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Karins v. City of Atlantic City2/18/1998
8. The court reasoned:
The By-law does not make freedom of expression its substantial target nor is there any satisfactory way of severing the By-law's constitutional from its unconstitutional applications. There is no formula by which the non-protected area for governmental employees set forth in Pickering v. Board of Education or in Meehan v. Macy, can be defined with specificity. Since the By-law in question involves conduct rather than speech its "overbreadth" must not only be real, but substantial as well, Judged in relation to the statute's plainly legitimate sweep.
[Ibid. (citing Broadrick, supra, 413 U.S. at 615, 93 S. Ct. at 2918, 37 L. Ed. 2d at 842).]
As part of his vagueness and overbreadth argument, the fireman contended that he was dismissed because of an "unwritten rule . . . 'whereby members are prohibited from making public statements expressing opinions about the Department without prior approval within the Department.'" Id. at 27. Rejecting that argument, the court noted that although there was a theoretical Discussion of the unwritten rule during testimony, it was not stated as the specific ground for the fireman's dismissal. Ibid. "In any event, it was apparently understood by all as a gloss on the meaning of the " rather than a distinct basis for the disciplinary charge. Ibid.
We find a similar set of circumstances present in this case. Although the ALJ concluded that Karins was disciplined pursuant to an unwritten speech code, it was never established that such a code existed; nor was it cited as the basis for Karin's suspension. The catch all phrase "unbecoming conduct" was a "gloss" on the regulations rather than an additional ground for discipline.
The court in Janusaitis found to be significant the fact that the disciplined firefighter had received a specific prior warning from the fire chief that his conduct of sending complaints about the department to outside agencies was against department regulations. Id. at 27. Similarly, Karins received prior notice that racially discriminatory comments could subject him to discipline after he was suspended the first time in 1992 for calling a fellow firefighter a "coon." We reemphasize the fact that Operational Procedure #105 was promulgated based on Karins's 1992 conduct. Therefore, Karins's argument that he was not provided adequate notice that such conduct was proscribed is unfounded.
We must construe a regulation to render it constitutional if the regulation is reasonably susceptible to such a construction. State v. Mortimer, 135 N.J. 517, 533-534, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994); State v. Afanador, 134 N.J. 162, 170 (1993); State v. Ramseur, 106 N.J. 123, 200 (1987). In accordance with that duty, we find that the regulations under which Karins was disciplined are not void for vagueness or overbreadth. Those regulations are clearly aimed at conduct rather than speech. The express language of N.J.A.C. 4A:2-2.3(a)(6) and A.C.F.D. Art. VII, §2-A refers to "conduct unbecoming." The regulations are not overbroad because constitutionally protected conduct, including speech, is implicitly excluded from that proscription.
The catch all prohibition of conduct unbecoming a firefighter is not isolated, but rather rounds out a lengthy list of more specific provisions pertaining to proscribed categories of conduct. The A.C.F.D. regulations included a list of specific infractions that could constitute conduct unbecoming an Atlantic City firefighter such as gambling on duty, engaging in assaultive behavior, accepting or soliciting bribes or gratuities, publicly criticizing a superior, committing any criminal offense, or soliciting mon
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