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: Sherry B. Bokser Time Requested: 15 Minutes APL-2013-00251 COURT OF APPEALS STATE OF NEW YORK BARBARA LUCIA, Petitioner-Respondent, -against- BOARD OF EDUCATION OF THE EAST MEADOW UNION FREE SCHOOL DISTRlCT, Respondent-Appellant. BRIEF }'OR PETITIONER-RESPONDENT RlCHARD E. CASAGRANDE Attorney for Petitioner-Respondent BARBARA LUCIA 52 Broadway, 9th Floor New York, New York 10004 Telephone No. (212) 533-6300 Facsimile No. (212) 995-2347 SHERRY B. BOKSER, OfCounsel Brief Completed: January 7, 2014 Supreme Court, Nassau County, Index No. 1727111 Appellate Division, Second Department Docket No. 2011-08260 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. i PRELIMINARY STATEMENT ....................................... 1 QUESTION PRESENTED ........................................... 5 STATEMENTOFFACTS ........................................... 6 The Education Law § 3020-a Proceeding ........................... 6 The Record Evidence in the §3020-a Hearing ....................... 7 The § 3020-a Arbitrator's Decision on the Motion to Dismiss ......... 12 The § 3020-a Arbitrator's Decision on the Merits ................... 13 Supreme Court's Denial of Lucia's Article 75 Petition ................ 15 The Appellate Division, Second Department's Decision . . . . . . . . . . . . .. 16 POINT I PROPER APPLICATION OF THE PICKERING TEST TO THE UNDISPUTED FACTS OF THIS CASE ESTABLISHES THAT THE DISTRICT VIOLATED MS. LUCIA'S FIRST AMENDMENT RIGHTS WHEN IT DISCIPLINED HER FOR PARTICIPATION IN THE UNION'S LAWFUL PARKED-CAR PICKETING ACTIVITY, ON A PUBLIC STREET DURING NON-WORK HOURS, TO PUBLICIZE THE ONGOING LABOR DISPUTE ............................ 18 CONCLUSION ................................................... 43 TABLE OF AUTHORITIES Page Cases: Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) ................................ 28 Arnettv. Kennedy, 416 U.S. 134 (1974) ............................... 39 Bakery & Pastry Drivers Local 802 v. Wohl, 315 U.S. 769 (1942) ........... 28 Bd. ofCnty. Comm'rs v. Umbehr, 518 U.S. 668 (1996) .................... 23 Blockv. Nelson, 71 A.D.2d 509, 511 (1st Dep't 1979) ..................... 34 Board ofEducation v. Mills, 250 A.D.2d 122 (3d Dep't 1998), Iv. denied, 93 N. Y.2d 803 (1999) ..................................... 11 Bose Corp. v. Consumers Union ofUnited States, Inc., 466 U. S. 485 (1984) ............................................... 25 Broida v. Bancroft, 103 A.D.2d 88, 93 (2d Dep't 1984) .................... 34 Building Service Employers' Int'l Union Local 262 v. Gazzam, 339 U.S. 532 (1950) ........................................ 30 Carey v. Brown, 447 U.S. 455 (1980) .................................. 30 Chainani v. Bd. ofEduc. ofthe City ofNY, 87 N.Y.2d 370 (1995) .......... 38 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ...................... 20 Chimarios v. Duhi, 152 A.D.2d 508 (1st Dep't 1989) ..................... 34 Cioffi v. Averill Park Cent. Sch Dist. Bd. ofEduc., 444 F.3d 158 (2d Cir. 2006) ......................................... 27 -1 TABLE OF AUTHORITIES (cont'd) Page City ofSan Diego v. Roe, 543 U.S. 77 (2004) ........................ 23, 24 City Sch. Dist. ofN.Y v. McGraham, 17 N.Y.3d 917 (2011) ............. 35,41 Clue v. Johnson, 179 F.3d 57 (2d Cir. 1999) ............................ 26 Cobb v. Pozzi, 363 F.3d 89 (2d Cir. 2003) .............................. 23 Colburn v. Indiana Univ., 973 F.2d 581 (7th Cir. 1992) ................... 25 Concerned Consumers League v. O'Neill, 371 F. Supp. 644 (E.D. Wis. 1974) ......................................... 28 Connick v. Myers, 461 U.S. 138 (1983) ....................... 23,24,25, 39 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .................... 24 Crawford v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 35 N.Y.2d 291,298 (1974) ................................ 34 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) ............................................... 19 East Meadow Teachers Ass 'n v. East Meadow Union Free School District, 43 PERB ~ 4530 (2010) ......................... 13,21, 32 Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775 (2d Cir. 1991) ................................................. 25 First Nat 'I Bank ofBoston v. Bellotti, 435 U.S. 765 (1978) ................. 19 Frisbyv. Schultz, 487 U.S. 474 (1988) ................................. 31 -11 TABLE OF AUTHORITIES (cont'd) Page Garcetti v. Ceballos, 547 U.S. 410 (2006) .............................. 23 Garrison v. Louisiana, 379 U.S. 64 (1964) ............................. 19 Grayned v. City Rockford, 408 U.S. 104 (1972) .......................... 31 Hague v. Comm.for Ind'l Org, 307 U.S. 496 (1939) ................... 28,30 Jamison v. Texas, 318 U.S. 413 (1943) ................................. 30 Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) ........................ 25,37 Keyishian v. Bd. ofRegents , 385 U.S. 589 (1967) ........................ 23 Laird v. Tatum, 408 U.S. 1 (1972) .................................... 23 Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 2006) ..................... 23,39 Locurto v. Safir, 264 F.3d 154, 166 ................................... 23 Lovell v. Griffin, 303 U.S. 444 (1938) ................................. 31 Marshall v. Allen, 984 F. 2d 787 (7Ch Cir. 1993) .......................... 25 Matter ofCadet, 35 Ed. Dept. Rep. 418 (1996) .......................... 11 Matter ofMotor Veh. Ace. Indem. Corp. v. Aetna Cas. lnsur. Co., 89 N.Y. 2d 214 (1996) ................................. 35,41 Matter ofSanter v. Bd. ofEduc. ofE. Meadow Union Free School Dist., 101 A.D.3d 1026 (2d Dep't 2012) ............... 3,16,35,41,42 Miller v. California, 413 U.S. 15 (1973) ............................... 20 -111 TABLE OF AUTHORITIES (cont'd) Page Morfin v. Albuquerque Pub. Schools, 906 F. 2d 1434 (loth Cir. 1990) .............................................. 26 Mount Lucas Assocs., Inc. v. MG Refining and Marketing, Inc., 250 A.D.2d 245,254 (lst Dep't 1998) ............................. 34 News America Marketing, Inc. v. Le Page Bakeries, Inc., 16 A.D.3d 146, 149 (lst Dep't 2005) ........................................... 34 NL.R.B. v. Teamsters Local 182, 314 F.2d 53 (2d Cir. 1963) ............... 30 N. Y State Corr. Officers and Police Benevolent Ass 'n, 94 N.Y.2d 321 (1999) ........................................ 37,40,41 N ys. Law Enforcement Officers Union, Council 82 v. NY State, 255 A.D.2d 54 (3d Dep't 1999) ...................................... 41 O'Neill v. Oakgrove Construction, 71 N.Y.2d 521 (1988) .................. 19 Perry Educ. Ass'n. v. Perry Local Educ. Ass'n., 460 U.S. 37 (1983) ....... 30,31 Perry v. Sinderman, 408 U.S. 593 (l972) ............................... 28 Pickering v. Bd. ofEduc. ofTownship High Sch. Dist., 391 U.s. 563 (l968) ................................................... passim Piesco v. City ofN. Y, 933 F .2d 1149 (2d Cir. 1991) ...................... 25 People v. Abelove, 54 Misc. 2d 306 (City Court of Utica, Traffic Court 1967) ................................................ 33 People v. Lapidus, 26 Misc. 2d 112 (Police Court, Village of Spring Valley, Rockland County 1961) ............................................. 32 -lV TABLE OF AUTHORITIES (cont'd) Page Police Dep't, City ofChicago v. Mosley, 408 U.S. 92 (1972) ............ 28,31 Port Jefferson Stn. Teachers Ass 'n, Inc. v. Brookhaven- Comsewogue UFSD, 45 N.Y.2d 898 (1978) ............................. 40 Rankin v. McPherson, 483 U.S. 378 (1987) ......................... passim Schenckv. United States, 249 U.S. 47 (1919) ............................ 21 Schneider v. State, 308 U.S. 147 (1939) ............................. 28,30 Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937) ................. 28 Shelton v. Tucker, 364 U.S. 479 (1960) ................................ 23 Sheppard v. Beerman, 94 F 3d 823 (2d Cir. 1996) ........................ 37 Skehan v. Vill. ofMamaronec~ 465 F3d 96 (2d Cir. 2006) ................ 23 Snyder v. Phelps, 562 U.S. 131 S. Ct. 1207 (2011) .......... 19,24,25,31 Soucy v. Board ofEducation ofNorth Colonie Central School District No.5, 41 A.D.2d 984 (3d Dep't 1973) .......................... 38 Sousa v. Roque, 578 F .3d 164 (2d Cir. 2009) ......................... 24, 25 State Emp. Bargaining Agent Coalition, et al. v. Rowland, 718 F3d 126 (2d Cir. May 31,2013) ...... , ................................... 26 Thornhill v. State ofAlabama, 310 U.S. 88 (1940) .................... 27,28 -v TABLE OF AUTHORITIES (cont'd) Page Time, Inc. v. Hill, 385 U.S. 374 (1967) ................................. 24 United States v. Grace, 461 U.S. 171 (1983) ......................... 30,31 United States v. Nat'/ Treasury Emp. Union, 513 U.S. 454 (1995) ........... 22 Waters v. Churchill, 511 U.S. 661 (1994) ........................ 23,24, 25 Wieman v. Updegraff, 344 U.S. 183 (1952) ............................. 23 Constitutional Provisions: U.S. Const. Amend. I ........................................... passim U.S. Const. Amend. XIV ............................................ 18 Article 1 Section 8 of the New York State Constitution .................... 18 Statutes: Civil Service Law § 200 ............................................ 26 Civil Practice Law and Rules 7511 .. . ............................ 15,40 Civil Practice Law and Rules Article 75 .......................... 15, 16,40 Education Law § 3020-a ........................................ passim Education Law § 3020-a(3)(c) ........................................ 7 Education Law § 3020-a(5) .......................................... 40 Vehicle and Traffic Law §1683(a)(8) ............................... 32,33 -vi TABLE OF AUTHORITIES (cont'd) Page Other Authorities: Note, Regulation ofDemonstrations, 80 Harv.LRev. 1773, et seq. (1967) .... 29 -vii PRELIMINARY STATEMENT This case arose out of a protracted, contentious labor dispute between the School District and its teachers. Petitioner-Respondent Barbara Lucia is one of the teachers employed by the District. For nearly three years, while the District and the East Meadow Teachers Association ("the Union") did not have a contract, the Union regularly coordinated picketing on Monday and Friday mornings, in front of Woodland Middle School, while Union members were off-duty and not on school property (R. 85, R. 122-124, 156-158, 166).1 Because of the severely inclement weather of Friday, March 2, 2007, the Union's members picketed from their lawfully parked cars in front of Woodland Middle School (R. 143). School administrators were aware of the parked-car picketing event and, from their vantage points within the school, the administrators watched the protesters for about thirty p1i~utes (R. 133, 136, 138, 140-41, 164, 192-93, 195). Given the weather and traffic conditions on Wenwood Drive that morning, there was vehicular congestion in front of Woodland Middle School, and students were exiting vehicles in the middle of the road. This, the administrators claimed, they perceived to be dangerous. However, when pressed, these administrators admitted they never took any affirmative action to alleviate the 1 Numerical references preceded by "R." identify the pages of the Record on Appeal where support for the matter recounted may be found. 1 allegedly "dangerous" situation: They did not speak with any of the individuals in the parked cars to ask them to move their cars; did not assist students crossing the street; and did not direct any employee to assist students crossing the street. Further, it remains undisputed that no injuries or accidents occurred as a result of the teachers' parked-car picketing in front of the school (R. 135, 161-162, 165, 174,182-183,194-195). Shortly before teachers were required to sign in for the school day, the protesters drove their cars to the school parking lot (R. 142-43, 162-63). Approximately two weeks later, Ms. Lucia, along with a handful of other teachers, was served with disciplinary charges alleging a single specification of misconduct: On or about March 2, 2007, the Respondent intentionally created a health and safety risk by purposely situating her vehicle alongside the curb on Wenwood Drive in front of the Woodland Middle School in order to preclude children from being drop~ 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. . . 1 Notably, Ms. Lucia was the only teacher served with such a charge who had never admitted nor been conclusively identified as a participant in the Union activity of March 2, 2007 (R. 41-42). Ms. Lucia was found guilty of the charged conduct after a hearing, and assessed a penalty of a one thousand dollar ($1,000.00) fine (R. 41-42, 19-36). 2 In reviewing the disciplinary finding and penalty against Ms. Lucia, the Appellate Division, Second Department stated that, for the same reasons as those stated in its decision in the related case of Matter ofSanter v. Bd. ofEduc. ofE. Meadow Union Free School Dist., 101 A.D.3d 1026 (2d Dep't 2012), Ms. Lucia's petition to vacate the arbitrator's award should have been granted. In Santer, the Second Department had applied well-established precedent~namely, Pickering v. Bd. of Educ. of Township High Sch. Dist., 391 U.S. 563 (1968) and Rankin v. McPherson, 483 U.S. 378 (1987)- to the facts, and concluded that the District's imposition of discipline upon Union mmpbers who participated in the parked car 'i· picketing violated the Union members' First Amendment right to free speech. Santer, supra. Similarly, the Appellate Division stated, when considering Ms. Lucia's appeal, "[Ms. Lucia's] expressive activity regarding collective bargaining issues indisputably addressed matters of public concern (see Matter of Santer v. Board ofEduc. ofE. Meadow Union Free School Dist., 101 AD3d at 1028), 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 (see id}" (R. xi). Via this appeal, the District seeks the Court's imprimatur to its imposition of discipline upon Ms. Lucia, in violation of the First Amendment right to freedom of speech. For the reasons set forth below, the Court should deny the District's 3 appeal and affirm the Appellate Division's well-reasoned and legally correct decision. 4 QUESTION PRESENTED Whether the Appellate Division correctly held that Union members' First Amendment right to speak out publicly and lawfully, while on their own time, to protest the District's abject failure to negotiate a timely successor collective bargaining agreement outweighed the District's interest in imposing discipline for this activity on the basis of speculative -and plainly, pretextual- safety concerns? Having found the hearing record provided a rational basis for the arbitrator's conclusion that Ms. Lucia participated in the concerted activity, the Appellate Division properly concluded, as it had in Santer, supra, that the District had not demonstrated that Ms. Lucia's "exercise of her First Amendment rights so threatened the effective operation of the school as to justify the imposition of discipline." (R. xi). This Court should affinn the Appellate Division's decision. 5 STATEMENT OF FACTS The Education Law § 3020-a Proceeding Ms. Lucia is a tenured teacher employed by the East Meadow Union Free School District ("the District"). At all times during her employment with the District, Ms. Lucia was (and continues to be) a member of the East Meadow Teachers Association ("the Union"). On March 16, 2007, the District preferred a single specification of misconduct against Ms. Lucia: On or about March 2, 2007, the Respondent [Ms. Lucia] intentionally created a health and safety risk by purposely situating her vehicle alongside the curb on Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard. (R. 15-16,41-42). Pursuant to Education Law §3020-a, hearings were held before Arbitrator JosefSirefman on October 10, 2008; May 27,2009; and June 11,2010 (R. 29-30, 66-225, 226-276, 348). In support of its case, the District called three witnesses: Louis D'Angelo, the Assistant Superintendent for Human Resources for the District; James Lethbridge, the principal of Woodland Middle School ("Woodland"); and Terrence Chase, the dean of students at Woodland (R. 81-119 6 (D'Angelo); R. 120-187 (Lethbridge); R. 188-222 (Chase). Because many of the facts to which these witnesses attested vYere not in dispute, Ms. Lucia opted not to testifY, as is her right under Education Law §3020-a(3)( c), and not to call any witnesses on her behalf(R. 347-348). The Record Evidence in the §3020-a Hearing As of March 2, 2007, the Union had been without a current collective bargaining agreement for more than two and a half years CR. 16, 295; D' Angelo: R. 83; Lethbridge: R. 120-21). Between August 31, 2004 and March, 2007, the Union's members engaged in numerous concerted activities, including picketing, to protest the lack of a current collective bargaining agreement (R. 16, 295; D'Angelo: R. 84-85; Lethbridge: R. 121).. During the 2005-2006 and 2006-2007 school years, teachers at Woodland routinely picketed in front of the school, along Wenwood Drive, between 7:30 and 7:50 a.m. on Monday and Friday mornings (R. 16,295; D'Angelo: R. 85; Lethbridge: R. 123,158,166). During the 2006-2007 school year, seventy-five per cent (75%) of Woodland's student body traveled to and from school by school bus. The other quarter of the students were either dropped off by their parents between 7:30 and 8:00 a.m. or walked to schooL Although teachers were required to report to school by 7:55 a.m., students were only pennitted to enter the school at 8:05 a.m., .i. 7 approximately five minutes before their first assigned class for the day, homeroom, commenced at 8:10 a.m. (R. 16-17,296; Lethbridge: R. 125-128,130,163). Friday, March 2, 2007, was a severely stormy day (R. 17,296; D'Angelo: R. 106; Lethbridge: R. 135, 159-60; Chase: 196). Prior to 8:00 a.m., cars were lawfully parked along the curb on Wenwood Drive, including in front of Woodland Middle SchooL2 The only curbside limitation along Wenwood Drive, as noted by the posted signs, was "No standing between 8 a.m. and 4 p.m." (R. 17; Lethbridge: R. 132, 135-137, 144-145, 162,174-175; Chase: 191-192, 195, 197). The area of Wen wood Drive in front of Woodland Middle School was not an official "drop off area" for students and was not marked as such in any way -no signs, or cones, or a crossing guard to police the area were present (D'Angelo: R. 107-108; Lethbridge: R. 136). Students were, however, routinely dropped off on Wenwood Drive, in vehicles that stopped alongside the front of the school, as well as directly across the street from the school (R. 297; D' Angelo: R. 94; Lethbridge: R.13l; Chase: R. 210-211, 219). As they watched from the principal's office window on March 2, 2007, Dean Chase and Principal Lethbridge saw cars driving up to the front of the school and five children were dropped off in the middle of the street (Lethbridge: R. 144). 2 The District's witnesses were unable to state how many cars were parked there that morning, but Lethbridge believed there were at least six cars parked alongside the curb in front of the. . school (Lethgbridge: R. 135-136, 137-138). 8 The children, Chase and Lethbridge said, walked between the cars that were barely moving as they lined the road of Wen wood Drive (R. 18,297; Lethbridge: R. l33, 136,138,140-41,164; Chase: R. 192-93,195). Other than observing from a distance, neither Dean Chase nor Principal Lethbridge took any action to address the "dangerous situation" they were watching: students being dropped off in the road. They cavalierly admitted that they did not approach the individuals in the parked cars and ask them to move the cars; they did not direct traffic to ease the alleged congestion; and they did not go out to the street to ensure that the five students whose parents or guardians were dropping them off in the middle of the road safely made it to the sidewalk. They both also freely admitted that they did not ask anyone else to take these cautionary measures, either. Instead, for about thirty minutes, these administrators sheltered from the storm in the school's interior and observed the students being dropped off in front of the school (R. 18; Lethbridge: R. l35, 161-162, 165, 182-83; Chase: R. 194-95). When asked why he did not go outside to address the "dangerous" ; ( situation, Lethbridge explained, "Basically, I wanted to see how it was all going to unfold." (R. 174).3 3 Notwithstanding their admitted inaction in the face of a scene they characterized as dangerous, the administrators conceded that no one sustained any injuries and no accidents occurred on Wenwood Drive between 7:30 a.m. and 8:00 a.m., on March 2, 2007 (R. 19; D'Angelo: R. 108 109; Lethbridge: R. 163). 9 From their vantage points within the school, Chase and Lethbridge could see cars parked along Wenwood Drive's curb. They could not, however, see who was driving or occupying the cars and admitted they were unable to recognize any of the individuals in the parked cars (Lethbridge: R. 165; Chase: R. 194, 215). Lethbridge freely confessed that he did not see Ms. Lucia drive her car, park it, or sit in it outside on Wenwood Drive, that morning (Lethbridge: R. 160). Thus, the District's identification of Ms. Lucia as a participant in the parked- car picketing event of March 2, 2007, was based upon pure speculation. Both Lethbridge and Chase admitted they chose to shelter from the rain, rather than L leave the school building to approach the cars in an attempt to identifY the occupants of the cars or to obtain the license plate numbers of the cars parked in front of the school (R. 17; Lethbridge: R. 165; Chase: R. 212-214). Chase testified, however, that he recognized a number of the cars parked in front of the school as those belonging to teachers in the building.4 He claimed he recognized one of those cars, a black Camaro, as Ms. Lucia's car (Chase: R. 194 98). He was certain it was her car, he said, even though he did not know the tag number of Ms. Lucia's car, and did not k,now the license plate number of black car parked in front of the school on March 2, 2007, and could cite to no unique 4 The District preferred the same disciplinary charge against a number of other teachers whose cars had been identified by Chase (R. 207-208). Ms. Lucia was the only teacher who was charged who did not admit to participating in the parked-car picketing on the morning of March 2007 (R. 8, 31). 10 identifying details of Ms. Lucia's car that allowed him to conclude that the car parked in front of the school on March 2nd was, in fact, Ms. Lucia's (Chase: R. 147-49). At about 7 :50 a.m., twenty minutes before homeroom began, the cars that had been parked in front of Woodland Middle School began to move away from their parking spots (R. 17; Lethbridge: R. 142-43, 162-63). Ms. Lucia reported to her assignment on time, at 7:55 a.m., on March 2, 2007 (R. 44, 54). When Mr. Lethbridge met with her, later, and questioned her about the parked-car picketing event of March 2, 2007, Ms. Lucia refused to respond to his questions, noting that he was asking her what she did on her personal time (Lethbridge: R. 155, 165). Ms. Lucia was also questioned by Assistant Superintendent D'Angelo; instead of responding to D'Angelo's questions, Ms. Lucia invoked her Cadet rights (R. 101, 112-113).5 In contrast, when questioned by Lethbridge and D'Angelo, three of the four other teachers whose cars were identified by Chase, admitted their participation in the Union's concerted activity that morning (Lethbridge: R. 155, 171-172).6 And Richard Santer, another teacher at Woodland and a Union official, admitted to the 5 Matter of Cadet, 35 Ed. Dept. Rep. 418 (1996). See also Board of Education v. Alills, 250 A.D.2d 1 (3d Dep't 1998), Iv. denied, 93 N. Y.2d 803 (1999) (holding that a teacher could not be required to speak to persons investigating allegations of misconduct because to do so would violate the teacher's right against self-incrimination under Education Law § 3020-a). 6 The fourth teacher denied participating in. the Union activity and was not served with disciplinary charges (R. 171-172). 1 1 administration that that morning's parked-car picketing activity was to continue to publicize the on-going labor dispute (R. 143). At the close of the District's case, Ms. Lucia moved to dismiss the charges and specifications for the District's failure to make a prima facie case, arguing that the record is bereft of any evidence establishing that Ms. Lucia purposefully situated her vehicle along Wenwood Drive at the time and date charged, that Ms. Lucia's vehicle was even present on Wenwood Drive at that time, or that, if she had lawfully situated her vehicle along Wenwood Drive on the morning of March 2, 2007, it was with the intent to cause a health and safety risk. Further, the record did not establish that a health and safety hazard had been created (R. 33-34). The § 3020-a Arbitrator's Decision on the Motion to Dismiss By Decision dated October 24, 2009, the arbitrator denied Ms. Lucia's motion to dismiss (R. 33-36). In addressing the arguments on which the motion was founded, the arbitrator said: With respect to Chase's identification of Respondent's car as one of those parked curbside, it was made from an office and a lobby a good distance away. He did not leave the lobby to examine the license plate. Nonetheless, the basis for his conclusion that one of the cars was the one Respondent was driving at the time, was his years of regularly parking with these teachers behind [Woodland Middle School], and, therefore, familiarity with their cars. Apparently, he was correct on four out of the five cars and teachers he identified. That no charge was filed against the 12 fifth teacher was based on some uncertainty on Chase's part, and the Principal's acceptance of that teacher's insistence that she would not be involved in such action. Not the case here. In sum, I conclude that the District has made out a prima facie case against Respondent. (R.35). Thereafter, Ms. Lucia rested on the record, arguing the District had not borne its burden of proof; in light of the abysmal investigation conducted by the District, just cause for the imposition ofdiscipline had not been established; and that the imposition of discipline, in any event, would violate Ms. Lucia's First Amendment right to free speech, as the March 2, 2007 parked-car picketing was protected activity (R. 348). The § 3020-a Arbitrator's Decision on the Merits On January 7, 2011, the arbitrator issued an Opinion and Award, in which he incorporated by reference his prior decision denying Ms. Lucia's motion to dismiss (R. 29-32). The arbitrator found Ms. Lucia guilty of the sole specification of charged conduct. In part, his decision ,was based on an oblique reference in a decision of the Public Employment Relations Board ("PERB") on a related matter, to which Ms. Lucia was not a party.? That portion of the PERB decision to which 7 East Meadow Teachers Ass 'n. v. East Meadow Union Free School District, 43 PERB ~ 4530, 4650-4652 (April 20, 2010) (PERB found the District violated the Taylor Law when it preferred disciplinary charges against two other teachers for similar parked-car picketing on Wenwood Drive, before school, on March 30, 2007). Additionally, AL] Maier found, with respect to these 13 the arbitrator pointed in his decision, stated that, according to the evidence presented before PERB, the District only charged those teachers it knew were involved in the parked-car picketing on March 2, 2007 (R. 29-36). Notably, Ms. Lucia was the only one of the teachers charged at that time who had not admitted being present in her car, in front of Woodland Middle School, on the morning of March 2, 2007. The arbitrator credited that the teachers parked in front of Woodland Middle School were lawfully parked (R. 34). He also credited, based on the testimony of the District's own witnesses, that "the [teachers'] parking curbside appears to have been an extension of such activities [intended to achieve a new collective , .' bargaining agreement]." (R. 35). Although the arbitrator made no finding regarding Ms. Lucia's intent to create a safety hazard, he speculated that the only purpose for legally parking cars in an area long used for dropping off students was "to slow down and inconvenience the drop-off process in order to draw additional attention to the contract negotiations." (R. 35). The Hearing Officer then imposed upon Ms. Lucia a penalty of a fine of one thousand dollars ($1,000.00) (R. 32). other two teachers, they did not create a health. 'and safety hazard by being parked curbside on March 30,2007. Jd . 14 Supreme Court's Denial ofLucia's Article 75 Petition Thereafter, Ms. Lucia timely filed a petition, pursuant to New York Civil Practice Law and Rules ("CPLR") §7511, to vacate the Opinion and Award on the grounds that the award was irrational ,arbitrary, capricious, not based upon adequate substantial evidence, in violation iof public policy, and not in accord with due process (R. 12-284). By decision and order dated July 1,2011, the Honorable Vito M. DeStefano denied Ms. Lucia's petition (R. 7-11). The Supreme Court, Nassau County rejected Ms. Lucia's argument that the arbitrator's award violated her First Amendment rights. While the court acknowledge that it was "mindful" of Ms. Lucia's and the other teachers' constitutionally-protected right to engage in union activity, it stated that those rights "are circumscribed to the extent such exercise endangers the safety of children .... " (R. 9-10)( citations omitted). The court, by ignoring that the evidence belied the conclusory assertions of the creation of a health and safety hazard by the teachers' parked-car picketing, concluded that the arbitrator's award was neither totally irrational nor in excess of his authority (R. 10). Thus, Ms. Lucia's petition to vacate was denied by Supreme Court, Nassau County (R. 7-11). 15 The Appellate Division, Second Department's Decision The Appellate Division, Second Department reviewed Ms. Lucia's appeal from the denial of her CPLR Article 75 challenge to the arbitrator's award. The Appellate Division noted the greater scrutiny mandated for review of compulsory arbitration awards (R. x). In its Decision and Order, dated August 14, 2013, the Appellate Division held that the "evidence at the hearing provided a rational basis for the arbitrator's decision, and the award was not arbitrary and capricious." (R. xi) (citations omitted). The Appellate Division, however, reversed the Supreme Court's denial of Ms. Lucia's petition, stating that the petition should have been granted "for the same reasons as those stated in [the related case of] Matter ofSanter [v. Board of Educ. of E. Meadow Union Free Sch. District, 101 A.D.3d 1026 (2d Dep't 2012)]." (R. xi).8 In Santer, the Appellate Division granted Mr. Santer's appeal because, it found, the District's imposition of discipline violated his First Amendment right to , . " freedom of speech. The Appellate Division accepted and applied the facts as found by the arbitrator to the well-settled legal precedent governing public employees' freedom of speech. It then concluded that Mr. Santer's March 2nd 8 This Court has scheduled oral argument on the instant matter and the Santer appeal to be heard, together, on February 19,2014. See Santer v. Ed. ofEduc. E. Meadow Union Free School Dist., APL-2013-00032. 16 speech about collective bargaining issues "indisputably addressed matters of public concern." ld. (citations omitted). Like in Santer, the Second Department, here found 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 ofdiscipline." (R. xi)( citation omitted). For the reasons detailed below, the Appellate Division correctly applied the law in both Santer and in the instant case. 17 POINT I PROPER APPLICATION OF THE PICKERING TEST TO THE UNDISPUTED FACTS OF THIS CASE ESTABLISHES THAT THE DISTRICT VIOLATED MS. LUCIA'S FIRST AMENDMENT RIGHTS WHEN IT DISCIPLINED HER FOR PARTICIPATION IN THE UNION'S LAWFUL PARKED-CAR PICKETING ACTIVITY, ON A PUBLIC STREET DURING NON-WORK HOURS, TO PUBLICIZE THE ONGOING LABOR DISPUTE The freedom of citizens to express themselves on matters relating to public affairs and governance is a fundamental pillar of democracy. Just over two hundred twenty-five years ago, the Constitution of the United States ("U.S. Constitution") enshrined the protection of the public's right to this elemental freedom. The First Amendment to the U,S. Constitution provides: "Congress shall • '1 make no law respecting an establishm:~pt of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. Amend. 1. The Fourteenth Amendment to the US Constitution prohibits States from abridging individuals' rights to these same freedoms. U.S. Const. Amend. XIV. Article 1 Section 8 of the New York State Constitution expressly echoes the First Amendment, providing, "Every citizen may 18 . freely speak, write and publish his sentiments on all subjects.... [N]o law shall be passed to restrain or abridge the liberty of speech or of the press." Historically, our judicial system has vigilantly guarded against government's abridgement of the right to freedom of speech. This vigilance is particularly heightened when the speech at issue expressly relates to matters of public concern. Because "speech concerning public affairs is more than self-expression; it is the essence of self-government," Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), it is '''at the heart of the First Amendment's protection.'" Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-759 (1985) (opinion of Powell, J.) (quoting First Nat 'I Bank ofBoston v. Bellotti, 435 U.S. 765, 776 (1978)); see also Snyder v. Phelps, 562 U.S. _, 131 S. Ct. 1207 (2011).8 The First Amendment strictly constrains the government, as sovereign, from regulating the speech of the public at large. The public's freedom of speech, however, is not absolute. Courts have recognized the government's ability to encroach upon an individual's speech rights in certain limited circumstances. See, e.g., Virginia v. Black, 538 U.S. 343 (2003)(no First Amendment protection for threats of violence or bodily injury); New York v. Ferber, 458 U.S. 747 8This Court has been no less vigilant in protecting free speech under Article I § 8 of the State Constitution. Indeed, the protections of free speech and press accorded under the State Constitution are often broader than the minimum required by the First Amendment. See, e.g., O'Neill v. Oakgrove Construction, 71 N.Y.2d 521,529 fn. 3 (1988). 19 (1982)( child pornography); Miller v. California, 413 U.S. 15 (1973)( obscenity); Chaplinsky v. New Hampshire, 315 U.S. 568 (1 942)(fighting words). Here, the District's own witnesses established that the teachers' Monday and Friday-morning activities in front of Woodland Middle School were directly related to the Union's publicizing the protracted and unsuccessful contract negotiations. Thus, for example, Assistant Superintendent D'Angelo testified that the teachers' picketing activity generally included the teachers carrying or displaying signs or placards, as they demonstrated in front of the District's buildings' entrances (R. 85). Lethbridge testified the teachers picketed in front of Woodland Middle School on Mondays and Fridays, walking back and forth in front of the school (R. 122-124,156-158,166). And, on March 2, 2007, Richard Santer, a teacher and Union official at Woodland, confirmed, when questioned by the administration, that the Union's parked-car picketing that morning was to inform the public about "the ongoing contract negotiations" (R. 143). Being that Ms. Lucia did not present any evidence at the hearing, the arbitrator, based solely on the District's case, expressly concluded that the parked-car picketing activity of March 2, 2007 was an extension of the teachers' twice weekly picketing (R. 35). In further support of this finding, the arbitrator quoted portions of the PERB decision, submitted by the District for his consideration, wherein the March 2, 2007 parked-car picketing activity was expressly found to have been undertaken as 20 a means of disseminating information to the public about the on-gomg labor dispute (R. 30-31) (quoting East Meadow Teachers Ass 'n. v. East Meadow Union Free School District, 43 PERB ~ 4530,4650-4652 (April 20, 2010). Nevertheless, the District has sought to characterize the Union members' March 2nd speech as the type of speech not worthy of First Amendment protection, arguing, without any evidentiary support in the record, that it was undertaken solely to create a hazardous situation (Appellant's Brief at 25-26). Once again, as it did in Santer, the District analogizes the Union members' lawful parked-car picketing speech to "a man ... falsely shouting fire in a theater and causing a panic" .; " , r (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)) (Appellant's Brief at 26). This analogy is utterly inapt and must fail for several reasons. First, the Union members' speech was not false. Second, the speech was on a matter of public concern. Third, the speech did not cause a panicked stampede to safety; it merely required the drivers dropping off students to behave in the same prudent manner one would anticipate any parent or guardian would behave when considering the safety of their children: that is, to wait until they have stopped their cars at the curb cuts before permitting their children to disembark. Fourth, the i ' District's own evidence of the administrators' inaction and indifference as they observed the concerted activity established that no hazardous situation truly existed. And, lastly, unlike the false shouting of "fire", which is intended to create 21 mayhem, the Union members' intent regarding their speech on March 2, 2007 was the same as it had been on nearly every Monday and Friday morning before school for more than two years: to inform the public of the District's failure to resolve the ongoing labor dispute. Thus, there is simply no evidentiary basis for Appellant's assertion that the Union's March 2nd activities were undertaken to create a danger to the public. Contrary to the District's argument, the March 2nd parked-car picketing, therefore, plainly falls within the ambit of the First Amendment's protection. In addition to the examples, above, wherein the government is permitted to regulate the public's speech, First Amendment jurisprudence has also provided some limited latitude to the government, as employer, to regulate the speech of its employees, under certain circumstances. See United States v. Nat 'I Treasury Emp. Union, 513 U.S. 454, 465 (1995). However, the Supreme Court has cautioned, "[V]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech." Rankin v. McPherson, 483 U.S. 378, 384 (1987). Public employees do not, merely as a consequence of their employment, sacrifice their right to speak out as citizens on matters of public importance and concern. Pickering v. Bd. ofEduc., 391 U.S. 563 (1968) (public employees do not give up First Amendment rights by virtue of their employment by the government); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); Wieman v. Updegraff, 344 U.S. 183 (1952). Where public employees' speech may "contravene governmental policies or impair the proper performance of governmental functions," the State is permitted to impose "certain limitations" upon its employees' freedom of speech, but only if the harm caused by the disruption outweighs the value of the speech. Garcetti v. Ceballos, 547 U.S. 410,417-19 (2006); Pickering v. Bd. ofEduc., 391 U.S. 563, 568 (1968). See Skehan v. Vill. ofMamaroneck, 465 F.3d 96, 106 (2d Cir. 2006); Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2003); Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir. 1999). Government's permissible limitations on employees' speech, however, do not extend to the government's imposition of discipline upon an employee in retaliation for the content of the speech, when the employee is speaking as a citizen on a matter of public concern. Garcetti v. Ceballos, supra, 547 U.S. at 417; Rankin v. McPherson, 483 U.S. 378 (1987); Perry v. Sinderman, 408 U.S. 593, 597 (1972); Pickeringv. Bd. ofEduc., supra, 391 U.S. at 568.9 9Additionally, the government may not inhibit at will its employees' speech or condition public employment "on a basis that infringes the employee's constitutionally protected interest in freedom of expression", Connick v. Myers, 461 U.S. 138, 142 (1983), or chills the First Amendment rights of its employees through fear of retaliation. Locurto v. Giuliani, 447 F 3d 159,163 (2d Cir. 2006) (citing City a/San Diego v. Roe, 543 U.S. 77, 80 (2004)). See Pickering, 391 U.S. at 572; Locurto v. Sajir, 264 F.3d 154, 166 (citing Waters, 511 U.S. at 668); see also Bd. 0/ Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972) ("[C]onstitutional violations may arise from the deterrent, or 'chilling,' effect of 23 Pickering first articulated the analysis to determine whether a public employer's discipline of an employee violates the First Amendment. The Pickering analysis requires a balancing "between the interests of the [employee], as a citizen, in commenting on matters of public concern, and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Educ., 391 U.S. at 568; Connick v. Myers, 461 U.S. at 140. See also Waters v. Churchill, 511 U.S. 661 (1994). First Amendment protection is thus afforded to speech that can be "fairly considered as relating to any matter of political, social, or other concern to the , community." Connick, supra, 461 U.S. at 146. The scope of "public concern" also includes speech that "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Snyder v. Phelps, supra, 562 U.S. at 131 S. Ct. at 1216 (quoting City ofSan Diego v. Roe, 543 U. S. 77, 83-84 (2004) (per curiam)). See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492-94 (1975); Time, Inc. v. Hill, 385 U.S. 374, 387-88 (1967); Sousa v. Roque, 578 F.3d 164, 170 (2d eir. 2009). Constitutional protection, however, is not afforded to speech by a i ;. "disgruntled employee whose statements are primarily of personal interest." governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights."). 24 Colburn v. Indiana Univ., 973 F.2d 581, 585 (7th Cir. 1992),' see Connick, 461 U.S. at 146; Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775 (2d Cir. 1991); Piesco v. City ofN.Y, 933 F.2d 1149, 1157 (2d Cir. 1991); see also Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) (Waters v. Churchill has "loosened Piesco's shackles upon public employers,,).10 The initial step in the Pickering analysis, then, is determining whether the speech in question touches on a matter of "public concern." The analysis also requires the reviewing court to examine the whole record and resolve "the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern" or, rather, was the point merely to further some purely private interest. Marshall v. " Allen, 984 F.2d 787, 795 (ih Cir. 1993). See also Snyder v. Phelps, supra, 562 U.S. at 131 S. Ct. at 1216 (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984)). When not made in the course of one's employment, speech is deemed to address a matter ofpublic concern when it protests conditions in a public agency or is calculated to disclose wrongdoing, inefficiency, misuse of funds or other malfeasance on the part of governmental officials and does not solely promote the [OThe motivation of the speaker is not a determinative factor of First Amendment protection; rather, the determinative factors are "the content, form and context of a given statement as revealed by the whole record." Connick, supra, 461 U.S. at 147-48; see also Rankin v. McPherson, supra, 483 U.S. at 388; Sousa, supra, 578 F.3d at 173. 25 employee's own interests. See Clue v. Johnson, 179 F.3d 57, 60-61 (2d Cir. 1999). Speech by a public school employee about a policy or practice that can substantially and detrimentally affect the welfare of the children or staff at the school constitutes speech on a matter of public concern. See Morfin v. Albuquerque Pub. Schools, 906 F. 2d 1434, 1437-38 (loth Cir. 1990) and cases cited therein. Fundamentally, as the Second Circuit recently reiterated, the free speech protections of the First Amendment unquestionably apply to "labor union activities" and because wages and benefits of public-sector employees "bear directly on the overtly political issue of state budgets, ... the 'economic' advocacy of public employee unions touches directly on matters of public concern." State Emp. Bargaining Agent.Coalitio, et al. v. Rowland, 718 F.3d 126, 132, 134 fn. 7 (2d Cir. May 31, 2013)( citations omitted). Labor discord leaches valuable resources from the focus of educating the District's children. Thus, any labor dispute is necessarily a matter of public concern, since parents, students, and community residents, as well as District employees, have vested interests in urging and advocating for labor harmony within the District and for the allocation of limited resources. It is the public policy of this State to promote public sector labor harmony. Civil Service Law § 200; see also Pickering, 391 U.S. at 572 ("Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds 26 1. allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.,,).12 Unquestionably, the Union members' parked-car picketing activity on March 2, 2007, regarded a matter of public concern: the District's stalled collective bargaining negotiations. The District's own witnesses established that the March 2, 2007 concerted activity was another of the Union's many informational picketing activities over the course of the preceding more than two and a half years. And, the arbitrator, Supreme Court, and the Appellate Division all properly concluded that the Union members' March 2, 2007 activities were such. Not only is it well-accepted that speech relating to municipal labor issues is speech on a "matter of public concern", but it is equally well established that First Amendment protection extends to dissemination of information and picketing, even parked-car picketing, such as the means by which the Union members, here, communicated their speech on March 2, 2007. As early as 1940, the Supreme Court specifically held picketing and the dissemination of information about a labor dispute to be speech entitled to First Amendment protection. Thornhill v. 12See also Cioffi v. Averill Park Cent. Sch. Dist. Bd. ofEduc., 444 F.3d 158, 166 (2d Cir. 2006) ("We do not doubt that [plaintiff] spoke partly to protect his job and shift blame to other administrators. But personal interests frequently induce speech that is nonetheless of public concern."). 27 State of Alabama, 310 U.S. 88 (1940). In Thornhill, supra, the Supreme Court declared: The freedom of speech and of the press guaranteed by the Constitution embraces at least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. ... In the circumstances of our times the dissemination of information concerning the facts ofa labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. Hague v. CI. 0., 307 U.S. 496; Schneider v. State, 308 U.S. 147, 155, 162-63. See, Senn v. Tile Layers Protective Union, 301 U.S. 468, 478 (emphasis supplied). , Thornhill, supra, 310 U.S. at 103. Notwithstanding the image immediately called to mind when one hears the term, picketing is not merely a tactic employed by labor organizations to discourage public patronage of certain establishments. See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968); Bakery & Pastry Drivers Local 802 v. Wohl, 315 U.S. 769 (1942); AFL v. Swing, 312 U.S. 321 (1941). Often, picketing is a means for organizations and individuals to educate and persuade the public with respect to matters of public concern. See Police Dep't, City of Chicago v. Mosley, 408 U.S. 92 (1972); Concerned Consumers League v. O'Neill, 371 F. Supp. 644 (E.D. Wis. 1974). Picketing or 28 demonstrations may even have an added advantage over more conventional speech inasmuch as they can attract media and widespread public attention, and can mobilize supporters, rally neighbors behind an issue, or strengthen the demonstrators' bargaining position. See, Note, Regulation of Demonstrations, 80 Harv.L.Rev. 1773, et seq. (1967). Appellant acknowledges that, for years, Union members routinely engaged III informational picketing in front of Woodland Middle School, on Friday mornings. Appellant further concedes that the teachers' traditional picketing walking on the sidewalk in front of Woodland Middle School- is protected activity for which it cannot and has not disciplined the employees who participated therein. See Appellant's Brief at 27. On March 2, 2007, because of the inclement weather, instead of being on the sidewalk, the protest took place on Wenwood Drive, a public road, where some teachers parked their vehicles in an area where parking was legally permitted before 8 a.m. and after 4 p.m. When the District investigated the purpose of the parking by asking Santer, he confirmed that the content of the teachers' speech was identical in content to that previously communicated on other Friday mornings. It simply cannot be that, as the District urges the Court, such speech loses its First Amendment protection because it was communicated from a Union member's lawfully parked car, instead of from the public sidewalk. 29 Constitutional protection afforded "picketing" is not limited to individuals marching and carrying signs. In fact, parked-car picketing, similar to that at issue in this case, has already been held to be protected by the First Amendment. In NL.R.B. v. Teamsters Local 182, 314 F.2d 53, 58 (2d Cir. 1963), the Second Circuit held that First Amendment protection extended to picketers seated in a car while their signs were in a snow bank, displayed to the public. The Second Circuit explained, "This (parked-car picketing) was still 'more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey'." N.L.R.B. v. Teamsters Local 182, supra, 314 F.2d at 58 (quoting Building Service Employers' Int'l Union Local 262 v. Gazzam, 339 U.S. 532, 537 (1950)). The location from where the Union members communicated their message on March 2nd further weighs in favor of First Amendment protection. They were lawfully parked on a public road. Certain public places, such as streets, sidewalks and parks, are historically associated with the free exercise of expressive activities. These places are considered to be "public forums" for purposes of First Amendment analysis. United States v. Grace, 461 U.S. 171, 177 (1983); Perry Educ. Ass 'n. v. Perry Local Educ. Ass'n., 460 U.S. 37, 45 (1983); Carey v. Brown, 447 U.S. 455, 460 (1980); Jamison v. Texas, 318 U.S. 413 (1943); Schneider v. State, 308 U.S. 147 (1939); Hague v. Comm. for Ind'! Org, 307 U.S. 496 (1939); 30 Lovell v. Griffin, 303 U.S. 444 (1938). Public streets, in particular, are "the archetype of a traditional public forum," having been "used for public assembly and debate" since "time out of mind." Snyder v. Phelps, supra, 562 U.S. at 131 S. Ct. at 1218 (citing Frisby v. Schultz, 487 U.S. 474, 480 (1988)). In these quintessential public fora, the government's right to limit expressive activity is sharply circumscribed. It may not prohibit all communicative activity, but, rather, may only enforce content-neutral reasonable time, place and manner regulations, which are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. United States v. Grace, supra, 461 U.S. at 177; Perry Ec/uc. Ass 'n., supra, 460 U.S. at 45; Police Dep't. v. ]\I[osley, 408 U.S. 92, 98 (1972); Grayned v. City Rocliford, 408 U.S. at 104,115-17 (1972). In the instant matter, the Union participants in the picketing fully complied with the government's limitations on their presence on Wenwood Drive. The municipality had determined that there should be no standing or parking on the stretch of Wenwood Drive adjacent to Woodland Middle School, between the hours of 8 a.m. and 4 p.m. The District concedes the participants in the picketing removed their cars from Wenwood Drive prior to 8 a.m. (Appellant's Brief at 33 fn.9). 31 However, the District now argues that, notwithstanding the posted signs along Wenwood Drive, the teachers' parking was not lawful (Appellant's Brief at 34). This novel argument is based upon the District's belated investigation (initiated after the Santer case was fully briefed to this Court), that revealed the Town of Hempstead had purportedly amended the parking ordinances (Appellant's Brief at 33-34). ]be District cannot dispute, however, that 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. This failure renders the amendments ineffective and unenforceable. See Vehicle and Traffic Law § 1683(8). Nor can the District dispute that, on March 2, 2007, the signs displayed on either side of Wenwood Drive permitted curb-side parking prior to 8 a.m. (R. 17; Lethbridge: R. 132,135-137,144-145,162,174-175; Chase: 191-192, 195, 197). see also East Meadow Teachers Ass 'n. v. East Meadow Union Free School District, 43 PERB ~ 4530, at p. 4634, 4650-52 (April 20, 2010). Under New York State law, curb-side parking limitations are governed by the signs or notices posted at the parking sites. Vehicle and Traffic Law §1683( a)(8) expressly provides that any ordinance that· seeks to restrict, limit or prohibit parking, stopping, or standing is not effective until signs or markings giving notice of these constraints have been properly posted. ,See People v. Lapidus, 26 Misc. 2d 112 32 (Police Court, Village of Spring Valley, Rockland County 1961)("The language of section 1683 of the Vehicle and Traffic Law is clear and the duty imposed upon the municipality seeking to restrict parking is likewise unequivocal. ... [T]he provisions of the Vehicle and Traffic Law of the State of New York impose a duty on a municipality seeking to restrict parking to post suitable signs before the ordinance shall be effective."); see also People v. Abelove, 54 Misc. 2d 306 (City Court of Utica, Traffic Court 1967)( city's failure to post properly exceptions within parking ordinance rendered the ordinance unenforceable.) To the extent the District seeks to argue the Town of Hempstead wished to make vehicular standing on Wenwood Drive impermissible between the hours of 7 a.m. and 4 p.m., the argument must fail. After all, one of the purported amendments dates back more than twenty-seven years to 1986, and the other dates to 2002, more than eleven years, ago. At no time since each of these respective amendments were passed were the signs along Wenwood Drive altered to post notice of the changes in standing and parking restrictions. Plainly, the Town of Hempstead did not perceive permitting cars to park along Wenwood Drive before 8 a.m. to be a safety concern. In addition to demonstrating the Town's faith that allowing cars to park on Wenwood Drive before 8 a.m. was nota safety concern, the Town's failure to post the notices of amendments means that the amendments were never enforceable or 33 effectuated. Accordingly, demonstrating teachers were lawfully parked in front of Woodland Middle School, on vVenwood Drive, on March 2, 2007. Moreover, this Court's review relating to the propriety of the disciplinary arbitrator's award and the Appellate Division's vacatur of that award must be limited to the record before each decision-maker. Thus, reviewing courts are generally prohibited from considering matters not contained in the record and are constrained to the record created before the initial fact-finder. See Crawford v. Merrill Lynch, Pierce, Fenner and Smith,. Inc., 35 N.Y.2d 291, 298 (1974); News America Marketing, Inc. v. Le Page Bakeries, Inc., 16 A.D.3d 146, 149 (1 st Dep't 2005) (citing Block v. lVelson, 71 A.D.2d 509, 511 (1st Dep't 1979) and Broida v. Bancroft, 103 A.D.2d 88, 93 (2d Dep't 1984)). See also Mount Lucas Assocs., Inc. v. MG Refining and Marketing, Inc., 250 A.D.2d 245, 254 (1st Dep't 1998) (denying motion to enlarge the record); Chimarios v. Duhl, 152 A.D.2d 508 (1st Dep't 1989) (denying motion to supplement the record where supplemental record "is comprised wholly of information not available to the nisi prius court for its consideration"); Broida v. Bancroft, 103A.D.2d 88, 93 (2d Dep't 1984) (refusing to consider supplemental "appendix" submitted on appeal). Indeed, judicial review of a compulsory-arbitration award, such as the one at ----\ issue, here, requires the reviewing court to even more closely scrutinize the award 34 to ensure it is in accord with due process, supported by adequate evidence in the record, and is not arbitrary and capricious. ; City Sch. Dist. of N. Y v. McGraham, 17 N.Y.3d 917, 919 (2011) (citing Matter of Motor Veh. Ace. Indem. Corp. v. Aetna Cas. Insur. Co., 89 N.Y. 2d 214 (1996)). The point of judicial review of the instant matter, therefore, is to determine whether, based on the evidence presented in the record, the disciplinary arbitrator's decision was irrational, or was not supported by the record, and/or violated public policy. As noted above, the District concedes that the Union participants in the March 2nd protest complied with the government's prohibition: they were lawfully parked on Wenwood Drive only between about 7:20 and 7:50 a.m. In its review of , the related case of Santer, the Appellate Division aptly noted, "If the municipality in which Woodland is located believed that it was unsafe for cars to park along Wenwood Drive during the [hours immediately before school started], it could have prohibited parking during the relevant time periods, but it did not do so." (R. xiii). Notwithstanding the District's arguments related to the amendments to the parking restrictions on Wenwood Drive, the municipality never properly effectuated the amendments and they never had any force or effect. Nevertheless, the District appears to argue that the allegedly dangerous conditions created by the Union participants, including Ms. Lucia, lawfully parking their cars on Wenwood Drive tips the Pickering balance against them. The record 35 evidence demonstrated that there was some traffic congestion on Wenwood Drive, in front of the school, during the morning of March 2, 2007. However, belying the District's claimed concerns, the undisputed record evidence conclusively establishes that the District did not intervene, in any way, during the teachers' parked-car picketing to address these, ,alleged dangerous conditions, which consisted of five students being permitted by their parents or guardians to exit vehicles in the middle of the road (R. 144). Indeed, the District has freely admitted that it took no action to have any of the teachers move their vehicles, or to assist students in crossing the street, or to direct traffic to ease congestion (R. 135, 161 162, 165, 174, 182-183, 194-195). Moreover, even without intervention, the parked-car picketing event did not result in any reported incidents, much less any injuries to persons or vehicles (R. 135, 161-162, 165, 174, 182-183, 194-195). The District's inaction begs the questions: If real danger to students was created, why did District officials not act immediately to address the danger? Or, did any danger truly exist as a result of parents and students' guardians permitting children to exit vehicles in the middle of the road without any escort by parent or school agent to the sidewalk? Was the District's "concern" merely pretextual? The government cannot restrict an employee's speech on the basis of merely speculative work-place problems that could potentially result from the employee's protected speech. See N ys. Law Enforcement Officers Union, Council 82 v. NY 36 State, 255 A.D.2d 54 (3d Dep't), aff'd sub nom In re: N. Y State Carr. Officers and Police Benevolent Ass 'n., 94 N.Y.2d 321,325 (1999). For the District's discipline of Ms. Lucia to stand, the District must be able to show that the actual reason it disciplined her was its concern for the disruption to the school day and the safety of the students, rather than some other, impermissible motive. See Sheppard v. Beerman, 94 F.3d 823,827 (2d Cir. 1996). The District has alleged that Ms. Lucia parked her car intentionally to preclude students from being dropped off at curbside and, in so parking, she created a health and safety hazard, and this was the reason it disciplined her. For the discipline to pass muster, even after demonstrating that a concern for disruption was its true motivation, the District must also persuade a court that its interest in preventing disruption outweighed the employee's individual free speech interests. See Jeffries II, 52 F3d at 13. The District cannot so demonstrate on this record. First, Ms. Lucia was not charged with misconduct for acting in. concert with others. The sole specification '; alleged against her is that she, by situating her vehicle alongside the Wenwood Drive curb, intentionally created a hazardous situation. Although the District argues that Ms. Lucia, along with fifteen other teachers, together created the alleged hazard (Appellant's Brief at 36), that is not what she was charged with and she may not be found guilty of conduct not expressly contained in the charges. See 37 Soucy v. Board ofEducation ofNorth Colonie Central School District No.5, 41 A.D.2d 984 (3d Dep't 1973). There is no dispute that, as the District argues (Appellant's Brief at 31-32), it has a duty to protect the safety of its students and acts in loco parentis when students are in its care. See Chainani v. Bd. ofEduc. ofthe City ofNY, 87 N.Y.2d 370 (1995). In light of the recognition of this duty to students, the District's own conduct during the March 2nd parked-car picketing event underscores the pretextual nature of its reason for disciplining Ms. Lucia. Not only does the District admit it took no action at the time of the parked-car picketing to attempt to remove the parked cars or assist students whose parents were dropping them off in the middle of the road, it concedes no injuries to any person or vehicle were sustained during the March 2, 2007 informational parked-car picketing. The District's admitted lack of action as events were unfolding during the morning of March 2nd underscores that, contrary to arguments advanced in pursuing discipline against its teachers, the District's own administrators did not perceive any imminent danger to the children who were in its charge. Had the District truly been conce~ed that the picketing activity was creating a "health and safety hazard," it· would ~ave taken some affirmative action to mitigate or alleviate the cause for concern. Both the U.S. Supreme Court and the Second Circuit have stressed a government employer need not "allow events to 38 unfold to the extent that the disruption of the office and the destruction of working relationships [due to an employee's speech] is manifest before taking action." Connick, 461 U.S. at 151-52; see Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, 1., concurring); Locurto v. Guiliani, 447 F.3d at 182. This must be particularly true if, as Appellant alleges here, the health and safety of school children was purportedly placed in imminent jeopardy by the employee's speech. Absent evidence of any such action by the District to address the alleged safety concerns, the Pickering balance strongly tips in Ms. Lucia's favor. Further accentuating the pretextual nature of the District's reason for disciplining Ms. Lucia is the fact that the District did not discipline two of its administrators who baldly admitted that they observed these allegedly hazardous conditions for about a half-hour· and took no action to address or mitigate the purported dangers to students. Principal Lethbridge and Dean Chase admitted under oath that they did nothing more than watch the events unfolding in front of the school on that Friday morning. They never even stepped into the rain, beyond the protective shelter of the school building during their half-hour observation of this "danger" to students. The only reasonable conclusion on this record evidence is that Appellant's allegations regarding the hazards created by the Union's picketing are speculative, at best, and pretextual, at worst. The absence of any evidence of injury or accident 39 resulting from the parked-car picketing and the District's own inaction during the parked-car picketing event weigh heavily in favor of rejecting its alleged concerns as a basis for imposing discipline upon Ms. Lucia. Under these circumstances, the Pickering balance must favor Ms. Lucia's First Amendment rights. Appellant seeks to have this Court show such deference to the arbitrator as to allow an award to stand, notwithstanding that the award violates Ms. Lucia's Constitutional free-speech rights. CPLR. Article 75 sets forth the grounds upon which arbitral awards, whether issued pursuant to voluntary or compulsory arbitration, may be vacated. CPLR 7511; Education Law § 3020-a(5). Vacatur of any arbitral award is appropriate when the award violates a strong public policy, such as that expressed in the U.S. and N.Y. Constitutions regarding an individual's freedom of speech. See Port Jefferson Stn. Teachers Ass 'n., Inc. v. Brookhaven- Comsewogue UFSD, 45 N.Y.2d 898 (1978)(vacatur of arbitration award mandated where award contravenes a strong public policy involving important constitutional ,!, or statutory rights); see also In re: N. Y. State Carr. Officers and Police Benevolent Ass 'n., 94 N.Y.2d 321,327 (1999) (court should vacate arbitral award "where the final result creates an explicit conflict with other laws and their attendant policy concerns")( emphasis in original, citations omitted). Here, unlike the review of a voluntary arbitration award, review of a compulsory-arbitration award requires the reviewing court to even more closely scrutinize the award to ensure it is in accord 40 with due process, supported by adequate evidence in the record, and is not arbitrary and capricious. City Sch. Dist. ofN. Y v. Me Graham, 17 N.Y.3d 917, 919 (2011) (citing Matter ofMotor Veh. Ace. Indem. Corp. v. Aetna Cas. Insur. Co., 89 N.Y. 2d 214 (1996)). The Appellate Division, Second Department applied the correct standard of judicial review when it examined the instant matter, as it had in Santer.9 Preliminarily, the Second Department acknowledged the broader review required of it when considering the award issued in Ms. Lucia's statutorily-required §3020 a proceeding (R. x). It accepted all of the undisputed facts found by the arbitrator and supported by the record evidence (R. x-xi). The Appellate Division then applied those facts to the Pickering balancing test, and found as a matter of law, as it had in Santer, that Ms. Lucia's speech 9 Notably, in NY. State Corr. Officers and Police Benevolent Ass 'n., 94 N. Y.2d 321 (1999), this Court upheld a voluntary arbitration award finding that a New York State Correction Officer was not guilty of the disciplinary charges against him and reinstating him. The employee had been charged with misconduct for displaying a Nazi flag in front of his home. Unlike here, the arbitrator in that case engaged in analysis of the employee's First Amendment claims. Id. at 325. First, the arbitrator found the correction officer's display of the Nazi flag was protected under the First Amendment. Id. Then, he ruled that not only was there no evidence that the speech caused any work place disruption, the record evidence demonstrated that the employer's "prediction of disruption was unfounded and, in some instances, entirely speculative." NY State Law Enf Officers Union and State ofNY., 255 A.D.2d 54, 58 (3d Dep't), aff'd sub nom, 94 N.Y.2d 321 (1999). This Court denied the State's appeal seeking vacatur of the award. The Court correctly found that the arbitrator's reinstatement of the employee did not violate public policy since it did not violate a "well-defined constitutional, statutory or common law of this State." Id. at 327. In Ms. Lucia's compulsory arbitration, as there was no voluntary submission of the issue to arbitration, the Appellate Division properly applied the First Amendment balancing test, as it had in Santer, and correctly vacated the award based on its determination that the District's imposition ofdiscipline violated the teacher's free speech rights. 41 "addressed matters of public concern" and that the District failed to meet its burden of demonstrating that [Ms. Lucia's] exercise of her First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline" (R. xi). Thus, in Santer the Appellate Division correctly concluded the District violated Mr. Santer's First Amendment rights when it disciplined him because of his March 2, 2007 speech. This Court must similarly review the record, here, and, in doing so, reach the same conclusion: the arbitrator's award must be vacated based on the violation ofMs. Lucia's free speech rights. 42 CONCLUSION Applying the Pickering balancing test to the record facts, this Court must conclude, as the Appellate Division correctly did, the District violated Ms. Lucia's First Amendment right to freedom of speech when it disciplined her for lawfully parking her car on a public road, on her own time to inform the public of the District's failure in its collective bargaining negotiations with teachers. The District's purported concern in mitigating speculative "safety hazards" cannot outweigh Ms. Lucia's interest in speaking freely on a matter of public concern, particularly where the District's inaction to address the alleged "safety hazards" at the time of the speech belies the District's position. Accordingly, this Court should affirm the Second Department's proper vacatur of the award imposing discipline upon Ms. Lucia for the protected Union picketing activity on March 2,2007. Date: New York, New York January 7, 2014 / lID E. CASAGRANDE, ESQ. ey for petitl~~ By: HERRY . BOKSER, ESQ. OfCouns 52 Broadway, 9th Floor New York, New York 10004 Telephone: 212-533-6300 Facsimile: 212- 995-2347 43