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Karins v. City of Atlantic City2/18/1998
smann, a fellow public employee. The slur was made by Karins, after he identified himself as a fireman, to a person whom he knew to be performing his official duties as an Atlantic City policeman. The racial slur was not remotely related to any matter of public concern. Consequently, the first prong of the Pickering/Connick standard has not been satisfied. Under the second prong of the Pickering/Connick test, the City's interest in maintaining order, discipline, harmony, and a professional working relationship between the police and the fire departments substantially outweighs Karins's right to make abusive, insulting, racially motivated comments. Lives are at stake when those departments are not cooperating and working effectively and efficiently. Karins's statements exacerbated racial tensions within the departments, and also within the community in general. Such statements have a tendency to disrupt morale and good working relationships.
Firefighters are not only entrusted with the duty to fight fires; they must also be able to work with the general public and other municipal employees, especially police officers, because the police department responds to every emergency fire call. Any conduct jeopardizing an excellent working relationship places at risk the citizens of the municipality as well the men and women of those departments who place their lives on the line on a daily basis. An almost symbiotic relationship exists between the fire and police departments at a fire. Each department depends on the other to provide protection for the safety of all City employees and members of the general public present at the scene of the emergency. There are countless ways that bigotry in a fire department can endanger lives: delayed response time, less than careful assessment of risk, less than whole-hearted rescue attempts, and dissemination of inaccurate or incomplete information about a fire. Thus, a municipality has a significant interest in the off-duty conduct of its firefighters because it has a compelling interest in avoiding the consequences of strained relationships within and between the departments.
We hold that the racial epithet uttered by Karins while off duty is not constitutionally protected.
V.
Now that we have concluded that the regulations under which Karins was charged are not unconstitutionally vague or overly broad, and that the racial epithet uttered by him is not protected speech under the First Amendment or art. I, 6 of the New Jersey Constitution, we must decide whether the charges against him have been sustained by a preponderance of the evidence. The ALJ's and the Merit System Board's erroneous legal Conclusions caused them to conclude that the charges had not been established. The Appellate Division did not reject those erroneous legal Conclusions; it found that the Merit System Board's decision was not arbitrary, capricious or unreasonable. We are compelled to make a de novo assessment of those charges because the agency's decision was based on a consideration of inappropriate factors. In re Warren, supra, 117 N.J. at 297; State v. Bender, 80 N.J. 84, 93 (1979).
The first charge was that Karins engaged in conduct unbecoming a public employee , contrary to N.J.A.C. 4A:2-2.3(a)(6). The determination of what constitutes conduct unbecoming a public employee is primarily a question of law. Jones v. City of Pittsburgh, 476 A.2d 895, 898 (Pa. 1984).
The second charge of conduct unbecoming a City firefighter is part- and-parcel of the first charge and they must be read together. The first charge was based on a state regulation; the second was based on a City regulation. Under the Civil Service Act, rules may be adopted to ca
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