PARSIPPANY-TROY HILLS EDUCATION ASSOCIATION VS. PARSIPPANY-TROY HILLS BOARD OF EDUCATION (C-000010-16, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0992-16T4
PARSIPPANY-TROY HILLS
EDUCATION ASSOCIATION,
Plaintiff-Appellant,
v.
PARSIPPANY-TROY HILLS
BOARD OF EDUCATION,
Defendant-Respondent.
______________________________
Argued May 3, 2018 – Decided July 23, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, General Equity, Morris
County, Docket No. C-000010-16.
William P. Hannan argued the cause for
appellant (Oxfeld Cohen, PC, attorneys;
Sanford R. Oxfeld and William P. Hannan, of
counsel and on the brief).
Katherine A. Gilfillan argued the cause for
respondent (Schenck, Price, Smith & King, LLP,
attorneys; Katherine A. Gilfillan, Sandra
Calvert Nathans and Paul H. Green, on the
brief).
PER CURIAM
This appeal arises from events that transpired during the
labor dispute that preceded plaintiff Parsippany-Troy Hills,
Education Association's, and defendant Parsippany-Troy Hills Board
of Education's entering into a collective negotiations agreement
in 2016. As part of its campaign to compel defendant to enter
into a contract, plaintiff directed its members to post hundreds
of signs on classroom windows and doors that displayed plaintiff's
name and, above it, simply stated "I AM PROUD TO BE A TEACHER[.]"
After defendant directed plaintiff to remove the signs because
they were "intended and/or designed to promote, . . . a
position(s) on labor relations issues" in violation of defendant's
employment policy, plaintiff filed suit for declaratory judgment,
damages and counsel fees, alleging that its First Amendment and
common law rights were violated.
Following a one-day bench trial, Judge Stephan C. Hansbury
found in favor of defendant after concluding that, given the
context of the parties' labor negotiations, and the large number
of signs posted, defendant's directive that the signs be removed
did not violate plaintiff's rights. On appeal, plaintiff does not
challenge defendant's policy but, rather, argues that the judge
erred in basing his decision on the context of the labor relations
between the parties, rather than the content of the speech itself.
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It also contends that defendant's enforcement of its policy created
a prior restraint on speech.
Having considered plaintiff's arguments in light of the
record and the applicable principles of law, we disagree with its
contentions and affirm.
The facts developed from the record are generally undisputed
and summarized as follows. In 2014, the parties' prior collective
negotiations agreement was set to expire on June 30, 2015. During
their heated discussions about entering into negotiations for a
new contract, plaintiff undertook a series of actions. Those
actions included the teachers in plaintiff's association posting
200 to 300 of the subject signs throughout the district's fourteen
schools' classroom doors and windows.
Defendant believed the posting of the signs violated its
policy, which stated, among other things, that: "A teaching staff
member shall not engage in any activity in the presence of pupils
while on school property, which activity is intended and/or
designed to promote further or assert a position on labor relations
issues." Relying on that policy, defendant ordered the signs to
be removed from school property.
On January 25, 2016, plaintiff filed its complaint seeking
to stop the signs' removal, claiming that defendant's actions were
unconstitutional. Plaintiff alleged that it was exercising its
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right to free speech, and that defendant's requirement infringed
on that constitutional right as well as the common law of the
state of New Jersey. Plaintiff sought "monetary damages and
attorneys['] fees pursuant to" 42 U.S.C. § 1983 because defendant
"acted under color of State Law in its illegal action . . . ." It
also sought "a permanent injunction enjoining [defendant] from
attempting to apply its Board Policy to the signs . . . ."
At trial, plaintiff called the school district's acting
superintendent, Dr. Nancy Gigante, as its sole witness. Gigante
described the "state of labor relations in the district" at the
time she was appointed, as not "good[,]" and explained that
communication "was very limited . . . ." She testified that she
determined that the signs violated defendant's policy and directed
their removal after consulting with defendant's president, Fran
Orthwein. Gigante acknowledged that although the actual words on
the sign did not include a specific reference to a labor grievance,
she "believe[d] that having [plaintiff's] name, . . . on the
bottom [of the sign,] in the climate [they] were in[,] in terms
of labor relations, . . . made [her] think it was a violation of
that policy."
Defendant called three witnesses: Orthwein; Joseph Kyle,
plaintiff's president; and Joan Benos, the Chief of Staff, Public
Information Officer for the school district. Orthwein testified
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as to the various measures plaintiff took in order to pressure
defendant into altering its positions in the negotiations.
According to her, plaintiff's members stopped running clubs at the
school, and sent a letter to the students' parents "regarding the
lack of a contract" and explaining "that because of the additional
pressures put on the teachers by [the] State mandated new
evaluation system . . . they . . . did not have time to run clubs
for students in the elementary school." She stated that
plaintiff's members posted hundreds of lawn signs in the community
that contained plaintiff's name and logo and stated "We support
Parsippany teachers . . . ." Teachers also wore black at back-
to-school night, filed grievances against defendant for
contractual violations, took out an ad in the newspaper, and
rallied before a school board meeting.
Orthwein testified that the posting of the signs on classroom
doors and windows was yet another "job action" taken by plaintiff
to pressure defendant. She explained that she learned about the
signs from Benos, who received a phone call from a parent who
complained "that it was wrong, that [plaintiff] should not be
bringing their contract issues in front of the students . . . ."1
Orthwein also testified that she observed the signs firsthand at
1
Benos corroborated this story when she testified.
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two of the district's schools, and that they were "in virtually
every single window in the building." She believed plaintiff was
"obviously . . . trying to send a message to any passerby
that . . . there had been this series of letters and actions that
had led up and now this was one more. This was another putting
forward the union position."
Kyle, on behalf of plaintiff, agreed with Orthwein's
testimony that "the relationship between [defendant] and
[plaintiff] was contentious." However, he testified that the
negotiations that occurred were not any different than those in
previous years. He also conceded that the posting of the signs
was part of plaintiff's efforts to build unity. He explained that
a member of plaintiff's "action committee" that was established
"specifically for improving the situation in the district for
moving the contract forward[,]" sent an email to teachers directing
them to display the signs "on [their] classroom doors, wherever
applicable."
After considering the testimony and other evidence adduced
at the trial, Judge Hansbury issued a written statement of reasons,
finding that defendant had not violated plaintiff's First
Amendment rights, or any common law rights, in enforcing its
policy. The judge relied upon our opinion in Green Township
Education Association v. Rowe, 328 N.J. Super. 525 (App. Div.
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2000), and quoted from it when he observed that "[t]he government
as employer has far broader powers in regulating speech than does
the government as sovereign." Noting that "protected speech is
not unlimited[,]" the judge concluded that the matter turned on
the context of plaintiff's actions occurring in a heated labor
dispute, rather than a simple expression of a teacher's pride.
The judge stated that:
the sign identifies that it is placed on
behalf of plaintiff. The magnitude of the
signs, 200 to 300 throughout fourteen schools,
clearly constitutes a political statement at
a time when labor negotiation contracts
were . . . contentious . . . .
These specific facts must be considered
when determining whether the sign itself is
protected speech. If one teacher placed on
his or her bulletin board a statement that
they were proud to be a Parsippany-Troy Hills
teacher, that may well be protected
speech. . . . [T]he timing of the posting and
the very significant number of signs makes
this conduct similar to shouting fire in a
crowded movie theater without fire being
present.
On September 29, 2016, the judge issued an order of judgment
in favor of defendant, finding that "its actions [were] not in
violation of [plaintiff's] First Amendment rights and/or Common
Law of the State of New Jersey . . . ." This appeal followed.
On appeal, plaintiff contends that Judge Hansbury "erred in
basing [his] legal conclusion on the context of the labor
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relations . . . rather than on the speech contained in the sign
itself." According to plaintiff, the judge misinterpreted Green
Township in reaching his decision. As plaintiff argues, it is not
defendant's policy itself that plaintiff is challenging,
"[r]ather, it is [defendant's] application of that policy" to the
signs. According to plaintiff, "the speech expressed on the . . .
signs pose[d] no risk of interference with [the] teachers' job
performance or students' education." It further argues that the
judge's decision "creates a prior restraint on . . . [plaintiff's]
speech . . . ." We disagree.
The scope of our review of a judgment entered in a non-jury
case is limited. "[W]hen supported by adequate, substantial and
credible evidence[,]" a trial court's findings "are considered
binding on appeal" and "should not be disturbed unless . . . 'they
are so wholly insupportable as to result in a denial of
justice . . . .'" Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65
N.J. 474, 483-484 (1974) (citations omitted); Allstate Ins. Co.
v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619 (2017). However,
we are "not bound by a trial court's evaluation of the legal
implications of facts where credibility is not an issue." Empower
Our Neighborhoods v. Guadagno, 453 N.J. Super. 565, 583 (App. Div.
2018) (citing Allstate Ins. Co. 228 N.J. at 619).
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With these guiding principles in mind, we begin our review
by recognizing that freedom of speech is protected by both our
federal and state constitutions. The guarantees of both are
coextensive and guard against impermissible violations. Hamilton
Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998) ("Because we
ordinarily interpret our State Constitution's free speech clause
to be no more restrictive than the federal free speech clause,
'[w]e rely on federal constitutional principles in interpreting
the free speech clause of the New Jersey Constitution.'"
(alteration in original) (citations omitted)).
Also, it is beyond cavil that a teacher, or for that matter
any other public employee, is not only permitted but indeed should
be applauded for expressing their pride in their work. The issue
here, however, is whether defendant could regulate such
expressions by plaintiff's members under the circumstances of this
case.
The present dispute asks us to determine, as we did in Green
Township, "the extent to which a governmental employer may restrict
its employees' freedom of speech in the setting of the workplace."
328 N.J. Super. at 528. We conclude from our review that Judge
Hansbury properly applied our holding in Green Township and
recognized that within a workplace, a public employee's "right of
free speech is not a license to express one's opinions 'at any
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public place and at any time.'" 525 N.J. Super. at 534 (quoting
Hurwitz v. Boyle, 117 N.J. Super. 196, 201 (App. Div. 1971)).
Reasonable restrictions can apply when they arise from a labor
dispute, even when the content of the speech does not specifically
refer to the labor dispute or negotiations.
Green Township involved a similar set of facts, but the
content of the challenged speech in that case related specifically
to the parties' labor dispute. There, in the midst of contract
of negotiations, "teachers began displaying buttons reading 'NJEA
SETTLE NOW' while in the presence of students in the school
building." Id. at 529. Citing its policy, the board directed the
union "members to refrain from wearing the buttons in the presence
of students while on school premises." Ibid.
The policy provided in relevant part:
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.
[Id. at 529.]
In deciding whether the board's conduct was constitutional,
we posed "the question [as] whether the [b]oard's . . .
prohibition against displaying the [union's] buttons impose[d] a
'real' and 'substantial' burden on constitutionally protected
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conduct." Id. at 534. We noted that "[e]very American has the
right to express an opinion on issues of public significance.
Teachers are not relegated to 'a watered-down version' of
constitutional rights." Ibid. (citations omitted). However, we
recognized that "the government as employer has far broader powers
in regulating speech than does the government as sovereign [and
c]onstitutional review of government employment decisions . . .
rest[] on different principles than review of speech restraints
imposed by the government as they apply to the general citizenry."
Ibid. (citations omitted). We stated, "government may impose
restraints on the job-related speech of public employees that
would be plainly unconstitutional if applied to the public at
large." Id. at 535 (citing Pickering v. Bd. of Educ., 391 U.S.
563, 573-74 (1968)). We analyzed whether "the employee's speech
that is prohibited may be 'fairly characterized as constituting
[expression] on a matter of public concern[,]'" id. at 535-36
(first alteration in original) (quoting Connick v. Meyers, 461
U.S. 138, 146 (1983)), and found no issue with the "[b]oard's
prohibition against wearing the . . . buttons in the presence of
students while on school premises." Id. at 538.
We observed:
Although educational policy and labor
relations are undoubtedly subjects of public
concern, teachers obviously have a personal
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stake as well in seeking solutions and
resolving problems in these areas. Whatever
interest teachers have in expressing their
views concerning the operation of the public
schools is surely diminished in the setting
of the classroom in the presence of students.
The objective of the teacher in this context
must be to educate his or her students and not
to advance his or her self-interest.
Conversely, the Board of Education has no
interest in barring teachers from expressing
their views on educational policy. "But where
government is employing someone for the
purpose of effectively achieving its goals,"
it has an interest in restricting its
employee's speech in order to accomplish that
objective.
. . . .
We are satisfied that the [b]oard's directive
does not suffer from overbreadth. The first
rule of teaching should be that teachers shall
teach. A classroom is not a place for
proselytizing students to advance a teacher's
financial interests. Nor should a classroom
be transmogrified into a teacher's soapbox.
Just as a board of education may set the
curriculum, it may also require teachers to
confine their classroom activities to
providing students with a thorough and
efficient education.
[Id. at 536, 538 (citations omitted).]
We cautioned, however, that "[g]overnment cannot restrict the
speech of the citizen just in the name of efficiency. But where
government is employing someone for the very purpose of effectively
achieving its goals, such restrictions may well be appropriate."
Id. at 538-39.
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Here, Judge Hansbury correctly determined that the fact that
the content of the speech was not specifically directed toward the
parties' dispute did not prevent defendant from regulating it
under the circumstances. Contrary to plaintiff's argument, the
context of a public employee's exercise of his or her First
Amendment rights must be considered when determining whether a
public employer's restrictions are justified.
"Whether an employee's speech addresses a matter of public
concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record." Connick, 461
U.S. at 147-48; Senna v. Florimont, 196 N.J. 469, 500 (2008) ("The
critical inquiry in determining whether speech involves a matter
of public interest is the content, form, and context of the
speech.").
[W]e must view [the employee's] statements in
context . . . . We can[]not 'cherry pick'
something that may impact the public while
ignoring the manner and context in which that
statement was made or that public concern
expressed. Our inquiry must also consider the
form and circumstance of the speech in
question.
[Miller v. Clinton Cty., 544 F.3d 542, 550 (3d
Cir. 2008).]
See also In re Disciplinary Action Against Gonzalez, 405 N.J.
Super. 336, 347 (App. Div. 2009) ("In balancing employee and
employer interests . . ., courts must consider not only the content
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of the speech, but also the 'manner, time, and place in which it
is delivered.'" (citations omitted)).
Addressing the context of plaintiff's attempt to exercise its
right to free speech, we first note that it took place within the
schools that are owned and regulated by defendant. These buildings
are not "public fora." Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 267 (1988); see also Desilets on Behalf of Desilets v.
Clearview Reg'l Bd. of Educ., 266 N.J. Super. 531, 539-40 (App.
Div. 1993). Defendant's schools are regulated by its policies
that stated the purposes for which they can and cannot be used by
its employees. See Desilets on Behalf of Desilets, 266 N.J. Super.
at 539. Plaintiff, again, does not challenge defendant's policy
here. Nevertheless, we must assess whether the restriction imposed
by the policy's application unreasonably impinged upon plaintiff's
right to freedom of speech. See Green Twp., 328 N.J. Super. at
538 ("consider[ing] separate[ from the constitutionality of the
board's policy, whether] the [b]oard's prohibition against wearing
the [union's] buttons in the presence of students while on school
premises . . . suffer[s] from overbreadth").
In an opinion handed down after Green Township, the United
States Supreme Court, in Garcetti v. Ceballos, 547 U.S. 410 (2006),
addressed the manner that a court should consider a public
employee's challenge to an employer's restriction on First
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Amendment rights. In that case, the United States Supreme Court
considered whether an internal memorandum from a deputy district
attorney to his supervisor criticizing an affidavit the police
used to obtain a critical search warrant was protected speech
under the First Amendment. Garcetti, 547 U.S. at 413-16. Claiming
that he was later retaliated against by his employer for speaking
out, the deputy district attorney filed an action under 42 U.S.C.
§ 1983 asserting violations of the First and Fourteenth Amendments.
Id. at 414.
In considering the issue, the Supreme Court explained that
the proper analysis for determining "the constitutional
protections accorded to public employee[s'] speech" at work was
to apply a two-part "inquiry." Id. at 418 (citing Pickering, 391
U.S. at 568). It stated:
The first requires determining whether the
employee spoke as a citizen on a matter of
public concern. If the answer is no, the
employee has no First Amendment cause of
action based on his or her employer's reaction
to the speech. If the answer is yes, then the
possibility of a First Amendment claim arises.
The question becomes whether the relevant
government entity had an adequate
justification for treating the employee
differently from any other member of the
general public.
[Ibid. (citations omitted).]
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The Court held that the prosecutor's claim failed on the first of
these two inquiries in light of the Court's holding that "when
public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
Amendment purposes . . . ." Id. at 421.
Applying that analysis here, we recognize at the outset that
plaintiff was not "mak[ing] a statement[] pursuant to [its ordinary
job] duties, [and therefore, it was] speaking as [a private]
citizen[] . . . .[2]" Ibid. Turning to whether the speech related
to a matter of public concern, it is clear that the posting of the
signs was not exclusively the result of teachers wanting to express
their view about a matter of public concern, as it was also
admittedly part of a concerted labor tactic seeking to promote
plaintiff's members' "self-interest" in the context of their labor
negotiations. However, because there was some level of public
concern expressed by the teachers' actions here, "the possibility
of a First Amendment claim arises." Id. at 418. Turning,
therefore, to the second inquiry, "whether [defendant] had an
adequate justification for treating [plaintiff] differently from
2
The mere fact that an individual's speech "relates to public
employment" or "concerns information acquired by virtue of his
public employment does not transform that speech into employee —
rather than citizen — speech." Lane v. Franks, 573 U.S. ___, ___,
134 S. Ct. 2369, 2379 (2014).
16 A-0992-16T4
any other member of the general public[,]" ibid. (citing Pickering,
391 U.S. at 568), we conclude that defendant's actions were
justified.
Defendant's employment policy prohibited plaintiff's members'
from posting the signs on school premises because it interfered
with the students' classroom learning environment. Plaintiff does
not challenge that policy and, given that there were hundreds of
signs posted and testimony regarding a parent's complaint that
"[plaintiff] should not be bringing their contract issues in front
of the students[,]" defendant "could reasonably have concluded
that such displays carry a risk of interfering with the performance
of" the teachers in educating their students. Green Twp., 328
N.J. Super. at 539. "A classroom is not a place for proselytizing
students to advance a teacher's financial interests. Nor should
a classroom be transmogrified into a teacher's soapbox." Id. at
538 (citation omitted). And, "where [the] government is employing
someone for the very purpose of effectively achieving its goals,
[in this case educating students], such restrictions [on speech]
may well be appropriate." Id. at 538-39. Under these
circumstances, we no find no error in Judge Hansbury's
consideration of the context of plaintiff's or its members' speech.
Finally, we turn to plaintiff's argument that the defendant's
prohibition "effectively constitute[s] a prior restraint on
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speech." We conclude plaintiff's contention is without merit
because defendant's prohibiting the signs did not leave plaintiff
without other avenues to express its message. See Verniero, 156
N.J. at 284 (stating a factor to be "considered in determining if
a restriction is a prior restraint is whether it 'prevents the
expression of a message'"); see also Murray v. Lawson, 138 N.J.
206, 222 (1994). Defendant's enforcement of its policy did "not
act as a prior restraint . . . because it [did] not prohibit
plaintiff[] from expressing [its] message entirely. Rather, [it
is] simply prohibited from expressing" its message on labor
relations while on school premises in front of the students.
Verniero, 156 N.J. at 285 (citation omitted). There were ample
alternative avenues through which plaintiff was free to express
its message, which plaintiff took advantage of by sending letters
to parents, posting lawn signs, conducting a rally before a board
meeting, and taking out an ad in the newspaper, all without issue.
There was no prior restraint.
Affirmed.
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