Lodge No. 5 of the Fraternal Order of Police v. City of Phila.

• Decision Date: 18 August 2014
• Docket Number: No. 13–1516.,13–1516.
• Citation: 763 F.3d 358
• Parties: LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, by John McNESBY, Trustee Ad Litem; COPPAC, by Michael Lutz, Trustee Ad Litem; David Byrne; Shawn Carey; Jeffrey Seamon; Les Baker, Appellants v. CITY OF PHILADELPHIA; Mayor of the City of Philadelphia; Board of Ethics of the City of Philadelphia; J. Shane Creamer, Executive Director of the City of Philadelphia Board of Ethics; William H. Brown; Richard Glazer; Sanjuanita Gonzalez; Phyllis Beck; Michael H. Reed, Members of the City of Philadelphia Board of Ethics.
• Court: U.S. Court of Appeals — Third Circuit

763 F.3d 358

LODGE NO. 5 OF THE FRATERNAL ORDER OF POLICE, by John McNESBY, Trustee Ad Litem; COPPAC, by Michael Lutz, Trustee Ad Litem; David Byrne; Shawn Carey; Jeffrey Seamon; Les Baker, Appellants

v.CITY OF PHILADELPHIA; Mayor of the City of Philadelphia; Board of Ethics of the City of Philadelphia; J. Shane Creamer, Executive Director of the City of Philadelphia Board of Ethics; William H. Brown; Richard Glazer; Sanjuanita Gonzalez; Phyllis Beck; Michael H. Reed, Members of the City of Philadelphia Board of Ethics.

No. 13–1516.

United States Court of Appeals, Third Circuit.

Argued Nov. 12, 2013.

Filed: Aug. 18, 2014.

Thomas W. Jennings, [Argued], Marc L. Gelman, Jennings Sigmond, Philadelphia, PA, for Plaintiffs–Appellants.

Eleanor N. Ewing, [Argued], Robert D. Aversa, Mark Maguire, City of Philadelphia Law Department Philadelphia, PA, for Defendants–Appellees.

Before: HARDIMAN, SCIRICA and NYGAARD, Circuit Judges.

OPINION

HARDIMAN, Circuit Judge.

In 1951, the Philadelphia City Council enacted a Home Rule Charter which, informed by Philadelphia's history of political patronage, restricted certain political activities by city employees. In this appeal we must decide whether one such restriction, which prevents members of the Philadelphia Police Department from making contributions to their union's political action committee, violates the First Amendment. We hold that it does.

I

A

Appellant Lodge No. 5 of the Fraternal Order of Police (FOP) is an incorporated collective bargaining organization that represents the approximately 6,600 active police officers employed by the City of Philadelphia. FOP operates a political action committee, Appellant COPPAC, for the purpose of distributing contributions to candidates for local and state office. According to FOP's leadership, COPPAC affords police officers an opportunity to speak on issues of concern with a “collective voice,” which include departmental interests in “better equipment, manpower, [and] livable conditions.” A132. COPPAC funds information campaigns that educate the public about issues important to the police, and contributes to political candidates who support the department's positions on these issues. To date, COPPAC has donated to city, state, and judicial campaigns.

In this case, FOP, COPPAC, and four police officers (collectively, the FOP Plaintiffs) ¹ challenge the constitutionality of section 10–107(3) of the Philadelphia Home Rule Charter, which prohibits employees of the Philadelphia Police Department from making contributions “for any political purpose.” ²351 Pa.Code § 10.10–107(3). As interpreted by its implementing regulation, the Charter prohibits police officers from making donations “received by a candidate ... for use in advocating or influencing the election of the candidate,” or providing donations “received by a political committee, political party, or partisan political group.” Bd. of Ethics Reg. No. 8, § 8.1(f); see id. § 8.8.³ Accordingly, employees of the Philadelphia Police Department cannot donate to COPPAC because it uses some of its funds for partisan political purposes. Notably, the Charter ban applies only to the police, and does not proscribe political donations made by Philadelphia's other 20,000 employees, the vast majority of whom are represented by organized interests.⁴

COPPAC presently operates out of an account that contains approximately $25,000. FOP solicits funds for COPPAC by mail and hosts regular fundraisers, at which large donors receive so-called “courtesy cards” from the union that extend “all courtesies of [the] organization” to the donor. A 139. FOP also endorses candidates for local office and regularly holds fundraisers for them. The City is concerned that officers may have inadvertently violated the contribution ban during these fundraisers, but has indicated that it is willing to forego enforcement of past transgressions.⁵

The FOP Plaintiffs maintain that COPPAC's current funds cannot support the committee's operational costs or effectively advance the union's political agenda. They claim that COPPAC's relatively meager account—which has prevented the committee from purchasing expensive television advertisements and from contributing to candidates' campaigns—has placed the police at a competitive disadvantage, especially in labor negotiations where they compete with other municipal workers. As recent examples, the FOP Plaintiffs cite instances where FOP has failed to convince legislators to increase officers' pensions, to prevent an interagency reorganization that reduced the police department's workload, and to improve officers' working conditions.

The contribution ban prevents COPPAC from accessing a potentially significant source of funds—FOP's own members. On May 4, 2006, the Philadelphia City Council, under the administration of then-Mayor John F. Street, passed City Bill No. 060181, an ordinance that authorized payroll deductions for FOP members who elected to contribute to COPPAC. If the ordinance were implemented, COPPAC could receive funds that are automatically deducted from officers' paychecks on a biweekly basis. COPPAC emphasizes that individual contributors would have no ability to direct who receives their donations because they are distributed at the discretion of FOP's executive board, which chooses whom to fund.

Although City Bill No. 060181 remains on the books, the current administration, under Mayor Michael A. Nutter, refuses to implement it as violative of the Charter ban. If the ban is lifted, FOP intends to distribute forms to all recruits on “the first day they would be in attendance” at the police academy, so they may authorize paycheck deductions to COPPAC. A135.

B

The Charter's contribution ban is but one of many prohibitions that aim to insulatethe police from political influence. In 2006, the Ethics Board issued Regulation 8, which interprets the political restrictions on city employees in the Charter. While only the police are subject to the contribution ban, see Bd. of Ethics Reg. No. 8, § 8.8, Regulation 8 bars all city employees from engaging in a wide range of political activities—defined as “activity directed toward the success or failure of a political party, candidate, or partisan political group.” Id. § 8.1(n).⁶ The Ethics Board has construed Regulation 8 to forbid all city employees from engaging in political activity while on duty, in uniform, or using city resources; using their authority for any political purpose; serving on the national, state, or local committee of a political party; serving as an officer of a partisan political group; or taking part in the management or affairs of a political party, campaign, or partisan political group. See id. §§ 8.3–11.

These restrictions mirror those in the Hatch Act, 5 U.S.C. § 7324(a)(2), which prohibits federal employees from taking “an active part in political management or in political campaigns,” and has withstood multiple challenges to its constitutionality. See, e.g., U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, AFL–CIO ( Letter Carriers ), 413 U.S. 548, 566–67, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) (holding that Congress's interest in maintaining an apolitical bureaucracy justified the Hatch Act's restrictions on political activity); United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 101, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (same); see also Broadrick v. Okla., 413 U.S. 601, 611–12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (holding, in a companion case to Letter Carriers, that States may enact Hatch Act-type restrictions on the political activities of their civil servants). The FOP Plaintiffs do not challenge these restrictions in this case.

Regulation 8 does not preclude city employees from participating in all forms of political activity. The Ethics Board has read the regulation as permitting the right to register and vote in any election; to belong to a political party or partisan group, but not to the group's political committee; and to engage in personal political expression “uncoordinated with a party, candidate, or partisan group.” See Bd. of Ethics Reg. No. 8, §§ 8.12–14.

Most notably, subpart G of the regulation specifically exempts from restriction “expression and activity that is not political and not directed toward the success or failure of a political party, candidate or partisan political group.” Id. § 8.17. Accordingly, city employees may publicly express their opinions on political matters or candidates; sign political petitions; and attend political rallies, conventions, fundraisers, and other political events, albeit only as spectators. Id. § 8.15. Pursuant to this carve-out, police officers may contribute time and money to nonpolitical organizations that promote causes they care about. As the District Court found, they may donate to groups such as the Sierra Club and the National Rifle Association. Moreover, Regulation 8 does not prohibit city employees from aggregating their voices in political groups, such as FOP, which may endorse and fund political candidates, and publicize the groups' positions on legislative and executive matters.

C

One cannot understand the prohibitions in the Philadelphia Home Rule Charter without reference to its origins and Philadelphia's efforts to combat patronage. In the century preceding the adoption of the 1951 Charter, Philadelphia's civic government was dominated by political party organizations. The city's then-powerful Republican Party machine had a stranglehold on local government, determining who was elected, who was hired, and who received lucrative government contracts. Because it controlled every level of government, the machine built a “patronage army” of city employees, rewarding its own members and subordinates with paid office positions. Phila. Comm. of Seventy, The Charter: A History, at 1 (1980) (hereinafter Charter History ). The machine's reach was so pervasive that citizens' access to basic services, such as...