Karins v. City of Atlantic City2/18/1998
ey for any cause without prior approval. Art. VII, § 2A.
Moreover, it would be impossible and impracticable for the A.C.F.D. to delineate every possible scenario that might subject a firefighter to disciplinary charges. We approve of the proposition stated by the Missouri Supreme Court, that "in the regulation of a vast metropolitan police department the necessities of discipline, morale and public confidence should permit the establishment of a broad range of proscribed conduct, without detailing every possible offense, and thus without the precision required in criminal statutes and procedure." Milani v. Miller, 515 S.W.2d 412, 417 (Mo. 1974).
The Merit System Board's decision with respect to the constitutional issues of vagueness and overbreadth rests on the misapplication of constitutional principles and, therefore, is arbitrary and capricious. The regulations under which Karins was disciplined are not unconstitutional based on principles of vagueness and overbreadth.
IV.
Next, we address Karins's claim that disciplining him for off-duty private speech infringes upon his freedom of speech. The ALJ concluded that the City could not constitutionally discipline Karins for the violation of an unwritten speech code. The Merit System Board adopted those findings and legal Conclusions. Those legal Conclusions implicate the freedom of speech of public employees.
The protections of the Free Speech Clause of the First Amendment extend to all citizens. U.S. Const. amend. I. The First Amendment has been made applicable to the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 2d 1213, 1218 (1940). We rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution, art. I, 6. Horizon Health Ctr. v. Felicissimo, 263 N.J. Super. 200, 214 (App. Div. 1993), modified and aff'd, 135 N.J. 126 (1994); Robert F. Williams, The New Jersey State Constitution 34 (1990). But cf. Sisler v. Gannett Co., Inc., 104 N.J. 256, 271 (1986) (stating that in defamation cases, the New Jersey Constitution "has supported broader free speech rights than its federal counterpart").
Although the First Amendment was designed to assure that debate on matters of public importance is uninhibited, and wide open, Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1308, 1 L. Ed. 2d 1498, 1506 (1957), that amendment's guarantees have never been absolute. Many exceptions to the free speech guarantee have been carved out. In each of the exceptions, the right of free expression must be balanced against some competing governmental interest. The exception pertinent to the present case involves the balancing of public employees' freedom of expression against the interest of the State, as an employer , in promoting the efficiency of the public services it performs through its employees.
"Firemen, like policemen and teachers, are not relegated to a watered-down version of constitutional rights." Hasenstab v. Board of Fire & Police Comm'rs, 389 N.E.2d 588, 591 (Ill. App. Ct. 1979). Some governmental agencies, however, have a stronger interest in regulating the conduct-related speech of their employees than non-governmental employers, particularly when such speech may disrupt governmental operations. Connick v. Myers, 461 U.S. 138, 140, 103 S. Ct. 1684, 1686, 75 L. Ed. 2d 708, 715 (1983); Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S. Ct. at 1734, 20 L. Ed. 2d at 817; see also Meehan v. Macy, supra, 392 F.2d at 833. Hence, the Pickering standard has evolved for determining when conduct-related speech in public-sector employment is constitutionally prot
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