The Pennsylvania Code of Judicial Conduct was adopted by the state Supreme Court in 1974, and since 2010, the Court has required all judiciary employees to report misconduct. Recently, the Commonwealth Court heard arguments about whether the Pennsylvania Whistleblower Law protects judiciary employees who report unethical conduct from adverse employment actions by their superiors. All seven justices were present for the hearing.
The plaintiff was a Washington County juvenile probation officer who alleged unethical practices in his department. He first reported the misconduct to the Administrative Office of Pennsylvania Courts (AOPC) anonymously. An investigation by the AOPC found no wrongdoing. The plaintiff sent a second letter to the AOPC investigator in which he identified himself as the person who sent the anonymous complaint. He alleges that his identity was leaked to his superiors who then took retaliatory actions against him and eventually terminated his employment.
When the plaintiff sued, his case was dismissed on the grounds that he was not protected by the Whistleblower Law. He appealed the ruling. His attorney argued before the Commonwealth Court that the plaintiff was entitled to sue for wrongful discharge under the Whistleblower Law because the Code of Judicial Conduct contains a reference to it.
The Commonwealth Court has ruled against plaintiffs in similar cases twice before. Lawyers for the defendants argued that this case should also be dismissed because they are entitled to immunity and because the reference to the Whistleblower Law in the Code of Conduct does not expand the scope of the law to the judiciary branch. In essence, the judiciary cannot write itself to be included in a law.
Additionally, the defendants’ attorneys maintained that the state legislature did not intend for the law to include the judiciary and that any attempt to do so would violate the separation of powers.
The plaintiff’s lawsuit made a second claim that his firing violated public policy, which made it illegal, although he was an at-will employee. An exception to at-will employees being fired for any reason at any time is if the termination violates a clear mandate of public policy. His lawyer argued that even if the dismissal of the whistleblower claim is upheld, his second claim should be permitted to go forward. The plaintiff’s argument was that the Supreme Court demonstrated its ability to create public policy by creating the Code of Judicial Conduct and therefore, the Whistleblower Law applies.
Lawyers for the defendants told the court that the conduct code is not public policy and does not contain exceptions for the at-will employment doctrine. Exceptions can only come from the Constitution, a judicial decision, or regulations. The Court has yet to decide on this issue.
If you are an employer who needs additional information about whistleblowing, an experienced employment attorney at MacMain, Connell & Leinhauser can help. Contact us at 484-318-7106 or submit an online inquiry form.