Sukenik v. Township of Elizabeth
131 A.3d 550
| Pa. Commw. Ct. | 2016Background
- Sukenik was hired as Township Manager of Elizabeth Township (July 2012) and terminated by a Board majority on February 4, 2013. He sued under Pennsylvania’s Whistleblower Law alleging retaliation for reporting "wrongdoing" and "waste."
- Sukenik complained that Commissioner/Board President Francesconi repeatedly and unilaterally interfered with police department operations (assignment of investigations, training travel, take-home car) and pressured Sukenik to oppose Chief McNeilly.
- Sukenik raised those concerns to a commissioner, to the township solicitor, at a Police Committee meeting, and in a February 1, 2013 letter to the Board asserting the Board’s actions violated ordinances and laws (Sunshine Act, Civil Rights Act).
- Separately, Sukenik opposed a Board motion for a four-year forensic tax audit, advising it would be extremely costly and an unnecessary waste; the Board later abandoned the audit.
- The trial court granted summary judgment for defendants, finding Sukenik failed to report a statutory "wrongdoing" or actual "waste" as required by the Whistleblower Law; the Commonwealth Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaints about a commissioner s unilateral interference with police operations constituted a report of "wrongdoing" under the Whistleblower Law | Sukenik: Francesconi s unilateral orders violated 1st Class Township Code §1405 and thus were "wrongdoing." | Appellees: §1405 does not prohibit the complained-of conduct; it sets supervisory authority and does not proscribe individual commissioners conduct in the manner alleged. | Held: No wrongdoing — §1405 does not specifically prohibit a commissioner s unilateral interference; complainant must identify a statutory/regulatory prohibition. |
| Whether Sukenik s February 1, 2013 letter alleging various illegalities (Sunshine Act, Civil Rights Act) included a report that his exclusion from an executive session violated the Ordinance | Sukenik: The letter reported violations of ordinances and laws, including the manager s right to attend meetings, so exclusion from executive session was "wrongdoing." | Appellees: The February 1 letter addressed interference with police operations, not exclusion from executive session; the Ordinance language is ambiguous as to executive sessions. | Held: No — the letter did not report exclusion from executive session; even if it did, the Ordinance is ambiguous and does not clearly proscribe the conduct as required for "wrongdoing." |
| Whether opposition to a proposed four-year forensic tax audit constituted a report of "waste" under the Whistleblower Law | Sukenik: He warned the audit would be a substantial and unnecessary waste of taxpayer funds. | Appellees: "Waste" requires an actual substantial loss, misuse, or destruction of funds; the audit was never performed so no loss occurred. | Held: No "waste" — hypothetical or anticipated loss is insufficient; because the audit was abandoned there was no actual loss. |
| Whether summary judgment was appropriate where Sukenik failed to identify a specific statutory/regulatory prohibition or actual loss | Sukenik: He made good-faith reports and was terminated in retaliation. | Appellees: Plaintiff failed to report a legally cognizable "wrongdoing" or "waste" as defined; therefore the Whistleblower claim fails as a matter of law. | Held: Summary judgment affirmed for defendants — plaintiff did not establish essential elements of a whistleblower claim. |
Key Cases Cited
- Pyeritz v. Commonwealth, 32 A.3d 687 (Pa. 2011) (summary judgment standard/review of WHL claims)
- O'Rourke v. Commonwealth, 778 A.2d 1194 (Pa. Cmwlth. 2001) (WHL requires report of wrongdoing/waste before retaliation)
- Gray v. Hafer, 651 A.2d 221 (Pa. Cmwlth. 1994) (report must identify law allegedly violated; vague complaints insufficient)
- Evans v. Thomas Jefferson Univ., 81 A.3d 1062 (Pa. Cmwlth. 2013) (conduct complained of must be prohibited by law to constitute "wrongdoing")
- Riggio v. Burns, 711 A.2d 497 (Pa. Super. 1998) (regulatory language too general/vague cannot support a WHL "wrongdoing" claim)
- Banks v. Board of Commissioners of Upper Moreland Township, 298 A.2d 923 (Pa. Cmwlth. 1973) (First Class Township Code vests supervisory power over police with Board)