Family ties still factor in county court hiring
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The three most recent hires in the Allegheny County Court of Common Pleas Criminal Division all have family ties in the system.
And one of those employees, hired as a law clerk, does not have a law degree -- something usually considered a standard prerequisite for the job.
The new tipstaff hired by President Judge Donna Jo McDaniel in November is the nephew of her best friend, Helen Lynch, who recently left her position as criminal court administrator.
A new minute clerk hired in October is the fiancee of Family Court Judge John T. McVay Jr.
And the new law clerk hired in September by Judge Kelly Bigley is the wife of the judge's former law clerk.
It has long been said that when it comes to getting jobs in Allegheny County, it's all about who you know. In the courts, family ties are everywhere. A story in the Post-Gazette less than a year ago documented at least seven judges who have relatives working in the system.
Judge McDaniel, who holds the highest position in the judiciary as president judge, has two daughters and two sons-in-law working in the court system.
She didn't return messages seeking comment for this story.
Judge Jeffrey A. Manning, the administrative judge for the criminal division, defended all of the hires, saying that for two of the positions -- law clerk and tipstaff -- it is a personal and confidential employee of the individual judge.
That means, he said, the judge can hire whomever she wants.
"Each judge has a right under the statute to three employees of their choice," he said. "I would never presume to question their right to do that."
Judge Manning went on to justify the idea of hiring a close friend or relation for jobs like secretary, tipstaff or law clerk.
"Those are the people closest to that particular judge, and whom they choose to rely on," he said. "People tend to hire people they know because they think they can trust them.
"We are 43 separate fiefdoms in the system."
But ethics experts argue that that's not how it should be, and instead that the public relies on its courts to uphold the highest standards.
"It really comes down to the perception," said Sam Stretton, a defense attorney in the Philadelphia area and expert in judicial ethics in Pennsylvania. "How does this look to the public?"
Judge McDaniel would not respond to questions on the hiring of Matthew Taylor to be her new tipstaff.
The judge's discretion
Helen Lynch, who now sits on the Allegheny County Board of Viewers, defended Judge McDaniel in the hire.
"Are you guys going to start on her again?" she asked. "This is a story I'm tired of."
When asked what qualifications her nephew had for the position, she said: "What do you have to do to be qualified to say, 'All rise,' and swear in a jury?"
Ms. Lynch went on to say that judges have discretion when it comes to hiring their personal staff members.
And under county rules, that's true. According to court administrator Claire Capristo, there is no written job description for any of the three personal staff positions a judge has.
That means there is no written requirement that a law clerk be a lawyer either.
Teri Michaels, hired as Judge Bigley's law clerk on Sept. 24, earns $3,332 per month. Benefits for the position would cost the county about $16,000 annually.
Her husband, Michael Foglia, served in the position before her.
Mr. Foglia also works as a criminal defense attorney. Under a state Supreme Court rule issued several years ago, anyone working as a law clerk in the Common Pleas Courts may not also practice in the same division. When the judge was reassigned to criminal division over the summer, it meant that Mr. Foglia would either have to stop practicing criminal defense law or stop working as her law clerk. He is still practicing, and now his wife, who formerly worked as a paralegal and helped run Mr. Foglia's office, is the law clerk.
Mr. Foglia did not return messages seeking comment.
Mr. Stretton criticized the hire as well as the court administration for not stopping it.
"She's paying someone for a job that she's not capable of doing. It can only be performed by a lawyer," he said. "If she doesn't need a law clerk, then she shouldn't be wasting public money."
Mr. Stretton characterized the hire as "subterfuge."
"It's pretty clear, you hire someone's wife who's not a lawyer, what you're doing. ... It's not right. It looks bad, and I don't see why your judges don't see it."
Judge Bigley would not speak about the situation.
When asked if it appears the couple is attempting an end run around the rules, Ms. Capristo would not answer. Nor would Judge Manning.
A check with the state licensing database revealed that all but one other law clerk listed with the county are attorneys.
One of them, the law clerk for Family Division Judge Kim D. Eaton, instead holds a master's degree in education.
Judge Eaton said she hired Megan Malone as her law clerk, knowing that a law degree or license wasn't required. "I don't need someone to run and tell me the portions of the law," Judge Eaton said. "I need a paralegal to pull together information."
The judge, who practiced family law for more than 18 years, writes her own opinions and does the bulk of her own research. It might be different if she moved to another division, she said.
Ms. Malone is the daughter of Judge Eaton's best friend and former law partner.
"It's the judge's discretion to have at their disposal what they think they need," Judge Manning said. Typically, Mr. Stretton said, a law clerk's job includes legal research, drafting opinions, advising on evidentiary matters and serving as a sounding board for legal issues.
"A law clerk is an important position," he said. "The judge already has a tipstaff. They don't need someone else to look out for them."
Judge Manning said that hiring Ms. Michaels is solely Judge Bigley's prerogative.
"Would it be better that all law clerks be lawyers? I'm sure it would," he said. "It's her hire. You don't have any ethical violation. You don't necessarily have a moral violation, and you certainly have no legal violation."
But Mr. Stretton isn't so sure.
"She has someone on the payroll who can't do the job. It's public money," he said. "It's a crime to misuse public money."
Why the courts are exempt
Although the court employees work for Allegheny County, county officials have no oversight over them, said spokeswoman Amie Downs.
They also do not fall under the county's merit hiring system. Under the Allegheny County administrative code, the courts are exempt, primarily because officials did not want one branch telling another what to do.
The only way to change that, and enforce a merit hiring system, would be for County Council to amend the code.
The Administrative Office of Pennsylvania Courts also has no jurisdiction, saying hiring practice falls to the individual county's president judge.
Cynthia Gray, director of the American Judicature Society Center for Judicial Ethics, said the American Bar Association's 2007 Model Code of Conduct spells out recommendations against nepotism and encourages merit hiring. But the model code is not enforceable. Only rules issued by individual states would be.
The Pennsylvania judicial conduct code states that judges "should not make unnecessary appointments. They should exercise their power of appointment only on the basis of merit, avoiding favoritism. They should not approve compensation of appointees beyond the fair value of services rendered." But the code is enforceable only via formal complaint with the Judicial Conduct Board.
Janine Palmer, Judge McVay's fiancee, was hired Oct. 22 at a salary of $3,442 per month. Judge Manning said there were 20 candidates for the job, and the top three were interviewed. When he found out that Ms. Palmer was Judge McVay's fiancee, he recused himself, but said that the other two people responsible for hires -- Ms. Lynch and the criminal court manager, Harry Lorenzi -- agreed she was the best candidate.
Judge McVay, whose sister-in-law works as his judicial secretary, said he recommended Ms. Palmer for the job because he thought she'd be good at it.
"Yes, she's my fiancee, but I strongly feel she's very good with the public." He said he expects Ms. Palmer to be treated like any other employee.
Judge Manning said he follows the same hiring process in every case, even if candidates are recommended by other judges or public officials. The job was posted, as is required by the county, online and through the court system's intranet, Ms. Capristo said.
Ms. Gray said that it's important that the most qualified person be hired for all positions.
"If, instead, a hiring decision is made based on something like a family connection, the quality of court staff could diminish."
She noted, too, that a judge may be reluctant to discipline an employee who is related, which could create morale problems with other staff members.
"Conversely, family problems could spill over into the workplace, distracting everyone from the administration of justice."
First Published December 16, 2012 12:00 am