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NOT FOR PUBLICATION WITHOUT THE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
This opinion shall not "constitute precedent or be binding upon any court."
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.

6 A-0992-16T4
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

7 A-0992-16T4
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

9 A-0992-16T4
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

11 A-0992-16T4
 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.

12 A-0992-16T4
 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

13 A-0992-16T4
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

14 A-0992-16T4
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).]

15 A-0992-16T4
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

17 A-0992-16T4
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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