Evan Townsend v. Borough of Worthington, No. 17-1924 (3d Cir. 2019)

Plaintiffs, part-time Worthington police officers, were paid hourly wages. The Borough terminated their employment without affording any process. Plaintiffs sued under 42 U.S.C., claiming that the state’s Borough Code or Tenure Act conferred a constitutionally-protected property interest in their continued employment and that the lack of any process violated their due process rights. The Third Circuit certified questions of state law to the Pennsylvania Supreme Court. That court responded that the “civil service protections embodied in the Borough Code and the Tenure Act are ... intended to govern all borough police forces” and the Borough Code's “normal working hours” criterion should be employed to determine how many members a borough police force has for purposes of deciding whether the Tenure Act’s two-officer maximum or the Borough Code’s three-officer minimum is implicated. The Borough Code's exclusion for “extra police” does not apply to part-time officers who are not extra police. In this case, the plaintiffs were part-time officers, but not necessarily “extra police” so the exclusion was irrelevant. An hourly wage compensation that satisfies the Borough Code criteria of being officers “paid a salary or compensation." Part-time work “is not dispositive.” The Third Circuit concluded that the plaintiffs may have a property interest sufficient to support their procedural due process claims and remanded.