Earlier this week a federal district court judge dismissed a high-profile lawsuit against Attorney General Kathleen Kane brought by former employees. But the legal reasoning of Judge Harvey Bartle in dismissing the claims is probably less interesting than his summary of the allegations, which provide a detailed look at an evolving political grudge match between Pennsylvania’s sitting Attorney General and a high level State prosecutor.
I have written about the ongoing legal/political battle between Attorney General Kathleen Kane and former prosecutor Frank Fina before, see http://wp.me/p6DFYU-2g. Judge Bartle’s opinion sheds more light on the origin of this controversy and his ruling resolves, at least temporarily, some of the contentious civil claims being made against Attorney General Kane.
The lawsuit in question was brought by Fina and a few other former employees of the Attorney General’s Office. Fina and the other plaintiffs sued Attorney General Kane claiming she retaliated against them for exercising their right to free speech and defamed them publically. Judge Bartle summarized the factual allegations underlying Fina’s lawsuit, which more or less go as follows:
In 2012, Kathleen Kane announced her candidacy for Attorney General. Around the time she announced her candidacy, allegations that Jerry Sandusky had been molesting children dominated the news. As part of her platform, Kane criticized the OAG’s handling of the Sandusky investigation under Tom Corbett’s leadership. Specifically, she claimed the OAG’s office both delayed charging Sandusky and failed to allocate the appropriate resources to the investigation. As part of her campaign for Attorney General, Kane promised she would “investigate” the OAG’s handling of the Sandusky investigation.
When Kane assumed office in January 2013, Fina (who handled the prosecution of Sandusky) was overseeing a long-running bribery investigation. As part of the investigation, Fina was utilizing an informant named Tyron Ali. Ali had signed a cooperation agreement with the OAG’s office and, in exchange for avoiding prosecution, was recorded offering bribes to various Philadelphia officials. According to Fina’s lawsuit, he immediately informed Kane that she could not oversee the investigation because she had a conflict of interest. According to Fina, the investigation could potentially implicate Joshua Marrow, a friend and former campaign employee of Kane’s.
Kane disagreed with Fina and immediately suspended the investigation. She publically claimed that the investigation run by Fina had improperly targeted minorities and, as such, was discriminatory and could not be prosecuted. For their part, Fina and the other plaintiffs made statements critical of Kane and denying that the investigation was racially motivated or flawed.
Around the same time, Kane began her investigation into the Sandusky prosecution. A report summarizing the inquiry into the Sandusky investigation was completed in May 2014. The same day the report was released publically, Kane made public statements claiming that Fina and the other plaintiffs improperly delayed the prosecution of Sandusky and, as a consequence, Sandusky had an opportunity to molest two additional minors. In response, Fina held a press conference where he maintained that Kane’s investigation was a sham and the report was false.
Fina’s Complaint alleged that in response to his criticisms, Kane launched a retaliatory conspiracy to besmirch his record. Fina claimed that Kane illegally leaked confidential grand jury records from a 2009 grand jury investigation into the former head of the Philadelphia chapter of the NAACP, J. Whyatt Mondesire. That grand jury investigation ended without indictment. Kane believed the grand jury records she leaked proved that it was Fina’s misconduct that resulted in the failed grand jury investigation. The grand jury materials were turned over to Daily News Reported, Christopher Brennan. Brennan, in turn, used the material to write a story accusing Fina of impeding and improperly terminating the investigation into Mondesire.
The problem with leaking confidential grand jury information is that it is illegal. When Fina learned of the leak, he reported it to the Supervising Judge of the grand jury. Fina was then called as a witness into a grand jury investigation into the leak. Before he could testify, however, he was confronted by one of Kane’s employees who, allegedly, attempted to physically intimidate him.
Kane was criminally charged with leaking the grand jury information and is awaiting trial. However, according to Fina’s Complaint, Kane further retaliated against him by kicking off the porn-gate controversy http://wp.me/p6DFYU-2g. In short, according to the Complaint, Kane tipped off reporters that Fina had received pornographic and otherwise inappropriate emails on his work computer. Fina’s Complaint alleged that Kane “selectively” released a portion of emails to emphasize his role in the scandal.
According to the Complaint, Kane also appeared on CNN and suggested that she had uncovered emails to and from state employees that were pornographic, racist and misogynistic. During the interview she suggested that some of the emails contained child pornography, an allegation her office later retracted.
Fina and his fellow plaintiffs alleged that Kane’s conduct in: (1) criticizing the bribery investigation as racially motivated; (2) leaking grand jury material; (3) releasing allegedly improper emails was done in retaliation for their public criticisms of Kane’s performance. According to Fina and the other plaintiffs, this retaliation was illegal and violated their First Amendment rights. Fina and the other plaintiffs also brought claims under state law for defamation.
Judge Bartle dismissed all of the Section 1983 (First Amendment) claims because Kane’s alleged retaliatory conduct was not significant enough to give rise to a lawsuit. For a public official to be held accountable for retaliating against an employee exercising rights protected by the First Amendment, the retaliation must involve a “threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will be immediately followed.” In this case, according to Judge Bartle, Kane’s criticisms of Fina did not involve threats of sanction or punishment. Rather, according to Judge Bartle:
“Fina was not terminated, demoted, disciplined, or subjected to any other adverse employment action as a result of his criticisms of Kane. Instead, he merely bore the effects of a generalized critique of an investigation in which he took part under a former Attorney General.”
Judge Bartle found plaintiffs’ claim that Kane retaliated against them by releasing emails containing inappropriate and pornographic material absurd, holding that “it would defy logic to conclude that Kane violated the constitutional rights of plaintiffs by bringing to light their use of state-owned computers and email systems to exchange pornography.”
Judge Bartle also dismissed the plaintiffs’ claims for defamation, but without prejudice. Having dismissed all of the federal claims for retaliation, Judge Bartle declined to retain jurisdiction over plaintiffs’ claims for defamation. Those claims, presumably, will be brought in state court.
Acknowledging the political back story to the lawsuit, Judge Bartle concluded his opinion by noting as follows:
“In essence, the [plaintiffs’ Complaint] details a long-standing political battle between the Attorney General of Pennsylvania and former high-ranking state officials who served in the administration of her adversaries. The battle has been hard fought and is not pretty. Each party, however, has exercised his or her rights under the First Amendment, and there has been alleged no illegal retaliation giving rise to a claim under Section 1983.”
James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/
Credit: Darastar, Everystockphoto.com