Published in the October, 2019 issue of the PELRAS newsletter
Published on: Mon 28th Oct, 2019 By: Julie A. Aquino
The Pennsylvania Supreme Court recently issued a decision that broadens the protections afforded to part-time police officers in boroughs. Deforte v. Borough of Worthington, 212 A.3d 1018 (Pa. 2019). This decision suggests that either the Borough Code or the Police Tenure Act protections extend to part-time police officer regardless of whether they were hired through a civil service process.
The Borough of Worthington in Armstrong County employed four part-time police officers, including its Chief of Police at the time, DeForte. The Borough discharged DeForte and a patrol officer, Townsend, without a pre-disciplinary or post-disciplinary hearing. Both were part-time employees and each simultaneously worked for another jurisdiction. Neither were hired through the civil service process. DeForte and Townsend alleged in their lawsuit, among other claims, that they should have been provided with removal protections afforded under either the Borough Code’s civil service provisions or the Police Tenure Act. The District Court dismissed their claims, holding that neither civil service nor the Police Tenure Act applied, and DeForte and Townsend appealed to the Third Circuit Court of Appeals. The Third Circuit requested that the Pennsylvania Supreme Court interpret the Borough Code and the Police Tenure Act with respect to part-time police officers.
The civil service provisions of the Borough Code apply to police forces of at least three (3) “members.” 8 Pa. C.S. § 1171. The term “member” is not defined, but the term “police force” is defined in relevant part as “organized and operating as prescribed by law, the members of which devote their normal working hours to police duty….” 8 Pa. C.S. § 1170 (emphasis added). The Police Tenure Act applies to all Second Class Township police forces, as well as Borough and First Class Township police forces of no more than two “members”, and its removal protections apply only to “regular full time police officers.” 53 P.S. §§ 811-812.
Both the Borough Code and the Police Tenure Act prohibit suspension, demotion or termination without cause, as specified in the statutes, and afford covered employees with a pre-disciplinary and post-disciplinary hearing. The lower court in Borough of Worthington determined that civil service did not apply due to the size of the Borough’s police force, and that the Police Tenure Act did not apply because the Borough employed no full time police and DeForte and Townshend were part-time officers.
The Pennsylania Supreme Court reasoned that the Police Tenure Act and the Borough Code “dovetail” so that “borough police forces which are not governed by the Borough Code – on the grounds that they have fewer than three members – are covered by the Tenure Act.” Borough of Worthington, 212 A.3d at 1023. The Court determined that the General Assembly intended 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.” Borough of Worthington, 212 A.3d at 1023. When calculating the size of a police force for determining which statute applies, the Court held that the employer should use the “normal working hours” criteria, and that part-time status is not dispositive.
While the Court left many questions unanswered, the decision is intended to afford part-time officers with protection under either civil service or the Police Tenure Act, at least to those part-time officers who devote their “normal working hours” to the employer. As a result, Pennsylvania Boroughs—and potentially other municipal entities—should no longer assume that part-time officers do not have due process protection with respect to suspension, demotion or discharge, although questions remain regarding the number of hours, and regularity of hours, a part-time officer must work in order to be entitled to those protections.
Although the Police Tenure Act’s removal procedures only apply to full time officers by the plain language of the statute, the Court stated in a footnote that part-time officers may “under some circumstances, be considered as having full-time employment where they are available to work on a full-time basis.” Borough of Worthington, 212 A.3d 1021, n. 4. On the other hand, officers who fall into the category of “extra police officers” remain excluded from coverage under civil service, and presumably under the Police Tenure Act, although the exact line of demarcation between an “extra police officer” and a part-time officer who devotes “normal working hours” to the employer remains an open question.
What about the hiring process for part-time officers? The Court left unanswered the question of whether part-time officers must be hired through civil service. The Court opined in a footnote that whether an officer was hired through civil service is not necessarily dispositive of whether just cause and due process protections should be applied upon dismissal. Borough of Worthington, 212 A.3d at 1025, n. 8.
Lastly, although the Court specifically limited its decision in Borough of Worthington to boroughs, the rationale used to extend civil service protections to part-timer officers in cases of dismissal, suspension or demotion likely extends to other municipal statutes. All local governments that employ part-time police officers should consult with their labor counsel or solicitor regarding the impact of this recent decision on their employment practices.