On appeal from the Waterfront Commission of New York Harbor.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2008
Before Judges A. A. Rodríguez, Payne and Waugh.
Ariel Gonzalez, a Detective employed by the Waterfront Commission of New York Harbor, an instrumentality of the states of New York and New Jersey,*fn1 appeals from the Commission's final determination that he violated the Commission's Media and Public Relations Policy by contacting a reporter at NBC-TV to inform him of an allegedly unsafe and hazardous condition at Gonzalez's workplace arising from the presence of dead rats in what Gonzalez believed to be a contaminated three-year-old dirt pile located in the Commission parking lot. A penalty of a ten-day suspension without pay was imposed upon Gonzalez as the result of this infraction. On appeal, Gonzalez argues that the Commissions' Media Policy is facially unconstitutional, and that the discipline imposed on him, based upon that policy, was unlawful.*fn2 Gonzalez, the President of the Detectives Endowment Association, Inc., P.B.A. Local 195, argues additionally that his conduct constituted protected union activity for which he could not be disciplined.
Our recitation of the facts of this matter is based upon the record of an administrative hearing conducted by a New York Administrative Law Judge*fn3 following the service of charges upon Gonzalez, at which Jon S. Deutsch, General Counsel for the Commission, and Gonzalez gave testimony. The record discloses that Gonzalez, hired as a detective by the Commission eight years earlier, had from the outset of his employment been active in the union, occupying the positions of recording secretary, vice-president and, since 2005, president.
The record suggests that, when hired, Gonzalez was informed of the Commission's media policy, which provides in relevant part:
The Employees' Manual places the responsibility for handling "public relations" in the Office of the Executive Director. Accordingly, all contact with the media (including but not limited to the press, television and radio) will be conducted under the supervision of the Executive Director. It is the policy of the Commission that any information released to the media be accurate, be in the public interest and not compromise the agency or any investigation. To ensure the above, the following guidelines will be followed by all members of the staff:
2. No staff member shall initiate contact with the media without prior approval of the Executive Director.
Deutsch explained the reason for the policy in the following terms:
The main reason is that one voice must speak for the Commission. Additionally, there are numerous divisions, as I stated, within the Commission. Unfortunately, the Chief of Police, for example, may not know, he may want to speak about something, but he may not know that the Director of Licensing is working on something which also affects that investigation. So, bottom line, it's everybody being on the same page. And, unfortunately, many times each director is not aware of what someone else may be doing within the Commission.
Deutsch testified further that "there are no exceptions" to the written policy, but he acknowledged that an employee could offer a private opinion to the media regarding the performance of the Yankees and, perhaps, the Mets without invoking discipline. He later testified that whether a violation of the policy had occurred was a fact-sensitive matter, and both the content of the communication and whether the person making the communication identified ...