Former Luzerne County Chief Public Defender Albert J. Flora Jr. has sued the county and county manager Robert C. Lawton in federal court, seeking a preliminary injunction to retain the acting chief public defender position Lawton fired him from on April 17.
The complaint in Flora v. Luzerne County, filed Monday in the U.S. District Court for the Middle District of Pennsylvania, alleges that Flora was let go partially in retaliation for a class action suit he filed last year in which he alleged the county and Lawton showed "deliberate indifference to the funding needs" of the Adult Unit of the Luzerne County Public Defender’s Office.
Monday’s complaint further alleges that Flora’s firing was also done as an attempt "to punish" him for an audit his office recently conducted that found that a number of juvenile records the state Supreme Court had ordered be expunged in connection with the "kids-for-cash" scandal were not being properly removed from the docket.
"The retaliation for speech and for plaintiff Flora’s efforts to fulfill his constitutional, statutory and professional responsibilities creates a profound chill on expression by plaintiff Flora and others within the OPD, sending a message that ‘lack of cooperation’ with the county’s budget choices — however they affect the rights of criminal defendants — will be punished, thereby creating irreparable harm," Monday’s complaint alleges.
‘Underfunded’ and ‘overwhelmed’
On April 10, 2012, Flora filed a 50-page complaint in the Luzerne County Court of Common Pleas, alleging that the county’s failure to respond to the office’s call for increased funding had "led to a grossly underfunded and thus overwhelmed Office of the Public Defender, resulting in the provision of sub-constitutional representation to many indigent criminal defendants and the complete deprivation of representation to many others."
According to the April 2012 complaint, the lack of funds drove the office to institute a policy in December 2011 of denying applications for representation in all cases except those involving homicide, felony sex offenses, extradition, mental health, state parole, county probation/parole revocations, juveniles and incarcerated adult defendants.
On June 15, 2012, Luzerne County Court of Common Pleas Judge Joseph M. Augello ordered the county to work with the Public Defender’s Office to come up with a plan for channeling more resources to the office.
In his opinion, Augello said the U.S. and Pennsylvania constitutions "have ordained that the right to counsel exist as a bulwark against tyranny."
Augello refrained from requiring any specific staffing for the office, instead leaving that to the parties to work out through mediation.
Augello did, however, add that the court would step in and set a mandatory minimum for staffing of the office if the parties were unable to reach an agreement.
Augello also ruled that Flora was not permitted to deny representation to qualified defendants and directed Lawton to provide adequate office space for assistant public defenders to meet with clients.
According to Monday’s complaint, the parties remained in mediation until January 29, at which point the defendants petitioned the court to release the parties from mediation and proceed to trial, which is currently scheduled for June 24.
Monday’s complaint alleges that the OPD lawyers’ caseloads continue to rise despite Flora’s efforts to obtain additional funding and staff.
"On numerous occasions in 2012, counsel in the state court funding action had to intervene to get defendants to respond to plaintiff with respect to issues facing the OPD, even those that did not require any additional allocation of funds," Monday’s complaint said.
‘A New Tension’
On the same day Flora filed the April 2012 class action complaint in county court, he also filed a separate suit against the county in Middle District court, seeking a preliminary injunction barring the county from firing him in retaliation for the county suit.
The April 2012 federal complaint cited remarks made by the county’s interim manager, Thomas Pribula, at a January 2012 budget meeting and first reported by the Wilkes-Barre Times Leader in which Pribula said he believed Flora would sue over lack of funding to the Public Defender’s Office and noted that the county had the power to replace Flora for a "lack of cooperation" if it chose to.
A county council meeting was held April 10, 2012, during which talks turned to whether Flora had been properly appointed public defender under the county’s then-newly-adopted Home Rule Charter, Monday’s complaint said.
Flora, according to Monday’s complaint, had been appointed chief public defender in May 2010, prior to the adoption of the new charter.
According to Monday’s complaint, the recently adopted Home Rule Charter requires the county manager to nominate a chief public defender candidate for confirmation by the county council.
The defendants entered into a stipulation in which they agreed to allow Flora to remain as acting chief public defender until Lawton made a nomination, according to Monday’s complaint.
But Lawton instead proposed in December 2012 that the OPD’s budget be amended to allow for the hiring of a full-time chief public defender, Monday’s complaint alleged.
The county council approved the amendment, which also sought to change Flora’s part-time chief public defender position to a part-time assistant public defender position at the same salary, according to Monday’s complaint.
Flora applied for the full-time chief public defender position and was interviewed, along with five other candidates, last month by a county panel, which subsequently recommended Flora and three other candidates to Lawton, Monday’s complaint said.
Lawton then interviewed Flora, according to Monday’s complaint, but by that time "a new tension had arisen between" the two men.
Flora alleges in Monday’s complaint that he had discovered during a routine meeting with court administrative staff that over 3,000 juvenile adjudications the state Supreme Court had ordered expunged in October 2009 in connection with the kids-for-cash scandal were still on the court docket.
Flora represented former Luzerne County Court of Common Pleas Judge Mark A. Ciavarella Jr. in the criminal case against him.
Ciavarella was convicted of 12 of 39 counts of corruption filed against him, including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges. He was sentenced to 28 years in federal prison.
In October 2009, the state Supreme Court issued a sweeping order vacating nearly all of the records for juveniles who appeared before Ciavarella.
Flora alleged in Monday’s complaint that he brought the docketing issue to the attention of Lawton, the district attorney, the court administrator, counsel who had represented the juveniles before the Supreme Court and Berks County Court of Common Pleas Senior Judge Arthur E. Grim, who the Supreme Court had appointed as a special master to review Luzerne County’s juvenile adjudications.
According to Monday’s complaint, the district attorney wrote to Lawton on March 1 asking the county to take immediate action to remove the adjudications from the docket.
"That day, defendant Lawton berated plaintiff for disclosing the matter to persons outside county administration," Monday’s complaint said.
On March 14, according to Monday’s complaint, Flora told Lawton that Grim had requested the OPD perform an audit of the juvenile records to ensure they were being properly expunged.
"Defendant Lawton berated plaintiff for allowing Judge Grim to direct the function of a county office," Monday’s complaint alleged.
On April 9, according to Monday’s complaint, Lawton asked the county council to approve Steven Greenwald, who had been a part-time ADA, as the new chief public defender and the council complied.
On April 17, Monday’s complaint said, Flora reported to the district attorney and Grim that the OPD audit had found that nearly one-third of the 300 records examined remained open on the docket, while nearly half were still on the docket but marked as "expunged."
At the close of business April 17, Monday’s complaint alleged, Lawton informed Flora that he was being relieved of his duties as acting chief public defender, effective immediately, and that his county employment would end at the close of business April 29.
Flora alleged in Monday’s complaint that this retaliation violated his rights under the First and 14th amendments to the U.S. Constitution as well as the state Whistleblower Law.
Flora also alleged in Monday’s complaint that his firing constituted wrongful discharge under state law.
Counsel for Flora, Witold "Vic" Walczak, legal director for the American Civil Liberties Union of Pennsylvania, said Tuesday that "the complaint speaks for itself."
Lawton also could not be reached for comment at press time.