Third Circuit Tosses Senior Deputy AG's Retaliation Claim

, The Legal Intelligencer


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A former senior deputy attorney general's case alleging retaliation for exposing alleged financial waste has been thrown out by the U.S. Court of Appeals for the Third Circuit.

On Jan. 28, a three-judge panel ruled the suit, filed by Thomas D. Kimmett against the Attorney General's Office and seven named officials, including Gov. Tom Corbett, was barred because the public interest of the whistleblowing was outweighed by the disturbance the suit would cause to the workplace. The decision in Kimmett v. Corbett affirms a ruling by the U.S. District Court for the Middle District of Pennsylvania granting the defendants summary judgment.

Writing for the majority, Judge Patty Shwartz used the balancing test outlined in the U.S. Supreme Court's 1968 decision in Pickering v. Board of Education as the determining factor.

"While the public has a 'significant interest in legitimate whistleblowing,' the extent of the disruption caused by Kimmett's allegations in his lawsuit tilts the Pickering balance in favor of the defendants," Shwartz said, quoting the Third Circuit's 1989 decision in O'Donnell v. Yanchulis.

According to Shwartz, Kimmett was hired as a supervisor at the administrative collections unit within the Attorney General's Office. The unit collects debts owed to state entities, including the Pennsylvania Department of Revenue, and manages contracts with private collection agencies.

Shwartz said Kimmett was hired after the department had uncovered problems in the unit, including inconsistent language in the contacts with outside collection agencies, audit requirements of the collection agencies that were unenforced and inadequate software systems.

Shwartz said Kimmett was expected to manage administrative collections, review and approve settlements with debtors, known as compromises, address the "breakdown in the fund flow" and "modernize the operation." According to Kimmett, Shwartz said, his job was also to identify any problems or improprieties in the operation.

Kimmett claimed he found evidence that employees in the financial enforcement section and the Department of Revenue were allowing outside collection agencies to receive commissions on accounts they did not work on and to withhold interest in the amounts they collected. He said he further found that some employees destroyed some accounting documents, refused to collect on certain fees that were required, approved unjustified debt compromises and authorized an unearned payment of approximately $300,000 to a collection agency, among other things.

According to Shwartz, Kimmett claimed he then raised concerns about the problems within the unit and outside of his chain of command, and further reported his concerns to an assistant U.S. attorney, an FBI agent, an employee at the Pennsylvania Commission on Crime and Delinquency, and the executive director of the Team Pennsylvania Foundation. However, the defendants, Kimmett claimed, ignored the reports.

Officials heading the financial enforcement section and the civil law division, which oversees the administrative collections unit, however, said they were dissatisfied with Kimmett's performance, Shwartz said. The officials said he needlessly rejected compromises, treated the staff harshly and consistently failed to follow protocol when communicating with Department of Revenue employees. The officials, Shwartz said, claimed that as a result of his actions, Kimmett was taken off a software project he had spearheaded and was considered for a transfer out of the unit.

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