In the Matter of Barbara Lucia, Respondent,v.Board of Education of East Meadow Union Free School District, Appellant.BriefN.Y.Feb 19, 2014To Be Argued By: GEORGE B. PAUTA Time Requested: 20 Minutes APL-2013-00251 Appellate Division Second Department Docket No. 2011-08260 Supreme Court, Nassau County, Index No. 1727/11 Court of Appeals STATE OF NEW YORK BARBARA LUCIA, Petitioner-Respondent, —against— BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRICT, Respondent-Appellant. BRIEF FOR RESPONDENT-APPELLANT d CRAIG R. BENSON, ESQ. GEORGE B. PAUTA, ESQ. ETHAN D. BALSAM, ESQ. LITTLER MENDELSON P.C. 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant October 25, 2013 DISCLOSURE STATEMENT Pursuant to 22 NYCRR 500.1(f), Respondent-Appellant Board of Education of the East Meadow Union Free School District, by and through its undersigned counsel, Littler Mendelson, P.C., affirms that it is a municipal corporation organized under the laws of the State of New York and has no parents, subsidiaries or affiliates. Date: October 23, 2013 New York, New York /s/ George B. Pauta Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District -2- STATEMENT OF RELATED LITIGATION Pursuant to 22 NYCRR 500.13(a), Respondent-Appellant Board of Education of the East Meadow Union Free School District, by and through the undersigned counsel, Littler Mendelson, P.C., provides the following statement of related litigation: The Board of Education of the East Meadow Union Free School District commenced Education Law § 3020-a disciplinary proceedings against six teachers, including Petitioner-Respondent Barbara Lucia, for their involvement in a hazardous parking activity in front of Woodland Middle School on March 2, 2007. Notably, all of the teachers charged were found culpable of misconduct by the hearing officer presiding over their respective disciplinary proceedings. To the extent that any of those teachers have subsequently attempted to have their misconduct findings vacated, with the exception of Petitioner-Respondent and her colleague, Richard Santer, they have been unsuccessful. See e.g., Matter of Trupiano v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 89 A.D.3d 1030 (2d Dep’t 2012), lv. denied, 18 N.Y.3d 810 (March 29, 2012); Matter of Galligan v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., Supreme Court, Nassau County, Index No. 19563/2010 (June 30, 2011).1 1 Roberta Herman and Ramona Giunta, who also participated in the March 2nd parking activity, did not seek to vacate the arbitrator awards of their respective hearings. -3- Prior to the filing of the instant appeal, the Appellate Division, Second Department, rendered a decision in the related case Matter of Santer v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 101 A.D.3d 1026 (2d Dep’t 2012). Citing its decision in Matter of Trupiano, supra, the Appellate Division held that “evidence that children were dropped off in the middle of the 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, and the award was not arbitrary and capricious.” Matter of Santer, 101 A.D.3d at 1027. Nonetheless, the Appellate Division reversed the lower court, concluding that the “District failed to meet its burden of demonstrating that Santer’s exercise of his First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline.” Id. at 1028. In light of the Appellate Division’s decision, on January 30, 2013, the District timely appealed as a matter of right to this Court for the same reasons as those now pending before the Court in the instant action. The appeal in Matter of Santer, APL-2013-00032, has been fully briefed and the parties are awaiting oral argument, which has yet to be scheduled. -4- STATEMENT OF JURISDICTION Pursuant to CPLR § 5601(b)(1), an appeal may be taken to the Court of Appeals as a matter of right from an order of the Appellate Division which finally determines an action that directly involves the construction of the Federal Constitution. N.Y. C.P.L.R. § 5601(b)(1) (Consol. 2013); see also Grumet v. Bd. of Educ. of the Kiryas Joel Sch. Dist., 81 N.Y.2d 518, 522 (1993). The constitutional question must be both directly involved in the Appellate Division’s order and substantial. Kachalsky v. Cacace, 15 N.Y.3d 743, 743 (2010). As set forth below, the constitutional questions presented in this appeal meet these two requirements and have been preserved for this Court’s review. See Notice of Appeal, dated August 28, 2013. A. The Appellate Division’s Order Directly Involves Constitutional Questions The Appellate Division’s Decision and Order in this case directly involves constitutional questions, viz. 1) whether Lucia’s participation in the parking activity with the intention to jeopardize the safety of students constituted protected speech and, if so, 2) whether the interest in participating in such a hazardous parking activity outweighed the District’s interests in ensuring the safe arrival of its students and timely arrival of its teachers. Because the Appellate Division incorrectly answered the above two questions in the affirmative, it reversed the Supreme Court’s order. -5- B. The Constitutional Questions Involved In This Appeal Are Substantial It is common for school districts (and other public employers) in New York to fail to come to an agreement with their unions for a successor collective bargaining agreement prior to the expiration of the parties’ current agreement. With no ability to strike, school union employees often resort to picketing and other activities to protest the fact that they are working under an expired agreement. The questions presented by this appeal (and the related case Matter of Santer) will provide much needed guidance to both school districts and their unions regarding the types of activities that constitute protected speech under the First Amendment, and under what circumstances may a school district discipline an employee for engaging in certain protected activities, where the employee’s intent is to entangle students in the parties’ labor dispute by placing their safety at issue. Therefore, the constitutional questions presented in this case are substantial because they raise larger issues relevant to school districts and unions in this State beyond this appeal. Indeed, the first question raises the larger issue of whether a teacher’s participation in activity that is intended to jeopardize the health and safety of others, particularly young adolescent children, should ever constitute protected speech. The second question raises the larger issue of whether a teacher’s interests in participating in an activity which threatens the safety of her -6- students – even if deemed protected speech – should ever outweigh a school district’s interests in protecting students from that dangerous activity, particularly where the teacher had alternative, safer means of communicating the protected speech. On September 4, 2013, the Court accepted the District’s appeal as a matter of right and ordered that the instant appeal proceed in the normal course of briefing and argument. TABLE OF CONTENTS PAGE -i- PRELIMINARY STATEMENT .............................................................................. 1 QUESTION PRESENTED ....................................................................................... 5 STATEMENT OF FACTS ....................................................................................... 6 I. INTRODUCTION .......................................................................................... 6 II. THE DISCIPLINARY CHARGES ................................................................ 6 III. THE DISCIPLINARY HEARING ................................................................. 7 A. Woodland Middle School ..................................................................... 7 B. Union Activities to Protest Lack of Agreement ................................... 8 C. March 2, 2007 Parking Activity ........................................................... 9 IV. LUCIA’S MOTION TO DISMISS .............................................................. 13 V. THE HEARING OFFICER’S DECISION ................................................... 14 VI. THE SUPREME COURT’S DECISION ..................................................... 15 VII. THE APPELLATE DIVISION, SECOND DEPARTMENT’S DECISION .................................................................................................... 16 ARGUMENT .......................................................................................................... 19 THE DISTRICT DID NOT VIOLATE LUCIA’S FIRST AMENDMENT RIGHTS GIVEN THAT THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH, THE DISTRICT’S MOTIVE IN IMPOSING DISCIPLINE WAS NOT LUCIA’S PURPORTED SPEECH, AND THE PICKERING BALANCING TEST WEIGHS HEAVILY IN FAVOR OF THE DISTRICT ..................................................................................... 19 TABLE OF CONTENTS (CONTINUED) PAGE -ii- A. The March 2, 2007 Parking Activity Did Not Constitute Protected Speech ................................................................................ 23 1. The March 2, 2007 parking activity did not qualify as a form of “speech.” ..................................................................... 23 2. Even if Lucia’s participation in the March 2, 2007 parking activity qualified as a form of speech under the First Amendment, it was nevertheless unprotected given that her intent was to create a health and safety risk ............... 25 B. The District’s Motivation for Imposing Discipline Against Lucia Had Nothing To Do With Lucia’s Purported Speech .............. 27 C. The Pickering Balancing Test Weighs Heavily In The District’s Favor ................................................................................................... 28 1. The District’s interest in student safety ................................... 30 2. The District’s interest in the timely arrival of its teachers....... 37 3. Lucia’s interest in participating in the parking activity ........... 38 CONCLUSION ....................................................................................................... 40 ADDENDUM TABLE OF AUTHORITIES PAGE -iii- CASES Bernheim v. Litt, 79 F.3d 318 (2d Cir. 1996) ................................................................................. 19 Blackman v. N.Y. City Transit Auth., 491 F.3d 95 (2d Cir. 2007) ................................................................................. 19 Boals v. Gray, 775 F.2d 686 (6th Cir. 1985) .............................................................................. 21 Chainani v. Bd. of Educ. of the City of N.Y., 87 N.Y.2d 370 (1995) ......................................................................................... 30 Cioffi v. Averill Park Cent. Sch. Dist., 444 F.3d 158 (2d Cir. 2006) ............................................................................... 19 City of San Diego v. Roe, 543 U.S. 77 (2004) ........................................................................................ 20, 21 Connick v. Myers, 461 U.S. 138 (1983) ...................................................................................... 21, 25 Grayned v. City of Rockford, 408 U.S. 104 (1972) ...................................................................................... 31, 32 Gregorich v. Lund, 54 F. 3d 410 (7th Cir. 1995) ............................................................................... 21 Grzywna v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d 139 (N.D.N.Y. 2006) ................................................................ 23 Hudson v. Craven, 403 F.3d 691 (9th Cir. 2005) ........................................................................ 30, 31 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) ..................................................................................... 32 TABLE OF AUTHORITIES (CONTINUED) PAGE -iv- Johnson v. Ganim, 342 F.3d 105 (2d Cir. 2003) ............................................................................... 32 Lewis v. Cowen, 165 F 3d 154 (2d Cir. 1999) ............................................................................... 22 Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006) ............................................................................... 19 Matter of Santer v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 109 A.D.3d 1026 (2d Dep’t 2012) ...............................................................passim Matter of Trupiano v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 89 A.D.3d 1030 (2d Dep’t 2012) ........................................................................ 17 Meaney v. Dever, 326 F.3d 283 (1st Cir. 2003) ............................................................................... 24 Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185 (2d Cir. 2003) ......................................................................... 19, 28 Morse v. Frederick, 551 U.S. 393 (2007) ............................................................................................ 21 People v. Barr, 75 A.D.2d 14 (4th Dep’t 1980) ........................................................................... 26 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ...................................................................................... 20, 21 Rankin v. McPherson, 483 U.S. 378 (1987) .......................................................................... 20, 22, 28, 38 Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) ............................................................................... 28 TABLE OF AUTHORITIES (CONTINUED) PAGE -v- Schenck v. United States, 249 U.S. 47 (1919) .............................................................................................. 26 Spence v. State, 418 U.S. 405 (1974) ............................................................................................ 23 Texas v. Johnson, 491 U.S. 397 (1989) ............................................................................................ 23 United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (1995) ................................................................................ 20, 22, 28 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) ............................................................................................ 30 ADMINISTRATIVE DECISIONS Appeal of Cuoco, SED Decision No. 12,582 (1991) ....................................................................... 30 City Sch. Dist. of the City of Elmira, SED Decision No. 12,394 (1990) ....................................................................... 30 Matter of East Meadow Teachers Ass’n, 43 PERB ¶ 4530 (2010) ...................................................................................... 15 STATUTES Education Law § 3020-a ............................................................................................ 6 PRELIMINARY STATEMENT This brief is submitted on behalf of the Respondent-Appellant Board of Education of the East Meadow Union Free School District (the “District”) in support of its appeal from the Decision and Order of the Appellate Division, Second Department (“Appellate Division”) dated August 14, 2013 and entered in the Clerk’s Office of the Appellate Division on August 14, 2013. This is the second appeal brought by the District for a determination as to whether the First Amendment of the United States Constitution precludes a school district from disciplining a teacher who has been found by a trier of fact to have engaged in a hazardous parking activity with other teachers, with the intent to create a health and safety hazard for students. Inexplicably, on two separate occasions, the Appellate Division has held that it does. Indeed, in the related case Matter of Santer – now pending before the Court – the Appellate Division found that even though there existed a rational basis for the arbitrator’s finding that (1) Santer created a health and safety risk for students by participating in the March 2, 2007 teacher parking, and that (2) his intention that day was to create such a health and safety risk, the District violated Santer’s right to free speech when it commenced disciplinary proceedings against him pursuant to Education Law § 3020-a. Just as it did in Matter of Santer, in the Decision and Order below, the Appellate Division held that “the evidence at the hearing provided a rational basis -2- for the arbitrator’s decision, and the award was not arbitrary and capricious.”2 (R. x-xi). Nonetheless, the Appellate Division reversed the lower court, concluding that “for the same reasons as those stated in Matter of Santer ... [t]he petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline.” (R. xi). Associate Justice Sheri S. Roman, while concurring on constraint of Matter of Santer, decidedly took issue with the majority’s viewpoint and opined as follows: In this case, the teachers picketed by parking their cars in a manner which blocked the sidewalk in front of the school and caused children to be dropped off in the middle of the road, requiring them to cross traffic lanes in order to reach the school, and resulted in teachers reporting late to work, leaving students without classroom supervision. The mandate of the school district to provide for the safety of the children and to ensure the proper functioning of the school is paramount, and overrides any manifestation of First Amendment rights that were embodied in this protest by teachers. (see Grayned v. City of Rockford, 408 US 104; Lewis v. Cowen, 165 F 3d 154, 161-163, cert denied 528 US 823). Thus, while I concur in the result reached herein, I do so only on constraint of this Court’s precedent. 2 References to “R. __” refer to the Record on Appeal, dated September 24, 2013. -3- (R. xi). The March 2, 2007 teacher parking activity involved 16 teachers, including Petitioner-Respondent Barbara Lucia (“Lucia”), who used their vehicles to block a known student drop-off area in front of the Woodland Middle School (“Woodland” or the “Middle School”) in order to prevent parents from safely dropping off their adolescent children alongside the curb. At the disciplinary proceeding, Lucia declined to put on a case or present any evidence on her behalf. The hearing officer, therefore, concluded that the District made out its prima facie case for the charged misconduct. Importantly, the hearing officer held “that [the teachers’] disruption of the student drop-off raised a safety issue per se”, which “given the long standing practice of curbside drop-off, and parking spots provided to teachers behind the WMS building,” must have been their intended purpose. (R. 35). As a result, the hearing officer ordered as a penalty that Lucia pay a fine to the District in the amount of $1,000. After an unsuccessful attempt to vacate the hearing officer’s award pursuant to Education Law § 3020-a(5) and Article 75 of the Civil Practice Law and Rules (“CPLR”), Lucia appealed the lower court’s Decision and Order to the Appellate Division. Although Lucia first raised at oral argument the issue of whether her free speech rights under the First Amendment were violated, the Appellate Division considered Lucia’s argument, and by Decision and Order dated August 14, 2013, -4- reversed the lower court’s Decision and Order on the basis that the District violated Lucia’s First Amendment rights to free speech. In so holding, the Appellate Division committed several reversible errors, including: (1) holding that Lucia’s participation in the parking activity with the intent to create a health and safety risk for students constituted “protected speech”; (2) finding that the District, in preferring misconduct charges against Lucia, was motivated by Lucia’s “speech” and (3) determining that the District failed to demonstrate that Lucia’s participation in the parking activity so threatened the District’s effective operations as to justify the imposition of discipline. For the reasons set forth below, the District respectfully requests that the Appellate Division’s Decision and Order providing that the District violated Lucia’s free speech rights by preferring disciplinary charges against her for her adjudged misconduct should be reversed. -5- QUESTION PRESENTED QUESTION NO. 1 Whether the Respondent-Appellant Board of Education of the East Meadow Union Free School District violated Petitioner-Respondent Barbara Lucia’s right to free speech under the First Amendment of the United States Constitution when it commenced disciplinary proceedings against her pursuant to Education Law Section 3020-a for engaging in an adjudged hazardous and disruptive parking activity with the intent to create a health and safety hazard for students? The Appellate Division, Second Department incorrectly answered this question in the affirmative. -6- STATEMENT OF FACTS I. INTRODUCTION The District is a municipal corporation providing educational services to the students of East Meadow, New York. The district is comprised of nine school buildings, including Woodland. (R. 85). Lucia is a tenured teacher at the District and a member of the East Meadow Teachers’ Association (the “Association”), the bargaining unit representing the District’s teaching personnel. (R. 83). Lucia has been assigned to Woodland since 1999. (R. 217). II. THE DISCIPLINARY CHARGES On or about March 16, 2007, the District, pursuant to Education Law § 3020-a, 3 preferred the following disciplinary charge, in the form of one specification, against Lucia for her involvement in a hazardous parking activity at Woodland (the “Charge”): CHARGE 1 – MISCONDUCT Specification 1: On or about March 2, 2007, the Respondent intentionally created a health and safety risk by purposely situating her vehicle alongside the curb on Wenwood Drive in front of 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. (R. 41-42). 3 New York Education Law § 3020-a requires that school districts follow certain procedures to discipline tenured teachers, including preferring disciplinary charges against those teachers and providing them with a hearing before a neutral hearing officer. See N.Y. EDUC. LAW § 3020-a (2013). -7- III. THE DISCIPLINARY HEARING In accordance with Education Law § 3020-a, hearings were held concerning the Charge before Joseph P. Sirefman, Esq., the hearing officer presiding over the hearings (hereinafter the “Hearing Officer”), on October 10, 2008 and May 27, 2009. (R. 66-276). At the hearing, which was transcribed, witnesses testified and exhibits were admitted into evidence. The testimony and evidence presented by the District at the hearing are set forth below.4 A. Woodland Middle School Woodland is located at 690 Wenwood Drive in East Meadow, New York, and is made up of grades six, seven and eight. (R. 125, 309, 410). The average age of the students ranges from 11 to 13 years old. (R. 125). At Woodland, teachers must report to work by 7:55am. (R. 109, 126). School begins at 8:05 am. (R. 44, 126). There are three parking lots for staff in the rear portion of the Middle School. (R. 134-35). There are no driveways in front of the Middle School. (R. 410). For at least ten years, parents driving their children to school have used the curbs along Wenwood Drive as a student drop-off area. (R. 128, 131, 138, 190- 91). Indeed, each morning between 7:30 a.m. and 8:00 a.m., approximately one hundred or so parents drive down Wenwood Drive, pull up alongside the curb, and 4 As mentioned, Lucia declined to testify or present any witnesses or evidence on her behalf. -8- drop off their children curbside in front of the school. (R. 130-31). Parents driving from east to west on Wenwood Drive drop off their children alongside the curb on the north side (school side) of the street, and their children proceed to the building without ever setting foot in the street. (R. 128, 410). Conversely, parents driving from west to east on Wenwood Drive drop off their children alongside the curb on the south side (non-school side) of the street. (R. 129, 410). Those children then wait at the curb, and cross the street when traffic is safe. (R. 129, 410). B. Union Activities to Protest Lack of Agreement On September 1, 2004, the collective bargaining agreement between the District and the Association expired. (R. 83). By March 2007, the parties had not entered into a new agreement. (R. 83). Between September 2004 and March 2007, the Association engaged in numerous activities to protest the fact that they did not have a successor agreement in place, including, but not limited to, regularly picketing in front of the District’s nine school buildings, before and after school. (R. 83-85, 121-22). At Woodland, teachers picketed on Monday and Friday mornings by walking the sidewalk along Wenwood Drive – the street directly in front of Woodland’s main entrance – with signs. (R. 123). None of the Association’s activities at Woodland were deemed to jeopardize the health and safety of students or disrupt the District’s operations. (R. 94, 158-59). -9- C. March 2, 2007 Parking Activity On the morning of March 2, 2007, in the midst of a rainstorm, the teachers engaged in the planned parking activity. (R. 132-33, 135, 189, 196, 410). Specifically, 16 teachers, including Lucia, collectively parked their vehicles alongside the curbs on both sides of Wenwood Drive, end-to-end, one after another, in front of the entire length of the Middle School. (R. 93, 132-133, 135- 36, 191-92, 194). As a result, parents could not pull over to the curbs to safely drop off their children like they regularly had, and instead had to stop in the middle of the street to drop them off. (R. 133, 136, 138). As a result, traffic in front of Woodland became significantly congested in both directions, and students were dropped off in the midst of the traffic congestion. (R. 136, 140-41). Terrance Chase (“Chase”), the Woodland Dean of Students, was the first administrator to learn of the teachers’ parking activity on the morning of March 2nd. (R. 188-89). At approximately 7:30 a.m., while in the main office, one of secretaries told him that there were teachers parked along Wenwood Drive in front of the Middle School. (R. 189). With this news, Chase immediately proceeded to the office of James Lethbridge (“Lethbridge”), the Principal of Woodland, to report what he had just heard. (R. 191). Once there, the two looked out of Lethbridge’s office window, which faces Wenwood Drive, and indeed, saw a line of cars parked, end-to-end, in front of the entire length of the Middle School, on both the -10- north and south sides of the street. (R. 132, 191-92). Lethbridge and Chase also saw parents, as a result of being unable to access the curbs on either side of the street, stopping in the middle of Wenwood Drive to drop off their children. (R. 133, 192). Before that day, neither Lethbridge nor Chase had ever witnessed parents dropping off children in the middle of the street. (R. 128-30, 192). As a result of the teachers’ parking activity, traffic built up significantly on Wenwood Drive – more so than normal for that time of day. (R. 133, 136, 140-41). While looking out of Lethbridge’s office window, Chase recognized some of the cars parked on Wenwood Drive as belonging to Woodland teachers, including, but not limited to, Lucia’s black Chevy Camaro. (R. 194-95). Lucia’s car was parked on the north side of Wenwood Drive facing west – in line with the other teachers’ cars along the curb. (R. 197, 410). There was no testimony that Lucia, or any other teacher assembled along Wenwood Drive, displayed a placard in their vehicle that morning. (R. at passim). At that point, Chase and Lethbridge went to the main lobby, which also faces Wenwood Drive, to get a better look at the situation. (R. 135, 195). Once there, they saw much of the same thing – teachers blocking the student drop-off area with their cars and parents having to drop off their children in the middle of the street as a result. (R. 195). -11- Lethbridge went to his office to call the police for assistance. (R. 141). Lethbridge called the police that morning because, in all his years, he had never seen activity like this before, and in his judgment, the police were best suited to handle the safety and traffic issues presented by the activity. (R. 141). Before doing so, however, he directed Chase to report to the cafeteria – to supervise students who had been permitted inside the building earlier due to the inclement weather. (R. 183-84, 198). After Lethbridge contacted the police, he proceeded to the main office to apprise the Assistant Principal of the happenings outside. (R. 141). Once there, the secretary in the main office informed Lethbridge that parents had been calling the school complaining that the participants in the parking activity had prevented them from safely dropping off their children alongside the curb. (R. 141-42). The main office secretary also informed Lethbridge that numerous teachers had called that morning to report that they were stuck in traffic around Woodland, and would be late to work. (R. 142). At approximately 7:50 a.m., the teachers parked on Wenwood Drive began to pull away from the curbs and proceeded down the street. (R. 142-43). Thereafter, at approximately 8:05 a.m., Lethbridge checked the teacher sign-in sheet and discovered that 19 teachers had not yet signed in. (R. 44, 51-57, 145- 46). After interviewing these teachers regarding the reasons for their tardiness, -12- Lethbridge concluded that 16 teachers failed to report to work by 8:05 a.m. (which is 10 minutes beyond their required reporting time) as a direct result of the parking activity and the traffic congestion it caused.5 (R. 44, 149-50). Lethbridge had never had so many teachers report late before. (R. 154). Ordinarily, no teachers report to work after 8:05 a.m. (R. 154). According to Lethbridge, the teachers’ parking activity, and the lateness it caused, “endangered the student population of Woodland Middle School.” (R. 157). Significantly, the District “had to start arranging for coverage of the homerooms” because adolescent students were left unsupervised. (R. 146). After the teachers’ parking activity concluded, Lethbridge asked Lucia’s colleague, Richard Santer, to explain why the Woodland teachers were blocking the Wenwood student drop-off area. (R. 143). According to Lethbridge, Santer claimed that the teachers were bringing attention to the ongoing labor negotiations. (R. 143). Lethbridge responded by telling Santer that the teachers’ activity jeopardized the health and safety of Woodland students. (R. 143). Lethbridge then ended the meeting, and shortly thereafter, the police arrived. (R. 144). 5 In 2007, 110 teachers were assigned to Woodland. (R. 44). Therefore, approximately 15% of the Woodland teachers failed to report to work by the time school started due to the traffic caused by the teacher parking activity. -13- Thereafter, the District preferred the Charge against Lucia and the other teachers known to be involved in the parking activity. (R. 41-42). IV. LUCIA’S MOTION TO DISMISS After the District presented its case, Lucia moved to dismiss the Charge and for costs and attorneys’ fees. By decision dated October 24, 2009, the Hearing Officer denied Lucia’s motion on the basis that the District had established a prima facie case for the Charge. (R. 33-36). Specifically, the Hearing Officer found that on March 2, 2007, numerous teachers, including Lucia, participated in a parking activity whereby teachers parked their vehicles, in a row, along both sides of Wenwood Drive in front of the Middle School. (R. 34).6 The Hearing Officer found that as a result of the activity, “curbside drop-offs could not be made,” and students were forced to exit their parents vehicles in the roadway. (R. 34). Furthermore, “[t]he resultant blockage of an otherwise public through street, led to traffic backed up in both directions.” (R. 34). Based on these findings, the Hearing Officer ruled “that [the teachers’] disruption of the student drop-off raised a safety issue per se”, which “given the long standing practice of curbside drop-off, and parking spots provided to teachers behind the WMS building,” must have been their intended purpose. (R. 35). 6 The Hearing Officer also held that the District adequately identified Lucia as having parked her vehicle alongside Wenwood Drive that morning given that there was no dispute that the participants to the parking activity were teachers, and Chase positively (and without dispute) identified Lucia’s car as one of the cars parked along Wenwood Drive. (R. 34-35). -14- The Hearing Officer rejected Lucia’s argument that she could not be found culpable of the Charge because it was legal to park on Wenwood Drive at that hour. (R. 34). The Hearing Officer noted that the teachers did not merely park, but blocked an area where “it had been the practice for a significant number of commuter children to be dropped off then at curbside.” (R. 34). The Hearing Officer also rejected Lucia’s argument that the teachers’ parking activity could not have created a health and safety risk because no children were resultantly injured. (R. 34-35). The Hearing Officer wisely noted “[t]hat no injury occurred was fortunate, but that does not cancel out inappropriate creation of a potentially hazardous circumstance.” (R. 35). V. THE HEARING OFFICER’S DECISION By decision dated January 7, 2011, the Hearing Officer found Lucia guilty of the Charge and ordered as a penalty that she pay a fine to the District of $1,000 to “remind her that her actions that morning were inappropriate.” (R. 29-32). The Hearing Officer noted that following his decision on the motion to dismiss, Lucia declined to put on a case or present any evidence on her behalf. (R. 30). Therefore, he held, “in the absence of any evidence to rebut the Hearing Officer’s rationale and conclusions in denying [Lucia’s] Motion to Dismiss, those rationales, findings, and conclusions are herewith reiterated in full, and the final determination is that the District has sustained its burden of proof herein.” (R. 30). -15- After reaching his decision, the Hearing Officer stated that he found instructive a decision by Administrative Law Judge Philip L. Maier (“ALJ Maier”) in Matter of East Meadow Teachers Ass’n, 43 PERB ¶ 4530 (2010) (a case forwarded to the Hearing Officer by Lucia’s counsel), wherein ALJ Maier independently found that the teachers’ March 2nd parking activity did not constitute protected activity under Section 209-a.1(a) of the Public Employees’ Fair Employment Act. (R. 30-31). VI. THE SUPREME COURT’S DECISION By petition dated February 2, 2011, Lucia commenced a proceeding pursuant to Education Law § 3020-a(5) and CPLR § 7511, seeking to vacate the Hearing Officer’s award in his §3020-a proceeding on the grounds that is irrational, arbitrary and capricious and not based upon adequate or substantial evidence. (R. 12-28). By Decision and Order dated July 1, 2011, the Honorable Vito M. DeStefano, J.S.C., denied Lucia’s petition, holding that the Hearing Officer’s decision “did not violate strong public policy, was not totally or completely irrational, and did not exceed a specific enumerated limitation of the Hearing Officer’s power.” (R. 9). In so holding, the lower court sua sponte noted as follows: With respect to the public policy exception as a ground for vacating an arbitrator’s award, the court notes that it is mindful of the fact that Lucia, and other similarly situated teachers, have a constitutionally protected right -16- to engage in union activity. Notwithstanding, the scope of the public policy exception is “extremely narrow” (United Federation of Teachers, Local 2, AFT, AFL-CIO v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 1 N.Y.3d 72 [2003]) and the exercise of teachers’ free assembly and speech rights are circumscribed to the extent that such exercise endangers the safety of children. (see Kay-Fries, Inc. v. Martino, 73 A.D.2d 342, 352 [2d Dept 1980] [“Although certain union activities are protected by Federal law, the State has the power to enjoin breaches of the peace and threats to public safety”]; Triangle Finishing Corp. v. Textile Workers Union of America, 145 N.Y.S.2d 614, 615 [Sup Ct. Fulton County 1955] [“public peace and safety are superior to the rights of labor when these rights are abused ... [A]cts which tend to be a breach of the peace can and must be enjoined. This is fundamental in our society and both our Federal and State courts have so held time and again”]). (R. 9-10). VII. THE APPELLATE DIVISION, SECOND DEPARTMENT’S DECISION By Notice of Appeal dated August 15, 2011, Lucia appealed the order of Judge DeStefano to the Appellate Division, Second Department. (R. 2-3). After the parties submitted their briefs and participated in oral arguments, the Appellate Division, by Decision and Order dated August 14, 2013, reversed Judge DeStefano’s order and granted the petition to vacate the Hearing Officer’s award. (R. ix-xi). Upon review of the record, the Appellate Division agreed with the lower court that there existed a rational basis for the Hearing Officer to find that Lucia -17- created a health and safety hazard by participating in the parking activity, and that the Hearing Officer’s award was not arbitrary and capricious. (R. x-xi). In so holding, the Appellate Division acknowledged that it rendered the same holding in two other matters involving Lucia’s colleagues, Richard Santer and Gina Trupiano, both of whom also participated in the parking activity and were charged with the same disciplinary charge. (R. x-xi) (citing Matter of Santer, supra; Matter of Trupiano v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 89 A.D.3d 1030 (2d Dep’t 2012). Nonetheless, the Appellate Division – without analysis – reversed the lower court, concluding that “for the same reasons as those stated in Matter of Santer ... [t]he petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline.” (R. xi) (internal citations omitted). Notably, Associate Justice Sheri S. Roman, while concurring in the result on constraint of Matter of Santer, opined as follows: In this case, the teachers picketed by parking their cars in a manner which blocked the sidewalk in front of the school and caused children to be dropped off in the middle of the road, requiring them to cross traffic lanes in order to reach the school, and resulted in teachers -18- reporting late to work, leaving students without classroom supervision. The mandate of the school district to provide for the safety of the children and to ensure the proper functioning of the school is paramount, and overrides any manifestation of First Amendment rights that were embodied in this protest by teachers. (see Grayned v. City of Rockford, 408 US 104; Lewis v. Cowen, 165 F 3d 154, 161-163, cert denied 528 US 823). Thus, while I concur in the result reached herein, I do so only on constraint of this Court’s precedent. (R. xi). For the same reasons as those now pending before the Court in Matter of Santer, APL-2013-00032, the District now appeals from the Appellate Division’s August 14, 2013 Decision and Order. -19- ARGUMENT THE DISTRICT DID NOT VIOLATE LUCIA’S FIRST AMENDMENT RIGHTS GIVEN THAT THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH, THE DISTRICT’S MOTIVE IN IMPOSING DISCIPLINE WAS NOT LUCIA’S PURPORTED SPEECH, AND THE PICKERING BALANCING TEST WEIGHS HEAVILY IN FAVOR OF THE DISTRICT. The right to freedom of speech is an indispensable democratic freedom secured to all by the First Amendment of the United States Constitution. This is no less true for government employees, because “[o]ne does, of course, have a First Amendment right not to be [disciplined] ... in retaliation for engaging in protected speech.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006). A public employee’s right to freedom of speech, however, is not absolute. Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996). “Public employees...do not enjoy free reign to speak out without regard to the interests of their public employer.” Cioffi v. Averill Park Cent. Sch. Dist., 444 F.3d 158, 162 (2d Cir. 2006). After all, “the Government as an employer, and hence as a consumer of labor, must retain some freedom to [discipline] employees who do not meet the reasonable requirements of their jobs.” Blackman v. N.Y. City Transit Auth., 491 F.3d 95, 96 (2d Cir. 2007) (quoting Locurto, 447 F.3d at 163). Thus, “the government may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large.” Melzer -20- v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185, 192 (2d Cir. 2003) (quoting United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465 (1995); see also City of San Diego v. Roe, 543 U.S. 77, 80 (2004) (same). The determination whether a public employer has violated the First Amendment by disciplining a public employee for engaging in protected speech requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Rankin v. McPherson, 483 U.S. 378, 384 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). This weighing, commonly referred to as the Pickering balancing test, is necessitated in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. Rankin, 483 U.S. at 384. While a public employer’s ability to regulate speech is limited by the First Amendment, those public employers that are charged with providing such essential services as public safety and education are granted greater leeway to control employee speech that threatens to undermine its ability to perform its legitimate functions. Nat’l Treasury Employees Union, 513 U.S. at 475 n.21. Indeed, drawing on the principles learned from student speech cases, forms of expression may be suppressed where school officials reasonably conclude that it will -21- “materially and substantially disrupt the work and discipline of the school.” Morse v. Frederick, 551 U.S. 393, 403 (2007) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)). It is, therefore, necessary to closely examine references to union activity in order to determine whether the speech actually touches on a matter of public concern. See Gregorich v. Lund, 54 F. 3d 410, 415- 16 (7th Cir. 1995). In determining whether an employee’s speech or expressive conduct is protected by the First Amendment, a court must first decide whether the speech addresses a matter of public concern. See, e.g., Roe, 543 U.S. at 84. Whether a public employee’s speech addresses a matter of public concern is a question of law to be determined in light of “the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). An employee’s “speech, activity or association, merely because it is union-related, does not touch on a matter of public concern as a matter of law.” Boals v. Gray, 775 F.2d 686, 693 (6th Cir. 1985). If the speech addresses a matter of public concern, a court must then balance the interests of the employer in providing “effective and efficient” public services, See Connick, 461 U.S. at 150, against the employee’s First Amendment right to free expression. See Pickering, 391 U.S. at 568. In balancing these interests, a court must consider whether the statement and/or form of expression -22- sought to be protected “impairs discipline by superiors or harmony among co- workers, has detrimental impact on close relationships or impedes the performance of [employees’] duties or interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388. The government bears the burden of demonstrating that the speech and/or expressive conduct threatens to interfere with government operations. Rankin, 483 U.S. at 388; Nat’l Treasury Employees Union, 513 U.S. at 466. In meeting this burden, the government need only demonstrate “a likely interference with its operations, not actual disruption.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999). In applying the aforementioned principles, the Appellate Division erred in finding that the District violated Lucia’s right to free speech by imposing discipline against her for her participation in the adjudged hazardous parking activity. Specifically, the Appellate Division erred in finding that Lucia was engaged in protected speech; that the District’s motive in bringing disciplinary charges against Lucia was her purported speech; and that the Pickering balancing test weighed in favor of Lucia and not the District. -23- A. THE MARCH 2, 2007 PARKING ACTIVITY DID NOT CONSTITUTE PROTECTED SPEECH. 1. The March 2, 2007 parking activity did not qualify as a form of “speech.” Although the First Amendment protects only “speech,” certain conduct may be sufficiently imbued with elements of communication to fall within the ambit of the First Amendment. Texas v. Johnson, 491 U.S. 397, 404 (1989). Courts, however, have rejected the view that any conduct can be labeled speech whenever the actor intends to express an idea. Id. at 404; Spence v. State, 418 U.S. 405, 409 (1974). For conduct to be considered speech, the reviewing court must find, at the very least, an intent to convey a “particularized message,” along with a great likelihood that the message will be understood by those viewing it. Johnson, 491 U.S. at 404; Spence, 418 U.S. at 410-11. The person’s subjective intent is not dispositive over whether her conduct is speech. Grzywna v. Schenectady Cent. Sch. Dist., 489 F. Supp. 2d 139, 146 (N.D.N.Y. 2006). There is, rather, an objective component that requires consideration of whether, under the circumstances, the particular conduct is likely to be understood or perceived as expressing a particular message. Id. Lethbridge testified that, after the conclusion of the March 2nd parking activity, Santer informed him that its purpose was to “bring[] attention to the ongoing contract negotiations.” (R. 143). Aside from Lethbridge’s recollection of -24- what Santer told him was the teachers’ stated purpose behind the parking activity, there is no evidence in the record of this disciplinary proceeding that Lucia (or any of the participants in the March 2nd parking activity) displayed placards from their vehicles. In fact, the District, which was the only party to present a case at the disciplinary proceeding, presented no witnesses who testified or produced any evidence that Lucia displayed a placard from her vehicle during the parking activity. (R. at passim). Without any evidence that Lucia displayed a placard in her vehicle during the parking activity, the District submits that those parents who were dropping off their children in front of Woodland would not have recognized a link between the parking activity and the ongoing labor negotiations. See, e.g., Meaney v. Dever, 326 F.3d 283, 287-88 (1st Cir. 2003) (finding that plaintiff’s blowing of an air horn is qualitatively different from more readily understood expressive conduct of inherent First Amendment significance, such as picketing, boycotting, canvassing and distributing pamphlets). Consequently, the March 2nd parking activity did not constitute a form of speech under the First Amendment, but was instead, nothing more than a collection of teachers intending to cause disruption to the District’s operations. -25- 2. Even if Lucia’s participation in the March 2, 2007 parking activity qualified as a form of speech under the First Amendment, it was nevertheless unprotected given that her intent was to create a health and safety risk. In determining whether speech addresses a matter of public concern, and is therefore protected, a court must take into account the content, form, and context of a given statement as revealed by the whole record. Connick, 461 U.S. at147-48. In reaching this decision, the Court should focus on the motive of the speaker and attempt to determine whether the speech serves a public purpose. See Lewis, 165 F.3d at 163-64 (finding “the speaker’s motive” to be a relevant factor in determining whether speech is protected). Even if the parking activity constituted a form of “speech,” the Appellate Division erred in finding that Lucia’s participation in the parking activity was protected. (R. xi). In its Decision and Order, the Appellate Division found that the Hearing Officer had a rational basis for finding Lucia culpable of the Charge, which accused her of intentionally creating a health and safety hazard for students. (R. x-xi). The Appellate Division, therefore, had no basis to find that Lucia was engaged in protected speech in the face of the Hearing Officer’s finding that her intent was to put the safety of students at risk, and not, as the Appellate Division concluded, to send a particularized message to the public about the status of collective bargaining. The District submits that the Appellate Division should not have provided First Amendment protection to participants of an activity where the -26- trier of fact concluded that the intent of those participants was to create a hazardous situation, and they, in fact, created such a situation. Since the Supreme Court’s holding in Schenck v. United States, it has been commonly understood that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” 249 U.S. 47, 52 (1919). In other words, context and surrounding circumstances must be taken into account. If falsely shouting fire in a crowded movie theater does not warrant the protections of the First Amendment, neither should the teachers participation in the March 2nd parking activity. The intent in both examples is the same – to create a dangerous situation for others. In reality, the teachers’ motive was to disrupt the student drop-off area in a way that would cause parents to plea with the District to give into the Association’s demands at the bargaining table so that students would no longer be entangled in the parties’ labor dispute and have their safety put at risk. See People v. Barr, 75 A.D.2d 14 (4th Dep’t 1980) (finding a person’s intent may be inferred from his actions and from the circumstances surrounding those actions). To the extent the teachers actually hung signs in their car windows that were visible to the public, those signs were a mere pretext to their real objective. As such, taking into account the “content, form, and context” of the speech here, coupled with Lucia’s -27- intent to create a hazardous situation, the parking activity clearly does not fall within the ambit of First Amendment protection. B. THE DISTRICT’S MOTIVATION FOR IMPOSING DISCIPLINE AGAINST LUCIA HAD NOTHING TO DO WITH LUCIA’S PURPORTED SPEECH. In addition to incorrectly finding that Lucia’s actions constituted protected speech, the Appellate Division erred in finding a causal connection between Lucia’s purported “speech” and the discipline imposed. The record fully supports that the District would have pursued discipline against the teachers, including Lucia, if teachers had situated their vehicles in the manner in which they did that day and had not purportedly done so in relation to collective bargaining. This is especially true where, as it was here, their intent was to create a health and safety hazard for students. This is evident by the mere fact that the District charged Lucia and the other teachers with intentionally creating a health and safety hazard. (R. 41-42). By doing so, the District removed the notion that it was seeking to discipline the teachers for their purported speech, and instead only wished to discipline those teachers if their intention was to jeopardize the safety of its students. Therefore, by requiring that it prove intent as an element of the Charge, the District ensured that its motivation to discipline was not driven by the purported “speech.” The record further establishes that the teachers picketed Woodland hundreds of times before the parking activity without facing any type of discipline. (R. 83- -28- 85, 94, 121-22, 158-59). This undisputed fact undermines the Appellate Division’s finding that the District was motivated by the teachers’ speech. Indeed, the teachers were purportedly engaged in the same speech on the morning of March 2nd as they had been since the expiration of the collective bargaining agreement, almost three years earlier, viz., to apprise the community of the ongoing labor negotiations. (R. 83-84, 121-22). The difference with the parking activity, however, lies in the fact that the parking activity created a hazardous situation for students, which the teachers intended. Accordingly, the District preferred disciplinary charges against Lucia based on her intention to create a health and safety hazard for students, and not in retaliation for her speech. C. THE PICKERING BALANCING TEST WEIGHS HEAVILY IN THE DISTRICT’S FAVOR. Under the fact-sensitive Pickering balancing test, courts must determine whether “the employee’s interest in free speech is outweighed by the employer’s interest in avoiding disruption.” Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir. 2006) (citing Melzer, 336 F.3d at 193). In doing so, courts must consider the “manner, time, and place of the employee’s expression” as well as “the context in which the dispute arose.” Rankin, 483 U.S. at 388. Public employers that are charged with providing such essential services as public safety and education are granted greater leeway to control employee speech that threatens to undermine its ability to perform its legitimate functions. Nat’l Treasury Employees Union, 513 -29- U.S. at 475 n.21. Here, even if the Appellate Division properly found that Lucia engaged in protected speech and that her speech was, indeed, the motivating factor for the District pursuing disciplinary charges against her, the Appellate Division erred in failing to properly balance the interests of the District against Lucia’s interests. The District’s interests in this case are simple, but exceedingly important --- to ensure the safe arrival of its student population and the timely arrival of its teachers to supervise and educate those students. Lucia’s interests here are minimal --- to participate in a parking activity with the intention of jeopardizing the safety of students. Balancing these interests, however, the Appellate Division somehow found that Lucia’s interests outweighed those of the District. In reaching its conclusion, the Appellate Division, “for the same reasons as those stated in Matter of Santer,” 7 held that the “District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline.” (R. xi). In so holding, the Appellate Division disregarded the Hearing Officer’s findings that the “disruption of the student drop-off raised a safety issue per se.” (R. 35). 7 In Matter of Santer, the Appellate Division relied on the following facts in rendering its decision: (1) Santer did not violate any law or school policy; (2) no District official asked the teachers to move their cars during the parking activity; and (3) no student was injured as a result of the parking activity. 101 A.D.3d at 1028. As set forth in Point C.1 infra, the Appellate Division, just as it did in Matter of Santer, incorrectly applied the Pickering balancing test by holding that Lucia’s interests outweighed those of the District. -30- Moreover, the Appellate Division completely ignored the fact that the parking activity disrupted the District’s operations by causing 16 Woodland teachers to report late to work, leaving homerooms without proper teacher supervision. (R. 44, 145-146, 149-50) 1. The District’s interest in student safety. The Commissioner of Education has consistently held that school districts have “a duty to protect the safety of its pupils and to provide them with a safe school environment.” City Sch. Dist. of the City of Elmira, SED Decision No. 12,394 (1990). In Chainani v. Bd. of Educ. of the City of N.Y., this Court held that “[p]lainly, a school has a duty of care while children are in its physical custody or orbit of authority...” 87 N.Y.2d 370, 378 (1995). Teachers also have a “well- established duty to protect the safety and well-being of pupils.” Appeal of Cuoco, SED Decision No. 12,582 (1991) (citations omitted); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (“[T]eachers... stand in loco parentis over the children entrusted in them.). In light of these corresponding duties, the District has a significant interest in ensuring that its students arrive to school safely, and disciplining those who undermine such interests. Those interests far outweigh Lucia’s right to participate in a teachers’ dangerous parking activity. See Hudson v. Craven, 403 F.3d 691 (9th Cir. 2005) (where the Court held that the college’s interest in student safety and pedagogical oversight strongly outweighed its -31- professor’s speech and associational activities); see also Grayned v. City of Rockford, 408 U.S. 104 (1972) (where the Court held that the City’s ordinance, which prohibited picketing near schools in session, did not violate the First Amendment because it was narrowly tailored to further the City’s compelling interest in having an undisrupted school session conducive to the students’ learning and did not unnecessarily interfere with First Amendment rights). In Hudson, the plaintiff, a college professor, organized an unofficial field trip for her students to attend a protest against the World Trade Organization (“WTO”) despite being told not to do so by college officials. Id. at 694. The plaintiff then sued various college administrators after her employment contract was not renewed after the WTO protest. Id. at 695. The Ninth Circuit held that the plaintiff’s rights to free speech and association were at issue based on the fact that her stated purpose in participating in the demonstration was to express, in association with some of her students, her opinions about the role of the WTO in the global economy. Id. at 699. When applying the Pickering balancing test, however, the Ninth Circuit concluded that college’s interest in the “safety of students and pedagogical oversight” strongly outweighed the interests of the plaintiff. Id. Furthermore, the Ninth Circuit opined: While [plaintiff’s] freedom to participate in discussion about the WTO surely implicates core political speech, the actual curtailment of her First Amendment rights was minimal. [Plaintiff] was free to attend the anti-WTO rally on her own. She was free to communicate her -32- views on the WTO to her students or to anyone else. She was free to associate with her students in the classroom on this matter. The only claimed abridgement of her First Amendment rights was that she was not permitted, under the de facto auspices of the College, to associate with a handful of students during a discrete event for a limited duration. Id. Here, the Appellate Division erred in determining that the balance of interests somehow hinged on the level of actual danger presented by the teacher parking activity. It is well settled that the District’s burden in connection with the balancing test is to show “only a likely interference with its operations, and not actual disruption.” Lewis, 165 F.3d at 163. Thus, the District may discipline an employee under the following circumstances: (1) the employer’s prediction of disruption is reasonable or if the employee’s speech was actually disruptive; (2) the potential disruptiveness is enough to outweigh the value of speech; and (3) the employer took action against the employee based on the disruption and not in retaliation for the speech. See Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995); Johnson v. Ganim, 342 F.3d 105, 114 (2d Cir. 2003). There is no reasonable dispute that the hazardous situation presented by the parking activity was significant. As the Hearing Officer found, traffic became significantly congested on Wenwood Drive and students were dropped off in the middle of that congested traffic. (R. 34). Common sense dictates that having children exit vehicles in the middle of the street, in a heavy flow of traffic, during a -33- rainstorm (when visibility is low and roads are slippery), is inherently a significant health and safety hazard. Rather than defer to the Hearing Officer’s findings, the Appellate Division relied on facts that were irrelevant to the question of whether a hazard existed that morning and the significance of that hazard. The Appellate Division, adopting its reasoning in Matter of Santer, found that the parking activity was not hazardous because Lucia did not violate any law or school policy. (R. xi) (citing Matter of Santer, 109 A.D.3d at 1028).8 In finding that Lucia was lawfully parked on the morning of March 2nd, the Appellate Division ostensibly relied on the parties’ representation that, according to the posted traffic signs, parking was prohibited on Wenwood Drive between the hours of 8 a.m. and 4 p.m. (R. 17, 79, 162). 9 Recently, the District has come to learn that those teachers who were parked on the northwest side (school side) of Wenwood Drive – the side on which Lucia’s black Chevy Camaro was situated (R. 197, 410) – were not lawfully parked on Wenwood Drive on the morning of March 2nd. 8 The Appellate Division ignored the fact that the District’s Public Conduct on School Property Policy provides, in pertinent part, that “any action by an individual or group aimed at disrupting, interfering or delaying the education process or having such effect, is hereby declared to be in violation of Board Policy.” (R. 48-50). More apparently, the Appellate Division dismissed the Hearing Officer’s finding that by engaging in the parking activity, Lucia violated this policy. (R. 35). 9 The record evidence establishes that Lucia and her colleagues were parked along Wenwood Drive between the hours of approximately 7:30 a.m. to approximately 7:50 a.m. (R. 132, 182, 189). -34- Indeed, in response to a Freedom of Information Law (“FOIL”) request to the Town of Hempstead,10 dated September 20, 2013, in which the District sought copies of all records pertaining to any and all amendments to the parking ordinance for the 600 block of Wenwood Drive in East Meadow, New York, the Town of Hempstead indicated that “there were no parking ordinance changes in the parking restrictions after 2007” and attached a copy of the parking restrictions and repeals from 1956 through 2002.11 According to the Town of Hempstead’s records, as of June 4, 2002, parking was prohibited on the northwest side (school side) of Wenwood Drive between the hours of 7:00 a.m. and 4:00 p.m. See Addendum, p. 4. Conversely, as of June 17, 1986, parking was prohibited on the southeast side (non-school side) of Wenwood Drive between the hours of 8:00 a.m. to 4:00 p.m. See Addendum, p. 4. Therefore, Lucia – whose car was identified as having been situated on the northwest side (school side) of Wenwood Drive – was not lawfully parked on Wenwood Drive on the morning of March 2, 2007. 10 The Town of East Meadow is located within the Town of Hempstead. The Town of Hempstead is charged with enacting and enforcing parking ordinances within the Town of East Meadow. 11 A copy of the District’s FOIL request, dated September 20, 2013, and the Town of Hempstead’s September 25, 2013 response thereto, are attached to this brief in the addendum. -35- Unfortunately, due to the Town of Hempstead’s failure to timely correct the signage reflecting the parking ordinance,12 the parties (as well as the Appellate Division) mistakenly believed that Lucia was lawfully parked on the morning of March 2nd. Even if this Court elected not to take judicial notice of the fact that Lucia engaged in unlawful activity and, instead, relied on the parties’ mistaken belief that Lucia was lawfully parked, this fact has no bearing on the significance of the hazard. Indeed, there are certainly situations where teachers engage in an activity that, while not unlawful, presents significant safety hazards, such as when a teacher fails to evacuate a classroom during a fire drill, or leaves a classroom of students unattended for a long period of time. Here, the trier of fact, the Hearing Officer, specifically found that a safety hazard was present. The Appellate Division cannot disregard this finding simply because the record reflected that no law was broken. The Appellate Division also relied on the fact that had members of the public parked their cars in the same manner, the District would have no recourse. (R. xi) (citing Matter of Santer, 109 A.D.3d at 1028). Although the Appellate Division did not have the benefit of knowing that members of the public would not have been permitted to park along the northwest side (school side) of Wenwood Drive (See Addendum, p. 4) because it was unlawful, it is axiomatic that members 12 According to District officials, the Town of Hempstead posted new signs which accurately reflected the parking ordnance about a year or so after the March 2nd parking activity. -36- of the public do not carry the same responsibility that teachers carry towards students of the District. As stated earlier, teachers have an affirmative obligation to “protect the safety and well-being of pupils,” and instead, Lucia and her colleagues did the exact opposite when they blocked the Woodland student drop- off area. Moreover, members of the public had never parked in the manner that the teachers did that morning. Indeed, on a normal day, parents pull up alongside the curb, safely drop off their children curbside and then immediately pull away. (R. 128-131). They do not remain parked alongside the curb with fifteen other members of the public, end-to-end, one after another, for more than 20 minutes. The fact that the public could, but never did, park in the same disruptive manner as Lucia and the teachers does not weigh in favor of Lucia’s interests. In finding that Lucia’s interests outweighed those of the District, the Appellate Division also relied on the fact that no school official asked the teachers to move their cars during the protest. (R. xi) (citing Matter of Santer, 109 A.D.3d at 1028). While it is true that no school official addressed this hazardous situation by going outside and doing who knows what, the record evidence establishes that Lethbridge called the police. (R. 141). It was not unreasonable for Lethbridge to believe that the police were best equipped to handle the situation of parked cars creating traffic congestion and a dangerous situation for students. Once again, this -37- fact does not minimize the danger of the situation that was created by the conduct in question and it certainly does not tip the scales in favor of Lucia. Finally, in its balancing analysis, the Appellate Division relied on the fact that no student was injured as a result of the parking activity. (R. xi) (citing Matter of Santer, 109 A.D.3d at 1028). As the Hearing Officer prudently noted in his award, “[t]hat no injury occurred was fortunate, but that does not cancel out inappropriate creation of a potentially hazardous circumstance.” (R. 35). The Appellate Division failed to recognize that by virtue of Lucia and the other teachers engaging in the parking activity, there was an increased potential that a student could have been injured. It is not disputed that it was the Lucia’s (and the other teacher’s) intent to have children dropped off in the middle of the street. (R. 29-36). The Appellate Division’s decision recklessly suggests that a student would have had to been hit by a car in order for the parking activity to have been sufficiently dangerous for the balancing test to tip in the District’s direction. 2. The District’s interest in the timely arrival of its teachers. In conducting its balancing analysis, the Appellate Division ignored the fact that the teachers’ parking activity significantly interfered with the District’s operations. The record clearly reflects that as a result of the parking activity, and the traffic congestion it caused, 16 teachers reported to Woodland after 8:05 a.m. (R. 44, 51-57, 145-46, 149-50), which means that at 8:05 a.m., 15% of the -38- Woodland teaching staff had not yet arrived to work. With so many teachers tardy to work, the parking activity “endangered the safety of the [unsupervised] students who were in the building.” (R. 157). As a result, the parking activity must be subordinate to the interest of the effective functioning of the District without offending the Constitution. The Appellate Division completely missed this essential component of the balancing analysis. 3. Lucia’s interest in participating in the parking activity. As opposed to the District’s significant interests in student safety and the timely arrival of its staff, Lucia’s interests in participating in the parking activity were minimal, particularly where the Hearing Officer found that she engaged in the activity with the intention of creating a health and safety hazard. (R. 29-36). As the record reflects, the Association had many alternative and safer means of making the community aware of the labor negotiations other than by blocking a known student drop-off area with their cars, like, for example, walking along the sidewalk with their signs. (R. 83-85, 121-22). Therefore, the notion that the First Amendment protects this type of activity is inherently wrong. In sum, the District maintains a “strong state interest” in its function as employer and in avoiding interference with than function. Rankin, 483 U.S. at 388. Further, the District has an interest in functioning as effectively as possible, especially when it comes to protecting the health, safety and welfare of its student -39- population and ensuring the timely arrival of its staff. Lucia’s interests – the right to participate in the dangerous parking activity – are marginal. With plenty of other ways to get their alleged message across, including picketing in front of Woodland, it is hard to imagine that this adjudged dangerous activity is somehow entitled to greater protection. Moreover, Lucia, as a teacher, has an obligation to protect the health and safety of students and instead, she purposely engaged in an activity to put those very students she is obligated to protect in a hazardous situation. For these reasons, the Appellate Division’s Pickering analysis is flawed and warrants reversal. -40- CONCLUSION Based upon the record on appeal and for the reasons set forth above, the District respectfully requests that the Court of Appeals reverse the Appellate Division, Second Department’s Decision and Order reversing the Decision and Order of the Supreme Court, Nassau County, and award such other and further relief as deemed appropriate by the Court. An adverse ruling would render school districts paralyzed in their ability to safeguard its student body when teachers engage in unsafe and hazardous activities under the pretense of union activity. Date: October 23, 2013 New York, New York /s/ George B. Pauta Craig R. Benson George B. Pauta Ethan D. Balsam LITTLER MENDELSON A Professional Corporation 900 Third Avenue New York, New York 10022 Telephone: (212) 583-9600 Facsimile: (212) 832-2719 Attorneys for Respondent-Appellant Board of Education of the East Meadow Union Free School District ADDENDUM Littler Employment &: labor law Solutions Worldwide September 20, 2013 VIA FACSIMILE (516) 489-5150 Federico A. Amorini, Esq. Town of Hempstead One Washington Street Hempstead, NY 11550 Littler Mendelson, PC 900 Third Avenue New York, NY 10022.3298 Stephanie J . Morano 212.471 .4483 direct 212.583.9600 main smorano@littler.com Re: Wenwood Drive (Town of East Meadow) Parking Ordinance Dear Mr. Amorini: In accordance with the Freedom of Information Law, N.Y. Pub. Off. Law § 84, et seq., and 9 NYCRR § 466.7, we hereby request that the Town of Hempstead produce a copy of any and all records, materials and other documents in its files with respect to an amendment to the Town of Hempstead's parking ordinance for the 600 block of Wenwood Drive, East Meadow, New York that occurred after 2007. Before the amendment, the 600 block of Wenwood Drive prohibited parking between the hours of 8am and 4pm. Thereafter, parking was prohibited from 7am to 4pm. As such, we are seeking the precise date the parking ordinance changed and the reasons underlying the amendment. The Freedom of Information Law requires you to respond to this request within five (5) business days of your receipt of this letter. Please mail the requested documents to my attention at the address provided above. If providing the documents will take longer than five business days, please contact me with information about when I might expect the Town of Hempstead to provide the records. In the event that any portion of this request is denied, a detailed statement of the reasons for nondisclosure is requested, together with an index of the documents or portions thereof that you intend to withhold. Please let me know if there are any copying charges associated with this request, and we will promptly remit payment. Thank you for your attention to this matter. Please do not hesitate to call me with any questions regarding this request. Iittler.com Records Access Officer September 20, 2013 Page 2 Sincerely, r .' - "'{ ... ,~. , - """, \ ' J.\.. ' .. I { ' :'\..l. \. , St~pl1ani~ 1:~Mo~a'no j Senior Paralegal SJM KATE MURRAY SUPERVISOR COUNCIL MEMBERS ANTHONY J. SANTINO ANGIE M . CU L LIN DOROTHY L. GOOSBY GARY HUDES J AMES DARCY EDWARD A. AMBROSINO TOWN OF HEMPSTEAD DEPARTMENT OF GENERAL SERVICES TRAFFIC CONTROL DIVISION MARK BONI LLA TOWN C L ER K DONAL D X . CLAVIN, J R . RECEIVER O F T AXES September 25, 2013 1580 MERRICK ROAD, MERRICK, N .Y . 11566-4597 (516) 378-2260 FAX# (5 16) 378-7155 Stephanie 1. Morano, Senior Paralegal Littler Mendelson, PC 900 Third Avenue New York, NY 10022-3298 RE: F.O.I.L. REQUEST TIMED PARKING 600 SECTION of WENWOOD DRIVE EAST MEADOW Dear Ms. Morano: STEPHEN D 'ESPOSITO COMMISSION E R T HOMAS O . DAUSCHER 1 ST DEPUTY COMMISSIONER GARY P . SAUER ACTING D I RECTOR We hereby acknowledge receipt of your recent F.O.I.L request for files in connection with the Timed Parking restrictions at the above-mentioned location. A search of our records indicates there were no ordinance changes in the parking restrictions after 2007. For additional inform(;ltion previous to 2007, attached please find a copy of the restrictions and repeals from 1956 thru 2002. If we can be of further assistance to you, please do not hesitate to contact our office. Esther Belbol Administrative Officer attachments cc: Joanne Malandro, Records Access Officer .. cD W ENW OOD D R IV E E a ~ t M eadow A m end: 1 /1 0 156 ~/8-NG·-P.f.\R.K-ING-QR-S!.l!.A.ND;t.N.G---8-AM-t0-4-FM-s.cJiOOL-D.AY,S st'a~-t-ing p t w /c·l.j--ef.' /. f. r - Q J. I I . · .. M -id·la-na--D ;p- S .. ;£:Q iP .. l~92 I I~ . ~; /2 · l!7/1i;/id . f.-" tlla 8 /6 6 W /S N O 8 'ro P P IN G 8 A,M , t9 4 P .M . S C H O O L D A ¥8 s t. a-t= th e= w le/l 9 f M id laD d I)P . , s9\:1til fe r a E U staftee a f 4 a 9 it. lit;:' d .... , c:1 e ) " ~ ~"...
