The Third Circuit made clear that the test to determine whether a police officer in Pennsylvania is entitled to civil service protections, is not the number of hours worked but rather, whether the officer is “available for full employment – that is, on call at any and all times.” (Townsend/Deforte v. Borough of Worthington et al; No. 23-1772 (3rd Cir. April 19, 2024)(Not Precedential).
The Third Circuit’s decision comes on the heels of decade long litigation, including the certification of a question to the Pennsylvania Supreme Court as to whether the Borough Code and Police Tenure Act should be read in pari materia. The Court determined the same test should apply; but also left open the status of whether part-time officers are entitled to civil service protections. Taking its cue from the Pennsylvania Supreme Court, The Third Circuit has provided some answers, confirming that regardless of whether the Borough Code or Tenure Act apply, the individual officer must still qualify for the procedural safeguards:
In answering our certified question, the Pennsylvania Supreme Court noted: “It may eventually turn out that, in light of the specific features of Plaintiffs’ employment, they do not qualify for the procedural safeguards of whichever enactment applies to the facts of this case.” (Deforte, 212 A.3d. at 1025).
As such, the underlying issue was and continues to be – is the officer a “regular full time police officer.” Here, following a factual analysis of to determine the number of officers in the subject police force (based upon whether the officers devoted their normal working hours to police work) it was determined the Worthington had less than three (3) officers. Therefore, the Police Tenure Act applied. However, Officer Townsend was not deemed to be a “regular full-time police officer” in conjunction with the Act. As succinctly stated by the Third Circuit, there was no genuine fact issue as to whether the officer was available for full employment where he was simultaneously employed by three (3) police forces including Worthington Borough.
While there has been continued discussion on the effect of the underlying Pennsylvania Supreme Court DeForte decision, in adopting District Judge Hornak’s thorough analysis, the Third Circuit seems to have answered this question – and the test remains the same. Applying long held Pennsylvania Law, the Third Circuit noted that whether a person is employed as a regular full time police officer “is not the number of days, length of hours, or terms of employment but rather whether or not the duties were such that he was “available for full employment, that is on call at any and all times.” (Petras v. Union Township(1963)).
In this seminal appellate decision interpreting the Pennsylvania’s Supreme Court decision, this holding appears to create a rule or presumption that employment outside the respective police department precludes an officer from being “available for full employment” at any and all times. This should likewise assist all Pennsylvania Municipalities who employ hourly paid or part-time police officers in its determination whether that officer is entitled to civil service protections. Even so, a conservative approach in ensuring all due process is provided – whether the Borough Code or Tenure Act applies – is always the best option.
Sheryl’s Bio | Areas of Practice | Contact Us
All rights reserved. This publication may not be reproduced without the express written permission of Siana Law. This publication is designed to provide general information relating to the covered subject matter. None of the information is offered, nor should be construed, as legal advice. Although prepared by professionals, the materials contained in this publication are not intended to be utilized as a substitute for obtaining legal or other professional advice. We encourage you to obtain legal or other professional guidance regarding those specific matters for which you require assistance.