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Behne v. Halstead

United States District Court, M.D. Pennsylvania

April 29, 2014



SYLVIA H. RAMBO, District Judge.

In this civil action, former borough police officers assert various federal and state causes of action against the borough and a number of its current and former council members relating to Defendants' actions in disbanding the borough's police force. Presently before the court is Defendants' motion for summary judgment. For the reasons that follow, the motion will be granted in part and denied in part.

I. Background

A. Factual Background[1]

On October 16, 2012, the Newport Borough Council voted three-to-two to disband the Newport Police Department, effective immediately, thereby terminating the positions of the borough's two police officers, Plaintiff Richard G. Behne Jr. ("Officer Behne") and Plaintiff Barry Keller ("Officer Keller") (collectively "Plaintiffs"). Officer Behne had been employed as a police officer by the borough since 1998 (Behne Dep., Oct. 22, 2012, at p. 17), and Officer Keller had been employed as a corporal by the borough since September 2011 (Keller Dep. at p. 23). Defendants Tami Halstead ("Defendant Halstead"), Lorrie Nulton ("Defendant Nulton"), James Ehrhart ("Defendant Ehrhart"), and James Prescott ("Defendant Prescott") (collectively "Defendant Council Members") were four of the seven council members at the time of the vote to disband the police force. (Doc. 35-4, p. 215 of 259.) Defendants Halstead, Nulton, and Ehrhart voted in favor of the disbandment, and Defendant Prescott abstained from voting. Thomas Fitzpatrick ("Defendant Fitzpatrick"), although no longer an active council member at the time of the vote, remained an integral part of the council's activities, particularly with regard to the disbandment of the police force.

In the years preceding the vote, numerous events transpired that evidenced the mounting tension between the police department and certain members of the borough council, several of which are particularly noteworthy. First, the issues between the two groups appeared to intensify in 2010 when Officer Behne joined Teamsters Local Union No. 776 and sought the union's representation in negotiating a new contract with the borough. ( See Fitzpatrick Dep. at pp. 27-29.) During the contract negotiations, a union representative appeared on behalf of Officer Behne at a borough council police committee meeting. ( Id. at p. 29.) Defendant Fitzpatrick, a council member at the time of the negotiations, later testified in his deposition that he was "annoyed" Officer Behne had joined the union for the purpose of these negotiations because his union membership would "cost [the Borough] a lot of money." ( Id. pp. 29-30.) For this reason, following the union representative's appearance at the committee meeting, Defendant Fitzpatrick and several other council members approached the borough solicitor, Stanley J. Laskowski ("Solicitor Laskowski"), concerning the borough's options regarding Officer Behne's union membership. ( Id. at pp. 30-31, 68.) At that time, Solicitor Laskowski informed them that "he was not well versed in litigation with the union" and recommended that the council retain attorney Michael Miller, Esquire ("Attorney Miller") from the law firm of Eckert Seamans in Atlanta, Georgia, to represent the council in matters related to the police department. ( Id. at pp. 30-31, 68.) Defendant Fitzpatrick contacted Attorney Miller to confirm his availability and retained his representation. ( Id. at p. 31.) Subsequently, the Borough of Newport and the union entered into an employment contract on behalf of Officers Behne and Keller for the period of January 1, 2011 through December 31, 2013.

Second, following a series of escalating incidents between Officer Behne and the borough council, the council suspended Officer Behne for two minor infractions of borough policy. Prior to the suspension, Defendant Nulton had indicated that she was concerned with Officer Behne's whereabouts and suggested that the council install GPS systems in the borough police vehicles. (Fitzpatrick Dep. at p. 21.) The council voted in favor of installing the GPS systems, and Defendant Ehrhart, the borough council president at the time, selected Defendant Fitzpatrick to monitor the systems from his home computer. (Fitzpatrick Dep. at pp. 33-34.) Thereafter, Defendant Fitzpatrick provided the username and password for the monitoring system to Defendants Nulton and Halstead at their request. ( Id. at p. 35.) The reports generated from the monitoring system, ranging anywhere from ten to 300 pages, enabled the council members to track the police vehicles' usage, locations, and speed. ( Id. at pp. 42-46.) One report generated by the system indicated that Officer Behne's vehicle had traveled at 114 miles per hour on a four-lane highway outside of the borough. ( Id. at p. 49.) Officer Behne, however, denied the accuracy of the report. Additionally, the council learned that Officer Behne had allegedly failed to report a motor vehicle accident wherein one of the vehicles required towing, thus violating a provision of the Vehicle Code that required an officer to complete an accident report when a vehicle could not be driven from the scene. ( Id. at p. 65.) Officer Behne argued that he was not aware of the vehicle's need to be towed given the minor nature of the accident. Nevertheless, based upon these two incidents, the council suspended Officer Behne for fifteen days. As a result of his suspension and pursuant to his employment contract, Officer Behne filed a grievance with the Borough of Newport pursuant to his employment contract. In response, the mayor of Newport, Mary Hetrick, concluded that the suspension was unwarranted and, consequently, reversed the suspension. (Doc. 68-4, p. 25 of 27.) Thereafter, the council, acting in accordance with the advice of Attorney Miller, voted to override the mayor's decision to rescind the suspension and effectively suspended Officer Behne. (Fitzpatrick Dep. at pp. 62-63.) Due to his suspension, Officer Behne filed for and was awarded unemployment compensation over Defendants' objections.[2] ( Id. at pp. 63-66.) Defendant Fitzpatrick testified that this decision in Officer Behne's favor "[riled the] feathers" of some of the council members. ( Id. at pp. 66-67.)

The next event that transpired was particularly strange. In February 2011, Defendant Halstead reported to Sergeant Charles Ringer of the Pennsylvania State Police that someone had intentionally defecated on the floor of the Borough Municipal Building. (Ringer Dep. at pp. 30-32.) According to Sergeant Ringer, Defendant Halstead insisted that the state police arrest and prosecute the individual responsible for the act and asserted her belief that Officer Behne was the culprit.[3] ( Id. at pp. 33-34.) Because of Defendant Halstead's accusation, Officer Behne agreed to undergo a polygraph test which, once completed, excluded Officer Behne as a suspect in the incident. (Ringer Dep. p. 52.) Sergeant Ringer notified Solicitor Laskowski that Officer Behne had passed the test and inquired whether he should polygraph anyone else. ( Id. ) After conferring with the borough council, Solicitor Laskowski advised Sergeant Ringer to discontinue the investigation. ( Id. at pp. 52-53.)

On June 8, 2011, a resident of the borough, Tana Blair, accidently collided with a parked truck while driving in front of her home and called the police to report the incident. (Doc. 68-2, p. 45 of 48.) Officer Behne responded to the call and assisted Ms. Blair in contacting the vehicle's owner. ( Id. ) Later that evening, Ms. Blair spotted two individuals looking at the truck and, assuming they owned the vehicle, told them she was responsible for the damage. ( Id. ) One of the individuals introduced herself as "Tammy, " i.e., Defendant Halstead, and explained that they did not own the vehicle but wished to view the police report. ( Id. ) Ms. Blair relayed to Defendant Halstead that Officer Behne had explained the accident was non-reportable, to which Defendant Halstead responded that Officer Behne does not do his job properly and had recently been suspended. ( Id. ) Additionally, Defendant Halstead made a slew of accusations against Officer Behne, including that he frequently drives his police car at speeds in excess of 100 miles per hour without cause; that he uses illicit drugs; that he was having sexual relations with a sixteen-year-old girl; and that he frequents an establishment called "T.J.'s" where he has been seen walking around naked and having sex. ( Id. at pp. 45-46 of 48.) Upon learning of these allegations, Officer Behne filed a lawsuit against Defendant Halstead on August 12, 2011, in the Court of Common Pleas of Perry County, Pennsylvania, alleging slander and intentional infliction of emotional distress.

Nevertheless, certain members of the borough council continued to make disparaging remarks about Officer Behne. For instance, in August 2011, the borough council began conducting interviews for the newly created position of corporal within the police department. One of the candidates, Tricia Moench, testified during her deposition that Defendant Fitzpatrick requested that she meet with him to discuss the position prior to her interview. (Moench Dep. at pp. 26, 32.) During the meeting, Defendant Fitzpatrick accused Officer Behne of being a "town bully, " "womanizer, " and disciplinary problem ( Id. at pp. 34-37, 50) and explained that the council could not fire him because he was part of the union ( Id. at p. 40). Defendant Fitzpatrick asked Ms. Moench if she "[had] a problem with not being part of a union, " to which she responded "no." ( Id. ) Ms. Moench ultimately declined the position. ( Id. at pp. 48-49.) Similarly, Officer Keller testified that, during his interviews for the corporal position, Defendants Halstead and Fitzpatrick stated that Officer Behne was taking kickbacks, using narcotics, fornicating with minor children, and stealing evidence and equipment and that they "wanted [Officer Behne] fired." ( Id. at pp. 27-31.) Defendants advised Officer Keller that, if he was offered the position, he would be responsible for monitoring and regulating Officer Behne's behavior and would hopefully uncover information leading to Officer Behne's termination. ( Id. at pp. 28, 31, 61-66.) Officer Keller accepted the position. ( Id. at p. 35.)

Upon completing his probationary status with the police department in early 2012, Officer Keller advised Defendants Halstead and Fitzpatrick that he could not uncover any evidence supporting their allegations against Officer Behne. (Keller Dep. at pp. 59-60, 66-67, 96-97, 125-28.) In addition, he told them that he intended to remove the GPS systems from the police vehicles because the systems compromised officer safety insofar as too many people were able to track the officers' whereabouts at any given time. ( Id. at pp. 110-21.) In response, Defendants Halstead and Fitzpatrick indicated that he would be fired if he did not assist them in terminating Officer Behne or if he removed the GPS systems from the police cars. ( Id. at pp. 94, 121.) Defendants Halstead and Fitzpatrick deny these allegations.

At a September 4, 2012 public council meeting, a borough resident inquired as to why the council was investigating the borough's police officers. (Doc. 25-2, p. 2.) In response, Defendant Prescott denied the existence of an investigation regarding the officers but acknowledged hearing a rumor that the council intended to disband the police force. ( Id. ) Defendant Prescott assured the attendees that the council would not disband the police force, stating that the council has "never discussed disbanding the police... in private or in public" and any rumor stating otherwise was "false, absolutely false." ( Id. )

Contrary to Defendant Prescott's public assurances, however, billing records from August 2012 show that attorneys from the law firm of Eckert Seamans, including Attorney Miller, were performing legal research for the borough regarding the "elimination of [a] police department." (Doc. 68-2, p. 13 of 48.) Moreover, throughout September and early October 2012, the individual defendants, without notifying council member Barbara Hart or Doug Beatty, held meetings with Attorney Miller to discuss disbanding the police department. ( See, e.g., Ehrhart Dep. at pp. 39-41; Prescott Dep. at pp. 15-17, 19-21; Hart Dep. at p. 32; Doc. 68-2, p. 13 of 48.) Plaintiffs insinuate that, at these meetings, the plan to disband the police force and eliminate Plaintiffs' positions was formulated.

Indeed, the evidence of record indicates that the individual defendants agreed to vote on the disbandment of the police force at a special council meeting. In advance of the special council meeting, the individual defendants, through their attorneys, prearranged a process server to "serv[e] two letters on two Borough employees, " who they anticipated would be in attendance at the meeting (Doc. 68-4, p. 21 of 27; Laskowski Dep. at p. 69), and to have a locksmith change several locks on a municipal building during the meeting (Doc. 68-4, p. 23 of 27; Laskowski Dep. at p. 69). In addition, they prepared a written resolution, effective October 16, 2012, to disband the police force. (Laskowski Dep. at p. 65.) On the eve of the meeting, the borough council placed a notice in the Patriot News stating: "[T]he Newport Borough Council will hold a special meeting on Tuesday, October 16, 2012 at 8 a.m.... for the purpose of considering and acting upon budget and personnel matters that come before Council." (Doc. 29-1, p. 213 of 259.) The individual defendants elected not to inform the remaining council members of the meeting's agenda. (Ehrhart Dep. at p. 39.)

The borough council convened for the special meeting at 8 a.m. on Tuesday, October 16, 2012. (Doc. 25-1, p. 1 of 8.) Defendant Ehrhart called the meeting to order with council members Barbara Hart, John McNaughton, Defendant Halstead, Defendant Prescott, and Defendant Nulton present. ( Id. ) Attorney Miller, Solicitor Laskowski, Mayor Hetrick, and Officers Behne and Keller were also in attendance. ( Id. ) According to the minutes prepared by Council Secretary/Treasurer Patricia Bowers, at the beginning of the meeting, the council voted unanimously to take out a tax anticipation loan in the amount of $75, 000 "just in case [the borough] would need it to begin the year or to finish this year out." ( Id. ) After addressing scheduling and overtime issues pertaining to the police department, the council commenced a discussion regarding the - General Fund Budget and potential options to remedy a financial shortfall. ( Id. pp. 2-3.) The council initially considered raising the tax millage rate by approximately 3.25 mills, which would have increased taxes by approximately $172, 540, [4] nearly doubling the 2012 millage rate. ( Id. at p. 2; Prescott Dep. at p. 8.) Concerned about the burden a tax increase would place on borough residents, the council considered other options, including cancelling flood insurance and cutting council members' salaries. (Doc. 25-1, pp. 2-3, 6 of 8.) As an alternative, Defendant Halstead suggested they eliminate the police force.

Defendant Halstead advised the council that the Pennsylvania State Police provides police coverage to the borough at no cost while the borough's police department cost approximately $188, 000 per year. ( Id. at p. 3 of 8.) In light of council's budget being $159, 000 short, she suggested the borough use state police coverage exclusively and eliminate the borough police force. ( Id. ) At that point, Defendant Halstead moved, seconded by Defendant Nulton, "to adopt a resolution to disband the Newport Borough Police Department to completely and permanently cease providing local police service immediately." ( Id. ) Defendant Ehrhart then called for public comment on the matter. Officer Keller and council members McNaughton and Hart voiced adamant opposition to Defendant Halstead's motion. ( Id. at pp. 4, 6 of 8.) Two members of the public also commented, with one in favor and one opposed. ( Id. at pp. 4-6 of 8.) Following the public comment period, Defendant Halstead again motioned to consider a "resolution" to disband the police department effective immediately. The motion was carried by a vote of three-to-two, with Defendants Halstead, Nulton, and Ehrhart voting "yes, " and council members Hart and McNaughton voting "no." ( Id. at p. 7.) Defendant Prescott abstained from voting based on the advice of Jason Kraft, Local Union 776 Business Agent. ( Id. ) Following the vote, council member McNaughton resigned from the council due to his disapproval of the council's actions in the matter, and Defendants Nulton and Halstead moved to accept his resignation. ( Id. ) The meeting was thereafter adjourned. ( Id. at p. 8.) Plaintiffs allege that, after the meeting, they were immediately forced to surrender their badges and borough equipment and were locked out of the police department. (Doc. 14, ¶ 76.)

Following the abrupt termination of their positions, Officers Behne and Keller commenced suit against the Borough, Defendant Council Members, and Defendant Fitzpatrick on January 8, 2013 (Doc. 1), alleging, inter alia, that the individual defendants orchestrated a scheme to terminate Plaintiffs' employment due to personal vendettas and anti-union animus. They contend that Defendants acted under color of state law and that their actions were intentional and undertaken with reckless disregard of Plaintiffs' federally protected property rights in their continued employment.

B. Procedural Background

Plaintiffs' complaint, filed on January 8, 2013 (Doc. 1) and amended on April 5, 2013 (Doc. 14), asserts various federal and state law claims. First, Plaintiffs bring claims under the civil rights statute, 42 U.S.C. § 1983, alleging that Defendants deprived them of their procedural due process rights in the course of the proceedings leading to the disbandment of the police department and the termination of their employment. (Doc. 1, Counts I & II.) Second, Plaintiffs assert that Defendants conspired to violate Plaintiffs' rights, in violation of 42 U.S.C. § 1985(2) and (3). ( Id. at Counts III & IV.) Third, Plaintiffs bring additional Section 1983 claims against Defendants alleging that the disbandment represented a form of constitutionally prohibited retaliation against their engaging in certain activities protected by the First Amendment. ( Id. at Counts V & VI.) Fourth, Plaintiffs bring a claim pursuant to 42 U.S.C. § 1986 against the individual defendants for failing to prevent the commission of a wrongful act. ( Id. at Counts XVIII-XIX.) Finally, Plaintiffs lodge several pendent state claims for damages. ( Id. at Counts VII-XVII, XX.)

In response to the amended complaint, Defendants filed a motion to dismiss for failure to state a claim (Doc. 10), which the court subsequently converted into a motion for summary judgment (Doc. 27). On August 12, 2013, Defendants perfected their motion for summary judgment by filing a statement of material facts (Doc. 35) and supplemental brief in support thereof, as permitted by the court (Doc. 36). Defendants' motion raises, among other issues, the defenses of absolute legislative and qualified immunity, and states that Plaintiffs' evidence fails to demonstrate a disputed issue of material fact. In the motion, Defendants describe their action as a measured and appropriate response to the borough's increasing budgetary concerns.

Plaintiffs filed a response to Defendants' statement of material facts on September 9, 2013 (Doc. 52), but failed to cite to the parts of the record supporting their statements, as required by Local Rule 56.1. Additionally, Plaintiffs failed to file a supplemental brief. On October 22, 2013, the court issued an order directing Plaintiffs to file a counter-statement of material facts with appropriate citations to the record by October 30, 2013 (Doc. 67), thus providing Plaintiffs an opportunity to defend the dispositive motion. In accordance with the order, Plaintiffs filed a revised response to Defendants' statement of material facts on October 29, 2013. (Doc. 68.) Plaintiffs, however, elected not to file a supplemental brief. Therefore, the motion for summary judgment is ripe for disposition.

For the reasons set forth below, the court finds that Defendants are entitled to summary judgment on several asserted claims. However, as to Plaintiffs' core assertions that the disbandment of the police department violated their due process rights and constituted an illegal form of retaliation, the court concludes that disputed factual issues preclude summary judgment.

II. Standard of Review

Summary judgment is proper when the record, taken in its entirety, shows that there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable factfinder to return a verdict for the non-moving party. Id. When evaluating a motion for summary judgment, a court "must view the facts in the light most favorable to the non-moving party, " and draw all reasonable inferences in favor of the same. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted)

The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "Once the moving party points to evidence demonstrating [that] no issue of material fact exists, the non-moving party has the duty to set forth specific facts showing that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." Azur v. Chase Bank, USA, 601 F.3d 212, 216 (3d Cir. 2010). The non-moving party may not simply sit back and rest on the allegations in its complaint; instead, the party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Syed, 906 F.Supp.2d at 354 (alteration in original) (citing Celotex, 477 U.S. at 324). Summary judgment should be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; accord Ullrich v. United States Sec'y of Veterans Affairs, 457 F.Appx. 132 (3d Cir. 2012). If the non-moving party's evidence "is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) (alteration in original) (quoting Anderson, 477 U.S. at 249-50). However, "[s]uch affirmative evidence - regardless of whether it is direct or circumstantial - must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Saldana, 260 F.3d at 232 (quoting Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

A court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Rather, it remains the "province of the factfinder to ascertain the believability and weight of the evidence." Id. For purposes of considering a motion for summary judgment, the court "should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, [because] a jury... would be entitled to view the evidence as a whole." Abramson v. William Patterson Coll. of N.J., 260 F.3d 265, 285 (3d Cir. 2001) (citing Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000)).

III. Discussion

Plaintiffs allege, inter alia, that Defendants' actions in disbanding the police force violated Plaintiffs' constitutional rights. Specifically, Plaintiffs allege that certain individual defendants harbored personal animosity toward them and that others disfavored their union membership resulting in Defendants' strategic and concerted effort to circumvent established state and federal laws in order to terminate Plaintiffs' employment. Defendants contend that the council's decision to abolish the police force was based purely on bona fide budgetary constraints. Defendants further argue that, regardless of the council's motivation, Defendants are immune from suit and that Plaintiffs have failed to demonstrate a genuine issue of material fact. The court will address each of Defendants' arguments in an order that facilitates discussion.

A. Absolute Immunity

The court will first consider whether Defendants are entitled to absolute immunity before addressing the merits of Plaintiffs' claims.

1. Legislative Immunity

Defendant Council Members first contend that they are absolutely immune from suit, arguing that the council's vote to disband the police force was a legislative act to which absolute immunity attaches. In turn, Plaintiffs argue that it was not a legislative act because the disbandment was effectuated by resolution rather than by ordinance and, therefore, Defendant Council Members are not entitled to immunity.

It is well established that local legislators, like federal and state legislators, are absolutely immune from suit based on their legislative activities. In re Montgomery Cnty., 215 F.3d 367, 376 (3d Cir. 2000) (citing Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998)). To be considered legislative, however, the act must be "both substantively and procedurally legislative in nature." Id. (citing Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996)). "This test is designed to protect acts that are within the sphere of legitimate, legislative activity.'" Kalinoski v. Lackawanna Cnty., 511 F.Appx. 208, 212 (3d Cir. 2013). In applying the test, the court must look only at the acts themselves "stripped of all considerations of intent and motive." Baraka v. McGreevey, 481 F.3d 187, 198 (3d Cir. 2007).

An act is "substantively" legislative, i.e., legislative in character, when it involves policy-making of a general scope or linedrawing. Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 774 (3d Cir. 2000). Conversely, where the act "affects a small number or a single individual, the legislative power is not implicated, and the act takes on the nature of administration." Id. In the context of public employment, the Third Circuit has drawn a distinction between the elimination of a position and the termination of an individual employee, characterizing the former as legislative and the latter as administrative in nature. Kalinoski, 511 F.Appx. at 212 (citing Baraka, 481 F.3d at 199-200) (citing cases)). In Baraka, the Third Circuit noted this distinction and reasoned that the elimination of a position was the type of policy-making that "traditional legislation entails" and further noted that the defendant's motivation in enacting the law to eliminate the plaintiff's position, whether concerned specifically with the plaintiff or with genuine public concerns, was immaterial. Baraka, 481 F.3d at 199-200. Therefore, in the present case, it is clear under Third Circuit precedent that the abolishment of the police force and corresponding elimination of Plaintiffs' positions were substantively legislative in nature. See id.; see also Bogan, 523 U.S. at 55-56.

The remaining question is whether the act was also procedurally legislative in nature, thus entitling Defendant Council Members to legislative immunity. An act is procedurally legislative "if it is undertaken by means of established legislative procedures.'" In re Montgomery Cnty., 215 F.3d at 376 (quoting Carver, 102 F.3d at 100)). "This principle requires that constitutionally accepted procedures of enacting the legislation must be followed in order to assure that the act is a legitimate, reasoned decision representing the will of the people which the governing body has been chosen to serve." Gallas, 211 F.3d at 774.

Thus, the gravamen of the instant action is the procedure by which the police force was disbanded. Defendants argue that the abolition of the police force by vote, rather than through the enactment of an ordinance, was a procedurally legislative act, thereby allowing absolute legislative immunity to attach. The court, however, has little trouble finding that Defendant Council Members' actions were not procedurally legislative, as this court has previously held that failure to pass an ordinance effectuating the disbandment of a police force precludes characterizing the action as legislative - a decision that was affirmed by the Third Circuit. Donivan v. Dallastown Borough, Civ. No. 86-0277 (M.D. Pa. May 22, 1987), aff'd 835 F.2d 486 (3d Cir. 1987).

The Borough of Newport operates under the Pennsylvania Borough Code, [5] which describes a borough's legislative powers as follows:

Every legislative act of council shall be by ordinance and these legislative acts shall include, but not be limited to, tax ordinances, general appropriation ordinances, capital expenditures not payable out of current funds, and all legislation exercising the police power of the borough, regulating land use, development and subdivision, imposing building, plumbing, electrical, property maintenance, housing and similar standards, and otherwise regulating the conduct of persons or entities within the borough and imposing penalties on the provisions thereof.

53 P.S. § 48301.1(b). The ordinance procedure requires publication of the proposed ordinance in a "newspaper of general circulation no more than [sixty] days nor fewer than seven days prior to enactment. ..." Id. at § 48301.2(a) (emphasis supplied). The publication must include "either the full text [of the proposed ordinance ] or the title, ... a brief summary prepared by the borough solicitor setting forth all the provisions in reasonable detail[, ] and a reference to a place within the borough where copies of the proposed ordinance may be examined." Id. In addition, every ordinance enacted by the council must be presented to the mayor for approval. Id. at § 48301.3(a)(1). If the mayor vetoes the ordinance, a majority of all elected council members plus one must vote in favor of the ordinance to override the mayor's veto. Id. at § 48301.3(a)(2).

Accordingly, in Donivan, the Third Circuit held that, pursuant to the Borough Code, the legislative powers of a borough " require enactment of an ordinance; if an act is accomplished by means other than an ordinance, it is not an exercise of legislative activity." 835 F.2d at 489 (3d Cir. 1987) (emphasis added). The Third Circuit explained that "because municipal corporations have been delegated legislative authority only within strictly defined statutory limits, they can only act legislatively when following the statutory procedures specified for such action." Id. at 488 (quoting Abraham v. Perkarski, 728 F.2d 167, 174 (3d Cir. 1984)). Here, however, Defendant Council Members abolished the police force by resolution rather than by ordinance, and, thus, under Donivan, it was not a legislative act and was beyond the scope of legislative immunity.

Defendant Council Members argue that, although they did not enact an ordinance, they disbanded the police force via a "formal [r]esolution, " following notice, debate, public comment, and a vote and suggest that such a procedure should be considered legislative for purposes of immunity since it mirrors the procedure required for passing an ordinance. (Doc. 36, p. 22 of 27.) However, the procedural disparity between council's actions and those required for a legislative act is not simply limited to a difference in title; rather, the discrepancies are both numerous and significant and call into question whether the act was a legitimate and reasoned decision representing the will of the people. See Kalinoski, 511 F.Appx. at 213.

For example, in stark contrast to the requirement that either the full text or the title and a brief summary of the proposed ordinance be published in a newspaper of general circulation at least seven days prior to the vote, the borough council placed the following advertisement in The Patriot News just one day prior to the meeting:

NOTICE is hereby given that the Newport Borough Council will hold a Special Meeting on Tuesday, October 16, 2012 at 8 a.m. in the Borough Municipal Building... for the purpose of considering and acting upon ...

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