County added as defendant in juvie suit

By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter

SCRANTON – Luzerne County and another former probation department official have been added as defendants to one of three lawsuits filed in connection with the juvenile justice scandal involving former judges and Michael Conahan.

Attorney Barry Dyller on Monday filed an amended complaint, alleging the county is partly liable because Ciavarella and Conahan were the highest office holders in the county, therefore their decisions constituted county “policy and custom.”

The suit also places part of the blame on the late Michael Loughney, a former chief probation officer, alleging that he and his predecessor, Sandra Brulo, bowed to pressure from the judges and failed to take action to prevent them from violating juveniles’ constitutional rights.

Dyller’s suit is one of three federal suits now pending against the judges and others allegedly involved in the scheme, including local developer Robert Mericle and attorneys Robert Powell and Gregory Zappala. The suit is the first to name the county as a defendant.

Dyller said he opted to amend the complaint to add the county and Loughney as defendants after conducting additional research. He said he believes prior court rulings support his position that the county can be held liable for the judges’ actions.

But county solicitor Vito DeLuca said he believes Dyller is advancing a “novel theory” and the county will have a strong legal basis to seek dismissal from the complaint.

“We had absolutely no supervisory capacity in any shape or form over the judges. We had no right to discipline them and had no right or ability to change policies they instituted,” DeLuca said.

Brulo, who was named in Dyller’s original complaint, served as chief probation officer until October 2005. She was replaced by Loughney, who served in the position until his death in August 2007.

Ciavarella, the county’s longtime juvenile judge, and Conahan pleaded guilty in February to accepting more than $2.6 million in kickbacks in exchange for rulings that benefited PA Child Care and Western PA Child Care. The judges, who have agreed to serve 87 months in prison, will be officially sentenced after the completion of a pre-sentence investigation.

In his amended complaint, Dyller alleges Ciavarella and Conahan took various actions to “ramp up” the number of admissions to PA Child Care and Western PA Child Care centers that were built by Mericle and were owned by Powell and Zappala.

Those actions included:

• Creating a zero-tolerance policy regarding probation violations that resulted in children being in violation for offenses as minor as missing curfew or skipping school.

“These zero-tolerance policies were designed to make it virtually impossible for juveniles not to violate the terms of probation, so that they would then be brought to court and detained and would be further human inventory for the defendants’ scheme,” the suit says.

• Created a policy of having probation officials discourage juveniles from obtaining an attorney, thus increasing the likelihood the child would be incarcerated. The judges also directed probation officers not to advise parents of their recommendation so that they would not know when the officer had recommended probation over detention.

• Created a policy that required an “extraordinary” number of juveniles undergo a psychological evaluation, which was usually performed by Conahan’s brother-in-law, Dr. Frank Vita, with the primary purpose of making a finding of detention.

• Had a custom or policy to suspend, demote or otherwise punish any employee who questioned how they treated juveniles. That led Brulo and Loughney to exert pressure on probation staff to recommend detention over probation for offenders.

The suit further alleges Brulo and Loughney made determinations regarding a juvenile’s placement before the juvenile was found to have committed the offense for which he or she was charged. Dyller says that violated the juveniles’ right to due process.

Brulo pleaded guilty last week to altering a juvenile record that was part of the federal probe into the scandal. Prosecutors say she changed the record of one juvenile to indicate she had recommended probation, when in fact she had recommended detention. Brulo’s attorney, Joseph Sklarosky Sr., said she took the action in order to shield herself from a lawsuit.

The suit also says the county Public Defender’s Office, which is not named as a defendant, violated juveniles’ rights to due process by refusing to provide an attorney for a juvenile if the juvenile’s parents’ income was above the threshold established for adult defendants.

Basil Russin, chief public defender, acknowledged his office based its decision on the parents’ income, but said the policy was relaxed when it came to juvenile offenders. He said he would only deny an application if a parent’s income was far above the guidelines.

Dyller’s suit, filed on behalf of 23 named plaintiffs and an estimated 1,500 others, seeks unspecified damages to compensate the juveniles for their loss of freedom, as well as their parents for money they were required to pay for their child’s treatment. It also seeks punitive damages against the defendants, except Brulo and Loughney.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.