Virginia investigator linked to Parole Board leaks can sue over her firing, judge rules

A former Virginia employee who investigated claims of misconduct at the Virginia Parole Board can continue pursuing a federal lawsuit against current and former state officials over her politically contentious firing last year, a judge ruled Thursday.

Ruling on a motion by defense attorneys to dismiss the civil suit brought by former Office of the State Inspector General investigator Jennifer Moschetti, U.S. District Court Judge Henry Hudson struck down three of Moschetti’s six legal claims as insufficient. The state itself, the IG’s office and a spokesperson for the IG’s office were removed from the case entirely.

But the judge declined to dismiss Moschetti’s defamation claims against two high-ranking officials from former Gov. Ralph Northam’s administration — chief of staff Clark Mercer and public safety secretary Brian Moran — over comments they made denouncing her Parole Board investigation as biased. Those statements can’t be construed as pure opinion, Hudson wrote, and allowing the lawsuit to proceed will shed more light on their validity and context.

“Whether Moschetti’s report, and therefore her work product more generally, is biased or lacks objectivity is verifiable,” Hudson wrote.

Moschetti’s employment trouble arose largely from her investigation into claims the Parole Board was violating its own policies and state law by failing to properly involve crime victims and notify prosecutors as decisions were being made to release inmates. The most controversial parole case she reviewed was that of Vincent Martin, whose 2020 parole after decades behind bars drew outrage from law enforcement because he had been convicted of killing a Richmond police officer in 1979. 

The controversy quickly seeped into state politics, with Republican lawmakers accusing a Democratic administration of putting criminals above victims and Democrats denouncing the affair as a political attack based on overblown findings the Parole Board disputed.

Moschetti identified violations by the Parole Board in Martin’s case and others, but she was fired in 2021 after unreleased investigative reports she had authored began leaking to the news media.

Her lawsuit claims she was wrongfully punished and demeaned for acting as a whistleblower and drawing attention to government misconduct. Lawyers for the defendants have argued her firing was justified because she mishandled sensitive information that must be kept confidential under policies Moschetti agreed to.

Her defamation claims center on Moran’s comment that her report on the Martin case “would not hold up under cross-examination” and Mercer’s statement that after Northam officials met with Moschetti and her superiors to discuss the issues, he “left that meeting knowing there was bias and a lack of objectivity in that report.”

Those comments could be the kind of “loose rhetoric” protected by the First Amendment, Hudson wrote, but it’s too early in the lawsuit to know. 

Hudson dismissed Moschetti’s claims that Inspector General Michael Westfall and Kate Hourin, a spokeswoman for the IG’s office, had defamed her through a general statement issued at the time of her firing.

Moschetti also claimed her free speech rights were violated and she was wrongfully terminated in violation of a state whistleblower protection law. The judge allowed both those counts to proceed.

Hudson noted Moschetti was fired shortly after giving her reports to the General Assembly, the FBI, a current Richmond police officer and a former law enforcement officer.

“These allegations create a reasonable inference that Westfall terminated her because she acted as a whistleblower,” Hudson wrote.

The release of confidential information to a retired police officer could be difficult to defend, Hudson wrote, but Moschetti has presented “a slate of plausible allegations” she was retaliated against for activity protected by the state’s whistleblower law.

“This statute shows that Moschetti’s release of information to a Richmond police officer, the FBI and the General Assembly would not have undermined the mission of OSIG or its interests in confidentiality or administration,” Hudson wrote. “In fact, it shows that Moschetti’s release of information to those parties not only outweighs the government’s interests, but should be within the government’s interests.”

According to the state, Moschetti was technically fired for mishandling confidential material by sending investigative records to her personal email account.

The judge’s initial ruling doesn’t guarantee the case will proceed to trial. A settlement conference has been set for Dec. 7, and the defendants can file other motions to try to have the remaining claims thrown out.

Gov. Glenn Youngkin campaigned on the Parole Board issues last year, promising to replace the entire five-person board if he was elected. He followed through on that vow shortly after taking office.