Justices Agree to Answer Third Circuit's Question on Police Force Governance

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Photo credit: Bigstock[/caption] The state Supreme Court, at the request of the U.S. Court of Appeals for the Third Circuit, is set to determine whether some Pennsylvania police departments fall outside the scope of the state's two statutes governing how such agencies can terminate officers' employment. In the consolidated federal cases of DeForte v. Borough of Worthington and Townsend v. Borough of Worthington, plaintiffs William DeForte and Evan Townsend, two former part-time police officers with the Borough of Worthington, alleged their terminations deprived them of their due process rights because either the Pennsylvania Borough Code or the Police Tenure Act gave them a constitutionally protected property interest in their employment. A U.S. District Court for the Western District of Pennsylvania judge granted the defendant's motion for summary judgment, however, finding that the borough's police department did not fall within the scope of either statute. The Borough Code provides that "'[n]o person shall be suspended, removed or reduced in rank as a paid employee in any police force ... of any borough, except in accordance with the provisions of this subdivision'" and applies only to police departments with three or more members. But while Worthington Borough's police department had four members at all relevant times, the Borough Code also defines a "police force" as consisting of members who "'devote their normal working hours'" to policing and excludes "'[a]ny extra police serving from time to time or on an hourly or daily basis.'" Meanwhile, the Police Tenure Act provides similar employment protections to police officers but applies only to municipalities with police forces that have fewer than three members and are not subject to the Borough Code. In an April 19 petition for certification of question of state law, the Third Circuit said that it would appear Worthington Borough's police department did not fit into either statute's definition of "police force." The appeals court also said there is some question as to whether both full-time and part-time police officers should be counted when determining the size of a police force for the purposes of the Borough Code and Police Tenure Act, as the Commonwealth Court held in the 1990 case Mullen v. Borough of Parkesburg. "Because the Police Tenure Act applies to 'borough[s] and township[s] of the first class having a police force of less than three members,' the act would not seem to apply to the Worthington Borough’s police force since—under Mullen—the Worthington Borough’s police force consisted of four qualifying officers," Third Circuit Chief Judge D. Brooks Smith wrote for the appellate panel. "On the other hand, because plaintiffs were paid 'on an hourly ... basis' and plaintiffs may not have devoted 'their normal working hours' to the Worthington Borough police force because of their commitments to other police forces, it would seem that the Worthington Borough police force also fails to qualify as a 'police force' under the Borough Code." However, a finding by the federal appeals court that Worthington Borough is not governed by either statute might conflict with what some state courts have said was the General Assembly's intent. Smith noted that some state courts have held that the phrase "normal working hours" encompasses any police officer that is on call at any and all times. Such a finding by the Third Circuit might also conflict with the state Supreme Court's 1959 decision in George v. Moore that the Borough Code and Police Tenure Act were intended to be read in pari materia so that all police departments in the state were covered, Smith said. However, Smith noted that in 1966, the state legislature added the language to the Borough Code excluding "'[a]ny extra police serving from time to time or on an hourly or daily basis.'" "Given this 1966 amendment, we believe that further guidance from the Supreme Court of Pennsylvania is appropriate," Smith said. "Such guidance would assist this court in determining whether the 1966 amendment to the Borough Code abrogated the George court’s interpretation of the Pennsylvania legislature’s intent." On July 17, the Supreme Court issued a one-page order agreeing to answer the Third Circuit's question: "Whether, under Pennsylvania law, (1) the Pennsylvania Borough Code and the Police Tenure Act must be read in pari materia, such that every legally authorized police force in Pennsylvania fall under the governance of one of those two state statutes, and (2) if not, whether the same test should be used to determine whether the Tenure Act's two-officer maximum and the Borough Code's three-officer minimum is satisfied." Counsel for the borough, Andrew Bellwoar of Siana, Bellwoar & McAndrew in Chester Springs, did not return a call seeking comment. Nor did an attorney for DeForte and Townsend, Craig Alexander of Bruce E. Dice & Associates in Pittsburgh.