All seven members violated Sunshine Law
All of the members of the Honesdale Borough Council were found guilty Tuesday of violating the state's Sunshine Law.
The ruling came following a two-hour hearing before Magistrate Bonnie Carney in Hawley.
"It was a satisfying feeling to hear the judge's verdict," said attorney Mike Lehutsky, who represented Sgt. Ron Kominski in the case.
Kominski, the current officer in charge of the Honesdale Police Department, brought the private complaint against the members following an executive session in August in which he was the topic of discussion. Local Magistrate Ted Mikulak requested and was granted the executive session by council president F.J. Monaghan.
But Kominski was not made aware it was going to happen and Lehutsky argued that was a violation of the Sunshine Act. He also argued the session was not properly advertised.
Attorney Michael Genello of Scranton represented all of the council members. They were Monaghan, Jim Brennan, Harry DeVrieze, Juanita Pisano, Bob Jennings, Scott Smith and Sam Mikulak, brother of Magistrate Mikulak.
Genello had no comment about the verdict.
The case began before the judge with both sides offering various motions.
Genello objected to the case even being heard in the court in Hawley, saying that was not a proper jurisdiction. He also said the case lacked evidence to proceed.
But Lehutsky said the case was a private matter and the court had jurisdiction.
The judge said she had sought advice from legal counsel in Harrisburg "and I do have jurisdiction."
She then proceeded to ask each member a few questions. One was their plea in the case and the other was if they had any problems with being represented by one attorney.
All pleaded not guilty and all said they did not have a problem with being represented by a single attorney.
Lehutsky brought that issue up earlier, saying it was his understanding the borough's insurance carrier had hired the attorney. He said that is a violation of the law because the members were sued individually.
Carney said it was not up to her to make that determination and the case proceeded.
The case opened with testimony from Mayor Ed Langendoerfer, who was called by Kominski.
Langendoerfer told the court he was the liasion between the council and the police department. He also said he had spent time on the council, two years as president.
The mayor was asked if he saw Mikulak before the meeting. He said he saw him outside and he had an envelope. They mayor said he said hello to the judge and that was the only conversation.
The mayor also told the court the original agenda only listed police negotiations as the reason for an executive session. He said it was "announced" by Monaghan there would be a "personnel" matter also discussed.
Langendoerfer said the council then went into executive session and that Monaghan read a letter from Mikulak, which was a complaint against Kominski and the entire police department.
The mayor made it clear he did not get a copy of the letter until the next day.
"I objected to him coming into executive session," Langendoerfer told the court.
He said he was unaware of the complaint prior to the executive session.
Langendoerfer was asked by Lehutsky if he knew about problems between Magistrate Mikulak and the police department. He said he didn't know the details but was aware an order was signed by the district court judge to remove all Honesdale Borough Police matters from Mikulak's court.
He then told the court that during the executive session, the judge was invited to come into the meeting by the council president.
The mayor said the complaint against Kominski had something to do with an incident involving an eviction in the borough.
The mayor was also asked if he talked to any of the council members after the meeting and if any agreed the session should not have been held.
Langendoerfer said when he was leaving borough hall, councilman Jennings was in his car and stopped, rolled down his window and said "you are absolutely correct" about the meeting not being appropriate.
Cross examination of the mayor then began by Genello.
He asked Langendoerfer if he had called Kominski to tell him about what happened.
"Yes," said the mayor. "He should have been made aware of it before the executive session."
The mayor said under normal circumstances, he fields complaints about the police department. He would normally talk to the chief and then talk to the person who made the complaint.
If it is warranted, he said an executive session with the council can be called to explain the situation to them.
But in this case, he said he was not aware of the complaint until the meeting happened.
Next up on the stand was Kominski, a 13-year police veteran.
Lehutsky asked if Monaghan had approached him about being the subject of a complaint.
He said that did not happen. Kominski added that he didn't know the executive session was going to be about him.
He said when the session was called, he left the building and went back to his office before going home.
One of the issues which has come to the surface in this case is the fact employees who have complaints against them have the right to have those heard in public.
Lehutsky asked Kominski if he would have wanted it public and he said he would.
Genello objected to the line of questioning and it was sustained by the judge.
Lehutsky then asked Kominski if, at the time, he was one of the people under consideration for the open job of police chief.
"Yes," said Kominski.
The attorney then asked if he believed the complaint have negatively impacted his chances of becoming the chief.
"Yes, I do," said Kominski.
Genello then asked Kominski if he had been approached by anyone on the council about the executive session.
He said Monaghan did approach him the next day and said the council "would be willing" to hear his side "in executive session. I said I had done nothing wrong and would not address the council. I knew why Judge Mikulak was there ..."
The judge then ordered that line of testimony to stop.
At this point in the proceedings, Genello asked the case be stopped and made a motion for acquittal of all of his clients. He said the Sunshine Act is "clear" and the council was in the right.
But Lehutsky objected, saying the decision about allowing Kominski to have the complaint aired in public "is not up to the council."
He further pointed out that since the executive session was called and then the council members were asked if Mikulak could come in, it was "almost a case of an executive session within an executive session."
"The case has been established so we are going to move on," said the judge.
The defense then called Rich Henry, borough solicitor, to the stand.
Henry said he learned about the letter from Mikulak about 10 or 15 minutes prior to the regular council meeting. He said he was approached by Monaghan and Mikulak.
He described the magistrate as "agitated, animated, outspoken."
Henry told Monaghan he thought the "best thing" to do was to discuss the matter in executive session. He claimed it was to protect Kominski.
"I considered it a personnel complaint," said Henry.
Asked if he approached Kominski about the matter, Henry said, "I didn't think about it."
Henry did say at one point that only himself and Monaghan had knowledge of the subject of the letter.
He also claimed that the mayor referred to Magistrate Mikulak's qualifications and not the subject matter at hand in the session, which was Kominski. He said Langendoerfer questioned Mikulak's "ability to be judge."
Henry also said the letter from Mikulak was not read aloud, in direct conflict with what the mayor had told the court.
Under cross examination, Lehutsky asked Henry how many other citizens have "had the opportunity to address the council in executive session?"
"I don't recall," said Henry, who added he would have to check the records.
Henry was also asked if he has to argue cases in front of Judge Mikulak.
"I have had some," said Henry.
At that point, the judge allowed five minutes for Genello to speak with all seven members of the council privately.
Once done, he rested his case and said the council members "had no intention" of violating the Sunshine Law, which he said is a requirement to be found guilty.
Lehutsky saw it differently.
He told the court there were many factors involved with how the executive session unfolded.
One was the "situation" between the police and judge and another, he said, was the fact Kominski was under consideration for the job and he felt the judge did not want him to get that position.
Lehutsky also disputed the claim by Henry who said the letter was not read in the executive session. It was pointed out that Kominski's name was only in the letter.
"The only way the mayor knew that was because the letter was read," said Lehutsky, pointing out the mayor didn't get a copy of the letter until the next day.
He also disputed the claim by Henry that they were trying to protect Kominski.
"If Rich Henry wanted to protect Kominski, they would have followed the law," said Lehutsky.
He said the magistrate "essentially had his own lobbying session" with the council members.
He said the council members were playing "secret games behind closed doors ... to protect their own little interests. What the defendants did was wrong and they know it was wrong."
It was then that the judge immediately ruled that all seven members of the council were found guilty by the court. She imposed the minimum fine of $100 on each member and ordered them to pay court costs. She denied a request by Lehutsky they pay Kominski's attorneys fees, which amount to $750.
She also told each of them they had 30 days to file an appeal of her decision.
After the hearing, Lehutsky said he felt justice was served. He said Mikulak should not have been allowed behind closed doors because he was "lobbying for a friend of his to become chief."
He also claimed that Mikulak "helped" his brother get onto the council in order to assist in getting Rick Southerton appointed as chief.
(Southerton was denied an endorsement by the Honesdale Civil Service Commission less than an hour after the conclusion of the case in Hawley. We'll have complete details about that in our next edition.)
Lehutsky also said that Langendoerfer "has been consistent" in saying the meeting was not legal and should not have been allowed to happen.
He also admonished Henry for saying the letter was not read to the council members.
"Clearly the letter was read," said Lehutsky.
He also accused Magistrate Mikulak of "injecting" himself into the political process of the borough.
Lethutsky also pointed out the testimony of Henry when asked how many other citizens had been granted an executive session with the council.
"None," said Lehutsky.