Bowman v. Township of Pennsauken

• Decision Date: 28 March 1989
• Docket Number: Civ. A. No. 87-87.
• Citation: 709 F. Supp. 1329
• Parties: George BOWMAN and Fraternal Order of Police, Garden State Lodge # 3, Plaintiffs, v. TOWNSHIP OF PENNSAUKEN, Mayor Hugh O'Connell and Council Members Joseph Getz, Mark Lohbauer, William Orth, Robert Singer, John Jacobs, and Hugh O'Connell and Chief of Police Nicholas J. Petitte, Jr., Defendants.
• Court: U.S. District Court — District of New Jersey

709 F. Supp. 1329

George BOWMAN and Fraternal Order of Police, Garden State Lodge # 3, Plaintiffs, v. TOWNSHIP OF PENNSAUKEN, Mayor Hugh O'Connell and Council Members Joseph Getz, Mark Lohbauer, William Orth, Robert Singer, John Jacobs, and Hugh O'Connell and Chief of Police Nicholas J. Petitte, Jr., Defendants.

Civ. A. No. 87-87.

United States District Court, D. New Jersey.

March 28, 1989.

COPYRIGHT MATERIAL OMITTED

Ralph H. Colflesh, Jr., Colflesh & Burris, Moorestown, N.J., for plaintiffs.

John Philip Maroccia, Cherry Hill, N.J., for defendants.

OPINION

RODRIGUEZ, District Judge.

This matter was presented to the court soon after defendant Township of Pennsauken¹ passed Resolution 86-310 governing the outside employment of off-duty police officers. Specifically, the Resolution prohibited any direct employment of off-duty officers in security positions and required the channeling of all such employment through the Township police department under a number of terms and conditions set forth in a Hold Harmless and Indemnification Agreement. Plaintiffs, George Bowman and Fraternal Order of Police, Garden State Lodge # 3 (hereinafter FOP),² filed the complaint in this matter challenging the constitutionality of the Resolution and immediately sought a temporary restraining order to enjoin its implementation. The court granted the temporary restraints and scheduled a hearing for a preliminary injunction. At the hearing, the parties agreed to continue to operate under the restraints until the court decided whether to grant a preliminary injunction.³ The parties were requested to submit additional briefs and decision was reserved. The briefing schedule closed in September 1988. The court now addresses the issue of whether preliminary injunctive relief should be granted. For the reasons set forth below, this court holds that the Resolution violates the officers' equal protection and due process rights guaranteed by the fourteenth amendment. Accordingly, the court will grant the preliminary injunction restraining the Township from implementing and enforcing the Resolution. In addition, this opinion serves as the court's findings of facts and conclusions of law.

I.

FOP is the bargaining representative for all police officers below the rank of sergeant in the Police Department of the defendant Township. The Collective Bargaining Agreement between the parties covering July 1, 1984 through June 30, 1986 included a regulation, Article XXXI, governing the outside employment of FOP members. During negotiations for a successor agreement, defendant Township proposed a ban on all outside employment of FOP members but later withdrew that proposal. At the time the complaint was filed the parties had entered into arbitration in an effort to reach a successor agreement. A successor agreement was signed on January 25, 1988 covering the period from July 1, 1986 to June 30, 1989.

On October 27, 1986, the Township Committee adopted Resolution 86-310 regulating the "moonlighting" activity of FOP members.⁴ The Resolution required all prospective employers of Pennsauken police officers in an off-duty security capacity to execute a Hold Harmless, Indemnification and "Moonlighting" Agreement (hereinafter Hold Harmless and Indemnification Agreement) before the police chief would issue any work permits. The agreement provided that the employer would contact the Chief of Police directly about present and future hiring of any police officer for off-duty security employment. In addition, the Hold Harmless and Indemnification Agreement governed the payment and hiring of the officers under the terms and conditions summarized as follows:

* The employer shall pay the Township an amount equal to the officer's salary plus an administrative fee (the Township would then distribute the salary to the officer).

* Prior to any employment of off-duty officers in moonlighting positions, the employer shall co-insure each officer on its workers' compensation insurance policy and shall co-insure the Township as additional insureds at no cost to the Township.

* The employer shall co-insure the Township and its off-duty police personnel hired in a moonlighting capacity in a liability insurance policy in the minimum amounts of one million dollars for each moonlighting off-duty officer; and "said insurance policy shall contain provisions that in the event of any settlement or judicial determination that the aforesaid moonlighting off-duty Pennsauken police employee is determined to be either an employee of the employer or an employee of the Township, said insurance company shall pay all the Township's costs of litigation including attorney's fees, costs and any settlement or monies required to be paid by the Township of Pennsauken shall be paid by the insurance company as indicated herein above." Failure to obtain any of these insurance policies constitutes a breach of the agreement and the Township shall have the right to cancel all work permits for moonlighting.

* As further consideration for the Township permitting moonlighting employment, the employer agrees to hold the Township harmless and indemnify the Township for any acts committed by the moonlighting officer in the course of his moonlighting activities, "whether or not it is judicially determined or agreed between any parties that the `moonlighting' Pennsauken police officer was an employee of the Township or an employee of the employer." The agreement "shall include any settlement or verdict monies which accrue as a result of any actions of any `moonlighting' Pennsauken police officer."⁵

Prior to adopting the Resolution, the Township required under the collective bargaining agreement that it be notified of any police officer's moonlighting activities but specifically permitted off-duty security work in the Township. In addition, pursuant to the collective bargaining agreement, the Chief of Police or his designee would issue a work permit which could not be unreasonably withheld.⁶ As a result of the Resolution, the Township, in effect, became a broker in the employment of police officers in off-duty security work and prevented officers from direct employment by third-party employers.

Copies of Resolution 86-310 were sent under the signature of the Chief of Police, to businesses employing police officers within the Township in November of 1986. Soon thereafter, FOP members were notified by the Chief of Police that their work permits for security work would be rescinded if their employers failed to comply affirmatively with the requirements of Resolution 86-310. Furthermore, no new permits would be issued unless the prospective employer complied with the Resolution.⁷

Plaintiffs bring this action under 42 U.S.C. § 1983, alleging that the resolution violates both the equal protection clause and the due process clause of the fourteenth amendment and the rights guaranteed to FOP members under the New Jersey Constitution. In addition, plaintiffs contend that the resolution impermissibly prohibits officers from exercising a fundamental right to enter into a contract with a private employer. With respect to the equal protection claim, plaintiffs allege that the resolution creates impermissible classes of moonlighting police officers. Specifically, plaintiffs claim that two classes of officers are created by the resolution: (1) officers who provide non-security services and (2) officers who provide security work. Plaintiffs argue that this classification is not rational and does not address a legitimate state interest.⁸ Plaintiffs argue that the resolution violates the due process rights of the officers by depriving them of a previously enjoyed right to work.

In addition to disputing plaintiffs' substantive claims, defendants raise several procedural issues. First, they claim that this matter is not ripe for review because plaintiffs have failed to establish either an actual controversy or a violation of constitutional dimension. Second, defendants assert that PERC has exclusive jurisdiction of this matter pursuant to the New Jersey Employer-Employee Relations Act, N.J. Stat.Ann. § 34:13A-1, and that therefore, this court does not have jurisdiction over the action. Third, defendants argue that the court is prohibited from issuing an injunction under the Norris-LaGuardia Act and the collective bargaining agreement.

With respect to the constitutional claims, defendants assert that the resolution is rationally related to the Township's legitimate interest in protecting its taxpayers against the costs of litigation and potential liability. For support, the Township outlines a series of cases involving the Township which arose from action or inaction by officers engaged in moonlighting activities. Finally, defendants assert that the resolution does not violate the collective bargaining agreement between the parties.

II. JURISDICTION OF THE CASE

A. Ripeness

The court first addresses the issue of whether plaintiffs have alleged a case or controversy within the meaning of Article III of the Constitution. The basic inquiry is whether the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945). Although plaintiffs need not engage in prohibited activity in order to present an actual controversy, a plaintiff challenging "a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). In addition, as the Babbitt court stated: "The difference between an abstract question and a `case or controversy' is one of degree, of course, and is not discernible by any precise test." Id. at 297, 99 S.Ct. at 2308.

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