Tuesday, September 26, 2023
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Council May Be Liable for Axing Council Watchdog

(CN) - A former Pennsylvania councilwoman can pursue claims that she was threatened, faced false criminal charges and was unlawfully removed from office because she spoke out against official and police misconduct and financial abuse, a federal judge ruled.

Former councilwoman Betty Michener filed a civil rights action in June of this year against the Borough of Mount Oliver and six former colleagues, including Council President Jim Cassidy, claiming that they violated her rights to due process, equal protection and free speech. The defendants allegedly subjected her to "an illegal action by the borough counsel that purportedly removed her from elected office prior to the expiration of her legally elected term of office."

The borough and six individual council members moved to dismiss on the basis of immunity.

In his review of the complaint, Chief U.S. District Judge Gary Lancaster observed that Michener "was an outspoken critic of corruption and other misconduct by the borough, its councilmembers, other employees, and police officers. Michener exposed financial abuse in the form of overpayments by the borough solicitor, the council secretary, and the police department."

As a councilwoman, Michener said she served on the Borough Finance Committee and chaired of the Economic Development Committee, relying on her "vast experience in the private sector managing a finance company."

Michener's complaint details that she "repeatedly and publically exposed flagrant and brazen overpayments by borough council secretary ... to various other contractors and vendors who submitted invoices for services rendered to the borough" and "exposed financial abuses and misconduct by borough police via undocumented credit expenses, fraudulently obtained police employment contract concessions, and the gross excessiveness of police resource allocation for the improper purpose of facilitating personal relationships among police personnel."

Other council members threatened, oppressed, intimidated and harassed her in attempt to stop "her public expression of opinions about government waste, corruption and wrongdoing in the borough," she claimed. Ultimately, they retaliated against her by filing allegedly unfounded, false and malicious criminal charges that lacked probable cause. The charges were filed "through the misuse of the borough police department by tampering with official police reports, fabricating evidence and engaging in a wide-spread abuse of power in the pursuit of a politically craven agenda," according to the complaint.

Though the threats and intimidation allegedly caused Michener to develop stress and anxiety that kept her from council meetings, she continued to fulfill her duties of her positions.

Michener said she presented medical documents excusing her from attending council meetings, and that other similarly situated officers incurred more absences with no reproach. Nevertheless the borough removed Michener from office on the basis of "excessive unexcused absences from regular meetings, failure to participate in council committees and failure to act in her official capacity as a member of council," according to the complaint.

Judge Lancaster refused to let immunity shield the defendants, saying that "a single act can subject the municipality to liability under section 1983" and that Michener does not need to allege a "long-standing" policy.

"Because Michener alleges that Mount Oliver removed her pursuant to an official yet unconstitutional policy of the municipality, Mount Oliver can be held liable," he wrote.

Though Michener conceded in her complaint that the individual council members may not be held liable for the removal vote, she says they can still be found liable for their alleged discriminatory, harassing and intimidating conduct.

Lancaster refused to dismiss these claims, as well, agreeing that "actionable conduct by the individual defendants that is separate from their ultimate legislative action to remove Michener from office." As such, the council members "are subject to liability for actions taken outside the scope of their legislative duties."

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