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Expressing “disapproval and outrage” without attaching “any specific punishment or penalty” doesn’t violate Toffler’s First Amendment right to free speech, the council contends in a motion to dismiss a civil rights suit she filed against the majority.
The censure “is merely a reprimand and carries no consequence for [Toffler’s] misguided comments to the reporter, and lacks any real force or punishment,” the council members contend.
The motion quotes North Jersey’s own U.S. District Judge William Martini, who in another case said that he couldn’t see “how a mere showing of disapproval, expressed by a councilman’s colleagues, and lacking any real force of punishment, could prevent a person of ordinary firmness from exercising his constitutionally protected speech.”
The arguments are contained in a motion, obtained by CLIFFVIEW PILOT, that a lawyer for the council majority filed this week in Superior Court in Hackensack. The council asks that a judge hold a hearing on the request to dismiss Toffler’s complaint as soon as Dec. 2.
A lawyer for Toffler says the council violated her civil rights by “acting as prosecutor, judge and jury” in censuring her. Toffler also wants to be reimbursed for legal fees because the censure stemmed from her official duties.
The censure came after Toffler sent unsolicited emails to both Broughton and Wilson contending that she considered their “disclosures” of a hit-and-run accident she had as retaliatory, while stating “in no uncertain terms that they would suffer ‘painful consequences’ for their actions,” the council filing says.
The motion says Toffler also told a newspaper reporter that both men “deliberately” spread word about the incident as “payback” for her opposition to Wilson’s appointment as Public Safety Director.
“I would hope Councilwoman Toffler would drop her suit, stop wasting taxpayers’ money and focus her energy on helping our Teaneck residents,” Councilman Elie Katz told CLIFFVIEW PILOT recently.
Toffler, however, said she did nothing wrong.
“I have offered from the start of the suit to pay my own legal expenses if the Council would rescind the censure. They refused,” she told CLIFFVIEW PILOT.
The former professor at Harvard Business School and published author was pulling from a parking spot this past January when her car knocked the license plate off another vehicle. Not seeing any damage from behind the wheel, and unaware of the fallen plate, she said, she drove off.
After viewing a surveillance video, police gave Toffler two summonses later that day. She said she took care of them immediately and paid to have the plate replaced. The vehicle’s owner didn’t claim any other damage, she said.
“I deserved the two summons(es) I received,” Toffler told CLIFFVIEW PILOT. “I unknowingly knocked a license plate off a car in a parking lot packed with snow, and did not realize it, so drove off. I have never raised any issue with the tickets and paid my $100 fine and $33 court costs.”
What angered her, she said, was that only a certain number of people knew about what essentially was a minor incident – and that one of them told a newspaper reporter about it. She expressed those concerns to the same reporter and in discussions with her fellow council members, she said. The censure vote followed soon after.
“All I said … was that I believed SOMEONE telling the press and publicizing my 2 tickets was retaliating against me,” Toffler told CLIFFVIEW PILOT. “I have proof that when the story appeared in the press I had emailed that I didn’t know who had released the information. From reading the story it sounds like Deputy Mayor Adam Gussen told the story.”
Council members also alleged that Toffler tried to prevent the release of public records about her, in violation of state law.
But Toffler said she simply asked the then-acting township clerk whether there was a way to determine whether a man who sought police reports for her home address and security camera footage of the fender bender had a criminal record.
She said she was specifically concerned over the murder of a Teaneck gadfly, as well as a hostile tenor of council meetings that required police presence, not to mention the shootings of public officials in two other states.
It was “surely reasonable, responsible, and in keeping with her duties for … Toffler to inquire if an investigation was done by the Township to ensure a person making a [public records] request was honest when they asserted … that they had no criminal record, particularly when the documents requested would or could contain home addresses,” Hassing wrote in court papers filed in Superior Court in Hackensack.
Produced by “biased political rivals,” the censure resolution approved on Feb. 8 was dropped on Toffler without notice, the court filing contends.
Council members clearly abused Toffler’s rights by “refusing to hold any inquiry and refusing to send the allegations to an impartial third party for investigation,” the June court document argues. The matter should have been sent to Teaneck’s Ethics Board and not been handled by the council, it adds.
The resulting resolution is “rife with factual inaccuracies, misstatements, unsubstantiated references, gross misapplications of law, non sequiturs,” and was approved without Toffler having the opportunity to defend herself, her court filing contends.
It “wrongfully and publicly damaged [Toffler’s] political, professional and personal reputation,” he wrote, noting that his client is an author and speaker on ethics in the corporate workplace.
To make matters worse, Toffler said, she wasn’t permitted to see the censure resolution until after the council had approved it.
Her attorney wrote that the censure “was intended to silence Councilwoman Toffler, who is an outspoken elected official with a long history of challenging the status quo, demanding factual and fiscal oversight and support for the proposed actions of the Council, and refused to abdicate her legislative responsibility and become a rubber stamp for the whims of Township Management.”
Toffler’s contention that she was censured without a chance to defend herself is “patently false,” the council’s motion says.
She was given notice on Feb. 3 that the council intended to consider a motion on Feb. 8 “which might affect her employment and/or terms and conditions of her employment,” that it would be held in closed session and that if she wanted it public to have her lawyer make that request at least 24 hours before the meeting, the court filing contends.
The motion notes that Toffler and her attorney were at the council meeting when the censure resolution was read and that neither said anything about it.
The cross-motion says that Broughton told the council of the accident because it “concerned traffic summonses and was undoubtedly to become a public issue that would receive some type of media coverage.”
In response to the “dislosures” of the accident by Broughton and Wilson, the motion says Toffler told a newspaper reporter that both men “deliberately” spread word about the incident as “payback” for her opposition to Wilson’s appointment as Public Safety Director.
The council contends that Toffler also “sent unsolicited emails to both [men] stating that their actions in handling the information … had been ‘retaliatory in nature, and stating in no uncertain terms that they would suffer ‘painful consequences’ for their actions.”
The letters, along with the newspaper article, are included among the exhibits presented as part of the council’s argument that a judge dismiss Toffler’s case.
The council also accused Toffler of not going through the proper channels in delaying an Open Public Records Act request while trying to find out about the citizen who made it. Rather than speak with the acting township clerk, the filing says, she should have gone directly to Broughton.
Broughton filed an internal complaint accusing Toffler of harassment, which the council says it “did not find necessary nor in the public interest” to investigate, according to the motion.
Toffler has since admitted she falsely accused Wilson and Broughton of telling others about her accident to get back at her for opposing the creation of a Public Safety director’s job that Wilson presumably would have taken.
That doesn’t get her off the hook, the council says.
“Such allegations and actions show disrespect to both the offices and to the individuals holding such offices, impugns the dignity of both men, tarnishes the image of the Township, and are detrimental to maintaining proper management of the Township.”
Toffler’s free speech argument doesn’t hold water, the council maintains, because she was speaking as a public official.
The motion quotes a U.S. Supreme Court decision that “when public employees make statements pursuant to their official duties the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen,” the Supremes noted.
Based on that, the council says, “a citizen working in governmental service must accept certain limitations on his or her freedom of speech.”
Toffler’s January 2011 comments to the newspaper reporter “make it perfectly clear that she had been speaking out in her capacity as a member of the Township Council on an issue that had concerned her unsubstantiated belief that both Chief Wilson’s and Township Manager Broughton’s employment-related actions had been done in response to her actions as a Councilperson on the Public Safety Director issue,” the motion contends.
But here’s the kicker: The council says the record “makes it perfectly” clear that the members didn’t censure Toffler for her newspaper comments. Rather, it says, she was disciplined “for admitting in her statement the comments she had made … were unsupported by fact or by evidence, and were both inappropriate and erroneous.”
Her reported comments were “detrimental to maintaining the proper management of the Township of Teaneck,” the council members contend. They were “unsupported, inappropriate and erroneous.”
What’s more, the council says it didn’t accuse Toffler of violating any local or municipal ethics law, negating her argument that the Teaneck Ethics Board — and not the council — should have judged the case against her.
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