Third Circuit Revives Retaliation Claim Of Former Public Defender Who Blew Whistle

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By Hassan Kanu

Jan. 16 — The U.S. Court of Appeals for the Third Circuit Jan. 15 revived a lawsuit by a former public defender in Pennsylvania who claims he was fired for efforts to get funding for his office and for reporting the county's possible involvement in a bribery scandal involving county judges.

The appeals court remanded Albert Flora's claim against Luzerne County and its manager, Robert C. Lawton, for retaliation under the Civil Rights Act of 1871 (42 U.S.C. § 1983), as well as his wrongful termination and whistle-blower claims under state law. Writing for the court, Judge Kent A. Jordan said the claims must be reheard because the lower court applied an outdated standard for determining whether Flora's speech was constitutionally protected.

Jordan said the test for whether a public employee's speech is protected was laid out by the U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 24 IER Cases 737 (2006), but was recently modified by Lane v. Franks, 134 S. Ct. 2369, 38 IER Cases 585 (2014).

The trial court said the relevant question was whether Flora's actions “related to” his job duties and held that his statements didn't relate to his role as chief public defender, Jordan said. “In thus using the ‘related to' standard, the District Court did not apply the correct test under Garcetti, as Lane has made clear,” the Third Circuit said.

Judges Marjorie Rendell and Richard Nygaard joined the opinion.

Insufficient Funding Criticized

Flora worked for the public defender's office beginning in 1980 and was appointed part-time chief public defender in 2010, according to the opinion.

He alleged the office was plagued with problems from years of insufficient funding. He noted that his predecessor submitted weekly reports detailing staffing deficiencies to the county, in an effort to secure additional funding.

In June 2010, Flora provided a report to the county and Lawton detailing funding inadequacies and stating that the current level of resources did not allow the office to provide constitutionally adequate representation.

The county was unresponsive, and Flora decided the office would stop representing clients who weren't facing incarceration, Jordan wrote.

By April 2012, the funding problem had become critical, Flora alleged, after a hiring freeze and the resignations of several attorneys due to unreasonable workloads. Flora filed a class action on behalf of indigent defendants.

In June 2012, a state court ruled in Flora's favor and ordered Luzerne County to provide adequate funding and staffing.

‘Kids for Cash' Scandal Prompts Whistle-Blowing

Flora's lawsuit “was unfolding amidst the fallout from the ‘Kids for Cash' scandal,” which involved kickbacks from private-prison operators to judges, the court observed.

From 2003 to 2008, approximately half the juvenile defendants in Luzerne County appeared without counsel—10 times the state average, Jordan wrote. Virtually all were judged delinquent.

Federal investigators eventually “uncovered a scheme in which two Luzerne County Common Pleas judges had been accepting kickbacks from for-profit juvenile detention facilities in exchange for sending unrepresented juvenile defendants to those facilities,” Jordan said. In 2009 the state high court ordered the expungement of thousands of juvenile adjudications.

In early 2013, Flora learned that more than 3,000 juvenile adjudications hadn't been expunged. He reported this to county officials and alleged that Lawton was angry about his reports.

Flora interviewed with Lawton for a full-time chief public defender position in March 2013 but wasn't recommended. He also claimed that a member of the county Board of Commissioners told the media that he was a “controversial” candidate because of the funding lawsuit, the court said.

Lawton terminated Flora in April 2013, two weeks before the end of his term as part-time chief public defender.

He sued, and a district court concluded the filing of the lawsuit over funding and the reporting of the expungement problems were not protected free speech because they were not related to his official duties.

Retaliation Claims Revived on Appeal

The appeals court said Garcetti established that a public employee's statements aren't protected if made pursuant to their official duties.

“With the further light that Lane … provide[s], the proper … question is whether the filing of the state court funding suit and the reporting of the failure to finish the expungements were within Flora's ordinary job duties as the Chief Public Defender, not whether they concerned or were related to those duties,” Jordan wrote.

He concluded that the district court's decision was at odds with Garcetti and Lane and must be overturned.

Dechert and the American Civil Liberties Union of Pennsylvania represented Flora. Elliott Greenleaf & Dean represented the county parties.

To contact the reporter on this story: Hassan Kanu in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at