No Violation To Freeze Pension When Retired Firefighter Elected To City Council

John Loscombe retired from the Scranton, Pennsylvania Fire Department in May 2011, and began receiving a pension check. Later, Loscombe was first appointed and then elected to the Scranton City Council. The City suspended Loscombe’s pension payments on the basis of a City Code provision providing that “when any fireman is pensioned and thereafter enters the service of the City in any capacity with compensation the pension of such person shall be suspended during his term of service. Upon termination of such compensated service the pension payments shall be resumed on request of the pensioner.”

Loscombe sued the City, contending that the suspension of his pension violated his free speech and freedom of association rights under the First Amendment. A federal trial court dismissed the lawsuit.

The Court ruled that “an individual’s right of association may be limited by valid, content-neutral time, place and manner restrictions enacted by the state. The Ordinance at issue here is content-neutral. As such, the Ordinance does not offend the First Amendment as long as the restrictions (1) are narrowly tailored to serve a significant governmental interest; and (2) leave open ample alternative channels for communication of the information.

“Both the City of Scranton and the Pension Board represent that the aim of the Ordinance, which was enacted in 1964, is to prevent retired City firemen who subsequently become compensated City employees from receiving two simultaneous income streams from the City. Preventing retired City firemen from double dipping and conserving City pension funds is a significant governmental interest. As the Supreme Court has stated, the First Amendment does not require a City, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the City relies upon is reasonably believed to be relevant to the problem that the City addresses.

“The Ordinance is also narrowly tailored to the promotion of this interest and does not burden more speech or associational rights than necessary. Without the Ordinance, retired public safety officers serving the City in a compensated position, such as Loscombe, would receive two streams of income from the City. Therefore, the Ordinance is narrowly tailored to the substantial government interest in preventing compensated retired public safety officers from receiving two simultaneous payments from the City, since without the Ordinance, this objective would be achieved less effectively.”

Loscombe v. City of Scranton, 2013 WL 5876995 (M.D. Pa. 2013).