In the Matter of Barbara Lucia, Respondent,v.Board of Education of East Meadow Union Free School District, Appellant.

Brief

N.Y.February 19, 2014

To 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. REPLY 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 January 22, 2014 TABLE OF CONTENTS PAGE i. PRELIMINARY STATEMENT .............................................................................. 1 ARGUMENT ............................................................................................................ 4 POINT I LUCIA’S ARGUMENTS CONTESTING HER INVOLVEMENT IN THE MARCH 2, 2007 PARKING ACTIVITY, HER INTENT UNDERLYING THE PARKING ACTIVITY AND WHETHER THAT ACTIVITY CREATED A HEALTH AND SAFETY HAZARD ARE SETTLED AND NOT BEFORE THIS COURT ON APPEAL ............................................................... 4 POINT II THE MARCH 2, 2007 PARKING ACTIVITY WAS NOT PROTECTED SPEECH BECAUSE OF THE MANNER IN WHICH IT WAS CONDUCTED ...................... 7 POINT III THE DISTRICT HAS DEMONSTRATED ACTUAL DISRUPTION TO ITS OPERATIONS, RESULTING IN THE PICKERING BALANCING TEST WEIGHING IN ITS FAVOR ............................................................................. 11 POINT IV THE MARCH 2nd AND MARCH 30th PARKING ACTIVITIES ARE FACTUALLY DISTINGUISHABLE ..... 17 POINT V THE COURT MAY TAKE JUDICIAL NOTICE OF THE AMENDED PARKING ORDINANCE ......................... 18 CONCLUSION ....................................................................................................... 21 ii TABLE OF AUTHORITIES Page(s) CASES Affronti v. Crosson, 95 N.Y.2d 713 (2001) ......................................................................................... 20 Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355 (2003) ........................................................................................... 6 Crawford v. Merril Lynch, Pierce, Fenner & Smith, Inc., 35 N.Y.2d 291 (1974) ......................................................................................... 19 Cuff v. Valley Cent. Sch. Dist., 677 F.3d 109 (2d Cir. 2012) ............................................................................... 12 East Meadow Teachers Ass’n v. East Meadow Union Free Sch. Dist., 43 PERB ¶4530 (ALJ Maier, Apr. 20, 2010) ..................................................... 17 Gilchrist v. Citty, 173 Fed. App’x. 675 (10th Cir. Apr. 4, 2006) .................................................... 14 Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765 (2012) ........................................................................................... 6 Hara v. Pa. Dep’t of Educ., 492 Fed. App’x. 266 (3rd Cir. Jul. 13, 2012) ..................................................... 13 Hecht v. City of New York, 60 N.Y.2d 57 (1983) ............................................................................................. 4 James v. Mellen, 305 Fed. App’x. 192 (5th Cir. Dec. 15, 2008) .................................................... 14 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) ..................................................................................... 12 iii TABLE OF AUTHORITIES CONTINUED Page(s) Cases Matter of Santer v. Bd. of Educ. of the East Meadow Union Free Sch. Dist., 101 A.D.3d 1026 (2d Dep’t. 2012) ................................................... 13, 15, 16, 18 Matter of Siwek v. Mahoney, 39 N.Y.2d 159 (1976) ......................................................................................... 20 Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185 (2d Cir. 2003) ......................................................................... 12, 14 NLRB v. Teamsters Local 182, 314 F.2d 53 (2d Cir. 1963) ................................................................................... 9 People v. Sanchez, 98 N.Y.2d 373 (2002) ......................................................................................... 20 Thornhill v. Alabama, 310 U.S. 88 (1940) .................................................................................... 9, 10, 11 United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (1995) ............................................................................................ 15 STATUTES N.Y. C.P.L.R. § 5515 ................................................................................................. 4 N.Y. C.P.L.R. § 4511 ............................................................................................... 19 N.Y. VEH. & TRAF. LAW § 1683 .............................................................................. 18 1 PRELIMINARY STATEMENT As set forth more fully in the District’s opening brief, the issue before this Court is whether the March 2, 2007 parking activity constituted protected speech under the First Amendment of the United States Constitution. If so, then the second issue before this Court is whether the interests of the District - to ensure the safe arrival of its student population and the timely arrival of its teachers to supervise and educate those students - outweigh those of Petitioner-Respondent Barbara Lucia (“Lucia”) - to participate in a parking protest with the intent to create a health and safety hazard for adolescent students. In her brief, Lucia spends countless pages arguing that the March 2nd parking activity was not hazardous and that she did not intentionally create a health and safety risk by purposely situating her vehicle alongside the curb of Wenwood Drive. Lucia even goes so far as to argue that the District’s identification of her as a participant in the parking protest was purely speculative. In so arguing, Lucia is attempting to relitigate issues not before this Court on appeal and which have already been resolved by the Hearing Officer, whose decision the Appellate Division appropriately concluded had a rational basis and was not arbitrary and capricious. Because Lucia has not cross-appealed from that part of the Appellate Division’s Decision and Order, the focus of the Court’s analysis is limited to 2 whether the District was justified in its imposition of discipline against Lucia in the context of the First Amendment. On this issue, Lucia incorrectly argues that proper application of the Pickering balancing test establishes that the District violated Lucia’s First Amendment rights when it commenced disciplinary proceedings against her. For example, Lucia argues that the parking activity warrants First Amendment protection because (1) its purpose was to inform the public of the ongoing labor dispute; (2) it was the functional equivalent to picketing along a sidewalk; and (3) there is no evidentiary basis that it was undertaken to create a danger to the public. Lucia’s argument is entirely misguided. Indeed, even if the message conveyed during the March 2nd parking activity addressed the ongoing labor dispute, any protection afforded to that activity was lost due to the manner in which it was conducted. Significantly, unlike walking a picket line, Lucia (and her colleagues) intentionally blocked parents’ access to the curb, which forced many students to be dropped off in the middle of the street. The notion that the First Amendment protects this type of activity is inherently wrong, especially where multiple other safer mediums of expression were available to the teachers - like walking a picket line. Lucia further argues that the District cannot demonstrate that its interests in preventing disruption to its operations outweighed those of Lucia’s free speech 3 interests. This is plainly untrue and entirely unsupported by the record. As set forth below, Lucia’s (and the other teachers) deliberate act of blocking access to the curb along Wenwood Drive forced parents to drop off their children in the middle of the street, which significantly impeded traffic. And while not referenced anywhere in Lucia’s opposition, the March 2nd parking activity caused 16 teachers to report after school began, leaving homerooms without proper teacher supervision. On this record, the District’s interest in protecting the health, safety and welfare of its student population outweighs Lucia’s minimal interest in participating in a discrete parking activity that has already been adjudged hazardous and disruptive. Therefore, as set forth below, and more fully in the District’s opening brief, 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. 4 ARGUMENT POINT I LUCIA’S ARGUMENTS CONTESTING HER INVOLVEMENT IN THE MARCH 2, 2007 PARKING ACTIVITY, HER INTENT UNDERLYING THE PARKING ACTIVITY AND WHETHER THAT ACTIVITY CREATED A HEALTH AND SAFETY HAZARD ARE SETTLED AND NOT BEFORE THIS COURT ON APPEAL. In her opposition, Lucia goes lengths to try to convince this Court that there was insufficient evidence to establish that she participated in the March 2nd parking activity; but to extent there was, that her intent was solely to apprise the public about the ongoing labor dispute. She also submits that the parking activity did not create a health and safety hazard.1 These issues, however, are not properly before this Court on appeal. It is well-settled that “an appellate court’s scope of review ... is generally limited to those parts of the judgment that have been appealed and that aggrieve the appealing party.” Hecht v. City of New York, 60 N.Y.2d 57, 61 (1983); see also CPLR 5515 (“A notice [of appeal] shall designate ... the judgment or order or specific part of the judgment or order appealed from.”) (emphasis added). Here, the Appellate Division decided two separate and distinct issues, viz., (1) whether the Hearing Officer’s award was rational and not arbitrary and capricious; and (2) 1 Petitioner-Respondent’s Brief in Opposition (“Opp. Brief”), dated January 7, 2014, pp. 1- 2, 10, 21-22, 35-38. 5 whether the Education Law § 3020-a proceeding commenced against Lucia violated her free speech rights under the First Amendment. (R. x-xi). With respect to the first issue, the Appellate Division concluded that there existed a rational basis for the Hearing Officer’s determination and, therefore, the award was not arbitrary and capricious. (R. x-xi). Concerning the second issue, the Appellate Division inexplicably concluded that, even though there existed a rational basis for the Hearing Officer’s findings that Lucia intended to create a hazardous situation for students and did in fact create one, the District violated Lucia’s First Amendment rights by preferring the disciplinary charges against her. (R. xi). The District has only appealed the second issue, with no cross-appeal from Lucia. Importantly, in its Notice of Appeal, dated August 28, 2013, the District clearly and unequivocally stated that it was appealing from only: that part of the Decision and Order of the Appellate Division ... which held that 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. (R. vi) (emphasis added). Therefore, Lucia’s attempt to relitigate whether the Hearing Officer had a rational basis to find her guilty of the charged misconduct is 6 beyond the scope of the instant appeal.2 See Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 N.Y.3d 765, 770 (2012) (“Because Hahn did not cross-appeal, the Appellate Division’s dismissal of the second through fourth claims ... is not before us.”). Lucia also contends for the first time on appeal that she “was not charged with misconduct for acting in concert with others” and, as a result “she may not be found guilty of conduct not expressly contained in the charges.” (Opp. Brief, p. 37 citing Soucy v. Bd. of Educ. of the N. Colonie Cent. Sch. Dist. No. 5, 41 A.D.2d 984, 985 (3d Dep’t 1973)). Initially, nothing in the District’s opening brief (or the record before this Court) even remotely suggests that Lucia was found guilty of conduct not expressly provided for in the disciplinary charge. Evidently, the Hearing Officer did not believe the District needed to charge Lucia with acting in concert with others in order to find her guilty of the disciplinary charge. In any event, Lucia’s newfound argument cannot be considered by this Court for the first time on appeal. Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355, 359 (2003) (“this Court with rare exception does not review questions raised for the first time on appeal.”). 2 To the extent the Court were to entertain Lucia’s arguments concerning her involvement, intent and the hazardous nature of the March 2nd parking activity, Lucia concedes that the Appellate Division - unlike the lower court - “applied the correct standard of judicial review when it examined the instant matter.” (Opp. Brief, p. 41). Accordingly, deference should be accorded to the Hearing Officer’s findings of fact based on the record as a whole, which the Appellate Division found to be rational and not arbitrary and capricious. 7 POINT II THE MARCH 2, 2007 PARKING ACTIVITY WAS NOT PROTECTED SPEECH BECAUSE OF THE MANNER IN WHICH IT WAS CONDUCTED. In its opening brief, the District argued that the Appellate Division should not have provided First Amendment protection to participants of an activity where the trier of fact concluded that the intent of those participants was to create a hazardous situation, and they, in fact, created such a situation. The District, citing the Supreme Court’s decision in Schenck v. United States, posited that “[i]f 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.3 As explained in the District’s opening brief, “[t]he intent in both examples is the same - to create a dangerous situation for others.” (District’s Brief, p. 26). Nevertheless, in her opposition, Lucia argues that “there is no evidentiary basis for Appellant’s assertion that the Union’s March 2nd activities were undertaken to create a danger to the public.” (Opp Brief, p. 22). As stated above, this issue has already been settled. Indeed, the Hearing Officer concluded that Lucia’s actions and the circumstances surrounding those actions established such intent. (R. 25-26). The Hearing Officer found that as a result of the parking 3 Respondent-Appellant’s Brief (“District’s Brief), dated October 25, 2013, p. 26. 8 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). Thus, 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). Lucia, therefore, knew that by parking on Wenwood Drive that morning with numerous other teachers, the parking activity would create a hazardous condition for students. Considering, as this Court must, the content, form, motive and context of Lucia’s “speech”, as revealed by the whole record, it is evident that the parking activity was not a protected form of speech. In a last ditch effort to portray the parking activity as a peaceful demonstration and thus, not hazardous, Lucia claims that “parked-car picketing,” similar to that of March 2nd, has already been held to be protected by the First Amendment. (Opp. Brief, p. 30) (citing NLRB v. Teamsters Local 182, 314 F.2d 53 (2d Cir. 1963)). Lucia’s claim that the Second Circuit held in Teamsters Local 182 that “First Amendment protection extended to picketers seated in a car while their cars were in a snow bank” is, however, not at all accurate. (Opp. Brief, p. 30). Indeed, in Teamsters Local 182, the issue of First Amendment protection was 9 not even before the Second Circuit. 314 F.2d at 57-58. Rather, that case dealt exclusively with whether or not the union violated Section 8 of the National Labor Relations Act. Id. at 57. What’s more, that case is factually distinguishable from the instant matter. Importantly, unlike in this case, the parking activity in Teamsters Local 182 had not been adjudged to be hazardous. Id. Indeed, in Teamsters Local 182, representatives from a union stationed themselves in vehicles parked on the shoulder of a highway adjacent to an automobile dealership and planted two signs in a snowbank abutting the entrance. Id. On these facts, Lucia’s contention that picketing described in Teamsters Local 182 is similar to that of March 2nd is completely off the mark. Lucia also claims that “it is equally well established that First Amendment protection extends to dissemination of information and picketing, such as the means by which the Union members, here, communicated their speech on March 2, 2007.” (Opp. Brief, p. 27). In support of this claim, Lucia directs this Court to Thornhill v. Alabama, 310 U.S. 88 (1940) and the cases cited therein, which Lucia contends endorses the manner in which she (and her colleagues) disseminated “information about [their] labor dispute.” (Opp. Brief, p. 27). Lucia, once again, attempts to characterize the March 2nd parking activity as a peaceful picket worthy of First Amendment protection. Lucia’s reliance on Thornhill is patently misplaced. There, the Supreme Court considered whether an Alabama statute, 10 which prohibited picketing, violated the First Amendment. Thornhill, 310 U.S. at 91. The statute in question provided as follows: Any person or persons, who, without a just cause or legal excuse therefor, go near to or loiter about the premises or place of business of any other person, firm, corporation, or association of people, engaged in a lawful business, for the purpose, or with the intent of influencing, or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association, or who picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delaying, or interfering with or injuring any lawful business or enterprise of another, shall be guilty of a misdemeanor; but nothing herein shall prevent any person from soliciting trade or business for a competitive business. Id. at 91-92. In striking down the statute as unconstitutional, the Supreme Court opined that “[the statute] has been applied by the state courts so as to prohibit a single individual from walking slowly and peacefully back and forth on the public sidewalk ... carrying a sign or placard ... stating only that the employer did not employ union men.” Id. at 98-99. Furthermore, the Supreme Court noted that “[t]he statute ... leaves for no exceptions.” Id. at 99. In fact, “[t]he range of activities proscribed by [the statute] ... embraces nearly every practicable, effective means whereby those interested - including the employees directly affected - may enlighten the public on the nature and causes of a labor dispute.” Id. at 104. Resultantly, the Supreme Court held that “[the statute] does not evidence any such 11 care in balancing these interests [referring to a clear and present danger of destruction of life or property, invasion of privacy, or breach of the peace] against the interest of the community and that of the individual in freedom of discussion on matters of public concern.” Id. at 105. Unlike in this case where the teachers had multiple other avenues for informing the public about the ongoing labor negotiations, which Lucia acknowledges was done routinely and without obstruction, in Thornhill, the statute was struck down because of its breadth. Importantly, the statute in Thornhill applied to nearly every single picketing activity without exception. Id. at 104. The March 2nd parking activity was, by no means, a peaceful picket falling within the ambit of First Amendment protection. POINT III THE DISTRICT HAS DEMONSTRATED ACTUAL DISRUPTION TO ITS OPERATIONS, RESULTING IN THE PICKERING BALANCING TEST WEIGHING IN ITS FAVOR. Contrary to Lucia’s argument, the record evidence establishes that the March 2nd parking activity triggered a series of events that caused actual disruption to the 12 District’s operations.4 Here, the District experienced actual disruption to its operations and, therefore, it has sufficiently demonstrated that the discipline imposed on Lucia was justified. First, the student drop off process became hazardous and disorderly. Indeed, parents could not pull over to the curb 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, 192). As a result, traffic in front of Woodland became significantly congested in both directions - more so than normal for that time of day - and students were dropped off in the midst of the traffic congestion. (R. 133, 136, 140-41).5 Second, teachers reported late to work. Significantly, 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 4 The District’s burden is to show “a likely interference” and not an “actual disruption.” Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995) (citing Waters v. Churchill, 511 U.S. 661, 674 (1994)); see also Cuff v. Valley Cent. Sch. Dist., 677 F.3d 109, 113 (2d Cir. 2012) (“This test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. Rather, the question is ‘whether school officials might reasonably portend disruption from the student expression at issue.’”) (quoting Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008)). “Any actual disruption that has already occurred is of course a persuasive argument for the government that it has met its burden.” Melzer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185, 197 (2d Cir. 2003). 5 Lucia erroneously claims that the undisputed record evidence conclusively establishes that only five students exited vehicles in the middle of the road during the March 2nd parking activity. (Opp. Brief, p. 36). Lethbridge testified, however, that while he definitely observed five students being dropped off in the middle of the street, he qualified that number with testimony that he “was back and forth, between the lobby my office, main office, and back to the lobby. It wasn’t like I was standing there the whole time watching this unfold.” (R. 144-45). As such, Lucia’s representation that only five students were put in harm’s way because of her actions is without basis. 13 interviewing these teachers regarding the reason for their tardiness, 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. (R. 44, 149-50). Third, students went unsupervised. Indeed, the record evidence establishes that as a direct result of teachers reporting late due to the parking activity, students went unsupervised in their homerooms. (R. 146, 157). Thus, the parking activity, having caused a hazardous situation and teachers to report late to work (leaving students unsupervised), undeniably “endangered the student population of Woodland Middle School.” (R. 157). While the record evidence establishes that the District faced actual disruption to its operations on the morning of March 2nd, the Appellate Division (as does Lucia in his opposition) relied on facts that are irrelevant to the question of whether the District’s interests outweigh those of Lucia.6 (R. xi). Initially, the fact that Lucia did not violate any law has absolutely no bearing on whether actual disruption resulted from the parking activity. There are certainly situations where public employees engage in an activity that, while not unlawful, presents actual or, the potential for, disruption. See Hara v. Pa. Dep’t of Educ., 492 Fed. App’x. 266 6 As discussed in the District’s opening brief, the Appellate Division concluded that Lucia’s interests outweighed those of the District based on “the same reasons as those stated in Matter of Santer”. (District’s Brief, p. 29). 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 1026, 1028 (2d Dep’t 2012). Therefore, reference is made to the Appellate Division’s decision in Matter of Santer. 14 (3rd Cir. Jul. 13, 2012) (finding that the superintendent’s article published in the Scranton Times Tribune, which criticized the Department of Education, had the potential to interfere with the regular operation of the Department of Education); James v. Mellen, 305 Fed. App’x. 192 (5th Cir. Dec. 15, 2008) (finding that the district attorney’s decision to terminate an employee because he announced his candidacy for sheriff against the long-time incumbent “did not violate a ‘clearly established’ constitutional right because it was done to avoid potential disruptions in the operations of the district attorney’s office.”); Gilchrist v. Citty, 173 Fed. App’x. 675 (10th Cir. Apr. 4, 2006) (finding that a police department chemist’s courtroom testimony caused actual disruption to the functioning of the police department’s forensic laboratory and, therefore, the police department’s interests outweighed those of the chemist). Melzer, supra. (finding that, while the plaintiff’s freedom to associate with and advocate for the North American Man/Boy Love Association (“NAMBLA”) was protected by the First Amendment, the Board of Education sufficiently demonstrated that plaintiff’s degree of involvement in NAMBLA caused disruption to the school’s mission and operations justifying the Board of Education’s action terminating him.). A finding 15 that Lucia’s interests outweighed those of the District because no law was violated misapplies the law.7 Next, it is well-settled that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.” United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 465 (1995). Therefore, the fact that the District would have no recourse if members of the public parked their cars in the same manner as Lucia is irrelevant. See Matter of Santer, 101 A.D.3d at 1028. Unlike Lucia and her colleagues, members of the public do not have an affirmative obligation to protect the safety and well-being of the students of the District. The Appellate Division also ostensibly reasoned that Lucia’s interests outweighed those of the District’s because “no school official asked the teachers to move their cars during the protest.” See Matter of Santer, 101 A.D.3d at 1028. In her opposition, Lucia even goes as far to claim that “the undisputed record evidence conclusively shows that the District did not intervene, in any way, during the teachers’ parked-car picketing.” (Opp. Brief, p. 36). This is simply not accurate. Instead, the record evidence establishes that Lethbridge called the police. 7 As discussed in the District’s opening brief, 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). The Hearing Officer found that by engaging in the March 2nd parking activity, Lucia violated this policy. (R. 35). 16 (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. In any event, Lethbridge’s failure to go outside to direct traffic, assist students in crossing Wenwood Drive, or to disperse the parked cars (Opp. Brief, pp. 36), has no bearing on whether the parking activity was hazardous or caused a disruption to the District’s operations. In fact, the Hearing Officer has already found that the parking activity was hazardous and did in fact cause a disruption notwithstanding Lethbridge’s actions or inactions. Lastly, the Appellate Division mistakenly relied on the fact that no student was injured as a result of the parking activity. See Matter of Santer, 101 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 [sic] inappropriate creation of a potentially hazardous circumstance.” (R. 35). Indeed, the Appellate Division failed to recognize that an actual hazard resulted, irrespective of whether or not a student was injured during the parking activity. Because the right to free speech does not encompass the right to cause disruption or jeopardize the safety and well-being of students, the Appellate Division’s Pickering analysis is flawed and warrants reversal. 17 POINT IV THE MARCH 2ND AND MARCH 30TH PARKING ACTIVITIES ARE FACTUALLY DISTINGUISHABLE. In Lucia’s opposition, she attempts to portray the March 2nd and March 30th parking activities as factually indistinguishable. (Opp. Brief, p. 20-21). In support of this contention, Lucia cites to East Meadow Teachers Ass’n v. East Meadow Union Free Sch. Dist., 43 PERB ¶4530 (ALJ Maier, Apr. 20, 2010), where ALJ Maier ruled that the District’s preferral of § 3020-a charges against [Golden and Fortney] two other teachers for their parking activity on March 30, 2007 were per se violations of the Taylor Law. Lucia, however, fails to address that aspect of ALJ Maier’s decision where he highlighted the noticeable differences between the March 2nd and March 30th parking activities. Importantly, ALJ Maier found that “16 to 24 teachers parking along the curb on a day of heavy rain did disrupt the school from functioning properly that day” was factually distinguishable from the “two cars parked along the curb in Golden and Fortney’s case.” East Meadow Teachers Ass’n. Therefore, the March 2nd and March 30th parking activities were fundamentally different. 18 POINT V THE COURT MAY TAKE JUDICIAL NOTICE OF THE AMENDED PARKING ORDINANCE. In its opening brief, the District attached as an addendum a copy of the Town of Hempstead’s parking ordinance for the 600 block of Wenwood Drive in East Meadow, New York. (District’s Brief, p. 34 citing addendum). According to the parking ordinance, 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. The District, therefore, argued that the Appellate Division should not have relied on the fact that the Town of Hempstead did not prohibit parking during the time Lucia and her colleagues engaged in the parking activity in rendering its decision, because the Town, in fact, had prohibited parking at that time. 8 (District’s Brief, pp. 34-35). Despite this incontrovertible evidence, Lucia argues, in relevant part, that “this Court’s review relating to the propriety of the disciplinary arbitrator’s award 8 Lucia argues that the parking ordinance at issue was not effective because the Town of Hempstead failed to post notices along Wenwood Drive reflecting the amendments and providing notice to the public of the new parking restrictions. (Opp. Brief, p. 32). This failure, Lucia argues, renders the amendments ineffective and unenforceable. (Opp. Brief, p. 32 citing N.Y. VEH. & TRAF. LAW § 1683 (8). Even if the ordinance was not effective on March 2nd due to the Town of Hempstead’s failure to erect updated signage, the ordinance itself reflects the Town’s intent to prohibit parking along the school side of Wenwood Drive during the hours of 7:00 a.m. and 4:00 p.m. on school days. Thus, the Appellate Division’s contention that “[i]f the 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 school, it could have prohibited parking during the relevant time periods, but it did not do so[,]” see Matter of Santer, 101 A.D.3d at 1028 (adopted in Matter of Lucia), warrants reconsideration by this Court in assessing whether the Pickering balancing test weighs in favor of the District. 19 and the Appellate Division’s vacatur of that award must be limited to the record before each decision-maker.” Thus, Lucia contends, the Court may not consider the parking ordinance on appeal. (Opp. Brief, p. 34). Lucia’s position is without basis in law. In support of her position, Lucia cites a series of cases that stand for the proposition that appellate courts are generally “prohibited from considering matters not contained in the record” and are, thus, “constrained to the record created before the initial fact-finder.” (Opp. Brief, p. 34 and cases cited therein). As with any rule, there are exceptions, and Lucia - not surprisingly - fails to address the exception. Importantly, the Court has recognized a narrow exception, which allows consideration, on appeal, of reliable documents, the existence and accuracy of which are not disputed, for the purpose of modifying or reversing the order under review. See Crawford v. Merril Lynch, Pierce, Fenner & Smith, Inc., 35 N.Y.2d 291, 298-99 (1974). Initially, the parking ordinance is a reliable incontrovertible official document. Moreover, Lucia does not dispute the accuracy of the Town of Hempstead’s parking ordinance; rather, she merely attacks the enforceability of the ordinance. Accordingly, the parking ordinance falls into the narrow exception of those materials the Court may consider on appeal. What’s more, the Court may take judicial notice of the parking ordinance pursuant to CPLR § 4511(b), which provides that “[e]very court may take judicial notice ... of ... ordinances and regulations of officers, agencies or governmental 20 subdivisions of the state or of the United States. Here, the Town of Hempstead is a subdivision of the State of New York and, therefore, it would be appropriate for this court to take judicial notice of its parking ordinances. See, e.g., People v. Sanchez, 98 N.Y.2d 373, 401 n.13 (2002) (“We may properly take judicial notice of facts appearing in the public records of this State.”) (citing People ex rel. Nichols v, Board of Canvassers, 129 N.Y. 395, 420 (1891); see also Matter of Siwek v. Mahoney, 39 N.Y.2d 159, 163 n.2 (1976) (“Data culled from public records is, of course, a proper subject of judicial notice.”). Moreover, because the Town of Hempstead’s ordinance “reflects a legislative fact, as opposed to an evidentiary fact, its absence from the record does not prevent its consideration for the first time on appeal.” Affronti v. Crosson, 95 N.Y.2d 713, 720 (2001). Accordingly, the Court may take judicial notice of the parking ordinance as evidence of the Town of Hempstead’s intent, irrespective of its failure to correct the signage, to prohibit parking on the northwest side (school side) of Wenwood Drive between the hours of 7:00 a.m. and 4:00 p.m. 21 CONCLUSION For all of the foregoing reasons, as well as those set forth in the District’s opening brief, 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. Date: January 22, 2014 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