commission Officers Association, which comprises approximately 930 sergeants, gave a similar description of the purpose of the picnic.
[It is an event] to let your hair down for one day, one day out of 365 . . . . [I]t is limited to State Police, elicited State Police members only, no family member[s], . . . no kids are permitted to attend, and there are . . . various activities, there is a weight lifting contest, there is a --there is a run, you know, a race so to speak, a road race, there are various booths and tents set up where -- where all kinds of memorabilia, all kinds of items, articles are sold to benefit, you know, that particular state or the [National Troop Coalition] or whatever the group is, you know, putting out their [wares]; basically, again, it's a major networking of troopers from around the country that come in for one day and, you know, can pretty much relax and enjoy the day.
This particular picnic was attended by law enforcement officers from around the country, but was not open to anyone from the general public; not even the troopers' families. Admission to the event was carefully monitored, requiring attendees to show their badges before purchasing a ticket.
While at the picnic, defendant wore a shirt with the words "Lords of Discipline" written on the front. The shirt also listed all of the Troop A State Police stations. This was witnessed by both defendant's superiors and subordinates, as well as troopers from other states.
The phrase, "Lords of Discipline," refers to an unofficial group within the New Jersey State Police that allegedly harassed and hazed new troopers who did not conform to the group's standards. The group allegedly hazed and harassed minorities and women, as well as other troopers who challenged the police culture that fostered racial-profiling as a law enforcement tactic. Notably, no definitive evidence was produced before the ALJ that actually confirmed the existence of the "Lords of Discipline."*fn1
Although the State Police hierarchy who witnessed defendant wearing the shirt were convinced that his conduct violated State Police comportment guidelines, they decided not to order defendant to remove the shirt, in order to avoid a potentially embarrassing public confrontation. Sometime during the picnic, defendant became aware of his superiors' objections, and voluntarily changed the shirt. Defendant claimed that he wore the shirt as a practical joke.
The day after the picnic, Captain (now Major) Lanuel Joseph Ferguson filed an internal State Police document known as a "Reportable Incident Form," documenting that "Sgt. Sobolusky #4003 was observed by myself and numerous members of the Division wearing a tee shirt with the inscription and logo of the 'Lords of Discipline.' His actions during the out-of-state gathering should be considered inappropriate and offensive in nature."
On December 2, 2003, the State Police formerly charged defendant with violating a series of disciplinary rules and regulations. The allegations included:
Violation of New Jersey State Police Rules & Regulations, Article VI, Professional Conduct, Section 2b, which reads: No member shall act or behave in an unofficial or private capacity to the personal discredit of the member or to the discredit of the Division. and New Jersey State Police Rules and Regulations, Article VI, Professional Conduct, Section 2c, which reads: No member shall act or behave in any capacity to the detriment of good order and discipline of the Division. and Article XIII, Conflicts of Interest, Section 17, which reads: No member should knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of such acts that such member may be engaged in conduct violative of trust as a member.
The matter was ultimately referred to the Office of Administrative Law (OAL) for adjudication. Following the OAL hearing, the Superintendent suspended defendant for thirty days.
On appeal from a final order of a State administrative agency, we review the decision of the head of that agency, not the ALJ's initial recommendations. In re Dennis, 385 N.J. Super. 369, 375 (App. Div. 2006). We are required to give substantial deference to the agency head's determination and reverse "'only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Stevens v. Bd. of Trs., Pub. Employees' Ret. Sys., 294 N.J. Super. 643, 651 (App. Div. 1996)). It is also well-established that "[a]n administrative agency's interpretation of its regulations is entitled to substantial weight." Simon v. Bd. of Trs., Police and Firemen's Ret. Sys., 233 N.J. Super. 186, 195 (App. Div.), certif. denied, 117 N.J. 652 (1989).
Defendant's legal challenge here is grounded on the free speech rights embodied in the First Amendment of the United States Constitution. U.S. Const. amend. I. Although the First Amendment assures the protection of a citizen's right to freely debate and discuss public issues, its "guarantees have never been absolute." Karins v. City of Atl. City, 152 N.J. 532, 547 (1998) (citing Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed. 2d 1498, 1506 (1957)).
Depending on the nature of the position, those who voluntarily choose to hold a public position do so with the understanding that, along with the powers of the office comes some degree of limitation on the legal rights enjoyed as a private citizen. As the United States Supreme Court noted in Garcetti v. Ceballos, __ U.S. __, 126 S.Ct. 1951, 1958, 164 L.Ed. 2d 689, 699 (2006), "[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom."
The Supreme Court has also recognized, however, that public employees do not forfeit all of their First Amendment rights. Id. at ___, 126 S.Ct. at 1957, 164 L.Ed. 2d at 698. "Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Ibid. In addition, it is well-established that a public employer cannot infringe on a public employee's constitutional right to free speech merely because he disapproves of the speech's content. Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001).
A series of cases that have come before the Court illustrate the need to engage in a careful, fact-sensitive analysis before deciding whether preserving the public's confidence in those entrusted with discharging a public function, outweighs a citizen's constitutional right to express his or her views.
In Pickering v. Board of Education of Township High School District, 391 U.S. 563, 564, 88 S.Ct. 1731, 1732-33, 20 L.Ed. 2d 811, 815 (1968), the Court considered whether a public school teacher could be disciplined for sending a letter to a local newspaper, criticizing the superintendent of schools and the board of education for failing to raise adequate revenue for the school. The Court held that public school teachers, like all public employees, do not automatically and fully surrender their First Amendment rights upon accepting public employment. Id. at 568, 88 S.Ct. at 1734, 20 L.Ed. 2d at 817.
Thus, in determining the outcome of cases involving public employees' right to free speech, a court must "arrive at a balance between the interests of the teacher, 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." Id. at 568, 88 S.Ct. at 1734-35, 20 L.Ed. 2d at 817. In holding that the school's dismissal of the teacher violated his constitutional right to free speech, the Court emphasized that "in a case . . . in which the fact of employment is only tangentially and insubstantially involved in a subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be." Id. at 574, 88 S.Ct. at 1738, 20 L.Ed. 2d at 820-21.
In Connick v. Myers, 461 U.S. 138, 140-41, 146, 103 S.Ct. 1684, 1686-87, 1690, 75 L.Ed. 2d 708, 715-16, 719 (1983), the Court applied the balancing test discussed in Pickering, in determining whether an assistant district attorney could be terminated because she distributed a questionnaire regarding transfer policy and office morale, after she was transferred to another office against her wishes. The Court held that, pursuant to Pickering, courts must first determine whether the speech in question can be "fairly characterized as constituting speech on a matter of public concern." Id. at 146, 103 S.Ct. at 1690, 75 L.Ed. 2d at 719. If the speech does not relate "to any matter of political, social, or other concern to the community," government officials should be given wide latitude in managing their offices, and should not be restricted by the First Amendment. Ibid.
If the speech is a matter of public concern, however, courts must then look to the second prong of the Pickering test, which requires a court to balance the employee's right to free speech and the public employer's interest in performing its public function. Id. at 150, 103 S.Ct. at 1692, 75 L.Ed. 2d at 722. When balancing these two interests, courts should consider the manner, time, and place of the speech. Id. at 152, 103 S.Ct. at 1693, 75 L.Ed. 2d at 724.
Our Supreme Court has adopted the Pickering test. Karins, supra, 152 N.J. at 549-50. We will thus apply this test to the facts before us.
Here, both parties concede that the "Lords of Discipline" is a matter of public debate and concern. It had been discussed in several newspapers, and was widely known among various police departments. Accordingly, the first prong of the Pickering test is satisfied.
Of course, the public attention that the "Lords of Discipline" has undeniably received does not dispose of the controversy before us. In order to survive constitutional scrutiny, the State Police must show that defendant's speech negatively impacted the interests of the Division. Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 87 L.Ed. 2d 315, 326 (1987). There are several legitimate state interests that can limit a public employee's right to free speech, including:
(1) the need to maintain discipline or harmony among co-workers; (2) the need for confidentiality; (3) the need to limit conduct which impedes the public employee's proper and competent performance of his duties; and (4) the need to encourage close and personal relationships between employees and their superiors. [Karins, supra, 152 N.J. at 551 (quoting Hall v. Mayor & Dir. of Pub. Safety of Pennsauken, 176 N.J. Super. 229, 232 (1980)); see Rankin, supra, 483 U.S. at 388, 107 S.Ct. at 2899, 97 L.Ed. 2d at 327.]
Further, in performing the balancing test under Pickering, courts should not consider the statement "in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Rankin, supra, 483 U.S. at 388, 107 S.Ct. at 2899, 87 L.Ed. 2d at 327.
Here, the Superintendent adopted the following conclusions reached by the ALJ:
"[T]he shirt presented a message that could well say [to those seeing it] that this was a law enforcement agency to be viewed with suspicion, a police force with members less than dedicated to the fair, impartial and non-discriminatory application of the laws to all citizens and the appropriate treatment of all members of its force. Such a message could well impede the efficient operation of the State Police . . . ."
We agree. Defendant's "shirt" message was intended for a select law enforcement audience. In attendance were representatives of state police departments from all over this country. Equally as important, the audience also included members of our own State Police Division. When considered in the context of this quasi-official gathering, defendant's message had a great capacity to undermine the morale and reputation of the State Police.
We recognize that, standing alone, the words "Lords of Discipline" are pregnant with ambiguity. This ambiguity, however, does not sanitize the message's inherent pernicious effects. Whether intended as an endorsement of the alleged practices of this rogue organization, or, as defendant claimed, a practical joke, the effects are the same. Given the "Lords of Discipline" unquestioned reputation as a racist, sexist association, the wearing of such a shirt by a Trooper holding the supervisory rank of Sergeant, amounts to nothing less than an act of contempt for the Division's efforts to repudiate its historical association with the shameful practices of racial profiling. In this State, no other single issue has served to undermine the public's trust in the State Police as the now-defunct, infamous practice of racial profiling.See N.J. Office Of The Attorney General, Interim Report of the State Police Review Team Regarding Allegations Of Racial Profiling (April 20, 1999).
A police officer's role in our society carries with it special responsibilities. As our Supreme Court recently held,
"a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public." [In re Carter, N.J., (2007) (slip op. at 16) (quoting Twp. of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966)).]
In this light, the disciplinary measures taken by the State Police against defendant were entirely in keeping with its ultimate responsibility for maintaining discipline among its ranks. In re Carberry, 114 N.J. 574, 578 (1989).
Finally, defendant argues that he did not receive sufficient notice that wearing of a shirt with the words "Lords of Discipline" would result in a suspension. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The conduct at issue here is manifestly inappropriate, and requires no prior warning before imposing discipline. For the same reasons, we also summarily reject defendant's argument that the rules and regulations applied to him here are unconstitutionally vague and overly broad.