MILFORD - A judge will hear arguments over whether Magisterial District Judge Ted Mikulak can testify in an appeal hearing for former and present Honesdale Borough Council members convicted of violating the Sunshine Act.

MILFORD - A judge will hear arguments over whether Magisterial District Judge Ted Mikulak can testify in an appeal hearing for former and present Honesdale Borough Council members convicted of violating the Sunshine Act.

The arguments will take place at 11 a.m. today in Pike County Court before specially-presiding Judge Gregory H. Chelak.

Council's appeal hearing, initially scheduled for this morning, has been pushed back to May 28 at 9 a.m.

Council was found guilty of violating the Sunshine Act in October 2013.

Convicted as private individuals were current council members Robert Jennings, James Brennan, Scott Smith and Juanita Pisano, and former members F.J. Monaghan, Harry DeVrieze and Samuel Mikulak, the district judge's brother.

Ronald Kominski, who in August 2013 was the officer in charge of the Honesdale Borough Police, filed the complaint against council after an executive session that August in which he was the topic of discussion. Ted Mikulak was granted the executive session by Monaghan, the council president.

But Kominski was not made aware it was going to happen, and argued that was a violation of the Sunshine Act. He also argued the session was not properly advertised. District Judge Bonnie Carney agreed.

A motion filed Feb. 12 in Wayne County court by the Administrative Office of Pennsylvania Courts, which oversees district courts, seeks to quash a subpoena compelling Ted Mikulak to testify at the appeal hearing.

The motion also seeks a protective order shielding him from further subpoenas in the case.

Mikulak was subpoenaed Jan. 31 to appear in Pike County court and to bring with him the "complete file, including a letter to the Honesdale Borough Council," according to court papers.

In the letter, dated Aug. 12, 2013, Mikulak asked to be placed on that evening's agenda for an executive session regarding "the conduct of Officer Kominski" whose "actions were tortious and mirror activities involving other officers as well in the recent past."

Court papers state the subpoena seeks to "elicit testimony from Judge Mikulak regarding events that occurred in a Borough Council executive session on Aug. 12, 2013, when council permitted Judge Mikulak to speak in an effort to deter (Kominski) ... from making disparaging remarks about (Mikulak) in his capacity as a magistrate district judge."

But lawyers for the Administrative Office of Pennsylvania Courts argue a judge may not be compelled to testify about actions taken in relation to his judicial function.

"Judge Mikulak's participation in the executive session of Honesdale Borough Council pertained to his judicial function and his effort to stop the belittling misrepresentations that (Kominski) had made about him pertaining to carrying out his judicial duties," court papers say.

The papers further say, "Other individuals who were present at the Borough Council meeting can be subpoenaed to testify as to the events that occurred, thus providing other reasonable alternatives to prove the facts of this matter."

Court papers also say Mikulak has been assigned today to cover the calender of District Judge Bonnie Carney in Hawley, so he would not be available to attend the originally-scheduled hearing.

"Thus, the judicial calender and schedule in Wayne County would be disrupted, and litigants potentially exposed to hardship, on the subpoenaed date if Judge Mikulak was required to leave the bench to testify in this matter for which he is not uniquely qualified to testify, but to which others are capable of providing any necessary testimony," lawyers for the Administrative Office of Pennsylvania Courts argued in court papers.

Under state law, a judicial officer should not be compelled to testify "absent a showing of extreme or extraordinary circumstances, which clearly are not present here," court papers say.

During testimony at council's trial, Mayor Ed Langendoerfer told the court the original agenda for council's August 2013 meeting 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.

The mayor then told the court that during the executive session, Mikulak 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.

Under cross-examination, Langendoerfer said he had called Kominski to tell him about what happened because Kominski "should have been made aware of it before the executive session."

The mayor told the court that under normal circumstances he fields complaints about the police department. He would normally talk to the chief and then to the person who made the complaint.

If it is warranted, he said, an executive session with council members can be called to explain the situation to them.

But in this case, he told the court, he was not aware of the complaint until the meeting happened.

Kominski, during trial testimony, said he was never approached by council prior to the meeting and 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.