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Thomas J. Nolan v. Lackawanna County

August 25, 2011


The opinion of the court was delivered by: William W. Caldwell United States District Judge


I. Introduction

We are considering a motion for summary judgment filed by the defendants, Lackawanna County, Pennsylvania, Corey O'Brien, and Michael Washo. This matter relates to plaintiff's, Thomas J. Nolan, dismissal from his position as Conflict Counsel with the Public Defender's Office of Lackawanna County. After his termination from employment, Nolan brought the instant action alleging, among other things, political patronage discrimination and wrongful discharge. Defendants argue that no reasonable jury could find for the plaintiff because he has failed to proffer any evidence showing discrimination.

We will examine the motion under the well-established standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir. 2008). After careful review of the briefs and the record, we will deny the motion in part and grant in part.

II. Background

This case concerns a series of political changes that occurred in Lackawanna County, Pennsylvania following the election of 2007. Defendants O'Brien and Washo were running against the two incumbent county commissioners, Robert Cordaro and Anthony "A.J." Munchak. Cordaro and Munchak were members of the Republican Party. (doc. 22, ¶ 5.) During the campaign, O'Brien and Washo received numerous complaints about the Public Defenders Office and indigent representation within the county. (doc. 22, ¶¶ 40-42.) Both defendants learned that the complaints focused on a variety of areas, such as full-time defenders working part-time and judges being unable to contact attorneys in the Public Defender's Office. (doc. 22, ¶ 41.) Some members of the Lackawanna County judiciary complained that the Defender's Office was in turmoil, and that indigent defendants were not getting proper representation. (doc. 22, ¶¶ 41-42.)

After winning the election, O'Brien and Washo decided that a total reorganization of the Public Defender's Office was needed to ensure that the office was run more effectively. (doc. 22, ¶ 45.) The defendants were also facing an eight million dollar budget shortfall. (doc. 22, ¶ 43.) After consulting a team of experienced attorneys, including the former Chief Public Defender, the defendants decided to eliminate certain positions, including the plaintiff's, ostensibly because of ethical and budgetary considerations. (doc. 22, ¶¶ 48-59.) After meeting with the consulting team on December 14, 2007, O'Brien and Washo formulated and approved a restructuring plan that eliminated plaintiff's "Chief Conflict Counsel" position and transferred the savings to the Public Defender's budget. (doc. 22, ¶ 67.) Defendants set an application deadline of January 14, 2008 for those interested in positions in the office. (doc. 22, ¶ 69.)

During this time, plaintiff was still operating as Conflict, or Chief Conflict, Counsel in the office. Nolan had been in his position following the election of 2003, when he was passed over for the Chief Public Defender position. (doc. 22, ¶¶ 13-14.) The "Chief Conflict Counsel" position was created, allegedly, as a political favor by Cordaro. (doc. 22, ¶ 14.) The position was not advertised, and it carried a salary equivalent to that of the Chief Public Defender. (doc. 22, ¶ 15-18.)

After the defendants initiated their plan, Nolan applied for a position in the office as a Conflict Counsel. (doc. 22, ¶ 70-73.) He was not hired, and his position was eliminated in January of 2008 soon after he submitted his application. (doc. 22, ¶ 86.)

III. Discussion

A. Legislative Immunity

The individual defendants argue that the claims against them should be dismissed because they are entitled to absolute legislative immunity. The doctrine of legislative immunity grants to legislators absolute immunity for their legislative acts. Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 773 (3d Cir. 2000). In determining whether an official is entitled to immunity, we focus on the nature of the action rather than the "official's motives or the title of his or her office." Id. To this end, the Third Circuit employs a two-part test in determining whether an act is legislative. Id.

at 774. First, the action must be "substantively" legislative. Essentially, a legislative act is one that involves policy-making decisions, "or, to put it another way, legislation involves linedrawing." Id. Second, the action must be "procedurally" legislative-passed by means of an established procedure. Id.

Here, the individual defendants are Lackawanna County Commissioners who were tasked with adopting the County's budget. The act of voting for and approving a budget where certain public employee positions are eliminated is legislative in nature. See Gallas, 211 F.3d at 775 (citing Bogan v. Scott-Harris, 523 U.S. 44, 47, 118 S.Ct. 966 (1998); see also Brominski v. County of Luzerne, 289 F.Supp.2d 591, 594 (M.D. Pa. 2003). Accordingly, defendants O'Brien and Washo are entitled to absolute legislative immunity for their actions of preparing and approving the Lackawanna County budget, and we will dismiss them from the case. However, municipalities are not protected by legislative immunity, ...

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