TO RESEARCH NYPPL POSTINGS type in your key word or phrase in the box at the upper left and tap enter.

N.B. “Cookies” provide a method for an Internet site to recognize a visitor and keep track of "visitor preferences." NYPPL does not use “cookies.” Google, its advertisers linked to this site by Google and others, however, may be using "cookies." A visitor's continuing to access NYPPL will be deemed to constitute the visitor's knowledge of, and the visitor's consent to, the use of "cookies" on NYPPL's LawBlog by Google, its advertisers and others.

Wednesday, January 16, 2013

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee
Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2012 NY Slip Op 08750, Appellate Division, Second Department

The genesis of the disciplinary action taken against a union official was a series concerted actions by teachers during collective bargaining negotiations that included weekly picketing in front of a school when students were being dropped off. On a day when it was raining, some of the teachers parked their cars along nearby street and display their signs in their car windows. The street was one of several locations where parents would drop off their children.

The charges filed against the union president included the allegation that his activities “resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard." According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.

In the course of the disciplinary arbitration hearing, the union president contended that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the president guilty of the charge of creating a health and safety hazard and directed that he pay a $500 fine.

The Appellate Division, noting that an arbitration award must be rational and not arbitrary and capricious, said that the evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that the president contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious.

However, the Appellate Division also considered the president’s claim that that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution, explaining that courts “must balance free-speech principles against the threat to effective government operation presented by that speech.” Further, said the court, the government employer bears the burden of showing that the disciplinary action taken against the employee was justified.

The union president’s "speech" regarding collective bargaining issues indisputably addressed matters of public concern and “despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students," the Appellate Division found that the School District failed to meet its burden of demonstrating that the union president’s exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.

The president, said the court, “fully complied with the applicable parking regulation” and were the municipality of the view that it was unsafe for cars to park along the street in question during the time when parents dropped off their children at the school, “it could have prohibited parking during the relevant time periods, but it did not do so."

Further, said the Appellate Division, “no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest.”

As the record establishes that the danger presented by the legally parking teachers could not have been substantial, the Appellate Division concluded that under these circumstances the District failed to demonstrate that union president's legal speech so threatened the effective operation of the school that discipline of him was justified.

The decision is posted on the Internet at:

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to

Readers may share material posted in NYPPL with others provided attribution to NYPPL is given.

Copyright© 1987 - 2016 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.