David Tortora is a detective with the Bergenfield Police Department (BPD) in Bergenfield Borough, New Jersey. He also has served as the president of the local Police Benevolent Association since 2018. Between 2017 and 2022, the BPD and the Union attempted, unsuccessfully, to negotiate a new contract, straining relations in the process. In August 2018 – shortly after two unsuccessful attempts at resolving the contract dispute through arbitration – Tortora spoke at a public council meeting. He introduced himself as “the president of PBA Local 309,” and explained that he was “here tonight with my fellow brothers and sisters because the Borough has filed for interest arbitration after refusing to negotiate in good faith.” He also criticized the Borough government’s “take it or leave it attitude” in demanding that the Union accept changes to healthcare contributions. Finally, he expressed his disappointment in the Borough council’s lack of leadership.
The parties eventually conducted interest arbitration, and a final award was approved in December 2018. The Borough refused to sign the new CBA, and Tortora filed a ULP charge with the state labor board in September 2019. In February 2020, Tortora filed a complaint in state court to compel the Borough to abide by the approved, but yet-unsigned CBA. After some litigation, in 2022 the state labor board issued a clarified CBA, which the Union appealed.
Meanwhile, in October 2019, the newly appointed police chief, Mustafa Rabboh, posted a photo to the official BPD Instagram account of BPD officers with a mayoral candidate and a Borough council candidate. Elections were to be held for mayor and Borough council in two weeks. Tortora left a comment on the post from the Union Instagram account explaining that the Union does not endorse political candidates. Rabboh and Tortora discussed this exchange over the next week, culminating in an in-person meeting where Rabboh explained to Tortora that his conduct could affect his promotional opportunities moving forward. Tortora was assigned to two patrol shifts, which he interpreted as a punishment. Tortora was ranked third on a 2019 promotional list for sergeant. After a series of promotions that year, Tortora ranked second on the list, after another Union officer. The Borough declined to approve additional promotions for the remainder of the life of the 2019 promotional list, despite Rabboh’s advocacy.
In 2021, Tortora learned that a councilperson suggested to a police officer that the Union should vote to remove Tortora as president because he was difficult in negotiations. On March 23, 2023, Tortora sued the Borough and its officials for violating his First Amendment rights by retaliating against him for protected Union activity. The Borough moved to dismiss all Tortora’s claims.
To prevail on his First Amendment retaliation claims, Tortora had to allege that his speech was protected. This required that Tortora was speaking as a private citizen – not in his official capacity – and that he was speaking on a matter of public concern. If so, the Court would balance Tortora’s interest in speaking against the Borough’s interest in promoting workplace efficiency. Specifically, Tortora alleged that he was passed over for promotion in retaliation for (1) his role in contract negotiations as Union president, and subsequent litigation; (2) his speech at the public council meeting in August 2018; and (3) his comment on the BPD’s Instagram account in October 2019.
The Court denied the Borough’s motion for summary judgment, finding that Tortora had successfully alleged retaliation. First, his speech in each of the three exchanges were made in his role as Union president, not as a BPD officer, and therefore he spoke as a private citizen. Second, in each case Tortora spoke on a matter of public concern, because each of these issues – negotiations over a new police contract, and official endorsement of political candidates – were not merely intraoffice disputes; they impacted the entire community. Although the Court did not analyze the balance between Tortora’s interest in his speech and the Borough’s interest in efficient management, it implicitly determined that Tortora’s interests outweighed those of the Borough. The Court also noted that Tortora alleged specific facts indicating retaliation, namely, Rabboh’s suggestion that he might be passed over for promotion, and a councilperson’s suggestion to a police officer that the Union vote him out of office. Accordingly, Tortora’s claims were permitted to proceed.
Tortora et al v. Borough of Bergenfield et al, Civil No. 23-cv-1661 (KSH) (ESK), 2024 WL 1342563 (D.N.J., 2024).