Christopher Burgos is a New Jersey state trooper and the elected president of the State Troopers Fraternal Association of New Jersey, the union representing all New Jersey state troopers below the rank of sergeant. As president, Burgos represents the union during labor negotiations and supports union members facing internal discipline, regularly acting as a liaison between the State Police Office of Professional Standards (OPS) and union members and their counsel.
In January 2013, Burgos was notified that he was the target of an internal investigation involving an alleged leak of a confidential document. Specifically, OPS had (apparently accidentally) emailed attorney Katherine Hartman, who represented troopers in matters before OPS, a copy of a report containing the preliminary findings of an internal investigation involving a union member. Hartman, in turn, forwarded the document to Burgos to review in his role as union president – a task Burgos routinely performed with similar files. Burgos then sent the document to the attorneys representing the two troopers discussed in the report.
OPS ordered Burgos to submit to an interview as part of the investigation or face possible dismissal or suspension. In response, the Association filed a federal court lawsuit, seeking an injunction attempting to stop the interview. A trial court denied the request for an injunction, but told the Union it could return for further review if the interview gave rise to First Amendment concerns.
At the interview, Burgos was told he was being investigated for violating two State Police rules and regulations, including one prohibiting “unauthorized release of information.” He was questioned about conversations he had with union attorneys and other union executives and asked to turn over email conversations between himself and his attorneys. He also learned in the interview that OPS was investigating him for “theft” of the document.
The Association renewed its request for an injunction, claiming the investigation was intended to harass the union for representing its members and to retaliate against it for disclosing a document the state found embarrassing. The dispute over the injunction wound up before the federal Third Circuit Court of Appeals.
The Court upheld the denial of the injunction, holding that the trial court’s role “is not to adjudicate the merits of the underlying dispute – i.e., whether Burgos violated department policy. Rather, the District Court must determine whether the First Amendment precludes an internal investigation into the alleged violation from even proceeding. In other words, what matters for purposes of analyzing the injunction request is not whether Burgos’s actions were actually unauthorized or whether the document was actually confidential, but that the State has some basis to believe those things and wants to investigate. And regardless of whether Burgos is actually culpable of any misconduct, it is clear that the state is investigating him for that reason.
“The Union argues that the Association president’s union activities are privileged activities protected by the First Amendment from coerced disclosure and that the First Amendment is violated when a union is compelled to reveal nonpublic, internal communications. However, there is no constitutional right to associate for a purpose that is not protected by the First Amendment. Here, assuming that the Association engages in expressive association, it still cannot show that the internal investigation of Trooper Burgos infringes that right. There is no indication that the State’s investigation of Burgos has significantly affected the Association’s ability to engage in protected expressive activity, or will have a chilling effect thereon.
“Moreover, Burgos’s status as union president does not exempt him from compliance with State Police rules and regulations. Trooper Burgos may not be the most culpable person involved in the release of the document, but the possibility that an investigation may be misguided does not make it violative of the First Amendment.”
State Troopers Fraternal Association of New Jersey, Inc. v. State of New Jersey, 2014 WL 4495130 (3d Cir. 2014).
Note: The Court’s decision did not address a related area – whether the operation of state collective bargaining laws creates a privileged relationship between a union official and union members. Several states have found that such a privilege does, in fact, exist. However, the New Jersey case only discussed the question of whether a privilege exists as a matter of the First Amendment’s guarantees of freedom of association.