Donora mayor, two council members file suit
The mayor of Donora and two borough council members have filed a lawsuit against the borough and remainder of council.
Mayor Don Pavelko, Thomas Thompson and Cynthia Brice filed the action in Washington County Court Wednesday, claiming the Sunshine Act was violated in actions pertaining to placing police Superintendent James Brice on paid administrative leave.
Defendants are the borough, council President Michael McDowell, as well as council members P. Jane Ackerman, Fred Berestecky, Joseph Greco and Gilbert Szakal Jr.
Council voted Aug. 11 to place Brice on paid administrative leave. Thompson voted against the motion while Cynthia Brice, James Brice’s wife, abstained. Every other council member approved the motion.
Primarily at issue in the suit is a Loudermill Hearing concerning James Brice that was held Aug. 10 and the hiring of attorney Christopher Gabriel to investigate and conduct the hearing.
The suit claims that since Brice was not given advance notice of the issues involved prior to the hearing, the Sunshine Act was violated.
“At the Loudermill Hearing, Attorney Gabriel orally informed James Brice of allegations against him at the time of hearing and not before, and questioned James Brice and solicited responses from him regarding the allegations,” the suit reads.
Berestecky and Ackerman were the only council members in attendance at the hearing. The suit claims that since just two members of council were present, that the announcement of action against Brice at the end of the hearing could not have occurred without approval by a quorum of council at a prior meeting.
Thompson and Cynthia Brice claim they were not made aware of any action to be taken against James Brice until after Gabriel informed him of it and were not part of any meeting concerning Brice and a decision to subject him to an investigation.
“Therefore, upon information and belief, Defendants Ackerman, Berestecky, Greco, McDowell and Szakal conducted a private meeting and agreed upon an official action, namely to administratively suspend with pay, James Brice as Superintendent of Police prior to a Loudermill Hearing on Wednesday, Aug. 10, 2022, with said suspension to begin as of the conclusion of the hearing conducted by Attorney Gabriel,” the suit reads.
Thompson and Brice also claimed they were not part of any meeting to discuss hiring Gabriel. The suit states that the decision to hire him also violates the Sunshine Act.
Gabriel said Friday that there is no merit to the lawsuit and said the use of the term “suspension” in the lawsuit referring to the action taken against Brice is not true.
“Much of the information that is in there is inaccurate. It’s just a silly stunt,” he said. “It alleges he is suspended; he isn’t. It alleges council took action that was in violation of the Sunshine Law; it didn’t.”
Gabriel said the only time the word suspension was used was by him, and was to tell Brice that he wasn’t suspended.
Another complaint cited in the suit concerns the lack of posting an agenda prior to the Aug. 11 meeting.
“Borough Council had more than 24 hours to comply with the requirements to set an agenda on Donora’s Internet Website, post the agenda at the location of the meeting and post it at the Borough Council’s principal office, but it did not do any of these actions,” the suit reads.
The suit claims that the decision to take action against Brice was made known to him at 10:04 a.m. on Aug. 10, leaving plenty of time for that motion to take the action on the agenda and have it posted.
The plaintiffs are seeking to return Brice to his role as police superintendent, declare the action taken invalid and a violation of the Sunshine Act and award attorneys’ fees and costs.
Attorney John Egers Jr, who filed the suit, could not be reached for comment.
Brice has been with the department since 1980 and has been police superintendent for 33 years.
A special meeting of council is scheduled for 6 p.m. Monday.