A prosecutor who went public with allegations that the district attorney had covered up a political corruption probe has no First Amendment protection because his comments were made in his official capacity, a Western District judge has held.

Chief Judge William Skretny (See Profile) yesterday dismissed a complaint that Mark Sacha, an assistant Erie County district attorney for 22 years and the office’s chief public corruption prosecutor for a decade, brought against District Attorney Frank Sedita III.

Sacha had spearheaded an Election Law probe, prior to Sedita taking office in 2009, that resulted in a candidate for county executive pleading guilty to misdemeanors.

Two days before Sedita took over, Sacha provided the district attorney-elect with a memo and supporting exhibits documenting “numerous instances of Election Law and Penal Law crimes” by other political figures, including the chairman of the Erie County Democratic Committee, records show.

The party chairman, G. Steven Pigeon, is a close political ally of Sedita and Sedita’s father, retired Supreme Court Justice Frank Sedita Jr., according to Sacha’s complaint.

On Jan. 2, 2009, Sedita’s first business day in office, Sacha was demoted.

Sacha contends that over the next several months he was subjected to a “campaign of harassment” by the Sedita administration, stripped of a county car and denied leave.

In September 2009, Sacha issued a statement to the press disclosing the gist of his prior memo to Sedita and alleging that the district attorney has “given a pass to a political supporter and friend” and “used the power of his office to demote me, remove me and effectively end the investigation.”

Sacha was fired five days later, and responded with an action alleging violations of his First Amendment rights and the state’s whistleblower statute.

Skretny said that in order to sustain a §1983 First Amendment retaliation claim, Sacha would have to prove that he spoke as a private citizen on a matter of public concern.

“Here, there is no question that the subject matter of plaintiff’s speech, allegations that Defendant intentionally failed to prosecute Election Law violations by a political ally, is one of public concern,” Skretny wrote in Sacha v. Sedita, 09-cv-1119.

However, Skretny said the case turned on whether Sacha spoke to the media as a private citizen or government employee.

Sacha’s comments “would appear at first blush akin to a letter to a newspaper, an activity engaged in by citizens who do not work for the government,” Skretny said. “The mere fact, however, that Plaintiff repeated his previous privately expressed concerns in a public forum does not, by itself, bring his statement within the protective scope of the First Amendment… The Court finds that Plaintiff spoke to the press in his capacity as an assistant district attorney, and therefore his statement to the press is not entitled to the protection of the First Amendment.”

Skretny said that any other conclusion “would vitiate a district attorney’s ability to control public statements by assistant district attorneys regarding criminal investigations.”

Sacha’s whistleblower action was brought under New York Civil Service Law §75-b. However, Sacha did not file notice, as required, and instead argued that notice was not required because he was suing Sedita in his individual capacity.

“This argument appears nonsensical, as it directly contradicts Plaintiff’s further assertion that Defendant is subject to suit because, in his official capacity as the District Attorney of Erie County, defendant is a ‘public employer’ within the meaning of Civil Service Law §75-b,” Skretny wrote.

Sedita was represented by Adam Perry and Joseph Brown of Hodgson Russ in Buffalo.

Brown said the U.S. Supreme Court’s 2006 holding in Garcetti v. Ceballos, 547 U.S. 410 (2006), left no doubt that Sacha could not prevail on a First Amendment claim if the statement at issue was made pursuant to his role as a public employee.

Garcetti, decided in a 5-4 opinion, involved a prosecutor in Los Angeles who was denied a promotion after publicly questioning the legitimacy of a warrant. Justice Anthony Kennedy, writing for the majority, said the First Amendment does not shield employees from discipline for statements made pursuant to their professional duties.

“The courts have persistently held that a statement made pursuant to an employee’s job duties is not entitled to First Amendment protection,” Brown said. “Here the district court simply followed the clear trend in the case law.”

Sacha was represented by Lucinda Odell Lapoff and Matthew Fusco of Chamberlain D’Amanda Oppenheimer & Greenfield in Rochester. Lapoff said she is still reviewing the decision.