SCRANTON — In a federal lawsuit filed April 22, 2013, Al Flora Jr. argued he was fired as Luzerne County chief public defender because he had pushed for more funding so he could do his job. Yesterday the suit was dismissed, a federal judge ruled, precisely because Flora was doing his job.
Flora had argued he was fired in retaliation for going to court to get more money for the public defender office and for exposing a failure by the county to expunge juvenile records as ordered by the state Supreme Court.
On Monday, U.S. District Court Judge Malachy Mannion ruled that the county’s decision to fire Flora could not be construed as retaliation in violation of his First Amendment rights because those actions were done in Flora’s official capacity as Chief Public Defender.
“As such,” Mannion wrote, Flora “was acting as a government employee, not a private citizen. His actions are therefore not protected by the First Amendment.”
American Civil Liberties Union Staff Attorney Mary Catherine Roper, the lead attorney for Flora, questioned the logic of the ruling.
“What he is essentially saying is you run a county agency and your job is to run that agency and take care of your clients, so everything you do is in furtherance of your job. Therefore you have no protection against retaliation,” Roper said. “We don’t think that’s quite what the law is.”
Flora, a public defense attorney for three decades, took over the county’s top public defender post in 2010 in the wake of the juvenile court scandal that sent former Luzerne County Judges Mark Ciavarella and Michael Conahan to jail (Flora help defend Ciavarella in his federal trial .
Prosecutors said the two judges accepted millions from the owner and the builder of two private juvenile detention centers where many Luzerne County juveniles had been sent, though Ciavarella has always bitterly rejected the claim the money was tied to the placement of the children.
As the scandal unfolded, the public learned Ciavarella, as juvenile court judge, had heard thousands of cases with no attorney present for the juvenile, and that when public defense attorneys were present they had little preparation time, and little training in juvenile court law.
Ultimately, the state Supreme Court ordered the records of thousands of juveniles who had been deemed delinquent by Ciavarella expunged.
Flora worked to create a full-time juvenile department in the office of public defender, with two attorneys, two social workers, a secretary and an investigator.
But Flora also got into a protracted battle with the county about funding for the office of public defender, with Flora filing a lawsuit in county court against the county. He also went to federal court to seek an injunction preventing the county from firing him.
As the legal battles dragged on, Flora learned that many of the juvenile records had not yet been expunged as ordered by the state Supreme Court. Flora told County Manager Robert Lawton and the Luzerne County District Attorney of this.
Lawton fired Flora April 17, 2013, and Flora filed the federal lawsuit contending it was retaliation for his suit seeking more money and his exposure of the failure to expunge records, making the firing a violation of his First Amendment rights.
In a 27-page memorandum issued Monday, Mannion ruled that Flora’s actions were done in his capacity as an employee in the office of public defender and were thus not protected by the First Amendment.
John Dean, the lead attorney in the county’s defense, said the ruling confirmed what the county had argued all along, and that Mannion had made the decision “based on Flora’s own pleadings and not anything else.”
Roper said that, by law, if a judge is going to dismiss the case he must assume everything Flora alleged in his paperwork was “factually true,” which Mannion did. But she added that Mannion’s decision makes the definition of Flora’s job so broad it leaves “no protection against retaliation.”
It’s too early to say what, if any, steps Flora will take next, Roper said, but she outlined several options:
• Appeal Mannion’s decision regarding First Amendment retaliation to a higher federal court.
• Take two other complaints that Mannion opted not to rule on — a wrongful dismissal claim and a whistle-blower claim — to state courts. Mannion ruled that, in light of the dismissal, those claims should be handled by the state, not the federal system.
• Continue an appeal, already filed, of the original decision by a county judge to dismiss Flora’s lawsuit regarding funding. The judge dismissed the case after Flora was fired, Roper said, arguing that he had no standing for the case once he was no longer with the Office of Public Defender.