Jun 2, 2017 4 min read

A Washington County judge dismissed a lawsuit by a former juvenile probation officer against former President Judge Debbie O’Dell Seneca and other ex-officials alleging he was fired for reporting what he considered an ethical conflict posed by a relationship between his supervisor and a woman who worked at an entity that runs juvenile placement facilities.

In an order filed Thursday, Senior Judge William R. Nalitz dismissed a lawsuit by David Scrip of Monongahela, who alleged Dan Clements, the director of the county juvenile probation office at the time, pressured officers under him to make inappropriate recommendations to place children in facilities run by Abraxas Youth & Family Services, where his girlfriend worked, to curry favor with her. Scrip alleged he was disciplined and, in February 2014, fired after O’Dell Seneca and then-probation services director Thomas Jess learned Scrip was the author of an anonymous letter about the relationship that sparked an investigation by the Administrative Office of Pennsylvania Courts.

Nalitz found the defendants – O’Dell Seneca, Clements, Jess and the county – were immune from litigation arising from alleged wrongful discharge or violations of the Whistleblower Law. Because O’Dell Seneca “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 for wrongful discharge must fail,” according to Nalitz’s decision.

Noah Geary, Scrip’s attorney, said his client is “extremely disappointed in the ruling” and they plan to appeal.

In an email, Geary cited a 2011 progress report by then-state Supreme Court chief justice Ronald Castille that detailed measures the court was taking in the wake of the “Kids for Cash” scandal – which unfolded in Luzerne County in the late 2000s – in which Castille said the court had “specifically mandated the addition of a paragraph addressing the Pennsylvania Whistleblower Law which protects employees from retaliation for good faith reporting of wrongdoing in the Court system and participation in any ensuing investigation” in 2010 to its code of conduct for court employees.

“For the court to ignore this crystal clear articulation by the Chief Justice of the Pennsylvania Supreme Court that employees like David Scrip would have the right to sue for a retaliatory firing is disturbing,” Geary said. “It renders the code of conduct meaningless.” He added,”Could the Supreme Court not have been more clear?”

In the seven-page memorandum accompanying his order, Nalitz relied on the precedent set in February by a three-judge panel of the Commonwealth Court in another whistleblower case involving another former Washington County juvenile probation officer that named county court administrator Patrick Grimm as a defendant. Gregory Thomas alleged he was pressured to resign in 2014 after he cooperated with detectives in an investigation into funds that were misappropriated by the juvenile probation office. (Clements pleaded guilty in 2015 to charges of theft by deception and tampering with evidence stemming from allegations he pocketed money purportedly meant for mixed martial arts training.)

The appellate judges unanimously rejected Thomas’ argument that the note referencing the Whistleblower Law, which was part of the code of conduct that was in effect at the time he resigned, meant the Supreme Court intended the law to apply to the judiciary.

Nalitz said he didn’t have the authority to disregard the appellate court’s precedent.

Scrip also claimed he was an at-will employee as a probation officer, meaning “he can be fired (or quit) at any time for any reason or no reason,” according to Nalitz’s order. Scrip argued in his lawsuit the note in the code of conduct created a “public policy exception” to his employer’s right to terminate him.

Nalitz, however, cited language in the Thomas decision that called the note “just a description.” He added: “If the Whistleblower Law does not apply to the judiciary, and it does not, a mere reference to it does not constitute an expression of public policy.”