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PHILADELPHIA LODGE NO. 5 v. CITY OF PHILADELPHIA

December 11, 1984

PHILADELPHIA LODGE NO. 5, FRATERNAL ORDER OF POLICE
v.
CITY OF PHILADELPHIA and W. WILSON GOODE and LEO BROOKS and GREGORE SAMBOR; LOCAL NO. 22, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO v. CITY OF PHILADELPHIA and W. WILSON GOODE and LEO BROOKS and WILLIAM RICHMOND



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 The Fraternal Order of Police, Lodge No. 5 (FOP) filed this action (82-4684) pursuant to 42 U.S.C. § 1983 (1983) against the City of Philadelphia, the Mayor, the Managing Director and the Police Commissioner. Local No. 22, International Association of Firefighters (IAF), AFL-CIO filed an identical action (82-4685) with one exception. The IAF named the Fire Commissioner as a defendant in place of the Police Commissioner. The FOP, which acts as representative and bargaining agent for the Philadelphia Police Department, and the IAF, which acts as representative and bargaining agent for the Philadelphia Fire Department, challenge departmental regulations which pertain to sick leave procedure. The plaintiff in each case seeks declaratory and injunctive relief only, requesting this Court to declare the challenged regulations unconstitutional and enjoin their enforcement. All parties have filed cross-motions for summary judgment contending that no material issue of fact exists.

 The motions for summary judgment filed by the FOP and IAF are granted for the limited purposes hereinafter discussed. The motions for summary judgment filed by the City are denied.

 The regulations being challenged by the FOP and IAF require that a police officer or a firefighter who is on sick leave must remain in his (or her) residence at all times except for certain instances which are specified in the regulations. Directive 66 is the regulation contested by the FOP. Under it, two procedures exist by which a police officer may leave his residence or place of recovery when he takes sick leave. If an officer needs to receive medical treatment, attend a religious service or vote, the officer must telephone the district office with his departure time and destination. Upon his return, he must communicate that fact to the district office. If an officer wishes to go out for any other reason, he must obtain permission from the Personnel Officer. Such approval is commonly called a sunshine pass. The sunshine pass allows unlimited travel between the hours of 8:00 a.m. and 8:00 p.m. and must be renewed every two weeks.

 In order to secure a sunshine pass, a police officer must acquire a doctor's note which states the officer's illness, the reason for his need to leave his residence, and the probable date of his return to duty. This note, along with a memo in which the officer requests permission to leave his residence, are presented to the officer's Commanding Officer who notes his recommendation on the memo. The officer can then obtain a sunshine pass application upon presentment of his approved memo and doctor's note. The Personnel Officer then decides whether to approve or disapprove the application. In his deposition at p. 36, the Personnel Officer states that no criteria exist to guide him or the Commanding Officer when determining whether to approve the application. He characterized the decision as purely discretionary.

 Any police officer who violates these regulations is subject to disciplinary action. The first violation can merit a three to five day suspension. Any decision to institute disciplinary action is within the discretion of the Commanding Officer. In order to enforce the regulations, two civilian employees of the Police Department visit, from 9:00 a.m. to 5:00 p.m., the homes of officers who called in sick that day.

 The IAF contests Directive 18 of the Philadelphia Fire Department which requires that a firefighter on sick leave remain at home at all times with certain exceptions. It is similar but not identical to Directive 66. Directive 18 permits a firefighter who has called in sick to notify his (or her) company officer when leaving his residence for medical treatment. The firefighter must also notify the company officer of his return. The directive explicitly states that attendance at religious services requires no notification. In order to receive approval for outdoor exercise, a firefighter must present a doctor's note to the Battalion Officer through his company officer. The note must specify an exercise time limit. The firefighter must notify his company officer of his departure and return.

 In order to leave the City or remain away from home for any period of time, a firefighter on sick or medical leave must submit his request, through channels, to the Fire Commissioner for approval. Since no criteria exist to guide the Fire Commissioner's determination, any decision by the Fire Commissioner is purely discretionary. In addition, the regulations make no provision for exercising the right to vote. Consequently, it must be inferred that a firefighter who desires to vote while absent due to illness could only do so with the permission of the Fire Commissioner.

 The regulations specify that a failure to make proper notifications and to obtain proper prior approval will result in disciplinary action. Although the regulations do not provide parameters for such action, Deputy Chiefs, through Battalion Chiefs, determine the need for home visits and the type of disciplinary action to be taken if the firefighter is not home.

 Before considering the merits of either case, the issue of whether a union has standing to assert rights of its members when those rights do not flow to the union must be addressed. The existence of such representational standing has been recognized in Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). The Supreme Court held that representational standing for an association could exist when the association alleges, first, that its members suffer immediate or threatened injury as a result of the challenged action; second, that the members could bring the same suit individually; and third, that the nature of the claim and the relief sought does not require the individual participation of the injured parties for a proper resolution. Id. at 511, 95 S. Ct. at 2211-12. See also Hunt v. Washington State Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977); Action Alliance for Senior Citizens of Greater Philadelphia v. Shapp, 400 F. Supp. 1208 (E.D. Pa. 1976). Since the claim asserted by the FOP and the IAF fulfills each of these requirements, the FOP and the IAF are properly before this Court.

 This is a 42 U.S.C. § 1983 action in which both unions assert that their members' rights to vote, to travel, to privacy and to free exercise of religion, as guaranteed by the First, Fourth, Ninth, and Fourteenth Amendments to the U.S. Constitution, have been violated by enforcement of the sick leave regulations. On the basis of this claim, the unions request that this Court review the challenged regulations under a strict scrutiny test. See Elrod v. Burns, 427 U.S. 347, 362-63, 96 S. Ct. 2673, 2684, 49 L. Ed. 2d 547 (1976). On the other hand, the City asserts that the regulations only infringe upon general liberty rights which require the City to demonstrate only a rational relationship between the regulations and a legitimate state interest. See Kelley v. Johnson, 425 U.S. 238, 248, 96 S. Ct. 1440, 1446, 47 L. Ed. 2d 708 (1976). Initially, this Court will determine the appropriate standard applicable to the challenged regulations.

 When rights specifically protected by the Bill of Rights are curtailed by municipal regulations, then that municipality must demonstrate a compelling interest to justify their existence. See Elrod 427 U.S. at 362-63, 96 S. Ct. at 2684; NAACP v. Alabama, 357 U.S. 449, 460-61, 78 S. Ct. 1163, 1170-71, 2 L. Ed. 2d 1488 (1958). The Supreme Court has indicated, however, that in certain areas a State has an interest as an employer which differs significantly from its interests in regulating the citizenry in general, and that when a State acts as an employer the courts should evaluate those actions under a more deferential standard than strict scrutiny. Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968). See Kelley 425 U.S. at 245, 96 S. Ct. at 1444-45; Shawgo v. Spradlin, 701 F.2d 470, 482-83 (5th Cir. 1983).

 Although the facts of this case are similar to the situation in Pienta v. Village of Schaumburg, Illinois, 710 F.2d 1258 (7th Cir. 1983), the court in that case chose to apply the strict scrutiny test. It appears that the regulations at issue in Pienta were much more restrictive than the regulations at issue in the present case, in that police officers on sick leave were strictly confined to their residences until their return to work. Pienta, 700 F.2d at 1259-60 (regulations were "morale-chilling" and "put plaintiffs under house arrest"). The Pienta court, perhaps influenced by the severe and absolute infringement of constitutional rights resulting from the challenged regulations, applied the strict scrutiny standard without citation to the Supreme Court's opinion in Pickering. However, two courts which reviewed the constitutionality of New York City Police Department regulations in suits similar to this one held that the rational relationship test applied. See Gissi v. ...


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