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September 10, 1997


Appealed From No. 95-03780. Common Pleas Court of the County of Washington. Judge TERPUTAC.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Doyle. Concurring Opinion BY Judge Leadbetter.

The opinion of the court was delivered by: Doyle


FILED: September 10, 1997

Patrolman Floyd McKenna (McKenna) of the North Strabane Township Police Department appeals an order of the Washington County Court of Common Pleas that dismissed his appeal of a decision by the Township Board of Supervisors which denied McKenna's request for permission to seek off-duty employment.

The facts are not in dispute and may be summarized as follows. On May 1, 1995, McKenna sought permission from the Chief of Police to seek off-duty employment with the Washington County Drug Task Force pursuant to Rule 1.14 of the Rules of Conduct which provide that Township police officers may secure off-duty employment that meets certain conditions.

The Chief of Police denied McKenna's request and McKenna appealed to the Township Board of Supervisors, which, by Motion approved on June 26, 1995, also denied his request. McKenna then appealed that decision to Common Pleas.

The Township filed a motion to dismiss the appeal asserting, inter alia, that McKenna did not have a personal or property right in off-duty employment, and, therefore, the Township's June 26 decision denying McKenna's request was not an "adjudication" from which McKenna could appeal to Common Pleas. Common Pleas agreed and dismissed McKenna's appeal.

The Township's motion to dismiss also asserted that McKenna's appeal should be dismissed because the parties were bound by a collective bargaining agreement (CBA), which, while providing for off-duty employment, also provided for mandatory alternative dispute resolution (ADR) in the event of any dispute as to such employment. The parties stipulated in this regard that:

3. [Officer McKenna's] employment as a full-time police officer for North Strabane Township is covered under the collective bargaining agreement, the same being Exhibit "B" in the Supplement to Preliminary Objections filed on October 10, 1995 by the [Township]. The Police Rules of Conduct and Procedures is referenced in the collective bargaining agreement at Section III, Paragraph 2.

(Reproduced Record (R.R.) at 74a.) Section III, paragraph 2 of the CBA, referenced above, provides that:

2. The Township shall have the right to schedule and assign work to be performed and the right to hire, re-hire, promote, recall, demote, suspend, discipline, discharge, transfer, and lay-off members of the Police for budgetary and other legitimate reasons, and for good cause in accordance with the Rules of Conduct and Procedures, adopted by the Township April 28, 1983, and incorporated into this Agreement by reference.

(CBA at 3; R.R. at 43a.) (Emphasis added.)

The Rules of Conduct, incorporated into the CBA by the emphasized language above, reads, in relevant part:

A. Officers may engage in off-duty employment subject to the following limitations: (1) such employment shall not interfere with the officers' employment with the Department, (2) officers shall submit a written request for off-duty employment to the Chief of Police, whose approval must be granted prior to engaging in such employment, (3) officers shall not engage in any employment or business or business establishment involving: (a) officers selling or distributing alcoholic beverages, (b) bail bond agencies, (c) unlicensed or unbonded private guard services, or (d) any investigative or security work which would necessitate the conduct of such work within the boundaries of North Strabane Township. . . .

B. Approval may be denied when it appears that the outside employment might: (1) render the officers unavailable during an emergency, (2) physically or mentally exhaust the officers to the point that their performance may be affected, (3) require any special consideration be given to scheduling the officers' regular duty hours, or (4) bring the Department into disrepute or impair the operation or efficiency of the Department or the officer.

(Section 1.14 of the Rules of Conduct; R.R. at 9a-10a.) Furthermore, the CBA provides an ADR ...

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