Whistleblower protections for judicial workers debated

Prompted by a scandal involving judges in Luzerne County, the state Supreme Court in 2010 began requiring judiciary employees throughout Pennsylvania to report misconduct.

David Scrip, a 25-year Washington County juvenile probation officer, said he did just that — complaining about alleged unethical conduct in the probation department. But then, he claimed, he was fired for disregarding then-President Judge Debbie O’Dell Seneca’s orders to halt his accusations.

Mr. Scrip sued. His complaint was dismissed; he appealed. And on Wednesday attorneys in the case argued before a Commonwealth Court panel in Pittsburgh about whether judicial employees are protected under Pennsylvania’s Whistleblower Law.

Mr. Scrip’s attorney, Noah Geary, contends that they are. As a result, he said, Mr. Scrip is entitled to sue for wrongful discharge under the Whistleblower Law.

Mr. Geary said a note in the Supreme Court’s code of conduct references the Whistleblower Law, which prohibits discrimination or retaliation “against any employee who makes a good faith report of wrongdoing or participates in an investigation, hearing or inquiry held by an appropriate authority.”

“The code of conduct has to have teeth,” Mr. Geary said.

“Otherwise, it’s a bunch of lip service done just to please the public.”

Commonwealth Court has ruled twice on similar issues involving the judiciary in recent years contrary to Mr. Geary’s stance.

Mr. Scrip, of Monongahela, said he was fired in February 2014 after he complained that his boss, Dan Clements, was having an affair with Beth Stutzman, who worked as a recruiter for Abraxas Youth & Family Services. Mr. Scrip alleged that because of their relationship, probation officers were being directed to send juveniles to the Abraxas facility even when it was not the best placement for them.

Mr. Scrip first sent an anonymous letter to the Administrative Office of Pennsylvania Courts to report what he considered to be misconduct; after what Mr. Geary characterized as a “sham investigation” by the AOPC, no wrongdoing was found.

The defendants — including Ms. O’Dell Seneca; Mr. Clements; Thomas Jess, the former director of probation services and deputy court administrator; and Washington County — argued that the case against them should be dismissed because they were entitled to immunity and because the Whistleblower Law does not apply to the judiciary or judicial employees.

Senior Common Pleas Judge William Nalitz agreed and dismissed the case.

“As plaintiff was a judicial employee, and as the president judge has the authority to hire and fire judicial employees, and as the president judge is immune from any liability for any acts performed within the scope of her duties, a cause of action against her for wrongful discharge must fail,” Judge Nalitz wrote in his June opinion.

As to the second claim, the defendants argued that Mr. Scrip was an at-will employee and could be fired at any time for any reason.

However, Mr. Geary said there is an exception: when the termination violates a clear mandate of public policy. He argued that the Supreme Court’s code of conduct — and its reference to the Whistleblower Law — is exactly that type of policy.

Mr. Geary told the sevenjudge panel that the Supreme Court created a conduct policy to govern the judiciary and its employees. Since the state Supreme Court has oversight over the judicial branch, Mr. Geary continued, it has the ability to create policy, which therefore makes the Whistleblower Law apply.

Robert Grimm, an attorney representing Washington County and the defendants from the probation office, disagreed, saying that the conduct code is not public policy.

He argued that the only exceptions for the at-will employment doctrine come from the Constitution, a judicial decision or regulations — not the code of conduct.

But Judge Anne E. Covey countered, saying that the Supreme Court has jurisdiction over all judicial employees.

Michael Daley, an attorney for the AOPC and Judge O’Dell Seneca, argued that the state Legislature intended for the Whistleblower Law to apply only to the legislative and executive branches of government — not to the judiciary.