Participation In Police Union Election Can Be Protected By First Amendment

Anthony Ferraioli, Aldrin Lamboy, and Dawn Fray are police officers with the City of Hackensack, New Jersey. In June 2008, an election for the position of delegate to the New Jersey Police Benevolent Association (PBA), a labor organization representing police officers, was held in the locker room of Police Department headquarters. As all three officers later alleged, the Police Chief made it known to all officers in the Department that he wanted a particular slate to win the election and, moreover, expected the officers to vote for that slate to demonstrate their loyalty to him. The officers also alleged that the Department retaliated against them for making their views known that they opposed the Chief’s choice for PBA delegate.

A federal court refused to dismiss the officers’ First Amendment lawsuit challenging what they believed to be retaliation. The heart of the Court’s opinion dealt with whether participation in a union election could be protected by the First Amendment as a “matter of public concern.”
The Court found that “in the employment context, the important distinction to be made regarding constitutional protection is between speech related to personal interest and speech related to matters of importance to the community. The leadership of a collective bargaining unit representing public employees is not so removed from the community’s interests and concerns that the Court can conclude that they are beyond the reach of the First Amendment as relating merely to the officers’ personal interest. This holds true not only for the alleged statements made expressly in support of one candidate, but also for subsequent complaints of the officers that they had essentially been demoted or punished for siding with the other candidate. Although the City argues that such complaints amount to no more than an employee grievance, the Court rejects such a superficial characterization of the complaints.”

The Court acknowledged that “the Supreme Court has cautioned against ‘constitutionalizing’ a public employee’s grievance simply because he or she made statements in the course of public employment. The officers’ complaints, however, stemmed directly from the protected expression made by the officers concerning the PBA election. While on their face they may focus on each officer’s job assignments and thus appear to have no bearing on community interest, the complaints represent a continued effort by the officers to resist what they perceived as the City’s efforts to discourage their exercise of free speech.”

Ferraioli v. City of Hackensack Police Dept., 2010 WL 421098 (D. N.J. 2010).

This article appears in the May 2010 issue