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Johnson v. Borough of Palmyra

August 2, 2007

FLOYD JOHNSON, PLAINTIFF,
v.
BOROUGH OF PALMYRA AND RICHARD DREBY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

MEMORANDUM OPINION & ORDER

This matter is before the Court on a Motion for Summary Judgment against claims by Plaintiff Floyd Johnson ("Johnson") alleging that (1) an ordinance passed by Defendant Borough of Palmyra ("Palmyra") violates his equal protection rights and (2) a personnel directive issued by Defendant Palmyra Chief of Police Richard Dreby ("Chief Dreby") violates his First Amendment rights to freedom of speech and freedom of association, as well as his due process and equal protection rights under the Fourteenth Amendment. For the reasons expressed below, as well as those placed on the record during oral argument on July 24, 2007, the motion by Palmyra and Chief Dreby (collectively the "Defendants") will be granted.

FACTUAL BACKGROUND

Since October 7, 1985, Johnson has been employed as a full-time police officer by Palmyra. (Complaint at 2.) From 1986 until December 2004, Johnson also worked fifteen hours per week during his off-duty time as a security officer and manager for a local automobile dealership in Palmyra. (Id.)

The Ordinance

On August 2, 2004, Palmyra enacted Ordinance No. 2004-10 entitled "An Ordinance of the Borough of Palmyra to Govern Outside Employment of Borough Police Officers and Create Escrow Fund for Payment by Private Employers," which affected Palmyra's police officers who performed off-duty security work. (Id.) The Ordinance states, in relevant part:

Members of Palmyra's Police Department . . . are expressly authorized to engage in security related and/or traffic control activities within Palmyra, the Borough of Riverton or the Township of Cinnaminson during their off-duty hours for Private Employers, so long as the arrangements therefore are made with Palmyra, any compensation paid to the officers for such service is channeled through Palmyra, and with the prior approval by the Chief of Police and subject to the terms of the Standard Operating Procedures adopted by the Police Department. (Statement of Uncontested Material Facts, Exhibit A, Ordinance at 2.)

The Ordinance requires all prospective employers of Palmyra's police officers in an off-duty security capacity to execute a Uniform Agreement to Provide Security-Related And/Or Traffic Control Services By Off-Duty Personnel ("Uniform Agreement"), and obtain approval from the Chief of Police. (Id. at 3.) The Ordinance and its associated Uniform Agreement governs the payment, indemnification, authorization, and hiring of the off-duty officers:

Section 1: Services to be Provided

Palmyra Police Department shall provide to the Private Employer the security-related services described below . . ..

Section2: Compensation

A. Compensation for the Employee's activities shall be calculated at Forty-Five ($45.00) Dollars per hour of work by the Employee plus Three ($3.00) Dollars per hour to Palmyra for any administrative fee for each hour worked by the Employee. The Private Employer shall pay . . . in advance, to Palmyra . . . to maintain an appropriate escrow account . . . for the Employee's work. Palmyra shall then pay the Employee out of said fund . . . .

***

D. Private Employer's payment of escrow is a condition precedent to Employee working for Private Employer . . . .

Section 3: Limitation of Palmyra Authorization

[E]ven though it is the public policy of Palmyra to permit off-duty police officers to perform security-related activities . . . because of the benefit to be derived by all persons living in or proceeding through Palmyra, the permission granted by the governing body through the aforementioned Ordinance does not extend to any activities not reasonably related to the activities described herein and at no time shall the Employee be deemed to be an agent of Palmyra while performing these activities.

Section 4: Application of Insurance Coverages

[T]he Private Employer shall provide adequate workmen's compensation insurance and/or private liability insurance coverage for the Employee of the Private Employer's expense . . . . In addition, Private Employers shall provide Palmyra with proof of insurance coverage showing that Palmyra has been named as an additional insured on the Private Employer's insurance policy for the period for which the services contemplated under this Agreement are necessary. Said insurance shall provide coverage up to $1 Million Dollars for general liability single accident insurance; and $2 Million Dollars in the aggregate.

Section 5: Hold Harmless; Indemnification The Private Employer indemnify and hold harmless Palmyra . . . from any liability or damages they may suffer as a result of claims, demands, costs or judgments against them arising out of the Employee's activities under and pursuant to this contract.

***

Any questions as to whether the Employee was acting in his capacity as a police officer for Palmyra, or as an Employee/Agent of the Private Employer at the time the claim or demand or cause of action arose, shall be resolved in favor of Palmyra, with the Private Employer providing indemnification to, and holding Palmyra harmless from any such claims. (Statement of Uncontested Material Facts, Exhibit A, Uniform Agreement.)

On its face, the Ordinance offers several safety and disciplinary justifications. (Statement of Uncontested Material Facts, Exhibit A, Ordinance at 1.) Specifically, the Ordinance offers the following justifications:

Whereas, it is deemed to be in the best interests of the citizens of this community, and would contribute to the overall safety and general welfare of all persons living in or traveling through Palmyra, for members of the Police Department, when available, to provide traffic control or security-related services for separate entities; and Whereas, it is also deemed to be in the best interests of the municipality to provide coordination and administration through the local government of security- related services provided by Palmyra Police Officers, and to have said officers subject to departmental discipline and control while performing such services;

***

Whereas, the governing body seeks to protect Palmyra and its Officers from liability in connection with such work and to establish certain guidelines and regulations governing such work. (Id.)

Additional justifications for the Ordinance were proffered by Palmyra during the discovery process. Palmyra's mayor testified in a deposition that other Burlington County boroughs had similar ordinances, (Statement of Uncontested Material Facts, Exhibit B, Deposition of John Gural at 66), and that the Ordinance was adopted "in part by a ruling handed down by the State of New Jersey." (Id. at 61.) Chief Dreby also testified that he authored the Ordinance by modeling it after similar ordinances in Burlington Township and Cinnaminson. (Statement of Uncontested Material Facts, Exhibit G, Deposition of Richard Dreby at 15.) Moreover, Chief Dreby testified that the Ordinance removed the possible appearance of impropriety resulting from a police officer being paid through a private employer, rather than through the municipality. (Id. at 20.)

Moreover, Palmyra alleges it enacted the Ordinance to comply with governmental directives issued by various bodies of the New Jersey state government. Specifically, Palmyra alleges it considered a Local Finance Notice dated November 8, 2000, entitled "Managing and Accounting for Outside Employment of Police Officers," which states that municipal police officers are permitted to serve as security officers in their off-duty hours "only if an arrangement has been made between the private persons or entities and the employing municipality." (Statement of Uncontested Material Facts, Exhibit C, Local Finance Notice at 1.) Furthermore, Palmyra contends it relied upon an August, 1989, memo from the New Jersey Division of Pensions on the subject of "Off-Duty or Outside Employment by Police Officers," which concludes that an officer not receiving his regular compensation and not performing his regular or assigned duties is not subject to the accidental disability or death provisions of the police retirement system. (Statement of Uncontested Material Facts, Exhibit E, Division of Pensions Memo.) Additionally, Palmyra alleges that Attorney General Opinion 1977-- No. 23, informed its opinion to adopt the Ordinance. (Statement of Uncontested Material Facts, Exhibit D, Opinion.) Attorney General Opinion 1977-- No. 23 states that: "A direct relationship between the policeman and the private party would violate the requirements of the Private Detective Act of 1939" but that police officers engaged in off-duty security work may do so "if arrangements are made with the employing municipality." (Id.)

During discovery, Palmyra also proffered justifications for the $45.00 per hour rate the Ordinance required outside employers to pay to Palmyra police engaged in off-duty security work. In his deposition, Palmyra's mayor testified that other towns with similar ordinances required similar compensation, and that $45.00 per hour reflects the average overtime salary that an officer exceeding a forty-hour work week would be paid. (Statement of Uncontested Material Facts, Exhibit B, Deposition of John Gural at ...


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