Beaver County, by and through the Beaver County Board of Commissioners
Beaver County Sheriff, George David
Beaver County Deputy Sheriffs Association, Appellant
Argued: November 13, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
RENÉE COHN JUBELIRER, Judge
In this interlocutory appeal as of right, the Beaver County Deputy Sheriffs Association (Association) appeals from an Order of the Court of Common Pleas of Beaver County (trial court) that granted a motion for preliminary injunction on behalf of Beaver County, acting through its Board of Commissioners (Board) (collectively, the County). The preliminary injunction enjoined the County Sheriff, George David (Sheriff), and deputy sheriffs from performing official services or official duties, including providing security services for persons, associations, or corporations such as local department stores or movie theaters. The injunction, however, did not apply to services performed for other government units or school district events, such as proms, dances, or sports events. Essentially, the trial court determined that the County is likely to prevail on the issue of whether the deputy sheriffs' extra duty assignments for outside entities violated the prohibition in Section 1210(a) of The County Code against performing official duties or official services for any outside private persons, associations, or corporations. On appeal, the Association argues that the trial court erred in this determination. Discerning no error, we affirm.
The undisputed facts in this matter are as follows. The Sheriff's Department employs 19 full-time and 26 part-time deputies. (Hr'g Tr. at 161, R.R. at 461a.) A full-time deputy sheriff's shift is 8 hours per day, 40 hours per week. (Hr'g Tr. at 161, R.R. at 461a.) The County and Association are parties to a collective bargaining agreement (CBA). (Hr'g Tr. at 164, R.R. at 464a.) Article V, Section 5.3(b) of the CBA, which governs extra-duty overtime opportunities, provides: "[e]xtra work details for outside agencies, which are reimbursed to the County, shall continue to be distributed among Deputy Sheriffs as in the past." (CBA at 7, R.R. at 168a.) This provision has been in the CBA for 11 years and a majority of the deputy sheriffs earn extra income from these assignments. (Hr'g Tr. at 165, R.R. at 465a.)
The extra duty is managed entirely through the Sheriff's Department. (Hr'g Tr. at 166, 170, R.R. at 466a, 470a.) An outside agency calls the Sheriff's Department to request the deputy sheriffs' services. (Hr'g Tr. at 166, R.R. at 466a.) A sign-up sheet is then prepared and the deputy sheriffs place their names on the sheet for consideration. (Hr'g Tr. at 166, R.R. at 466a; Ex. E - Inter-Office Memo Extra Duty Details Notice, R.R. at 274a-76a.) Both full-time and part-time deputy sheriffs are eligible for each opportunity to perform an extra duty. (Hr'g Tr. at 167, R.R. at 467a.) The additional pay the deputy sheriffs receive is a significant part of their overall compensation. (Hr'g Tr. at 174-75, R.R. at 474a-75a.)
The deputy sheriffs work these assignments in full uniform and utilize marked Sheriff's Department vehicles. (Hr'g Tr. at 168, 180, R.R. at 468a, 480a.) They carry out various law enforcement activities, including making arrests. (Hr'g Tr. at 172, R.R. at 472a.) However, while these functions are performed outside their regular shifts, the deputy sheriffs consider themselves "on-duty" because they have "sheriff powers" while performing outside work. (Hr'g Tr. at 166, 193, R.R. at 466a, 494a.)
The outside work details include, but are not limited to, providing security services for the Cinemark Theater; Wal-Mart; Boscov's; the Hookstown Fair; and for school district functions, including proms, dances, and sports events. (Hr'g Tr. at 167, 183, 188, R.R. at 467a, 483a, 489a; Ex. F - Beaver County Sheriff's Office Outside Activities and Assistance, R.R. at 277a-79a.) The County pays the deputy sheriffs their regular overtime rate for these assignments. (Hr'g Tr. at 169, R.R. at 469a.) The Sheriff's Department invoices the outside entity at the overtime rate the County paid the deputy sheriffs. (Hr'g Tr. at 83, R.R. at 383a.) The deputy sheriffs are not otherwise compensated by the outside entity. (Hr'g Tr. at 81, 169, R.R. at 381a, 469a.) However, the amount charged to the outside entities does not cover the entire amount the County is obligated to pay as a result of the deputy sheriffs' time spent performing the extra duty. (Hr'g Tr. at 65-68, 206, R.R. at 365a-68a, 507a.)
In the Fall of 2012, following an audit of the Sheriff's Department, the County Controller prepared a report expressing concern about the outside assignments for the years 2010-2012. (See Office of the Controller, Review of Financial Operations, Office of the Sheriff of Beaver County, Pennsylvania, January 1, 2010, through September 30, 2012 (Controller's Report), R.R. at 154a-60a.) Among other problems, the Controller's Report noted that some of the services were billed at less than the cost of providing them, resulting in a loss to taxpayers. (Controller's Report at 1, R.R. at 155a.) In addition, many of these services were provided without written contracts setting the terms. (Controller's Report at 4, R.R. at 158a.)
Most relevant here, the Controller's Report noted that Section 1210 of The County Code, 16 P.S. § 1210, titled "[p]rivate services, gifts and payments, contracts, prohibited, " actually prohibited the deputy sheriffs from providing such services to outside parties. (Controller's Report at 3-4, R.R. at 157a-58a.) In addition, the County Solicitor rendered a legal opinion that the deputy sheriffs' outside assignments violated Section 1210(a) of The County Code. (P. Ex. 1 – Letter from County Solicitor to County Sheriff (August 29, 2012), R.R. at 147a-48a.) In its entirety, Section 1210 provides:
(a) No sheriff, deputy sheriff, detective or other county police officer whatsoever, shall perform, directly or indirectly, any official services or official duties for any person, association or corporation, or receive, directly or indirectly, any compensation, gifts or gratuities from any person, association or corporation during the period of his official services. Nothing herein contained shall prohibit such officers from serving writs and other legal process as authorized by law. Any compensation payable to any such officer for official duties and services shall be paid only out of the proper county, or other public funds, to the amount and in the manner prescribed by law. Gifts, donations, and gratuities of any nature whatsoever made by any person, association or corporation to the county or to any official or agent thereof, shall not constitute public funds within the meaning of this section.
(b) No county, or any official or agent thereof, shall accept as a gratuity, gift or donation any arms, ammunition, military supplies, tear gas or equipment, or supplies or articles of a similar character from, nor shall any such gratuity, gift or donation be made by any person, association or corporation.
(c)Any contract or agreement, whatsoever, made in violation of the provisions of this section, shall be utterly void and of no effect, in law or in equity, and is hereby declared to be contrary to public policy.
(d) Notwithstanding any other provision of this section, unless otherwise prohibited by resolution or ordinance of the county, an individual who is employed as a sheriff, deputy sheriff, detective or other county police officer may engage in outside employment, including employment in security, during a period in which the individual is not scheduled to perform nor performing duty as a county employe. The county is not liable for any damage resulting from an act of an individual acting under this subsection.
16 P.S. § 1210 (emphasis added).
In September 2012, the County filed a complaint in equity against the Sheriff seeking to enjoin him from assigning deputy sheriffs to perform extra duties in violation of Section 1210(a). (Complaint, R.R. at 2a-17a.) The County also averred that the Sheriff violated Section 1801(a) of The County Code, 16 P.S. § 1801(a), which provides, in part, that the Board is the sole contractor for the County. (Complaint ¶¶ 4-5, R.R. at 5a.) In particular, the County averred that the performance of the extra duty needed a written contract between the County and the recipients of the services. (Complaint ¶¶ 5, 14, R.R. at 5a, 7a-8a.) The County also filed a motion for a preliminary injunction (Motion) alleging that the Sheriff continued to violate Sections 1210(a) and 1801(a) of The County ...