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One Three Five, Inc. v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

June 17, 2013

ONE THREE FIVE, INC. t/d/b/a BLUSH, Plaintiff,
v.
CITY OF PITTSBURGH, ACTING CHIEF OF POLICE REGINA MCDONALD, Defendants

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[Copyrighted Material Omitted]

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For ONE THREE FIVE, INC., trading and doing business as BLUSH, Plaintiff: Jonathan M. Kamin, LEAD ATTORNEY, Goldberg, Kamin & Garvin, Pittsburgh, PA.

For THE CITY OF PITTSBURGH, REGINA MCDONALD, Acting Chief of Police, Defendants: Wendy Kobee, LEAD ATTORNEY, Daniel D. Regan, Stephanie L. Eggar, City of Pittsburgh - Department of Law, Pittsburgh, PA.

OPINION

Nora Barry Fischer, U.S. District Judge.

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MEMORANDUM OPINION

I. INTRODUCTION

In this case, Plaintiff One Three Five, Inc. t/d/b/a Blush (" Plaintiff" ), an adult entertainment establishment in downtown Pittsburgh featuring nude, erotic dancing, alleges that its federal constitutional rights to freedom of speech, procedural due process and equal protection of the laws and its Pennsylvania constitutional right to freedom of speech have been violated by the recent decision by Defendant Acting Chief of Police Regina McDonald (" Acting Chief McDonald" ) revoking Blush's status as an approved secondary employer under the Bureau of Police's Secondary Employment Program and preventing City of Pittsburgh Bureau of Police officers from working off-duty secondary employment details at adult establishments. (Docket No. 1-1). Plaintiff has moved for a temporary restraining order or, alternatively, a preliminary injunction to enjoin Defendants, the City of Pittsburgh (" the City" ) and Acting Chief McDonald from enforcing this directive. (Docket Nos. 3, 4, 5, 25-26). Defendants oppose both motions and contend that Acting Chief McDonald's directive was made to enforce an alleged longstanding restriction on the ability of City police officers to engage in secondary employment at locations that may tend to bring the Bureau into disrepute. [1] (Docket No. 8, 9, 23-24). However, Defendants admit that the policy has never been enforced in the manner that was taken by Acting Chief McDonald. ( Id. ).

The Court held a motion hearing on April 25, 2013 during which the parties presented witness testimony and documentary evidence for the Court's consideration and the evidentiary record has now closed. ( See Docket No. 22; Pl. Ex. 1-3; Def. Ex. B-D). The parties have since filed proposed findings of fact and conclusions of law with respect to the requested temporary restraining order and/or preliminary injunction. ( See Docket Nos. 23-27). Upon consideration of the present evidentiary record and all of the parties' arguments, the Court finds that Plaintiff has met its burden to establish that the issuance of preliminary injunctive relief is appropriate in this case and Plaintiff's Motion [3] will be granted. The Court now turns to its explanation of this decision.

II. FINDINGS OF FACT [2]

At the April 25, 2013 hearing, the Court accepted testimony from: Albert

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Bortz, proprietor of Blush; Anna West, head bartender at Blush; Officer Bernard Joseph McMullan of the City of Pittsburgh Bureau of Police, who also worked secondary employment details at Blush; Sabrina Bortz, payroll manager at Blush; Lieutenant Jennifer Ford of the City of Pittsburgh Bureau of Police; Acting Chief McDonald; and Sergeant Michael LaPorte of the City of Pittsburgh Bureau of Police and President of the Fraternal Order of Police Fort Pitt Lodge No. 1 (" FOP" ). [3] (Docket No. 22). The Court found all of the witnesses to be generally credible and truthful throughout their respective testimonies. The parties also submitted all of the following documents into evidence: Order 29-1 (Pl. Ex. 1); Arbitration Award (Pl. Ex. 2); Deposition of Regina McDonald (Pl. Ex. 3); IACP Model Policy on Secondary Employment (Def. Ex. B); Pittsburgh Post-Gazette article " Special events office channels millions in off-duty Pittsburgh Police pay" dated 2/26/13 (Def. Ex. C); and a Triblive article " Pittsburgh policies for off-duty police officers' gigs lax" dated March 11, 2013 (Def. Ex. D). [4]

The Court holds that the credible evidence presented during the hearing established the following facts by a preponderance of the evidence.

A. Historical Background of Bureau's Governance of Off-Duty Conduct of Officers

The parties agree that the City of Pittsburgh Bureau of Police and the Acting Chief of Police have the authority to create and enforce policies governing the off-duty conduct of City of Pittsburgh police officers. (Docket No. 22 at 203-04). Indeed, they have stipulated that police departments have the authority to discipline officers for off-duty conduct, including for engaging in conduct unbecoming an officer and that there are policies, procedures and guidelines that are adopted by any police department that provide for discipline of an officer based on his or her engaging in certain improprieties while off-duty. ( Id. ). However, the regulation of officers' off-duty conduct by the Bureau and Chief are issues that have been subject to collective bargaining and arbitration between the Bureau and the FOP. ( See Pl. Ex. 2; Docket No. 10-1).

Acting Chief McDonald testified that the Bureau has historically permitted its officers to engage in off-duty secondary employment " details" within the City limits wherein officers essentially provide security services to private businesses while wearing their full police uniform and carrying their Bureau-issued weapons in exchange for a fee paid by the private business to the City and for wages paid by the private business to the individual officer working in this capacity. (Docket No. 22 at 151). In these roles, officers are authorized to enforce City ordinances and laws, as if they were on-duty. ( Id. ). Due to jurisdictional limitations on the scope of the arrest powers afforded to law enforcement officers in other municipalities and other conflicts which are not directly relevant

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here, [5] it is undisputed that City of Pittsburgh police officers are the only law enforcement officers who could provide the same type of service to a business located within the City limits. ( Id. at 181, 185).

B. Bureau's Policy-Making Practices and Procedures

The record evidence before the Court demonstrates that such off-duty details by police officers have been permitted by the Bureau since at least 1966. ( Id. at 17, 151). For many years the practice was permitted by the Bureau without a written policy governing same. [6] ( Id. at 151). As is discussed in further detail below, over time, the Bureau developed a policy governing the off-duty employment of its officers. Lieutenant Ford, Acting Chief McDonald and Sergeant LaPorte testified consistently concerning the procedures employed by the Bureau to establish a new policy or revise a current policy. (Docket No. 22 at 99, 123, 175, 193-95). Lieutenant Ford was familiar with these procedures as she has held a position overseeing policy writing within the Bureau since 2004. ( Id. at 99, 123). Acting Chief McDonald likewise testified that she was familiar with the procedures for policy writing given her prior roles on a labor-management committee and as Assistant Chief for Administration for which her duties included oversight of the Special Events Office. ( Id. at 175). Sergeant LaPorte also had some involvement with the review of Bureau policies given his role as President of the FOP. ( Id. at 193-95).

The Bureau uses its internal staff to draft new policies and revise its current policies. ( Id. at 99). The initial request to draft or revise a policy is usually made by the Chief of Police or one of the higher Commanders in the Bureau to Lieutenant Ford and/or an officer who assists her in drafting the policies. ( Id. ). The Bureau maintains a " bank" of model policies which are referenced for guidance and used as a base to develop the new or revised policy. ( Id. ). The primary set of model policies that is maintained by the Bureau is produced by the International Association of Chiefs of Police (" IACP" ) National Law Enforcement Policy Center. ( Id. ; Def. Ex. B). Lieutenant Ford testified that this organization has a model policy writing center and that the model policies it produces may be used by any police department in drafting policies. ( Id. at 101). She explained that the IACP model policies are often accompanied by white papers or research detailing the reasons for the language incorporated into the suggested

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model policy. ( Id. at 101-02). She also understands that the IACP model policies are considered best practices for law enforcement agencies and are widely used by other police departments in developing policies. ( Id. at 102). In addition to using the model policies, the officers tasked with drafting the policy will often meet with the higher level officers who requested the new policy or revision and/or with any officers who are considered experts on the subject matter of the policy and will incorporate their suggestions into the policy. ( Id. at 100). On occasion, the officers may secure a legal opinion concerning a policy from the City's Legal Department. ( Id. at 123).

The first draft of a policy is prepared by Lieutenant Ford or another officer working with her. ( Id. at 100). It is then sent for an initial level of review to the command staff, which consists of the Chiefs and Commanders of the Bureau, and to a set of police supervisors who have been asked to review policies. ( Id. at 100). This initial review period typically lasts about a week. ( Id. at 101). Lieutenant Ford testified that any comments, suggestions or concerns regarding the policy which are made during this level of review are typically incorporated into the policy. ( Id. ). After any necessary revisions are made, the policy is then sent to the FOP for its review. ( Id. ). Under the collective bargaining agreement (" CBA" ) [7] between the City and the FOP, the FOP is granted fifteen (15) days to consider the proposed policy and to respond with comments, suggestions or concerns as to same. ( Id. ). The officers will consider any response from the FOP and incorporate any necessary revisions into the policy. ( Id. ). After all changes are made, the final version of the proposed policy is sent to the Chief of Police for approval. ( Id. ). Once it is signed by the Chief, it becomes the policy of the Bureau. However, upon approval by the Chief, the policy is generally not released to the public. (Docket No. 22 at 122, 129-30).

Lieutenant Ford and Acting Chief McDonald offered some general testimony concerning the Bureau's early development of a formal, written policy governing secondary employment of City police officers. ( Id. at 103-04, 151-52). They recalled that the first version of the policy was developed during the tenure of former Chief of Police Robert McNeilly and may have been implemented in the early 2000s. ( Id. ). Neither remembered being personally involved in the drafting of the initial policy at that time and the prior version of the policy was not presented to the Court during the proceedings. ( Id. at 103).

C. IACP Model Policy on Secondary Employment

Defendants offered IACP Model Policy on Secondary Employment dated October 1996 and said model policy was admitted into evidence, with the Court reserving its ruling on the weight, if any, to be given to same. Def. Ex. B. Defendants did not present any evidence which confirmed that the IACP Model Policy was used by the Bureau to develop its own secondary employment policy and their witnesses were unaware if the IACP Model Policy was even referenced during that process. The IACP Model Policy is not identical to the Bureau's Order 29-1, which is at issue in this case, but is similar in some respects. Def. Ex. B. From the Court's view, the major difference between the IACP Model Policy and Order 29-1 is that the IACP Model Policy regulates only the conduct of

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the police officers and thereby contains no provisions which define a secondary employer, describe the process for a secondary employer to participate in the program, grant the authority to approve or disapprove of such an application to the chief of police or some other regulatory body, or set forth any guidelines for the revocation of secondary employer status. Compare Def. Ex. B; Pl. Ex. 1.

The nomenclature used by the IACP Model Policy is also different. To this end, the IACP Model Policy distinguishes between " extra-duty employment" and " regular off-duty employment" and provides guidelines for law enforcement personnel engaged in these types of secondary employment. Def Ex. B. at § III. " Extra-duty employment" is defined as " employment that is conditioned on the actual or potential use of law enforcement powers by the police officer employee." Id. The policy further states that police officers may engage in " extra-duty employment" in a number of situations including " security and protection of life and property." Id. at § IV.B.2.c. " Regular off-duty employment" is defined as " employment that will not require the use or potential use of law enforcement powers by the off-duty employee." Id. at § III. This type of employment is permissible if it does not present a conflict of interest between the duties of the law enforcement officer and the secondary employer and the Model Policy provides examples of potential conflicts. Id. at § IV.A.2. It also states the following with respect to " regular off-duty employment" :

3. Employment that does not constitute a threat to the status or dignity of law enforcement as a professional occupation. Examples of employment that constitute such a threat and should be denied include, but are not limited to:
a. Establishments that sell pornographic books or magazines, sexual devices or videos, or that otherwise provide entertainment or services of a sexual nature.
b. Any employment involving the sale, manufacture, or transport of alcoholic beverages as the principal business.
c. Any gambling establishment.

Id. at § IV.A.3. The IACP Model Policy suggests that law enforcement agencies place some limitations on regular off-duty employment and extra-duty employment which focus on the eligibility of the officer, the number of hours that may be worked, scheduling concerns and prioritizes such outside work below regular police duties of the officers. Id. at § IV.C. The IACP Model Policy concludes that " [p]ermission for a police employee to engage in outside employment may be revoked where it is determined pursuant to agency procedure that such outside employment is not in the best interests of the agency." Id. at § IV.C.7.

D. Arbitration Award and CBA

The earliest evidence of the Bureau's formal policy governing secondary employment of its officers in the present record is an Arbitration Award in Case No. 55 360 L 00341 04 between the City and FOP from a hearing dated June 9, 2006. Pl. Ex. 2. The Arbitration Award details certain terms and conditions of the secondary employment program vis-à-vis the Bureau and City police officers which would govern the parties' relationship going forward. Id. Sergeant LaPorte testified that the terms and conditions of Section A, paragraphs 1-14, of the Arbitration Award were directly copied by the City's lawyers into the CBA between the City of Pittsburgh and the FOP. (Docket No. 22 at 201). Indeed, the Court agrees that several

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of the paragraphs in the Arbitration Award are identical to the portion of § 24 of the CBA which was also presented by Defendants for the Court's consideration. ( See Docket No. 10-1).

The Arbitration Award and CBA contain a similar provision which is relevant to this case, and provides that " [t]he City may enact reasonable rules and regulations to govern the secondary employment of police personnel, including but not limited to ... limitations on who may be an approved Secondary Employer." (Docket No. 10-1 at ¶ 4; Pl. Ex. 2 at § A.4 (emphasis added)). Thus, pursuant to this language, the City is granted the discretion to set limitations on entities that may be approved as secondary employers under the program and apparently may do so without seeking the input of the FOP. Id. The remainder of the provisions of the Arbitration Award and CBA set forth the parameters of the secondary employer program as it relates to the duties and responsibilities of the City and its police force. To this end, both the Arbitration Award and CBA emphasize that police officers are " first and foremost police officers or police supervisors of the City," that officers must avoid conflicts between their regular duties and secondary employment, and that officers are voluntary participants in all secondary employment work. ( Id. at ¶ ¶ 1, 2). The documents also explain, among other things, that the hours worked by City police officers in secondary employment positions do not constitute overtime hours as city employees and that officers are paid rates for off-duty jobs pursuant to any agreements between the City and the Secondary Employer. ( Id. at ¶ 3).

E. Order 29-1

The Pittsburgh Bureau of Police has enacted Order 29-1, an internal, non-public, Bureau policy the purpose of which " is to set forth guidelines to govern the secondary employment by members of the Pittsburgh Bureau of Police." (Pl. Ex. 1). Former Chief of Police Nate Harper signed the current version of Order 29-1, which has an effective date of April 16, 2007. ( Id. ). Order 29-1 stresses that City police officers " must recognize that their primary duty, obligation and responsibilities are to the Pittsburgh Bureau of Police," that police work takes precedence over secondary and outside employment, including emergency situations, special assignments or extra duty, that conflicts of interest must be avoided and that while secondary employment is permissible, it is subject to the terms and conditions of Order 29-1 and any such off-duty work by the officers must be approved by the Bureau. ( Id. at § § 1.2, 3.0, 4.1, 6.0). In addition, the policy states that officers " will conduct themselves as though they were on-duty, and will be subject to all departmental rules, regulations, policies and procedures set forth by the Pittsburgh Bureau of Police while engaged in a secondary employment capacity." ( Id. at § 4.1). Section 2.0 defines a number of terms of the policy, including:

2.1 Secondary Employment -- Any employment of a member by a private entity that is conditioned on the actual or potential use of law enforcement powers by the police officer employee.
2.2 Outside Employment -- Any employment of a member by a private entity that will not require the use or potential use of law enforcement powers by the off-duty employee.
2.3 Secondary Employer -- A private entity that employs a member conditioned on the actual or potential use of law enforcement powers by the police officer employee.
...

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2.9. Detail -- The secondary employment opportunity. The word " detail" is interchangeable with the phrase " secondary employment opportunity."

( Id. at § § 2.1, 2.2, 2.3, 2.9). Order 29-1 grants considerable authority to the Chief of Police to: determine the eligibility of all city police officers for secondary employment details, ( Id. at § 5.0); approve or disapprove of the type of secondary employment for which any officer engages, ( Id. at § 3.1); regulate the number of hours any officer may work in these off-duty positions, ( Id. at § § 3.1, 13.0, 14.0); and approve or disapprove of any application by a potential secondary employer to participate in the hiring of city police officers for off-duty details, ( Id. at § 7.2). The relevant provisions appear in the policy, as follows:

3.0 Authority
3.1 The Chief of Police or his/her designee shall have the authority to approve or disapprove the secondary employment of any member of the Bureau of Police.
...
3.3 The Chief of Police or his/her designee may regulate the type of employment and the hours a member may work.
...
4.0 Accountability
4.1 Members will conduct themselves as though they were on-duty, and will be subject to all departmental rules, regulations, policies and procedures set forth by the Pittsburgh Bureau of Police while engaged in a secondary employment capacity.
...
7.0 Secondary Employer Obligations and Options
7.1 The Secondary Employer must complete and submit a PBP Form #21.9.10, " Secondary Employment Agreement."
7.2 The " Secondary Employment Application Agreement" is reviewed, approved or disapproved by the Chief of Police or his/her designee.
7.3 Approved applicants are notified in writing of the approval of the " Secondary Employment Application Agreement." Obligations and options are presented.
7.4 Secondary Employers have three options when scheduling officers for a detail.
7.4.1. Option 1 -- The secondary employer can schedule officers by utilizing the services of the Pittsburgh Bureau of Police, Office of Special Events and Cost Recovery (SECR).
...
7.4.1.2. The secondary employer will be billed for the officer(s) hourly rate and cost recovery at the end of each month. The Cost Recovery Fee (" CRF" ) is $3.85 per hour/per officer. Failure to pay this bill within thirty (30) days of receipt may result in the revocation of the secondary employer's approved status.
...
7.4.2. Option 2 -- The secondary employer can schedule officers by utilizing the services of the Pittsburgh Bureau of Police, Officer of Special Events and Cost Recovery using a preference list.
...
7.4.2.4. The secondary employer will be billed for the officer(s) hourly rate and cost recovery at the end of each month. The Cost Recovery Fee (" CRF" ) for employers submitting a preference list is $3.85 per hour/per officer. Failure to pay this bill within thirty (30) days of receipt may result in the

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revocation of the secondary employer's approved status.
...
7.4.3. Option 3 -- An approved secondary employer that is not subject to special events or traffic obstruction permits may request to designate an active Pittsburgh Police officer to coordinate and schedule details.
...
7.4.3.4. The secondary employer has the option of having the detail officers paid through the Police Bureau's payroll system or electing to issue checks individually to the detail officers.
(Note: the secondary employer must issue cash or checks directly to the detail officers or make payment through the Bureau's payroll system. It is prohibited to make payment through the scheduler or any other third party.)
7.4.3.5. The secondary employer will be billed for cost recovery at the end of each month. The Cost Recovery Fee (" CRF" ) for secondary employers utilizing a scheduler is $3.85 per hour/per officer. Failure to pay the Cost Recovery Fee within thirty (30) days of receipt may result in ...

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