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“For the reasons stated on the record on October 31, 2014, the Court finds that Plaintiffs have established that they are entitled to a temporary restraining order and a preliminary injunction,” U.S. District Court Judge Esther Salas wrote in response to a motion filed by three Bergen County Sheriff’s officers.
Officers James Tassillo, Alvin Nunez, and Elby Tineo went to court, arguing that their First Amendment rights were violated after members of Donovan’s security detail told them that they couldn’t attend an Oct. 23 breakfast honoring them and other county employees inside One Bergen County Plaza while off duty wearing “Tedesco for County Executive” t-shirts.
Bergen County Police Chief Brian Higgins told CLIFFVIEW PILOT earlier this week that the building isn’t a polling place only on Election Day because absentee ballots were being accepted there.
As a result, he said, political advertising is prohibited within 100 feet of the building.
Salas disagreed.
“[T]he Court grants Plaintiffs’ motion for a temporary restraining order and preliminary injunction enjoining Defendants from preventing Plaintiffs and other members of the public from entering One Bergen County Plaza and displaying support for a candidate for public office, including James J. Tedesco III, by clothing pins, buttons, or other modes of peaceful expression on days other than Election Day,” she wrote.
The judge also banned Donovan, Higgins and others in the county department “from threatening or engaging in disciplinary action against Plaintiffs, or any other member of the public, for expressing support for candidates for public office on days other than Election Day.”
A video posted on You Tube earlier this week shows Bergen County Sheriff’s Officer Edward Romero and three other officers being told that they cannot enter One Bergen County Plaza with their “Team Tedesco” shirts exposed.
In the video, Donovan’s security director, James Giblin, cites NJSA 19:34-19 (otherwise known as Title 19), the state law governing campaigning at polling places.
He also offers Romero a written copy.
Opponents of the move argued that Election Day isn’t until next Tuesday — and, so, the shirts should be allowed.
County police contended that they missed an important distinction.
“The Bergen County administration building is an active polling place due to the Board of Elections, the superintendent of elections and county clerk’s office all being located there,” BCPD Capt. James Mullin told CLIFFVIEW PILOT.
“These offices were actively accepting early ballots on that day and will continue to due so right up to Election Day,” he said.
Higgins noted that Federal Protective Services this week began enhancing its presence and security at various U.S. government buildings in Washington D.C. and around the country because of “public calls by terrorist organizations for attacks on the homeland and elsewhere, including against law enforcement and other government officials.”
He called the videotaped incident a “distraction” that “has the potential to interfere with the security and safety of the staff, public officials and visitors of our county administration building.
“There are several sections of Title 19 that can be applied in a situation such as this,” he said.
“Due to the upcoming election, the county clerk’s office is accepting absentee ballots until October 28th. There is a very high percentage of individuals who cast absentee ballots who are sickly, elderly and serving in the military.
“They are entitled to the same protections that all citizens have when voting, whether that is November 4th or another date,” Higgins said. “To those who are casting absentee ballots on the day of this incident, it was [their] election day.
“In addition,” he said, the ethics code portion of Bergen’s administrative code “prohibits county employees from carrying out such activity on county property.”
Attorney Donald Burke filed suit and requested a show-cause order in federal court in Newark on behalf of Tassillo, Nunez and Tineo — who also were turned away by Giblin.
Burke called Higgin’s interpretation of the county conduct code “an unconstitutional infringement of the free speech rights of Bergen County employees” that he said “is intended to and does chill protected speech.”
It also “constitute[s] threats, intimidation or coercion made unlawful by the New Jersey Civil Rights Act,” the attorney contended.
Salas, in turn, granted Burke’s request to temporarily prevent county police from:
stopping anyone from being denied access to the county administration building based on political content;
labeling the county administration building a polling place except for on Election Day, and on days of primary and School Board elections;
“making further threatening, harassing, or intimidating statements regarding the plaintiff’s attempts to engage in protected speech and expressive activities.”
As a result, the lawsuit against Donovan, Higgins, Giblin, the BCPD and others will go forward.
The case originally was set for a hearing this Monday afternoon. But the building is open this weekend, and the sheriff’s officers said they didn’t want to be turned away any longer.
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