May 10, 2018 5 min read

An appeal brought by a former Washington County juvenile probation officer who allegedly faced retaliatory firing in 2014 could result in a new precedent for what protections apply to judicial employees who make allegations about wrongdoing within the court system.

All seven justices of the Commonwealth Court heard arguments Wednesday in a case brought by David Scrip, who is appealing a ruling last year that dismissed his case against the county and three former court officials.

Much of the case hinges on the parties’ conflicting interpretations of the code of conduct the state Supreme Court issued for judicial employees in 2010 in the wake of the “Kids for Cash” scandal in Luzerne County, which resulted in the conviction of two judges who had taken kickbacks for sending children to certain facilities.

The Supreme Court issued a report in 2011 in which then-Chief Justice Ronald Castille wrote the code “specifically mandated” inclusion of a paragraph addressing the Whistleblower Law, which protects employees from retaliation if they report wrongdoing in the court system, and gives them an “explicit duty” to report any violations.

The Commonwealth Court has issued two rulings – one in 2016 in a case from Allegheny County and another last year in one from Washington County – that the Whistleblower Law doesn’t apply to the judiciary.

Michael Daley, the attorney for former president judge Debbie O’Dell Seneca, argued in a brief the “passing reference” Castille made to the law in the report doesn’t expand the scope of the law to apply to the judiciary.

“The judiciary can’t include itself into a law,” he said Wednesday.

Daley, who works for the Administrative Office of Pennsylvania Courts, maintains including the judiciary would violate the separation of powers because the state Legislature didn’t intend for the law to do so.

Scrip’s attorney disagrees, arguing the reference was more than a passing one. He also wants appellate judges to reverse the ruling from the previous Washington County case, which also concerned the language in the code of conduct.

“Here, (Castille) creates this code of conduct specifically because of what happened in Luzerne County,” said Noah Geary, Scrip’s attorney, outside the courtroom. “It is distressing in the extreme to say, ‘We don’t know why he put that there.'”

In an appeals brief, Geary argues the court showed a “clear intent” to give his client “recourse to address his retaliatory firing.” He also noted the legislative and executive branches were involved in creating the code of conduct to assert there was no separation of powers problem.

He also contends Castille’s reference to the Whistleblower Law in the code of conduct means the Supreme Court waived the immunity that would normally prevent such lawsuits against court officials.

Scrip filed his lawsuit – which also names Thomas Jess, the former deputy court administrator and director of probation services; and Daniel Clements, his former supervisor as director of the juvenile probation office – in August 2014. He had been fired the previous February.

Scrip alleges the defendants retaliated against him when they learned he’d sounded the alarm on alleged improper placements of juveniles with Abraxas Youth & Family Services, where Clements’ girlfriend was a recruiter.

Scrip had first reported the alleged misconduct anonymously in a letter to Castille, O’Dell Seneca and others. His claims resulted in an AOPC investigation.

He alleges the retaliatory actions against him began after he sent the AOPC investigator, James Rieland, another letter identifying himself as the author of the first complaint. He claims the second letter was leaked to Jess and O’Dell Seneca.

Rieland eventually wrote a report noting dysfunction within the office but rejecting the allegations that coercion resulted in improper placements.

“The investigation was a sham,” Scrip said following Wednesday’s session. “(Rieland) didn’t even address the central issue of the letter.”

O’Dell Seneca retired in January 2015 before her term on the bench ended. Clements later pleaded guilty in an unrelated criminal case. Jess’ position was eliminated that year.

Scrip is now a caseworker for Southwestern Pennsylvania Human Services, where Geary said he makes “substantially less” in compensation. He’d held his previous job for 25 years without getting in trouble, the attorney said, before he began facing what Geary called “pretextual write-ups” and finally termination.

Washington County Senior Judge William Nalitz dismissed Scrip’s lawsuit in June 2017.

Along with a claim under the Whistleblower Law, the lawsuit included a second claim alleging Scrip’s retaliatory firing violated public policy and was therefore illegal even though he was an at-will employee.

Geary argued his client should at least be able to pursue that portion of the case even if the judges uphold the dismissal of the whistleblower claim.

His opponents contend otherwise.

“It is our contention that it’s not a public policy,” said Robert Grimm, the attorney for the county, Jess and Clements.

The justices gave no indication when they will rule in the case.