Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia

• Citation: 859 F.2d 276
• Decision Date: 13 October 1988
• Docket Number: No. 88-1073,No. 5,D,5,88-1073
• Parties: , 3 Indiv.Empl.Rts.Cas. 1544 FRATERNAL ORDER OF POLICE, LODGE NO. 5, Hurst, Robert S., Individually as resident and taxpayer of the City of Philadelphia and in his capacity as President of Fraternal Order of Police, Lodgeoe, John, Police Officer, individually and in his capacity as a uniformed, sworn Civil Service Employee of the Philadelphia Police Department assigned to the Major Investigations Division, Ethics and Accountability Division and Internal Affairs Division of the Philadelphia Police Department, Doe, Jane, individually as the spouse of Police Officer, Doe, John v. CITY OF PHILADELPHIA, Tucker, Kevin, M., individually and in his capacity as Police Commissioner Philadelphia Police Department, Mitchell, Robert, individually and in his capacity as Police Inspector and Commander, Special Investigations Bureau of Philadelphia Police Department, and McLaughlin, Edward, individually and in his capacity as Police Inspector and Commander, Internal Affairs Division Philadelphia Police Department City of Philadelphia. Appeal of Kevin M. TUCKER, Robert Mitchell and Edward McLaughlin, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 276

859 F.2d 276

57 USLW 2268, 3 Indiv.Empl.Rts.Cas. 1544

FRATERNAL ORDER OF POLICE, LODGE NO. 5, Hurst, Robert S.,

Individually as resident and taxpayer of the City of

Philadelphia and in his capacity as President of Fraternal

Order of Police, Lodge No. 5, Doe, John, Police Officer,

individually and in his capacity as a uniformed, sworn Civil

Service Employee of the Philadelphia Police Department

assigned to the Major Investigations Division, Ethics and

Accountability Division and Internal Affairs Division of the

Philadelphia Police Department, Doe, Jane, individually as

the spouse of Police Officer, Doe, John v. CITY OF PHILADELPHIA, Tucker, Kevin, M., individually and in his capacity as Police Commissioner Philadelphia Police

Department, Mitchell, Robert, individually and in his

capacity as Police Inspector and Commander, Special

Investigations Bureau of Philadelphia Police Department, and

McLaughlin, Edward, individually and in his capacity as

Police Inspector and Commander, Internal Affairs Division

Philadelphia Police Department City of Philadelphia.

Appeal of Kevin M. TUCKER, Robert Mitchell and Edward

McLaughlin, Appellants.

No. 88-1073.

United States Court of Appeals, Third Circuit.

Argued June 24, 1988.

Decided Oct. 13, 1988.

Maureen E. Laflin (argued), Ralph J. Teti, Chief Deputy City Solicitor, City of Philadelphia, Law Dept. Philadelphia, Pa., for appellants.

Anthony J. Molloy, Jr., Jane R. Goldberg (argued), Mozenter, Molloy & Durst, Philadelphia, Pa., for appellees.

Before GIBBONS, Chief Judge, HIGGINBOTHAM, Circuit Judge, and ROTH, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This appeal concerns a questionnaire sought to be instituted by the City of Philadelphia and its police department to assist that department in selecting applicants to its Special Investigations Unit (SIU). The district court permanently enjoined the City and its police officials from requiring SIU applicants to answer certain questions to which the Fraternal Order of Police, Lodge 5 (FOP), objects. The district court held that the proposed use of the questionnaire violates the applicants' right to be free from compelled self-incrimination, guaranteed by the fifth amendment to the United States constitution. We do not agree that a fifth amendment violation exists, and will reverse.

I.

This is the third appeal by the City of Philadelphia in this case. We have previously described the purposes and inception of the SIU and the questionnaire, see Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 812 F.2d 105, 107-108 (3d Cir.1987) (hereinafter "FOP I" ), and find it unnecessary to recount these facts in the same detail here. However, we cannot proceed without providing some duplicative background about the facts and history of this case.

The SIU is a relatively new unit of the Philadelphia Police Department, established on January 31, 1986 by the Police Commissioner in response to a recent history of corruption within the department. The SIU's purpose is to centralize control over internal corruption investigations, internal disciplinary investigations and vice investigations. These responsibilities were formerly met by the Major Investigations Division (MID), the Ethics Accountability Division (EAD), and the Internal Affairs Bureau (IAB). Because of the sensitivity of the work of the new unit and the need to " 'bring integrity back to this City and this police department,' " FOP I, 812 F.2d at 108, the Commissioner developed a stringent screening process for selecting officers to serve in the SIU, announcing at the outset that applicants would be required to submit to a polygraph examination and personal interview before acceptance. Shortly after the Commissioner's initial announcement, the Police Department issued a document, referred to as the Fact Sheet, that set forth in detail the procedures to be used in the SIU application process. In FOP I, we described that Fact Sheet as follows:

The Fact Sheet states that SIU applicants must complete and certify a questionnaire, attached thereto, and must undergo an initial personal interview, a background investigation, a polygraph examination, and a final personal interview. The questionnaire contains thirty-nine questions seeking personal information about the applicant and his or her family. The Fact Sheet states:

All answers to this Questionnaire are considered confidential and will not be disclosed to any agency or unauthorized person, nor will they be made part of any departmental record or used against you in any manner in your future career with the department.

App. at 536. In addition, the Fact Sheet informs applicants that they may withdraw from the application process at will with no effect on their 'future career in the Department,' and that upon withdrawal, their 'questionnaire, and all other related paperwork will be destroyed.' App. at 534.

FOP I, 812 F.2d at 108. The Fact Sheet further advises that current employees in the MID, the EAD, and the IAB must complete the questionnaire and submit to a polygraph examination. It states that some members of these units will be transferred temporarily into the SIU, in order to enable them to complete assignments, without participating in the selection process. Eventually, however, any officer currently assigned to one of the SIU predecessor units, who chooses not to apply for the SIU, will be transferred out of the SIU: no one will be grandfathered into the new unit.

Twelve of the thirty-nine questions in the application questionnaire seek medical information, information concerning a police officer's behavior, and financial information about the officer and his or her family. ¹ The Police Department states on the Fact Sheet that the polygraph examination will be used to verify the information supplied by the applicant in the questionnaire. The Fact Sheet notes, however, that:

[p]olygraph examinations will not be given until the adoption and passage of new Civil Service regulations and the completion of a pending labor grievance or court approval. If this occurs after you have been selected for assignment to the Special Investigations Bureau, you will be required to take the polygraph examination at the time as a deferred final step in the selection process ...

Because of the deferral of the polygraph examination at this time, it will be necessary to sign a certification stating that your answers in the questionnaire are true and correct.

Joint Appendix at 533(a) [hereinafter "Jt.App."] (Fact Sheet). The certification states that the applicant certifies that his written answers to the questions are true and correct and that he understands that any false statements are punishable and are subject to the penalties prescribed in 18 Pa.C.S.A. Sec. 4904 (1983) ², which prohibits unsworn falsifications to authorities. See Jt.App. at 532a.

In response to the announcement of the application procedures for the SIU, the FOP filed a grievance claiming that the polygraph examination violated its labor agreement with the City of Philadelphia. The FOP also filed a complaint in the Court of Common Pleas of Philadelphia County against Philadelphia and the Police Commissioner, asking for an injunction of the polygraph examination requirement pending arbitration of the grievance. The FOP withdrew this request for a preliminary injunction after the Department agreed to refrain from implementing the polygraph requirement pending arbitration of the issue.

On February 26, 1986 the FOP filed a complaint in federal district court under 42 U.S.C. Sec. 1983, challenging the Department's use of the polygraph and twelve of the items on the questionnaire, on the grounds that they violated the police officers' federal constitutional rights under the first, fourth, fifth and fourteenth amendments and their right to privacy under the Pennsylvania Constitution. The district court held a three-day evidentiary hearing, after which it issued an order permanently enjoining Philadelphia and the police department from requiring SIU applicants to answer all twelve of the challenged questions. The district court did not rule on the polygraph examination as a grievance was before an arbitrator for resolution. ³

The City and Police Commissioner appealed. On appeal, this Court on February 17, 1987 largely reversed the district court's order and remanded. We rejected the district court's holding with regard to all but one of the challenged questions, but directed the district court to continue the injunction "until the City, the Commissioner, or other appropriate official establishes written, explicit, and binding rules that contain adequate safeguards against unnecessary disclosure of the confidential information elicited in response to the SIU questionnaire." FOP I, 812 F.2d at 118. As to the remaining question, the injunction was affirmed. Id. ⁴

Following this decision, the Police Commissioner promulgated a directive limiting access to the completed questionnaires, specifying procedures for storing the information, and setting forth the consequences, including possible dismissal, for any unauthorized disclosure. In light of this directive, Philadelphia on March 17, 1987 asked the district court to dissolve the continuing injunction. The district court denied the motion, citing this Court's earlier opinion. The district court reasoned that while the directive was written and explicit, it was not binding under Pennsylvania law because it had not been approved by the Administrative Board pursuant to the Philadelphia Home Rule Charter, 351 Pa.Code Sec. 8-406 (1979). On July 17, 1987, the City appealed from the district court's refusal to dissolve the injunction. On appeal, this Court held that the directive was not of the kind that the Administrative Board is required to approve, and that it is legally binding despite the lack of review. See Fraternal Order of Police, Lodge 5 v. City of...