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Karins v. City of Atlantic City2/18/1998
ickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and applied by the New Jersey courts in Pietrunti v. Board of Educ., 128 N.J. Super. 149 (App. Div.), certif. denied, 65 N.J. 573, cert. denied, 419 U.S. 1057, 95 S. Ct. 640, 42 L. Ed. 2d 654 (1974). The City maintains that under the Pickering test, the racial epithet was a matter of private concern and was therefore unprotected speech. The City contends further that under the Pickering test, its interests in maintaining a working relationship between the police and fire departments, the morale within the departments, and the public's perception and acceptance of its public servants far outweigh any interest that Karins may have in using a racial slur.
Karins agrees that the Appellate Division was presented with the constitutional issues but chose not to address them. He maintains, however, that the issues were not properly before the Appellate Division because they exceeded the scope of the ALJ's decision. Karins maintains that if the Court considers the merits of the constitutional claims, his conduct-related speech was protected under the Pickering test.
It is well established that the judicial capacity to review administrative agency decisions is limited. Public Serv. Elec. v. New Jersey Dep't. of Envtl. Protection, 101 N.J. 95, 103 (1985)(citing Gloucester County Welfare Bd. v. New Jersey Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). In reviewing the Merit System Board's decision, the Court should not disturb the agency's ruling unless it finds that the Board's action was arbitrary, capricious or unreasonable. In re Warren, 117 N.J. 295, 296 (1989). Under the arbitrary and capricious standard, the scope of judicial review is restricted to four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a Conclusion that could not reasonably have been made on a showing of the relevant factors.
[George Harms Constr. Co. v. New Jersey Turnpike Auth., 137 N.J. 8, 27 (1994)(citations omitted).]
The City argues that in this disciplinary case Karins's utterance is not protected under either the Federal or State Constitution, and therefore the decision of the Merit System Board was arbitrary and capricious.
The traditional standard appellate courts follow when reviewing administrative agency determinations with respect to constitutional issues cannot be applied to all the issues raised in this case. The ALJ declined to address the constitutional issues, deciding instead to leave those issues to "constitutional Judges." Neither the Merit System Board nor the Appellate Division addressed those issues. We have two options: either exercise original jurisdiction and decide the issues or remand them to the Appellate Division. Because of the public interest in an expeditious Disposition of the significant issues raised, we have decided to exercise original jurisdiction pursuant to Rule 2:10-5 and decide whether the racial utterance was constitutionally protected free speech for which discipline may be imposed. If it was not, then the Merit System Board's decision dismissing the charges was arbitrary and capricious.
III.
The City argues that there was no constitutional impediment to disciplining Karins pursuant to its regulations and N.J.A.C. 4A:2- 2.3(a)(6) for his private racial epithet made while off-duty. Karins mai
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