3 fired employees can sue McFalls, judge says

Friday, November 01, 2002 By Marylynne Pitz, Post-Gazette Staff Writer

Three court employees who were fired after complaining that their boss abused alcohol can pursue a lawsuit against former Allegheny County Common Pleas Judge H. Patrick McFalls, a federal judge ruled yesterday.

James Joseph and Barbara Joseph, the judge's former law clerk and secretary, sued McFalls last year in U.S. District Court. The Josephs claim McFalls violated their First Amendment rights by retaliating after they reported his misconduct.

Senior U.S. District Judge Maurice B. Cohill Jr. ruled that the Josephs and John Jakomas, a tipstaff who was fired, have a valid First Amendment claim for retaliation.

The judge rejected McFalls' request that the lawsuit be dismissed.

The Josephs and Jakomas will have to prove that their remarks to McFalls' superiors focused on "a matter of public concern" and that their comments were protected under the First Amendment.

McFalls, 59, of Shadyside, resigned from the bench in September to avoid trial in the Court of Judicial Discipline on 39 charges of misconduct.

He was accused of being drunk on the job, disrobing in public and failing to handle his caseload in a timely fashion.

Cohill also ruled that Allegheny County cannot be held liable for the former judge's conduct because the Josephs and Jakomas were members of McFalls' personal staff.

Under state law, Cohill noted, "only a judge has the authority to hire, supervise or discharge such employees."

"We have no difficulty deciding, under Pennsylvania law, that Judge McFalls was not acting as a policy-maker for the county when he discharged his staff. Judge McFalls' authority to hire, supervise and discharge his personal employees came from the Pennsylvania Supreme Court. It did not --and could not -- come from the county because the county has no policymaking authority over the Pennsylvania courts," Cohill added.

Samuel J. Cordes, a lawyer for the Josephs and Jakomas, said that if his clients win, the state of Pennsylvania would be required to pay any financial damages.

Under state law, Cordes said, Pennsylvania must indemnify McFalls for any actions he took during the course of his official duties. The state does not indemnify employees who commit fraud or willful misconduct in the course of their duties.

The state Supreme Court has held that Pennsylvania must pay judgments for punitive damages against state employees who were acting in the scope of their official duties, Cordes added.

"He fired them in violation of their First Amendment right to speak on matters of public concern. That's what this case is about. They spoke privately on matters of public concern. The uproar that happened afterwards is not their fault," Cordes said.

Last summer, McFalls testified about his battle with alcoholism before the Court of Judicial Discipline and said he was ready to return to work.

"We'll be taking depositions to verify some of the statements he made there under oath," Cordes said, declining to elaborate.

George Janocsko, acting county solicitor, praised Caroline Liebenguth, who he said argued persuasively for the county.

"We're very pleased with this decision concerning Judge McFalls. We have this responsibility to fund the courts as part of the unified judiciary. But we really can't dictate hiring and firing decisions that are made by individual judges," Janocsko said.

"The judge accepted our position that, in fact, we had no control over Judge McFalls and therefore the county can't be held accountable for his actions."

Robert O. Lampl, a lawyer for McFalls, said yesterday that a key factor in the case will be proving that the Josephs and Jakomas were confidential employees of McFalls.

"If we do, there's no case. What could be more confidential than a judge's law clerk, secretary and tipstaff? These are persons who have to deliberate and not express it to the public. They're dealing with serious matters," Lampl said.