Environmental Law

Bombshell Decision Holds DEP Staffers Personally Liable for Civil Rights Violations

By Joel Bolstein

In a decision released late last week, a federal jury in Philadelphia held four PADEP staffers personally liable for a total of $6.5 million for violating Section 1983 of the Civil Rights Act and intentionally interfering with prospective contractual relations under Pennsylvania law.  The jury verdict was posted on Dave Hess' daily blog and that is the only place I have found a link.  It is an incredible case that has far-reaching implications for the Department, regardless of any action taken on appeal.

The case is MFS, Inc. v. Thomas A. DiLazaro, et al.  The plaintiff in the case, MFS, had owned and operated a mineral wood manufacturing facility in Bethlehem.   The defendants in the case, four PADEP staffers in the Northeast Regional Office in Wilkes-Barre, included Thomas DiLazaro (the former regional air program manager), Sean Robbins (a current assistant regional counsel) , Mark Wejkszner (the current regional air program manager), and Mike Bedrin (the current regional director).   I found the facts of the case reported in an August 3, 2009 Order and Opinion issued by Federal Judge Joel Slomsky in Civil Action No. 08-2508.   The Order and Opinion related to a Motion to Dismiss filed on behalf of the PADEP employees. 

As reported in the Opinion and Order, the facts can be summarized as follows.  In November 2001, there were allegations of malodors in the area of the MFS facility.  A Field Enforcement Order was issued on January 24, 2003 at 5:00 pm on a Friday evening and required a response from MFS by the next business day.   On January 28, 2003, MFS began phoning their local state legislators complaining about the actions of the PADEP staff.  On February 21, 2003, a local state representative sent a letter to the Department expressing concern about the Department's actions.  On February 24, 2003, MFS appealed the Field Enforcement Order to the Environmental Hearing Board.  During a telephone conference on the appeal, Judge Krancer questioned Sean Robbins about issuing the Order at 5:00 on a Friday, he stated that such actions evidenced hostility, he cautioned Mr. Robbins that he should not take similar actions in the future; and he stated that the regional air program staff were acting like "little children".  

Soon after MFS complained to its local legislator, the Department began issuing NOVs to MFS.  Between February 5, 2003 and February 24, 2004, MFS received thirteen NOVs, ten of which were based on a single complainant (even though Department policy required three residences to complain simultaneously before an NOV could be issued).  MFS alleged in its suit that the series of NOVs were in retaliation for MFS exercising its First Amendment rights and petitioning the government for redress of its grievances.   The operations manager for MFS alleged that Mr. DiLazaro said in a meeting that he was "pissed off" at MFS for "going over his head", and he made that point by pounding a table with his fist.  MFS complained that the Department was aware of other potential sources of malodors in the area, including a local sewage treatment plant, but it only took enforcement action against MFS.   MFS ultimately ceased operations as a result of its inability to obtain a Title V permit.  The company needed to use an alternative testing method.  It was able to get a consent decree with US EPA, but the Department filed objections.  The company asserted in its suit that the Department was unfairly prejudicing the company and preventing its reopening (it had shut down without the permit in 2006) or sale.  The company asked for and was given a meeting with the DEP Secretary  on December 17, 2007.  Subsequent to that meeting, the facility got a draft Title V permit from the Department with 91 conditions.  It objected to two of the conditions.  The company complained that one condition allowed the Department to shut down the facility without due process.  It also argued that another condition was inconsistent with the Consent Decree with EPA.   In March 2008, without a resolution on its permit issues, the company sold its machinery, liquidated its assets and brought suit against the four employees.

I recite these facts without knowing the truth or accuracy.  I have lifted them out of the opinion and order on the Motion for Summary Judgment and I've made no attempt to interview any of the parties involved to get their sides of the story.  What I know is that the case was allowed to go to the jury and the jury returned a verdict finding that the four named Department employees (1) violated MFS's right to not be retaliated against for exercising their First Amendment rights; (2) violated MFS's right to due process; (3)  violated equal protection by treating MFS differently than similarly situated corporation; and (4) intentionally interfered with a contractual or prospective contractual relationship.  Most importantly, the jury found that each of the four Department employees acted outside the scope of their employment.   In finding that the Department employees acted outside the scope of their employment, the protection generally accorded by the doctrine of sovereign immunity or qualified governmental immunity was removed.  In the end, the jury awarded MFS $6.5 million, and imposed personal liability on the four Department employees as follows:  $2.6 Million owed by Thomas DiLazaro, $1,625,000 owed by Mike Bedrin, $1,625,000 owed by Sean Robbins, and $650,000 owed by Mark Wejkszner.

Since the verdict was announced, there have been a flurry of emails and phone calls exchanged between members of the Pennsylvania environmental bar.   Most of the conversations I've had with my fellow members of the bar start with "Holy Sh*t, did you see the decision that came out last week."  People inside and outside the Department are in shock.   In my view, the most likely effect of the jury verdict on the Department will be a stampede for the doors by senior managers nearing retirement age.  Who wants to work in a Department where your actions on permits or enforcement decisions could subject you to personal liability?  Think of the practical issues for the employees.  Do they have to report this verdict to the credit agency if they are applying for a loan?  How on earth would a state employee pay a million dollar judgment out of their own pocket?  If the decision is allowed to stand, I see paralysis and inactivity.  What manager is going to want to get involved in any controversial permit or enforcement action?  Who is going to want to take a call from a state legislator when any action they take against a company after that could be seen as retaliation.  I can remember a number of situations from when I was Deputy Secretary where an individual or company violated the law repeatedly, was warned repeatedly, and then issued an enforcement action.  After that, I'd get a call from an angry state legislator saying the action was unfair and wanting me to do something.  I'd make a few calls out to the regional office, get the facts, and then call the legislator back and explain that his constituent really was a bad guy, who acted with knowing disregard to instructions from the Department, and who deserved to be the subject of the enforcement action. In those circumstances, in the future, what happens if word goes back to the regional office after that phone call to continue taking enforcement action to compel compliance?  Would that subject the Deputy, the regional director, and others in the enforcement chain to a claim of retaliation under Section 1983 of the Civil Rights Act?  

I see this verdict as having repercussions far beyond PADEP.  The same logic can be applied to any Commonwealth or local Agency with permitting and enforcement authority.  I've had lots of clients complain about permit writers or inspectors from any number of County Conservation Districts.  Would those employees now potentially be defendants in a Civil Rights Action if they take action to shut down a job site or repeatedly issue NOVs, perceived as harassing the developer?  In the past if a client complained about unfair treatment, I'd try to resolve it through cooperation and negotiation with the agency.  Now, I would expect some clients to want to drop the nuclear bomb by filing a Civil Rights suit.  

I understand that motions are now pending before the judge to overturn the verdict.  I'm told the Department feels very strongly that the Judge made an error in allowing the case to go to the jury and not finding ahead of time that sovereign immunity or qualified immunity barred any damages.  Regardless of what happens on the post trial motions or on appeal, there is now a fear of prosecution permeating the Department.  As noted above, this case will inevitably lead to paralysis and delay.  Some PADEP employees will inevitably ask themselves "what is the point of making decisions, when the regulated party can go ahead and file a Civil Rights claim if they don't like the decision?"  

I don't like to second guess juries.  I'm sure they were trying to do a conscientious job with the information that was put in front of hem.  With that said, I know Mike Bedrin and Sean Robbins.  I've worked with them on many projects both when I was in the Department and after I went back into private practice.  Mike Bedrin is a former PADEP Chief Counsel who went back to Wilkes-Barre to run the regional office.  He is highly ethical and an excellent lawyer.  As far as I can tell from the Opinion and Order on the Motion for Summary Judgment, Mike Bedrin's only involvement in this matter was in reviewing a memorandum before it was submitted to the Secretary prior to the meeting between the Secretary and MFS.  After the meeting, Mike Bedrin is alleged to have forwarded a draft of the conditional Title V permit to MFS with the 91 conditions, two of which were objectionable to MFS.  For those actions -- reviewing a memorandum and forwarding a draft permit -- he was held liable to the plaintiffs for $1,625,000.  I find that hard to comprehend.   Sean Robbins is an excellent attorney.  I've always found him to be reasonable.   He too was held personally liable for $1,625,000.  How did the jury come up with those numbers?

Is it possible that the Department acted inappropriately in repeatedly issuing NOVs based on a single complainant?  Is it possible that the air program manager went too far in pounding the table and objecting to the company complaining about the manner in which it was treated?  In the many years that I spent either working at the Department or working with them when I was back in private practice, I'd have to say that I've seen situations where people may have gone too far.  Things can get heated.  Buttons can be pressed.  And it is only human nature to take things personal sometimes.  I don't know what happened in this situation, but I'm very worried about the implications for future Department actions.  I'm worried about my friends still working within the Department and the possible exposure they may have if this jury verdict stands.  I'm worried that a Department where morale is already low because of budget cuts, pay freezes, hiring freezes, travel freezes, and lack of training budgets, will become adversely affected by the fall-out from this jury verdict.  It is not in anyone's interests to have Department employees living in fear of a Civil Rights claim.    A slowdown in permit issuance will adversely effect Pennsylvania businesses that need those permits to operate, to expand, and to increase employment.   A slowdown in enforcement matters, where enforcement is fully warranted, sends the wrong message to violators and has adverse consequences for our air, water and land.   Let's take things one step at a time and closely follow how the court addresses the post-trial motions, and if the case does go up on appeal to the Third Circuit, let's see how they handle the issue of sovereign and limited governmental immunity.    

Full post as published by PA Brownfields Environmental Law on March 08, 2010 (boomark / email).