Ruling: Court employees not protected by Whistleblower Law

By Tabitha Fleming | May 8, 2017

HARRISBURG - Earlier this year, the state Commonwealth Court ruled that a former juvenile probation officer wasn’t protected by whistleblower laws. 

Gregory Thomas worked for the Washington County Court until October 2014, when he says he was forced to resign. Thomas v. Grimm was decided by the Commonwealth Court in February, almost three years after the incident occurred.

Thomas' resignation came after he says he was part of an investigation into the misappropriation of funds by the Juvenile Probation Office. According to testimony from Thomas, he had sent an email to the county’s purchasing office in July 2014 falsely claiming that a mixed martial arts training session had taken place. 

Thomas said he was instructed to send the email by the head of the office, and that same boss later told him to lie to investigators about attending the training.

The day after, Thomas was interviewed by the detectives investigating possible fraud. Thomas said he was offered the option to resign, or to be fired for reasons unrelated to the investigation. Thomas tendered his resignation, then filed suit against the county and the court alleging that his forced resignation was a direct result of his reporting wrongdoing to the investigators. 

As such, Thomas sought relief under the Whistleblower Law.

His employer, the court, argued that as a court employee, Thomas wasn’t subject to the Whistleblower Law, an argument that would eventually prevail. 

Lancaster attorney Crystal H. Clark, of McNees Wallace & Nurick, said that because the courts and the legislature are separate branches of government, one can't exercise functions committed to another - such as the direction and supervision of employees.

"At base, the Whistleblower Law’s intent is to protect employees and prohibit termination and other employment decisions that might be based on an employee’s reporting of wrongdoing or waste," she said.

"If it applied to the courts, that would mean that the legislature is dictating to the court when it can and cannot make employment decisions, thereby encroaching on that independent branch’s authority.”

The defendant’s argument boiled down to the fact that it had never intended to be subject to the Whistleblower Law, and as such, was not. The ruling, in favor of the defendant, isn’t surprising considering the court’s long history of maintaining its separation from the legislative branches of government, Clark said.

“When it comes to the idea of separation of powers between the branches and in particular the hiring and firing of employees by those individual branches, the courts have a long history of protecting those rights and not allowing others to encroach on them, so it’s not surprising that they would continue to take a very narrow view of when those supervisory rights are superseded by laws, statutes or regulations,” Clark said.

It doesn’t appear that the case will go any further, as Thomas has not filed an appeal and the deadline for it has passed. There may be some hope on the horizon for current or future court employees, even without the Whistleblower Law protections. 

Newly drafted versions of the court employee code of conduct include prevention against retaliation and similar behaviors, and although it won’t provide a civil legal remedy for employees, it may help in some respects.

“Employees should still feel some comfort in bringing forth these claims, knowing that their supervisors and managers are prohibited by policy from taking action against them and could themselves be disciplined or terminated for doing so,” Clark said.

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McNees Wallace & Nurick LLC Pennsylvania Commonwealth Court

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