On August 11, 2008, former Deputy Attorney General Thomas D. Kimmett filed a civil rights complaint in U.S. Middle District Court claiming violation of his constitutional rights by Tom Corbett and his lieutenants. Kimmett charged that he had been stonewalled in his attempts to identify and correct systemic abuses in the Office of Attorney General’s (OAG) Financial Enforcement Section.
On March 3, 2009, Kimmett filed a Second Amended Complaint asserting a First Amendment retaliation claim under 42 U.S.C. § 1983, as well as claims of defamation and state law Whistleblower violations against his former employer, the Pennsylvania Office of Attorney General (“OAG”), its agents and officials. The case is in the Federal District Court for the Middle District of Pennsylvania. The parties to the case have briefed their objections to the Report and Recommendation that the Magistrate Judge issued in this case on June 24, 2011.
Federal Magistrate Thomas M. Blewitt’s logic for recommending dismissal is an extraordinary exercise in legal gymnastics. Judge Blewitt found Kimmett’s case was developed through documents, personal testimony and record keeping, and OAG defendants’ deposition testimony, which demonstrated sufficient evidence of fraud, waste, and wrongdoing on matters of public concern to survive the various legal challenges raised by OAG’s lawyers.
However, Judge Blewitt concluded that because Mr. Kimmett held a high-level position, OAG’s interest in “efficient operations” outweighed Kimmett’s right to speak on these matters of public concern. (102) (“Plaintiff’s relentless campaign against alleged fraud, mismanagement and wrongdoing in the OAG undisputedly impaired the Office of Attorney General’s interest in the efficient operations….”) 
Despite evidence contained in numerous Depositions, Judge Blewitt reached a number of other conclusions and rejected a number of the OAG Defendants’ arguments. First, the Magistrate Judge concluded that Mr. Kimmett’s speech – which “repeatedly addressed his concerns about the FES [Financial Enforcement Section] and OAG, and about the alleged mismanagement, fraud and wrongdoing” dealt with matters of public concern.
Judge Blewitt concluded that Kimmett “specifically identified” speech that addressed those issues. Because Kimmett occupied what the Magistrate Judge concluded to be a “sensitive, confidential policy making position” at OAG, Kimmett’s speech which “challenge[d] the integrity and judgment of [his] superiors” was not entitled to First Amendment protection.
In other words, the higher up you climb in the Attorney General’s Office, the less protection you are afforded to call out waste, fraud and corruption.
The Magistrate found, “We agree with Defendants that Plaintiff has failed to demonstrate that his interest in the speech did not outweigh “any potential disruption of the work environment and decreased efficiency of the [OAG]”.
David Wachtel, a Washington D.C. based civil rights attorney with extensive experience representing “Whistle blowers”, not involved in the Kimmett case, commented. “Employee-whistleblowers can be effective in fighting waste, fraud, and abuse of authority because employee-whistleblowers frequently have firsthand knowledge and know what they are talking about.”
Wachtel added, “That’s why cases like Kimmett v. Corbett are important. Thomas Kimmett was inside the collections system and alleges he saw higher-level management condone practices that made the State’s collections process ineffective. Mr. Kimmett, as an accountant and attorney, had the education and experience to understand and describe what he saw.”
Wachtel said, “Decisions like the magistrate’s report and recommendation in Kimmett make it even more difficult for employees to expose corruption without losing their jobs. The magistrate has recommended that the Court rule that the First Amendment of the United States Constitution does not protect ‘policymaker’ employees who expose corruption, and that Mr. Kimmett was a policymaker.”
Mr. Wachtel concluded, “’Policymaker’” is not the first word that one would associate with the supervisor of the six-member Administrative Collection Unit – Mr. Kimmett’s real job title. Although courts have rejected several First Amendment cases brought by Pennsylvania Deputy Attorney Generals – Mr. Kimmett’s official title – Mr. Kimmett’s lawyers make a credible argument that the “policymaker” distinction does not apply to corruption cases – because no policy can favor corruption.”
Kimmett’s legal case rests on technicalities as to whether his firing was the result of a whistle blower action as well as a violation of his First Amendment rights.
The District Court Judge must resolve that argument before the case can go forward. The case is still pending. The Kimmett saga of the fraud and possible cover-up presents a live grenade for Corbett’s public-private army, and a stark warning to would-be whistleblowers in the Corbett Administration.
Photo by wallyg
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