Labor & Employment Update: All Pennsylvania Borough Police Have Civil Service Rights
July 23, 2019
On July 17, 2019, in DeForte v. Borough of Worthington, No. 24 WAP 2018 (Pa. July 17, 2019), the Pennsylvania Supreme Court held that Pennsylvania’s civil service protections govern all Borough police forces, regardless of size. Specifically, it found that the same test should be used to count police force members under the Borough Code and Tenure Act so that all borough police departments are governed by one of the two statutes.
Background:
Under the facts, two police officers (“plaintiffs”) were employed with Worthington Borough (“Borough”) being paid hourly wages – neither officer was salaried or received benefits. Each officer was simultaneously employed by other police forces. The Borough’s police force consisted of four part-time officers, including plaintiffs. The Borough then terminated the two plaintiffs without affording any process. The plaintiffs filed suit in federal court.
Law:
Both the Borough Code and the Police Tenure Act bar suspension, removal, or demotion without cause, as set forth by enumerated circumstances in each enactment. 8 Pa.C.S. § 1171 (formerly cited as 53 P.S. § 46171); 8 Pa.C.S. § 1190 (formerly cited as 53 P.S. § 46190); 53 P.S. § 812.
Under the Borough Code, the removal provisions apply to any police force of not less than three members. 8 Pa.C.S. § 1171 (formerly cited as 53 P.S. § 46171). Prior to the Borough Code amendments and at the time of this case, the Borough Code defined police force as:
Police force as used in subdivision (j) of this article shall mean a police force organized and operating as prescribed by law, the members of which devote their normal working hours to police duty or duty in connection with the bureau, agencies and services connected with police protection work, and who are paid a stated salary or compensation for such work by the borough. Police force as used in this subdivision shall not include: . . .
(4) Any extra police serving from time to time or on an hourly or daily basis[.] . . .
53 P.S. §46195.3 (The latest version of the Borough Code includes a materially identical definition of a police force. See 8 Pa.C.S. §1170).
Under the Tenure Act, with regard to “regular full time police officer[s],” 53 P.S. § 812, the removal provisions apply to boroughs which are not subject to the Borough Code and have a police force of less than three members (as well as to first-class townships with such police forces and all second-class townships). See id. §811.4.
The federal district court found the part-time officers were excluded from coverage under both the Borough Code[1] and the Police Tenure Act.[2] On appeal, the Third Circuit questioned whether the “normal working hours” requirement of the Borough Code should be read coterminously with the “regular full time police officer” provision of the Tenure Act. The Third Circuit therefore petitioned the Supreme Court to answer the question.
Analysis:
In answer to the two-part question of the Third Circuit, the Supreme Court held that:
(1) the civil service protections embodied in the Borough Code and the Tenure Act are broadly in pari materia insofar as they are intended to govern all borough police forces; and
(2) when calculating the size of a borough police force in any given case, the same test should be used. Meaning, the “normal working hours” criterion contained in the Borough Code should be employed to determine how many members a borough police force has for purposes of deciding whether the Tenure Act’s two-officer maximum or the Borough Code’s three-officer minimum is implicated.
As such, the two acts, taken together will be read to dovetail so that borough police forces which are not governed by the Borough Code – on the ground that they have fewer than three members – will be covered by the Tenure Act. The Court reasoned that “the General Assembly intended for the Tenure Act to fill the gap created by virtue of the Borough Code’s failure to extend its protections to borough police forces with fewer than three members.” DeForte, Slip Op. at 9.
The Court noted that “individuals who constitute ‘extra police serving from time to time or on an hourly or daily basis’ are expressly excluded from the Borough Code’s provision.” Id. at 10. The statutory exclusion, however “does not apply to part-time officers who are not ‘extra police.’” Id.[3] Separately, the court noted that receipt of an “hourly wage” is “compensation” under the Borough Code such that the fact that officers are paid an hourly wage – standing alone – will likewise not remove them from the Borough Code provisions. Id. at 11.
Finally, the Court noted that, “in light of the specific features of [p]laintiff’s employment, they [may] not qualify for the procedural safeguards of whichever enactment applies … [but] the fact of working part time is not dispositive.” Id. at 12. Instead, the “question of whether the applicable enactment ultimately provides [p]laintiffs with procedural safeguards is distinct from the issue of whether [p]laintiffs were ‘members’ of the Borough’s police force for purposes of determining whether it had at least three members.” Id.
Questions Left Unanswered
The Supreme Court’s decision makes it plain that the Court favors the conclusion that due process protections apply to any regularly employed police officer unless their hours are significantly limited. The Court recognized—but failed to answer—the question of whether or not part-time officers have to be hired through civil service.
The Court also left open the possibility that some time-limited police officers (e.g., seasonal officers or officers hired to work only certain shifts or nights) might still fall into the category of “extra police officers” who are not subject to civil service protections. But the Court declined to examine conditions under which that may be true.
Here’s what we do know – the old mantra that part-timers are not covered by civil service – seems now to be subject to substantial question. As such, all employers should check with their solicitors or special labor counsels to determine the employment status of police officers before they make a decision with respect to their employment status.
This Labor and Employment Update is intended to keep readers current on matters affecting the industry and is not intended to be legal advice. If you have any questions, please contact Ryan Cassidy at rcassidy@eckertseamans.com, Scott Blissman at sblissman@eckertseamans.com, Michael McAuliffe Miller at mmiller@eckertseamans.com, Gedd Schweikert at gschweikert@eckertseamans.com or the Eckert Seamans’ attorney with whom you normally work.
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[1] The court found that the part-time officers did not devote their normal working hours to police duty for the Borough and were paid on an hourly basis, removing them from coverage under the Borough Code.
[2] The court found that because the Borough had a total of four officers, the Tenure Act was not implicated. The court noted that part-time officers are included in determining the size of a borough police force for Tenure Act purposes under Commonwealth Court precedent.
[3] Extra police are officers “employed by municipalities to perform only limited duties and are needed in a municipality during certain limited hours to complement the regular police force.” Kraftician v. Borough of Carnegie, 386 A.2d 1064 , 1066 (Pa. Cmwlth. 1978).