In the Matter of Richard Santer, Respondent,v.Board of Education of East Meadow Union Free School District, Appellant.BriefN.Y.February 19, 2014To Be Argued By: Time Requested: Sherry B. Bokser 15 Minutes APL-2013-00032 COURT OF APPEALS STATE OF NEW YORK RlCHARD SANTER, Petitioner-Respondent, -against- BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT, Respondent-Appellant. BRIEF FOR PETITIONER-RESPONDENT RlCHARD E. CASAGRANDE Attorney for Petitioner-Respondent RlCHARD SANTER 52 Broadway, 9th Floor New York, New York 10004 (212) 533-6300 Facsimile No.: (212) 995-2347 SHERRY B. BOKSER, OfCounsel BriefCompieted: August 23,2013 Nassau County Index No. 001997/10 Appellate Division, Second Department Docket No. 2010-11006 STATEMENT OF RELATED LITIGATION Pursuant to 22 NYCRR 500.13(a), Petitioner-Respondent Richard Santer, by his counsel, Richard E. Casagrande, Esq. (Sherry B. Bokser, of Counsel), provides the following statement regarding the status oflitigation related to the instant matter: Petitioner-Respondent Santer ("Santer") and five other tenured teachers employed by the Respondent-Appellant Board of Education of the East Meadow Union Free School District ("the District") were each charged with a single specification of misconduct, pursuant to Education Law § 3020-a, after they had participated in a protest, an informational parked-car picketing activity, on March 2, 2007. The teachers, members of the East Meadow Teachers Association ("the Union") had placed large signs regarding the ongoing labor dispute between the Union and the District in their car windows, and had lawfully parked their cars in front ofthe District's Woodland Middle School, for about a half-hour before school started. Two weeks later, the District preferred these disciplinary charges against Santer and four other teachers: Barbara Lucia, Roberta Herman, Patricia Galligan, and Gina Trupiano. Charges against Ramona Giunta, the sixth teacher to be charged by the District for the March 2, 2007 parked-car picketing activity, were preferred on or about November 7,2008, after Santer testified during a hearing at the New York State Public Employment Board, that she, too, had participated in the protest and informational picketing. All six teachers participated in hearings wherein the District presented its proofs. All but Barbara Lucia admitted their participation in the parked-car picketing activity. Notwithstanding the undisputed facts that: the cars parked in front of Woodland Middle School were legally parked; no administrator ever asked any ofthe drivers of the cars to move the cars; and no injuries were sustained by anyone as a result of the parked cars, all six teachers were found guilty of the sole specification of misconduct that had been preferred against each of them. Gina Trupiano was found guilty, by award and decision ofan arbitrator, dated November 25,2009, and a counseling memorandum was placed in her personnel file as the penalty for the misconduct. Trupiano successfully appealed from the arbitrator's decision to the Nassau County Supreme Court, Index No. 09-25812 (Woodward, J.). On the District's appeal from the Nassau County Decision and Order, the Appellate Division, Second Department, reversed the lower court and found: first, "there was a rational basis for, and sufficient evidence to support, the hearing officer's conclusion that the petitioner was culpable of the charge preferred against her"; and second, the penalty of the placement of a counseling memo in Trupiano's personnel file was within the arbitrator's powers. Matter ofTrupiano v. Bd. ofEduc. of the E. Meadow Union Free Sch. Dist., 89 A.D. 3d 1030 (2d Dep't 2012), Iv. denied, N.Y.3d (March 29,2012). By arbitrators' decisions and awards, dated September 15, 2010 and October 17,2011, respectively, Roberta Herman and Ramona Giunta were also found guilty of the charged misconduct and a counseling letter was placed in each of their personnel files. Neither Ms. Giunta nor Ms. Herman appealed from their respective arbitrator's award. Patricia Galligan was also found guilty, by arbitrator's Opinion and A ward, dated September 27, 2010, and a counseling memorandum was placed in her personnel file, as penalty. Ms. Galligan's appeal from the arbitrator's Opinion and Award was denied by the New York Supreme Court, Nassau County. Matter of Galligan v. Bd. ofEduc. of the E. Meadow Union Free Sch. Dist., Index No. 10 19563 (Cozzens, J.)(June 30, 2011). Ms. Galligan did not wish to pursue a further appeaL By arbitrator's Opinion and Award dated January 7,2011, Barbara Lucia was found guilty of the charged misconduct and fined one thousand dollars ($1,000.00). Supreme Court, Nassau County denied Lucia's appeal from the Award. Matter of Lucia v. Bd. ofEduc. ofthe E. Meadow Union Free Sch. Dist., Index No. 001727111 (De Stefano, J.) (July 1,2011). By Decision and Order dated August 14,2013, the Appellate Division, Second Department granted Lucia's appeal, stating, "[W]e hold, for the same reasons as those stated in Matter ofSanter, that the petition should have been granted." Matter ofLucia v. Bd. ofEduc. ofE. Meadow Union Free Sch. Dist., 2013 Slip Op. 05633, p.3 (2d Dep't August 14, 2013). - TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................... ii The Union's Related Improper Practice Charges Before PROPER APPLICATION OF THE PICKERING TEST TO THE UNDISPUTED FACTS OF THIS CASE ESTABLISHES THAT THE DISTRICT VIOLATED MR. SANTER'S FIRST AMENDMENT RIGHTS WHEN IT DISCIPLINED HIM FOR HIS LAWFUL SPEECH, ON A PUBLIC STREET DURING NON PRELIMINARY STATEMENT ....................................... 1 QUESTION PRESENTED ........................................... 5 ST A TEMENT OF FACTS ........................................... 6 The Education Law § 3020-a Proceeding ........................... 6 The Record Evidence Presented at the § 3020-a Proceeding ....... 7 The § 3020-a Arbitrator's Decision ......................... 10 the New York State Public Employment Relations Board ............. 11 Supreme Court's Denial ofSanter's Article 75 Petition .............. 15 The Appellate Division, Second Department's Decision .............. 16 POINT I WORK HOURS, ABOUT AN ONGOING LABOR DISPUTE ........ 19 CONCLUSION ................................................... 39 - TABLE OF AUTHORITIES Page Cases: Acme Bus Corp. v. Bd. ofEduc., 91 N.Y.2d 51 (1977) ..................... 32 AFL v. Swing, 312 U. S. 321 (1941) ................................... 28 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) ................................ 28 Arnett v. Kennedy, 416 U.S. 134 (1974) ............................... 35 Bakery & Pastry Drivers LocalS02 v. Wohl, 315 U.S. 769 (1942) ........... 28 Bd. ofCnty. Comm'rs v. Umbehr, 518 U.S. 668 (1996) .................... 23 Bose Corp. v. Consumers Union ofUnited States, Inc., 466 U. S. 485 (1984) ............................................... 25 Building Service Employers' Int 'I Union Local 262 v. Gazzam, 339 U.S. 532 (1950) ........................................ 30 Carey v. Brown, 447 U.S. 455 (1980) ............................... , .. 30 Chainani v. Bd. ofEduc. ofthe City ofNY" 87 N.Y.2d 370 (1995) .......... 34 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .. , , .................. 21 Cioffi v. Averill Park Cent. Sch. Dist. Bd. ofEduc., 444 F.3d 158 (2d Cir. 2006) .......... , .............................. 27 City ofSan Diego v. Roe, 543 U.S. 77 (2004) ........................ 23, 24 City Sch. Dist. ofNY v. McGraham, 17 N.Y.3d 917 (2011) ............. , , , 37 1l TABLE OF AUTHORITIES (cont'd) Page Clue v. Johnson, 179 F.3d 57 (2d Cir. 1999) ............................ 25 Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2003) .............................. 23 Colburn v. Indiana Univ., 973 F.2d 581 (7th Cir. 1992) ................... 24 Concerned Consumers League v. O'Neill, 371 F. Supp. 644 (E.D. Wis. 1974) ......................................... 28 Connickv. Myers, 461 U.S. 138 (1983) .......................... 23-25,35 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .................... 24 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) ............................................... 20 East Meadow Teachers Ass 'n v. East Meadow Union Free School District, 43 PERB,-r 4530 (2010) ......................... 12-16,32 Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775 (2dCir.1991) ................................................. 24 First Nat 'I Bank ofBoston v. Bellotti, 435 U.S. 765 (1978) ................. 20 Frisby v. Schultz, 487 U.S. 474 (1988) ................................. 31 Garcetti v. Ceballos, 547 U.S. 410 (2006) .............................. 23 Garrison v. Louisiana, 379 U.S. 64 (1964) ............................. 20 Grayned v. City Rockford, 408 U.S. 104 (1972) .......................... 31 Hague v. Comm.for Ind'l Org, 307 U.S. 496 (1939) ................... 28,31 III TABLE OF AUTHORITIES (cont'd) Page Jamison v. Texas, 318 U.S. 413 (1943) ................................. 30 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) ........................ 24,34 Keyishian v. Bd. ofRegents, 385 U.S. 589 (1967) ........................ 22 Laird v. Tatum, 408 U.S. 1 (1972) .................................... 23 Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999) ........................... 23 Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006) ..................... 23,35 Lovell v. Griffin, 303 U.S. 444 (1938) ................................. 31 Marshall v. Allen, 984 F. 2d 787 (7th Cir. 1993) ....................... 24,25 Matter ofMotor Veh. Ace. Indem. Corp. v. Aetna Cas. Insur. Co., 89 N.Y. 2d 214 (1996) .................................... 37 Melzer v. Board ofEduc. ofCity School District ofCity ofNew York, 336 F3d 185 (2d Cir. 2003) ............................... 18 Miller v. California, 413 U.S. 15 (1973) ............................... 21 Morfin v. Albuquerque Pub. Schools, 906 F. 2d 1434(10th Cir.1990) .............................................. 26 NL.R.B. v. Teamsters Local 182, 314 F.2d 53 (2d Cir. 1963) ............... 30 NY. State Corr. Officers and Police Benevolent Ass 'n, 94 N.Y.2d 321 (1999) ........................................ 33,36,37 IV TABLE OF AUTHORITIES (cont'd) Page N Y.s. Law Enforcement Officers Union, Council 82 v. N. Y. State, 255 A.D.2d 54 (3d Dep't 1999) ................................... 33,37 New York v. Ferber, 458 U.S. 747 (1982) .............................. 20 Perry Educ. Ass 'n. v. Perry Local Educ. Ass'n., 460 U.S. 37 (1983) ....... 30,31 563 (1968) ................................................... passim Police Dep't, City ofChicago v. Mosley, 408 U.S. 92 (1972) ............ 28,31 Port Jefferson Stn. Teachers Ass 'n, Inc. v. Brookhaven O'Neill v. Oakgrove Construction, 71 N.Y.2d 521 (1988) .................. 20 Perry v. Sinderman, 408 U.S. 593 (1972) ............................... 23 Pickering v. Bd. ofEduc. ofTownship High Sch. Dist., 391 U.S. Piesco v. City ofNY., 933 F.2d 1149 (2d Cir. 1991) ...................... 24 Comsewogue UFSD, 45 N.Y.2d 898 (1978) ............................. 36 Rankin v. McPherson, 483 U.S. 378 (1987) ......................... passim Rothschild v. Board ofEduc. ofCity ofBuffalo, 778 F Supp 642 ............ 17 Schenck v. United States, 249 U.S. 47 (1919) ............................ 21 Schneider v. State, 308 U.S. 147 (1939) ............................. 28,30 Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937) ................. 28 Shelton v. Tucker, 364 U.S. 479 (1960) ................................ 22 v - TABLE OF AUTHORITIES (cont'd) Page Sheppard v. Beerman, 94 F.3d 823 (2d Cir. 1996) ........................ 33 Skehan v. Vill. ofMamaroneck, 465 F.3d 96 (2d Cir. 2006) ................ 23 Snyder v. Phelps, 562 U.S. _, 131 S. Ct. 1207 (2011) .......... 20,24,25,31 Sousa v. Roque, 578 F.3d 164 (2d Cir. 2009) ......................... 24,25 State Emp. Bargaining Agent Coaltion et al. v. Rowland, 718 F.3d 126 (2d Cir. May 31, 2013) .......................................... 26 Thornhill v. State ofAlabama, 310 U.S. 88 (1940) ....................... 28 Time, Inc. v. Hill, 385 U.S. 374 (1967) ................................. 24 United States v. Grace, 461 U.S. 171 (1983) ......................... 30,31 United States v. Nat 'I Treasury Emp. Union, 513 U.S. 454 (1995) ........... 22 Virginia v. Black, 538 U.S. 343 (2003) ................................. 20 Waters v. Churchill, 511 U.S. 661 (1994) ........................ 23, 24, 25 Wieman v. Updegraff, 344 U.S. 183 (1952) ............................. 22 Constitutional Provisions: Article 1 Section 8 ofthe New York State Constitution .................... 28 us. Const. Amend. I ........................................... passim us. Const. Amend. XIV . ......................................... 19, 25 VI TABLE OF AUTHORITIES (cont'd) Page Statutes: Civil Service Law § 200 ............................................. 27 Civil Service Law § 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12 Civil Service Law § 209-a.l (a) ....................................... 12 Civil Practice Law and Rules 4511 (b) ................................. 32 Civil Practice Law and Rules 7511 ................................... 15 Civil Practice Law and Rules Article 75 ................................ 36 Education Law § 3020-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. passim Education Law § 3020-a(5) .......................................... 36 Other Authorities: Note, Regulation o/Demonstrations, 80 Harv.L.Rev. 1773, et seq. (1967) ..... 29 Vll PRELIMINARY STATEMENT This case arose out of a protracted, contentious labor dispute between the School District and its teachers. Petitioner-Respondent Richard Santer, and other teachers employed by the District, regularly and lawfully picketed on Friday mornings, in front of Woodland Middle School, while they were off-duty and not on school property CR. 19,87-88,95,104-105,188-89,389-92,417,453-54,691-92, 695).1 After more than two and a half years of this informational picketing, the District disciplined Mr. Santer because instead of walking a picket line, he lawfully parked his car in front of Woodland Middle School and displayed his protest signs to passersby CR. 44). Via this appeal, the District seeks the Court's imprimatur to its imposition of discipline upon Santer, in violation of his First Amendment right to freedom of speech. On March 2, 2007, because of severely inclement weather, Mr. Santer, along with several other Union members opted not to walk in front of Woodland Middle School, but to park lawfully on Wenwood Drive, in front ofthe school. Santer, like the other teachers who participated in this protest--essentially, a parked-car picketing - displayed signs regarding the protracted and, as yet, fruitless contract negotiations lNumerical references preceded by "R." identify the pages of the Record on Appeal where support for the matter recounted may be found. 1 - from within his car. The signs were placed in the windows that faced the road, so that they could be viewed by passing cars CR. 21, 96,108,114-15,122-23,167,176,188 91,422,469,490-93,521,524,608,645,693-95, 700). Shortly before teachers were required to sign in for the school day, Mr. Santer and the other protesters drove their cars from their lawful parking spots on Wenwood Drive to the school parking lot CR. 189,695). School administrators were aware ofthe parked-car picketing event and, from inside the school, watched the protesters for about thirty minutes CR. 108-09, 122, 124, 166-69, 173-75,466-72,487,489,518-20,526,603-04,614,633-34,640). The administrators claimed that, as a result of the storm conditions and the Union members' lawful parking, there was a lot of traffic in front of Woodland Middle School and students were exiting vehicles in the middle of the road. They asserted that they perceived the situation to be dangerous CR. 88-90, 112, 482). However, when pressed, they admitted that they never took any affirmative action to alleviate the allegedly "dangerous" situation. They did not speak with any of the individuals in the parked cars to ask them to move their cars; did not assist students crossing the street; did not direct any employee to assist students crossing the street; and, they admitted, no injuries or accidents occurred as a result ofthe teachers' parking in front 2 - ofthe school (R.25, 27, 96, 113, 123-25, 176-78, 191,422-23,524-26, 533,643-44, 652,701-03). Approximately two weeks after the parked-car picketing event, Mr. Santerwas served with disciplinary charges alleging a single specification of misconduct: On or about March 2, 2007, the Respondent intentionally created a health and safety risk by purposely situating his vehicle alongside the curb on Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard. Santer was found guilty ofthe charged conduct after a hearing, and assessed a penalty ofa five hundred dollar ($500.00) fine (R.44, 21-27). In reviewing Santer' s disciplinary finding and penalty, the Appellate Division, Second Department applied well-established precedent--namely, Pickering v. Bd. of Educ. ofTownship High Sch. Dist., 391 U.S. 563 (1968) and Rankin v. McPherson, 483 U.S. 378 (1987)--and concluded that the District's imposition ofdiscipline upon Mr. Santer violated his First Amendment right to free speech (R. xi-xiii). Specifically, the Appellate Division stressed the undisputed record evidence conclusively established that: (1) on the morning ofMarch 2,2007, Santer's speech about ongoing collective bargaining negotiations addressed matters of public 3 concern; (2) Santer engaged in this speech when he was off-duty and not on school property; and (3) he did not violate any law, parking regulation, or school policy (R. xiii). The Second Department then analyzed whether, in light of these facts, the District met its burden of demonstrating actual (non-speculative) disruption of its function or danger sufficient to justify abridging Santer's freedom of speech by imposing discipline upon him. The Appellate Division's analysis highlighted the fail ure ofany school official to request that the parked cars be moved, take any action to ensure the safety of the children being dropped off at Woodland Middle School that morning, or to demonstrate that anyone sustained an injury. Additionally, the Appellate Di vision noted the District lacked recourse against any non-employee who might have engaged in similar behavior. Thus, the Appellate Division stated, "Under these circumstances, we conclude that the District failed to demonstrate that Santer's legal speech so threatened the effective operation ofthe school that discipline ofhim was justified (citation omitted)" (R. xiii). The District now appeals to this Court. For the reasons set forth below, the Court should deny the District's appeal and affirm the Appellate Division's well reasoned and legally correct decision. 4 - QUESTION PRESENTED Whether Mr. Santer's First Amendment right to speak out publicly and lawfully, while on his own time, to protest the District's abject failure to negotiate a timely successor collective bargaining agreement outweighed the District's interest in disciplining him for this activity on the basis of its speculative --and plainly, pretextual-- safety concerns? The Appellate Division properly applied the Pickering balancing test to the uncontroverted facts and correctly determined the District had not demonstrated that "Santer's legal speech so threatened the effective operation of the school that discipline of him was justified." This Court should affirm the Appellate Division's decision. 5 STATEMENT OF FACTS The Education Law § 3020-a Proceeding Richard Santer is a veteran tenured teacher who, as of the 2006-2007 school year, had been employed by the District for more than twenty years. During seventeen ofthose years, Mr. Santer was assigned to the District's Woodland Middle School (R. 185, 187, 681, 686). On or about March 16, 2007, the District preferred, pursuant to Education Law § 3020-a, disciplinary charges against him alleging one specification of misconduct. The lone specification alleged that, on March 2, 2007, Mr. Santer intentionally created a health and safety risk by "purposely situating" his car alongside the curb on Wenwood Drive, in front of the Woodland Middle School, "to preclude" students from being "dropped off at curbside" CR. 44). Mr. Santer did not dispute that he legally parked his car in front ofthe school that day, but consistently attested that his intent in doing so was to continue to inform the public of the ongoing labor dispute in the District. Thus, the only issue of fact for resolution by the § 3020-a arbitrator was whether by thus parking his car, Mr. Santer intended to --and did-- create a health and safety risk sufficient to warrant the District's abridgement of his Constitutional right to freedom of speech. 6 The Record Evidence Presented at the § 3020-a Proceeding During the 2006-2007 school year, Mr. Santer was the Union Building President at Woodland Middle School CR. 21, 188, 691). By March, 2007, the Union and the District had been without a successor collective bargaining agreement for more than two and a half years, the previous agreement having expired in August, 2004 CR. 19,87,104,189,389,453,691). As Union Building President, Mr. Santer, during the 2005-2006 and 2006-2007 school years, coordinated teachers' informational picketing on Friday mornings, before school started, along that portion of Wenwood Drive in front of Woodland Middle School CR. 88,95, 105, 188,390 92, 417, 454, 691-92, 695). Friday, March 2,2007, was a stormy morning CR. 108, 122, 167, 176, 188-89, 469, 521, 608, 645, 693-94). Due to the inclement weather, Mr. Santer and other Union members parked their cars along Wenwood Drive, and placed large signs with union messages in their car windows, so that cars going by could see them CR. 114, 188,191,228,490,693,695,703,851).2 Their intent in engaging in this parked-car picketing was the same as their intent on prior Fridays: to inform the public about the ongoing labor dispute; they had no intent to endanger the health and safety of 2Parking was permitted along Wenwood Drive, in front of Woodland Middle School, at all times except between the hours of 8:00 a.m. and 4:00 p.m. (R. 21, 96, 115, 123, 190,422,492-93, 524, 700). 7 - students (R. 228, 851). Mr. Santer remained parked along Wenwood Drive for just under thirty minutes, and moved his car shortly before 7:50 a.m. He and the other Union protesters reported to work on time (R. 189, 695). While they were lawfully parked on Wenwood Drive, no one ever asked Santer or the other Union members to move their cars (R. 27, 113, 176, 178, 191,643-44, 652, 701-03).3 No one ever directed traffic or assisted students in crossing the street (R. 27, 123, 178, 524,643-44,652, 701). No one was injured or in an accident as a result ofthe Union members' parked-car picketing activity (R. 25, 96, 124, 178,422 23, 525-26,652, 701).4 The District alleged that it was very concerned about the safety hazard the parked cars had created, and this concern formed the basis for the disciplinary charges lodged against Mr. Santer (R. 88-90, 112,482). The record evidence, however, belies the District's claim: the record establishes that the District took no affirmative action to address the "safety hazard" at the time of the parked-car picketing activity; nor is there evidence that it addressed the alleged "safety hazard" immediately thereafter. 3Principal Lethbridge testified, " .. .1 didn't go confront anybody [in the cars]. Ijust stayed underneath the canopy - the canopy oustide the doors coming into the main lobby. Then I came back inside." (R. 122,520). He also admitted that he did not go outside to assist students crossing the street or direct anyone else to do so (R. 123, 125,524-25,533). 4Santer could see administrators in the main lobby of the school, throughout the time the teachers were engaged in their parked-car picketing activity (R. 190-91, 701-02). 8 - Between 7:25 and 7:30 a.m., Woodland's Dean of Students, Terrence Chase, became aware of "something going on ... in front of the building" and reported to Principal Lethbridge (R. 108, 122, 166, 173, 466, 518, 603, 633). From the Principal's office window, they looked at the cars in front of the building for a few moments(R. 108,166, 174,467-69,518-19,603-04,614,634,640), and then walked to the main lobby to continue this observation for nearly another ten minutes, from approximately 7:36 a.m. to 7:45 a.m. (R. 109, 167, 169, 175,470,472,487,520,614, 640). At about 7 :45 a.m., Principal Lethbridge directed Dean Chase to resume his normal morning duties. Lethbridge returned to his office, called the police, and then returned to the lobby to "see ... what was still happening" outside on WenwoodDrive (R. 113-14, 169, 173, 487-89, 614, 631).5 From his vantage point in the lobby, Principal Lethbridge saw the cars start to pull away from their parking spots, shortly before 7:50 a.m. (R. 114, 124,489,526). Principal Lethbridge stayed in the school lobby, waiting for Mr. Santer (R. 114,489-90). During the course of the day, Principal Lethbridge questioned Mr. Santer and four other teachers about their participation in that morning's parked-car picketing 5From his office, Principal Lethbridge saw the police drive by the school at approximately 8:15 or 8:30 a.m., but did not speak with any police officers (R. 115, 124,493,526-27). 9 event (R. 119,207,507, 768).6 Mr. Santer confirmed to Principal Lethbridge that he and other teachers had parked their cars with the signs in the windows to inform the public about the ongoing labor dispute (R. 207, 228, 768, 851 ).7 Lethbridge subsequently called Assistant Superintendent ofHuman Resources, Louis D'Angelo, and informed him ofthe morning's events (R. 128,541). Assistant Superintendent D'Angelo instructed Mr. Lethbridge to put in writing what he observed, provide a list of the teachers who were involved, and review the sign in sheet to see which teachers were unable to get to the building on time (R. 90). Principal Lethbridge complied with D'Angelo's directive (R. 119,508). The § 3020-a Arbitrator's Decision The arbitrator credited the uncontroverted record evidence that Mr. Santer lawfully parked on Wenwood Drive, during the morning ofMarch 2,2007, and that he was off duty and on a public street at the time of the picketing (R. 21, 26). With respect to the question ofMr. Santer's intent, the arbitrator stated, "1 do not believe it was Respondent's intention to harm any person .... " (R. 26)(emphasis supplied). Nevertheless, because he could not "believe that [Santer] was not aware 6The individuals in the parked cars were never identified by the administrators; Mr. Chase believed he recognized some ofthe cars as belonging to certain teachers and, on the basis ofChase's speculations, certain teachers were questioned by Principal Lethbridge (R. 167, 171,606,623). 7Mr. Santer testified that he had explained to the administration that, based upon the street signs and the First Amendment, teachers had a right to park on Wenwood Drive (R. 211, 782). 10 of the potential danger of the March 2nd activities," the arbitrator found Mr. Santer guilty of the lone charge of misconduct (R. 26)( emphasis supplied). He fined Mr. Santer five hundred dollars ($500.00) for those actions that resulted in students "being dropped off in the middle of the street, which resulted in an otherwise avoidable and unnecessary health and safety hazard" (R. 26-27). While the arbitrator acknowledged that Mr. Santer articulated that "he had a constitutionally protected free speech right to demonstrate as he did for the purpose of informing the public ofthe state ofthe Union's negotiations with the District" (R. 26), the arbitrator failed to address this argument or to engage in any First Amendment analysis. The Union's Related Improper Practice Charges Before the New York State Public Employment Relations Board Appellant has included in its brief (Appellant's Brief at 15-16) a reference to a decision ofAdministrative Law Judge ("ALJ") Philip Maier ofthe New York State Public Employment Relations Board ("PERB"), issued on April 20, 2010, approximately six weeks after the arbitrator issued the award inMr. Santer's § 3020-a proceeding. East Meadow Teachers Ass 'n v. East Meadow Union Free School District, 43 PERB ~ 4530 (April 20, 2010). 11 The referenced PERB decision resolves several charges filed by the Union that alleged the District had "interfered, restrained, or coerced" Union members from their free exercise of their rights under the Taylor Law to "form, join, and participate in, ... any employee organization of their own choosing." Id. at p. 4640 (quoting Civil Service Law § 209-a.l (a) and § 202). The PERB decision considers only whether the District violated the Taylor Law in its several actions against Union members, including Mr. Santer. The decision does not discuss whether Mr. Santer's parked-car picketing constitutes speech protected by the First Amendment. One of the issues raised in the Union's charges before PERB alleged the District violated Mr. Santer's rights under the Taylor Law when it preferred disciplinary charges against him for his March 2,2007 Union activity. Although the record of the PERB proceeding had been closed by the time Mr. Santer's § 3020-a proceeding was decided, ALJ Maier reopened the record and accepted into evidence the arbitrator's award on Mr. Santer's § 3020-a case. In addressing the charge that revolved around the District's discipline ofMr. Santer for his March 2nd activity, ALJ Maier expressly deferred to the arbitrator's findings. ALJ Maier's findings of fact, based on the § 3020-arbitrator's award and the PERB evidentiary record, included: 1) teachers planned to picket in front of Woodland Middle School, but stayed in their cars because of the rain; 2) cars were 12 parked "so as to allow access to a walkway leading to the lobby in the school building"; 3) picket signs were placed in the "front, back and side windows of the cars"; 4) Mr. Santer's car was parked in a manner that did not impede access to the walkway; and 5) the "two signs present on the [ relevant] section of[Wenwood Drive] ... state: NO STOPPING BETWEEN SIGNS 8 AM TO 4 PM SCHOOL DAYS." Id at p. 4634. Nevertheless, accepting the arbitrator's findings that a "safety hazard was created by teachers parking curbside on Wenwood Drive," ALI Maier was required to conclude, the District did not institute disciplinary charges against Mr. Santer for his Taylor Law-protected activity. Id at pp. 4640, 4648. Unconstrained by another fact-finder's determinations, ALJ Maier reached a contradictory conclusion regarding the District's preferral of§ 3020-acharges against two other teachers for their similar parked-car picketing on Wen wood Drive, before school, on March 30, 2007. There, ALI Maier ruled the District's actions were per se violations of the Taylor Law. Id. at 4650-52. In discussing the two teachers being lawfully parked in front of Woodland Middle School during student "drop off' in the morning of March 30, 2007, ALI Maier said: I do not find that Golden and Forney created a safety hazard by being parked curbside on March 30,2007. Cars were proceeding slowly in both directions and I find that 13 even if traffic were congested and that students walked to the curb, there is nothing in the record to support a conclusion that this conduct created a safety hazard. The police were aware of this situation, had came (sic) to the scene and observed the area, and refused to intercede. [Principal Lethbridge] testified that under normal conditions students cross the street after waiting for cars to pass. In essence, therefore, there was no difference between a normal school day and the conditions under which students crossed the street when Golden and Fortney were parked curbside. Under cross-examination, [Lethbridge] testified that normal conditions constituted a safety hazard ..., I find, however, that a health and safety hazard did not exist under normal circumstances, and none was created on March 2 or March 30. Accordingly, I do not find that Golden's and Fortney's actions were of such a nature that the otherwise protected activity of picketing lost its protected status. ... They simply sat in their cars publicizing the labor dispute to those persons in the vicinity. The congestion created by their cars created a minor inconvenience which was neither hazardous nor disruptive to the proper functioning of the school. I find that the District representatives knew they were engaged in protected activity and would not have instituted 14 EL § 3020-a proceedings but for the exercise of this activity. The District's unlawful motivation is apparent by virtue of the pretextual nature of the defense asserted. I also find that the District's actions per se were violative of the Act [the Taylor Law]. Id. at pp. 4650-52 (emphasis supplied). Like the portion of the decision discussing the District's actions against Mr. Santer, the portion of the PERB decision dealing with Golden and Fortney did not reference or address the teachers' First Amendment rights. Supreme Court's Denial of Santer's Article 75 Petition In January, 2010, Mr. Santer appealed from the arbitrator's decision by filing a Notice ofPetition and Verified Petition, pursuant to Education Law § 3 020-a( 5) and CPLR 7511 (R.9-28). In October, 2010, Supreme Court, Nassau County denied the petition and affirmed the arbitrator's decision, finding that the decision "is not clearly violative ofa strong public policy, not completely irrational or exceeds (sic) a specific enumerated limitation of the arbitrator's power" (R. 7, 8). The Supreme Court, Nassau County appears to have reviewed the arbitrator's award as it would a voluntary arbitration, as opposed to the closer scrutiny required when reviewing a compulsory arbitration award. In any event, Supreme Court, Nassau County did not 15 address Mr. Santer's claim that the arbitrator's award violated his Constitutional First Amendment right to freedom of speech. The Appellate Division, Second Department's Decision The Appellate Division, Second Department reviewed Mr. Santer's appeal from the Supreme Court, Nassau County's denial ofhis CPLR Article 75 challenge to the arbitrator's award. The Appellate Division noted the greater scrutiny mandated for review of compulsory arbitration awards (R. xii). In its Decision and Order, dated December 12,2012, the Appellate Division stated: "[E]vidence that children were dropped off in the middle ofthe street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that Santer contributed to the creation of a health and safety hazard .... " (R. xii) (citations omitted). Unlike the Supreme Court and the arbitrator, the Appellate Division did consider Mr. Santer's First Amendment claim, as it was required to do. The Appellate Division granted Mr. Santer's appeal because, it found, the District's imposition of discipline violated his First Amendment right to freedom of speech - a plain, clear, and strong public policy CR. xiii). Specifically, the court accepted the facts that were established by the record ofthe §3020-a proceedings and duly found by the arbitrator (R. xii). However, reversal ofthe Supreme Court's decision was mandated when the 16 Appellate Division then applied those facts to the well-settled legal precedent governing public employees' freedom of speech. First, the Appellate Division held that Mr. Santer's March 2nd speech about collective bargaining issues "indisputably addressed matters ofpublic concern." (R. xiii)( citations omitted). While the Second Department acknowledged that the record contained some evidence that the March 2nd parked-car picketing interfered with student "drop off," it concluded, "the District failed to meet its burden of demonstrating that Santer's exercise ofhis First Amendment rights so threatened the school's effective operation as to justify the imposition ofdiscipline (see Rothschild v. Board ofEduc. ofCity ofBuffalo, 778 F Supp 642, 656)." (R. xiii). The court further highlighted that Mr. Santer's activity was lawful and did not violate any school policy, and ifit had been undertaken by a member of the public, the District would have had no recourse against that individual. The Second Department emphasized: Ifthe municipality in which Woodland is located believed that it was unsafe for cars to park along Wenwood Drive during the time when parents dropped off their children at the school, it could have prohibited parking during the relevant time periods, but it did not do so. (R. xiii). Coupling the municipality's lack of concern regarding parking in front of the school during "drop off' times with the fact that no school official asked Mr. 17 Santer or the other parked-car picketers to move their cars in the morning of March 2nd , the Appellate Division concluded: [T]he record establishes that the danger presented by the legally parking teachers could not have been substantial. Under these circumstances, we conclude that the District failed to demonstrate that Santer's legal speech so threatened the effective operation of the school that discipline of him was justified (cl Melzer v. Board 0/ Educ. a/City School District a/City a/New York, 336 F3d at 198). Additionally, the Appellate Division commented that permitting the disciplinary action against Mr. Santer to stand would chill speech "on an important matter of public concern-the negotiation of a collective bargaining agreement." (R. xiii). As will be seen, the Appellate Division correctly applied the law, and its decision should be affirmed. 18 POINT I PROPER APPLICATION OF THE PICKERING TEST TO THE UNDISPUTED FACTS OF THIS CASE ESTABLISHES THAT THE DISTRICT VIOLATED MR. SANTER'S FIRST AMENDMENT RIGHTS WHEN IT DISCIPLINED HIM FOR HIS LAWFUL SPEECH, ON A PUBLIC STREET DURING NON WORK HOURS, ABOUT AN ONGOING LABOR DISPUTE The freedom of citizens to express themselves on matters relating to public affairs and governance is a fundamental pillar ofdemocracy. Just over two hundred twenty-five years ago, the Constitution of the United States ("US. Constitution") enshrined the protection of the public's right to this elemental freedom. The First Amendment to the Us. Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom ofspeech, or ofthe press; or the right of the people peaceably to assemble, and to petition the Government for a redress ofgrievances." Us. Const. Amend. I The Fourteenth Amendment to the Us. Constitution prohibits States from abridging individuals' rights to these same freedoms. Us. Const. Amend. XlV Article 1 Section 8 of the New York State Constitution expressly echoes the First Amendment, providing, "Every citizen may freely speak, write and publish his 19 - sentiments on all subjects .... [N]o law shall be passed to restrain or abridge the liberty of speech or of the press." Historically, our judicial system has vigilantly guarded against government's abridgement of the right to freedom of speech. This vigilance is particularly heightened when the speech at issue expressly relates to matters of public concern. Because "speech concerning public affairs is more than self-expression; it is the essence of self-government," Garrison v. Louisiana, 379 U.S. 64,74-75 (1964), it is '''at the heart of the First Amendment's protection.'" Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat 'I Banko/Boston v. Bellotti, 435 U.S. 765,776 (1978»; see also Snyder v. Phelps, 562 U.S. _, 131 S. Ct. 1207 (2011).8 The First Amendment strictly constrains the government, as sovereign, from regulating the speech of the public at large. The public'S freedom of speech, however, is not absolute. Courts have recognized the government's ability to encroach upon an individual's speech rights in certain limited circumstances. See, e.g., Virginia v. Black, 538 U.S. 343 (2003)(no First Amendment protection for threats ofviolence or bodily injury); New Yorkv. Ferber, 458 U.S. 747 (1982)(child 8This Court has been no less vigilant in protecting free speech under Article I § 8 ofthe State Constitution. Indeed, the protections offree speech and press accorded under the State Constitution are often broader than the minimum required by the First Amendment. See, e.g., 0 'Neill v. Oakgrove Construction, 71 N.Y.2d 521,529 fn. 3 (1988). 20 pornography); Miller v. California, 413 U.S. 15 (1973)(obscenity); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)(fighting words). Appellant has sought to characterize Mr. Santer's March 2nd speech as the type of speech not worthy of First Amendment protection. Appellant has posited an utterly inapt analogy (Appellant's Brief at 27) of Mr. Santer's lawful parked-car picketing speech to "a man ... falsely shouting fire in a theater and causing a panic" (quoting Schenckv. United States, 249 U.S. 47,52 (1919)). Appellant's argument in this regard must fail for several reasons. First, Mr. Santer's speech was not false. Second, his speech was on a matter ofpublic concern. Third, his speech did not cause a panicked stampede to safety; it merely required the drivers dropping off students to behave in the same prudent manner one would anticipate any parent or guardian would behave when considering the safety of their children: that is, to wait until they have stopped their cars at the curb cuts before permitting their children to disembark. And, lastly, unlike the false shouting of "fire" intended to create mayhem, Mr. Santer's motive inhis speech on March 2, 2007 was the same as it had been on previous Friday mornings before school--to inform the public of the District's failure to resolve the ongoing labor dispute. Thus, there is simply no evidentiary basis for Appellant's assertion that Mr. Santer's March 2nd activities were undertaken to create a danger to the public. The 21 Court must, therefore, reject Appellant's argument that Mr. Santer's March 2nd speech and parked-car picketing do not fall within the ambit of the First Amendment's protection. In addition to the examples, above, wherein the government is permitted to regulate the public's speech, First Amendment jurisprudence has also provided some limited latitude to the government, as employer, to regulate the speech of its employees, under certain circumstances. See United States v. Nat'l Treasury Emp. Union, 513 U.S. 454, 465 (1995). However, the Supreme Court has cautioned, "[V]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech." Rankin v. McPherson, 483 U.S. 378, 384 (1987). Public employees do not, merely as a consequence of their employment, sacrifice their right to speak out as citizens on matters of public importance and concern. Pickering v. Ed. ofEduc., 391 U.S. 563 (1968) (public employees do not give up First Amendment rights by virtue of their employment by the government); Keyishian v. Ed. ofRegents, 385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); Wieman v. Updegraff, 344 U.S. 183 (1952). Where public employees' speech may "contravene governmental policies or impair the proper performance ofgovernmental functions," the State is permitted to 22 impose "certain limitations" upon its employees' freedom of speech, but only if the harm caused by the disruption outweighs the value of the speech. Garcetti v. Ceballos, 547 U.S. 410, 417-19 (2006); Pickeringv. Ed. ofEduc., 391 U.S. 563, 568 (1968). See Skehan v. Vill. ofMamaroneck, 465 F.3d 96,106 (2d Cir. 2006); Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2003); Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir. 1999). Government's permissible limitations on employees' speech, however, do not extend to the government's imposition ofdiscipline upon an employee in retaliation for the content ofthe speech, when the employee is speaking as a citizen on a matter of public concern. Garcetti v. Ceballos, supra, 547 U.S. at 417; Rankin v. McPherson, 483 U.S. 378 (1987); Perry v. Sinderman, 408 U.S. 593, 597 (1972); Pickering v. Ed. ofEduc., supra, 391 U.S. at 568.9 Pickering first articulated the analysis to determine whether a public employer's discipline ofan employee violates the First Amendment. The Pickering analysis requires a balancing "between the interests of the [employee], as a citizen, in commenting on matters ofpublic concern, and the interest ofthe [government], as 9Additionally, the government may not inhibit at will its employees' speech, or condition public employment "on a basis that infringes the employee's constitutionally protected interest in freedom ofexpression", Connickv. Myers, 461 U.S. 138, 142 (1983), or chills the First Amendment rights of its employees through fear of retaliation. Locurto v. Giuliani, 447 F .3d 159, 163 (2d Cir. 2006) (citing City o/San Diego v. Roe, 543 U.S. 77, 80 (2004». See Pickering, 391 U.S. at 572; Locurto, 264F.3dat 166 (citing Waters, 511 U.S. at 668); see alsoBd. o/Cnty.Comm 'rsv. Umbehr, 518 U.S. 668, 674 (1996) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972) ("[C]onstitutional violations may arise from the deterrent, or 'chilling,' effect ofgovernmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights."). 23 an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. o/Educ., 391 U.S. at 568; Connick v. Myers, 461 U.S. at 140. See also Waters v. Churchill, 511 U.S. 661 (1994). First Amendment protection is thus afforded to speech that can be "fairly considered as relating to any matter ofpolitical, social, or other concern to the community." Connick, supra, 461 U.S. at 146. The scope of "public concern" also includes speech that "is a subject of legitimate news interest; that is, a subject ofgeneral interest and ofvalue and concern to the public." Snyder v. Phelps, supra, 562 U.S. at _, 131 S. Ct. at 1216 (quoting City o/San Diego v. Roe, 543 U. S. 77, 83-84 (2004) (per curiam)). See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492-94 (1975); Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967); Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009). Constitutional protection, however, is not afforded to speech by a "disgruntled employee whose statements are primarily ofpersonal interest." Colburn v. Indiana Univ., 973 F.2d 581, 585 (7th Cir. 1992); see Connick, 461 U.S. at 146; Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775 (2d Cir. 1991); Piesco v. City o/NY., 933 F.2d 1149,1157 (2d Cir. 1991); see also Jejfries v. Harleston, 52 F.3d 9 (2d Cir. 24 1995) (Waters v. Churchill has "loosened Piesco's shackles upon public employers,,).l0 The initial· step in the Pickering analysis, then, is determining whether the speech in question touches on a matter of "public concern." The analysis also requires the reviewing court to examine the whole record and resolve "the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues ofpublic concern, because they are ofpublic concern" or, rather, was the point merely to further some purely private interest. Marshall v. Allen, 984 F.2d 787, 795 (7thCir. 1993). See also Snyder v. Phelps, supra, 562 U.S. at_, 131 S. Ct. at 1216 (citing Bose Corp. v. Consumers Union o/United States, Inc., 466 U. S. 485, 499 (1984)). When not made in the course of one's employment, speech is deemed to address a matter ofpublic concern when it protests conditions in a public agency or is calculated to disclose wrongdoing, inefficiency, misuse of funds or other malfeasance on the part of governmental officials and does not solely promote the employee's own interests. See Clue v. Johnson, 179 F.3d 57,60-61 (2d Cir. 1999). Speech by a public school employee about a policy or practice that can substantially lOThe motivation ofthe speaker is not a determinative factor ofFirst Amendment protection; rather, the determinative factors are "the content, form and context ofa given statement as revealed by the whole record." Connick, supra, 461 U.S. at 147-48; see also Rankin v. McPherson, supra, 483 U.S. at 388; Sousa, supra, 578 F.3d at 173. 25 and detrimentally affect the welfare of the children or staff at the school constitutes speech on a matter ofpublic concern. See Morfin v. Albuquerque Pub. Schools, 906 F. 2d 1434, 1437-38 (lOth Cir. 1990) and cases cited therein. Fundamentally, as the Second Circuit recently reiterated, the free speech protections ofthe First Amendment unquestionably apply to "labor union activities" and because wages and benefits of public-sector employees "bear directly on the overtly political issue ofstate budgets, ... the' economic' advocacy ofpublic employee unions touches directly on matters of public concern." State Emp. Bargaining Agent Coaltion et al. v. Rowland, 718 F.3d 126,132,134 fn. 7 (2d Cir. May 31, 2013)(citations omitted). Unquestionably, Mr. Santer's speech and activity on March 2,2007, was on a matter of public concern: the District's stalled collective bargaining negotiations. The teachers' signs, posted where parents, students, and residents ofthe community could read them, dealt expressly with the District's failure to conclude negotiation of a collective bargaining agreement with the Union in a timely manner. JI Labor discord 11 Appellant disingenuously asserts that there is no evidence establishing that there were signs displayed in the parked cars. Appellant discounts Mr. Santer's clear and unequivocal testimony regarding the signs in his car and in those ofother teachers who had participated in the informational picketing of March 2, 2007 (R. 114, 188, 191,228,490,693,695, 703, 851). Instead, Appellant argues that the school administrators did not see any such signs (Appellant's Brief at 25). Appellant must concede, however, the administrators only viewed the cars from the interior ofthe school. The administrators' failure to venture from the protective covering ofthe school building meant that they would not have necessarily seen the signs displayed in the car windows that faced the road. After all, as the undisputed record evidence established, the signs were purposefully placed within the cars so as to be visible to the public driving by and to inform the public of the ongoing labor dispute (R. 207,228,768, 851). 26 leaches valuable resources from the focus ofeducating the District's children. Thus, any labor dispute is necessarily a matter of public concern, since parents, students, and community residents, as well as District employees, have vested interests in urging and advocating for labor harmony within the District and for the allocation of limited resources. It is the public policy of this State to promote public sector labor harmony. Civil Service Law § 200; see also Pickering, 391 U.S. at 572 ("Teachers are, as a class, the members ofa community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissaL"). I2 Not only is it well-accepted that speech relating to municipal labor issues is speech on a "matter of public concern", but it is equally well established that First Amendment protection extends to dissemination of information and picketing, even parked-car picketing, such as the means by which Mr. Santer communicated his speech on March 2, 2007. As early as 1940, the Supreme Court specifically held picketing and the dissemination of information about a labor dispute to be speech 12See also Cioffi v. Averill Park Cent. Sch. Dist. Bd. ofEduc., 444 F.3d 158, 166 (2d Cir. 2006) ("We do not doubt that [plaintiff! spoke partly to protect his job and shift blame to other administrators. But personal interests frequently induce speech that is nonetheless of public concern."). 27 entitled to First Amendment protection. Thornhill v. State ofAlabama, 310 U.S. 88 (1940). In Thornhill, supra, the Supreme Court declared: The freedom of speech and of the press guaranteed by the Constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.... In the circumstances of our times the dissemination of information concerning the facts ofa labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. Hague v. c.l. 0., 307 U.S. 496; Schneider v. State, 308 U.S. 147, 155, 162-63. See, Senn v. Tile Layers Protective Union, 301 U.S. 468,478 (emphasis supplied). Thornhill, supra, 310 U.S. at 103. Notwithstanding the image immediately called to mind when one hears the term, picketing is not merely a tactic employed by labor organizations to discourage public patronage of certain establishments. See Amalgamated Food Employees Union Local 590v. Logan ValleyPlaza, Inc., 391 U.S. 308 (1968); Bakery & Pastry Drivers Local802v. Wohl, 315 U.S. 769 (1942);AFL v. Swing, 312 U. S. 321 (1941). Often, picketing is a means for organizations and individuals to educate and persuade the public with respect to matters of public concern. See Police Dep't, City of Chicago v. Mosley, 408 U.S. 92 (1972); Concerned Consumers League v. O'Neill, 371 F. SUpp. 644 (B.D. Wis. 1974). Picketing or demonstrations may even have an 28 added advantage over more conventional speech inasmuch as they can attract media and widespread public attention, and can mobilize supporters, rally neighbors behind an issue, or strengthen the demonstrators' bargaining position. See, Note, Regulation ofDemonstrations, 80 Harv.L.Rev. 1773, et seq. (1967). Appellant acknowledges that, for years, Union members routinely engaged in informational picketing in front of Woodland Middle School, on Friday mornings. Appellant further concedes Mr. Santer's (and the other teachers ')traditional picketing --walking on the sidewalk in front ofWoodland Middle School-- is protected activity for which it cannot and has not disciplined the employees who participated therein. See Appellant's Brief at 29. On March 2, 2007, because of the inclement weather, instead ofbeing on the sidewalk, the protest took place on Wenwood Drive, a public road, where Mr. Santer and the other teachers parked their vehicles in an area where parking was not legally restricted before 8 a.m. and after 4 p.m., and displayed their signs about the labor dispute in their car windows for all to see. It appears, then, that Appellant is under the mistaken impression that Mr. Santer's March 2nd speech, identical in content to that previously communicated on other Friday mornings, loses its First Amendment protection because it was communicated from his lawfully parked car, instead of from his feet as he walked on a public sidewalk. 29 Constitutional protection afforded "picketing" is not limited to individuals marching and carrying signs. In fact, parked-car picketing, similar to that at issue in this case, has already been held to be protected by the First Amendment. In NLR.B. v. Teamsters Local 182, 314 F.2d 53,58 (2d Cir. 1963), the Second Circuit held that First Amendment protection extended to picketers seated in a car while their signs were in a snow bank, displayed to the public. The Second Circuit explained, "This (the parked-car picketing) was still 'more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey'." NLR.B. v. Teamsters Local 182, supra, 314 F.2d at 58 (quoting Building Service Employers' Int'l Union Local 262 v. Gazzam, 339 U.S. 532, 537 (1950)). The location from where Mr. Santer communicated his speech on March 2nd further weighs in favor ofFirst Amendment protection. Santer was lawfully parked on a public road. Certain public places, such as streets, sidewalks and parks, are historically associated with the free exercise of expressive activities. These places are considered to be "public forums" for purposes of First Amendment analysis. United States v. Grace, 461 U.S. 171, 177 (1983); Perry Educ. Ass 'no v. Perry Local Educ. Ass'n., 460 U.S. 37,45 (1983); Carey v. Brown, 447 U.S. 455,460 (1980); Jamison v. Texas, 318 U.S. 413 (1943); Schneider v. State, 308 U.S. 147 (1939); 30 Hague v. Comm. for Ind'l Org, 307 U.S. 496 (1939); Lovell v. Griffin, 303 U.S. 444 (1938). Public streets, in particular, are "the archetype ofa traditional public forum," having been "used for public assembly and debate" since "time out ofmind." Snyder v. Phelps, supra, 562 U.S. at 131 S. Ct. at 1218 (citing Frisby v. Schultz, 487 U.S. 474, 480 (1988». In these quintessential public fora, the government's right to limit expressive activity is sharply circumscri bed. It may not prohibit all communicative activity, but, rather, may only enforce content-neutral reasonable time, place and manner regulations, which are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. United States v. Grace, supra, 461 U.S. at 177; Perry Educ. Ass 'n., supra, 460 U.S. at 45; Police Dep't. v. Mosley, 408 U.S. 92, 98 (1972); Grayned v. City Rockford, 408 U.S. at 104, 115-17 (1972). In the instant matter, Mr. Santer fully complied with the government's limitations on his presence on Wenwood Drive. The municipality had determined that there should be no standing or parking on the stretch ofWen wood Drive adjacent to Woodland Middle School, between the hours of 8 a.m. and 4 p.m. The District concedes that Mr. Santer and the other Union participants in the March 2nd protest complied with the government's prohibition: they were lawfully parked on Wenwood 31 Drive only between about 7:20 a.m. and 7:50 a.m. In its review of this matter, the Appellate Division aptly noted, "If the municipality in which Woodland is located believed that it was unsafe for cars to park along Wenwood Drive during the [hours immediately before school started], it could have prohibited parking during the relevant time periods, but it did not do so." (R. xiii).13 Nevertheless, Appellant appears to argue that the allegedly dangerous conditions created by Mr. Santer's lawfully parking his car on Wenwood Drive tips the Pickering balance against him. The record evidence demonstrated that there was some traffic congestion on Wenwood Drive, in front of the school, during the morning of March 2, 2007. However, belying the District's claimed concerns, the undisputed record evidence conclusively shows the District did not intervene, in any way, during the teachers' parked-car picketing to address these alleged dangerous conditions. Indeed, the District has freely admitted that it took no action to have Mr. Santer and the other Union members move their vehicles, or to assist students in 13Appellant invites the Court to take judicial notice that the curbside regulations were subsequently changed to prohibit parking on Wenwood Drive from 7 a.m. to 4 p.m. (Appellant's Brief at p. 36). Certainly, this change had not occurred by March 30, 2007. See East Meadow Teachers Ass 'n v. East Meadow Union Free School District, supra, 43 PERB at pp. 4650-52. Nor does it appear to have occurred by August 6, 2009, the final day of the § 3020-a hearing (R. 233), since there is no evidence of such change in the hearing record. While the Court may take judicial notice of amended local parking ordinances, see CP LR 4511 (b), the Court's review should be confined to the record before the arbitrator and the lower courts. See In re Acrrze Bus Corp. v. Bd ofEduc., 91 N.Y.2d 51,56 tn. '" (1977)(Court of Appeals generally "will not consider factual material dehors the record.") 32 crossing the street, or directtraffic to ease congestion CR. 27, 113, 123, 176, 178, 191, 524,643-44, 701-03). Moreover, even without intervention, the parked-car picketing event did not result in any reported incidents, much less any injuries to persons or vehicles CR. 25, 96,124, 178,422-23,525-26,652, 701). The District's inaction begs the question: if real danger to students was created, why did District officials not act immediately to address the danger? Or, did any danger truly exist as a result of parents and students' guardians permitting children to exit vehicles in the middle of the road without any escort by parent or school agent to the sidewalk? Was the District's "concern" merely pretextual? The government cannot restrict an employee's speech on the basis of merely speCUlative work-place problems that could potentially result from the employee's protected speech. See N. r:8. Law Enforcement Officers Union, Council 82 v. N. r: State, 255 A.D.2d 54 (3d Dep't), aff'd sub nom In re: N. r: State Corr. Officers and Police Benevolent Ass 'n, 94 N.Y.2d 321,325 (1999). For the District's discipline of Mr. Santer to stand, the District must be able to show that the actual reason it disciplined Mr. Santer was its concern for the disruption to the school day and the safety of the students, rather than some other, impermissible motive. See Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996). 33 The District has alleged that Mr. Santer parked his car intentionally to preclude students from being dropped off at curbside and, in so parking, he created a health and safety hazard, and this was the reason it disciplined him. For the discipline to pass muster, even after demonstrating that a concern for disruption was its true motivation, the District must also persuade a court that its interest in preventing disruption outweighed the employee's individual free speech interests. See Jeffries 11, 52 F.3d at 13. The District cannot so demonstrate on this record. It is axiomatic, as Appellant has asserted (Appellant's Briefat 31), that the District has a duty to protect the safety of its students and acts in loco parentis when students are in its care. See Chainani v. Bd. ofEduc. ofthe City ofN. Y., 87 N.Y.2d 370 (1995). In light ofthe recognition of this duty to students, the District's own conduct during the March 2nd parked-car picketing event underscores the pretextual nature of its reason for disciplining Mr. Santer. Not only does the District admit it took no action at the time ofthe parked-car picketing to attempt to remove the parked cars or assist students whose parents were dropping them off in the middle of the road, it concedes no injuries to any person or vehicle were sustained during the March 2, 2007 informational parked-car picketing. Had the District truly been concerned that the picketing activity was creating a "health and safety hazard," it would have taken some affirmative action to mitigate 34 or alleviate the cause for concern. Both the U.S. Supreme Court and the Second Circuit have stressed a government employer need not "allow events to unfold to the extent that the disruption of the office and the destruction of working relationships [due to an employee's speech] is manifest before taking action." Connick, 461 U.S. at 151-52; seeArnettv. Kennedy, 416 U.S. 134,168 (1974) (Powell, 1., concurring); Locurto v. Guiliani, 447 F.3d at 182. This must be particularly true if, as Appellant alleges here, the health and safety of school children was purportedly placed in imminent jeopardy by the employee's speech. Absent evidence ofany such action by the District to address the alleged safety concerns, the Pickering balance strongly tips in Mr. Santer's favor. Further accentuating the pretextual nature of the District's reason for disciplining Mr. Santer is the fact that the District did not discipline two of its administrators who baldly admitted that they observed these allegedly hazardous conditions for about a half-hour and took no action to address or mitigate the purported dangers to students. Principal Lethbridge and Dean Chase admitted under oath that they did nothing more than watch the events unfolding in front ofthe school on that Friday morning. Principal Lethbridge and Dean Chase never even stepped beyond the protective covering of the building during their half-hour observation of this "danger" to students. Not only did the District choose not to discipline these 35 administrators for their admitted inaction in the face of the purported dangerous situation, but it subsequently rewarded one ofthem with a grant of tenure: Chase was informed in October 2007 that he was tenured, effective January 2008 (R. 169, 617). The only reasonable conclusion on this record evidence is that Appellant's allegations regarding the hazards created by Mr. Santer's picketing are speCUlative, at best, and pretextual, at worst. The absence of any evidence of injury or accident resulting from the parked-car picketing and the District's own inaction during the parked-car picketing event weigh heavily in favor ofrejecting its alleged concerns as a basis for imposing discipline upon Mr. Santer. Under these circumstances, the Pickering balance must favor Mr. Santer's First Amendment rights. Appellant seeks to have this Court show such deference to the arbitrator as to allow an award to stand, notwithstanding that the award violates Mr. Santer's Constitutional free-speech rights. CPLR Article 75 sets forth the grounds upon which arbitral awards, whether issued pursuant to voluntary or compulsory arbitration, may be vacated. CPLR 7511; Education Law § 3 020-a( 5). Vacatur ofany arbitral award is appropriate when the award violates a strong public policy, such as that expressed in the Us. and N. Y. Constitutions regarding an individual's freedom of speech. See Port Jefferson Stn. Teachers Ass 'n, Inc. v. Brookhaven-Comsewogue UFSD, 45 N.Y.2d 898 (1978)(vacatur of arbitration award mandated where award contravenes 36 a strong public policy involving important constitutional or statutory rights); see also In re: N.Y. State Corr. Officers and Police Benevolent Ass 'n, 94 N.Y.2d 321, 327 ( 1999) (court should vacate arbitral award "where the final result creates an explicit conflict with other laws and their attendant policy concems")( emphasis in original, citations omitted). Here, unlike the review of a voluntary arbitration award, review ofa compulsory-arbitration award requires the reviewing court to even more closely scrutinize the award to ensure it is in accord with due process, supported by adequate evidence in the record, and is not arbitrary and capricious. City Sch. Dist. ofN. Y. v. McGraham, 17 N.Y.3d 917, 919 (2011) (citing Matter ofMotor Veh. Acc. Indem. Corp. v. Aetna Cas. Insur. Co., 89 N.Y. 2d 214 (1996)). The Appellate Division, Second Department applied the correct standard of judicial review when it examined the instant matter. 14 Preliminarily, the Second 14Notably, inN Y. State Corr. Officers and Police Benevolent Ass 'n, 94 N.Y.2d 321 (1999), this Court upheld a voluntary arbitration award finding that a New York State Correction Officer was not guilty of the disciplinary charges against him and reinstating him. The employee had been charged with misconduct for displaying a Nazi flag in front ofhis home. Unlike here, the arbitrator in that case engaged in analysis of the employee's First Amendment claims. Id at 325. First, the arbitrator found the correction officer's display of the Nazi flag was protected under the First Amendment. Id Then, he ruled that not only was there no evidence that the speech caused any work place disruption, the record evidence demonstrated that the employer's "prediction ofdisruption was unfounded and, in some instances, entirely speculative." 1'1. Y. State Law En! Officers Union and State ofNY., 255 A.D.2d 54, 58 (3d Dep't), affd sub nom, 94 N.Y.2d 321 (1999). This Court denied the State's appeal seeking vacatur of the award. The Court correctly found that arbitrator's reinstatement of the employee did not violate public policy since it did not violate a "well-defined constitutional, statutory or common law of this State." ld. at 327. In Mr. Santer's compulsory arbitration, as there was no voluntary submission of the issue to arbitration, the Appellate Division properly applied the First Amendment balancing test, and correctly vacated the award based on its determination that the District's discipline ofMr. Santer violated his free speech rights. 37 Department acknowledged the broader review required of it when considering the award issued in Mr. Santer's statutorily-required § 3020-a proceeding (R. xii). It accepted all of the undisputed facts found by the arbitrator and supported by the record evidence (R. xii). The Appellate Division then properly did what the arbitrator and the Supreme Court, Nassau County had failed to do: it applied those facts to the Pickering balancing test, (R. xii-xiii). Thus, it found as a matter of law that: Mr. Santer's speech "addressed matters of public concern"; in exercising his First Amendment rights, Mr. Santer did not violate any law or school policy; and, based upon the record evidence, "the danger presented by the legally parking teachers could not have been substantial" (R. xiii). The District had, therefore, failed to meet its burden of demonstrating that Mr. Santer's speech so threatened the effective operation of the school that imposition of discipline upon him was justified (R. xiii). Thus, the Appellate Division correctly concluded the District violated Mr. Santer's First Amendment rights when it disciplined him because of his March 2, 2007 speech. This Court must similarly review the record and, in doing so, reach the same conclusion: the arbitrator's award must be vacated based on the violation of Mr. Santer's free speech rights. 38 CONCLUSION Applying the Pickering balancing test to the record facts, this Court must conclude, as the Appellate Division correctly did, the District violated Mr. Santer's First Amendment right to freedom of speech when it disciplined him for lawfully parking his car on a public road, on his own time, and displaying signs in his car window regarding the District's failure in its collective bargaining negotiations with teachers. The District's purported concern in mitigating speculative "safety hazards" cannot outweigh Mr. Santer's interest in speaking freely on a matter ofpubic concern, particularly where the District's inaction to address the alleged "safety hazards" atthe time ofMr. Santer's speech belies the District's sincerity. Accordingly, this Court should affirm the Second Department's proper vacatur of the award imposing discipline upon Mr. Santer for his protected speech on March 2, 2007. Date: New York, New York August 23,2013 RICHARD E. CASAGRANDE, ESQ. Att ney for Petitioner-Respondent Santer Ij~By: . BOKSER, ESQ. Of Counsel 52 Broadway, 9th Floor New York, New York 10004 Telephone: 212-533-6300 Facsimile: 212- 995-2347 39 AFFIDAVIT OF SERVICE STATE OF NEW YORK) ) ss.: COUNTY OF NEW YORK ) EVETTE SANTIAGO, being duly sworn, deposes and says: I am not a party to the action, am over 18 years ofage and reside at Bronx, New York. On August 23, 2013, I served a true copy of the BRIEF FOR PETITIONER-RESPONDENT by mailing three (3) copies of same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known addressees) of the following addressee(s) as indicated below: George B. Pauta, Esq. Littler & Mendelson, P.C. Attorney for Respondent-Appellant 900 Third Avenue New York, NY 10022-4834 Sworn to before me this 23 rd day of August, 2013 ~cz -;, NOTARY PUBLIC DEVI D. TULSI NOTARY PUBLIC, State of New York No.OnU4947813 _ Qualified in 9ueet;s Cpunt¥., J ' ..... I J CommisSion Expires ;L I.).... I ,J/V NYC Legal: 158867