Donora’s mayor and two council members have filed a lawsuit against the borough and the other five council members claiming there were Sunshine Act violations involved in the way police Superintendent Jim Brice was placed on paid administrative leave.

The suit claims Brice was told during his Loudermill hearing last week that he was placed on paid suspension, requiring a vote of borough council that must have taken place in a meeting that council members Cindy Brice, Tommy Thompson and Mayor Don Pavelko were not notified of and was not held in public.

It also claims the decision to hire attorney Christopher Gabriel for this purpose was done in violation of the Sunshine Act and that council held a meeting last Thursday without posting the agenda 24 hours in advance as required by the Sunshine Act. The suit names council members Jane Ackerman,

DONORA • A7 FROM A1 Mike McDowell, Fred Berestecky, Gib Szakal and Joe Greco in addition to the borough itself.

Gabriel said council members will not make comment individually.

“There were no Sunshine Act violations, nor was there any employment action taken against Brice,” Gabriel said. “The court filing is filled with inaccuracies, has no basis in law or fact, and generally is a silly stunt that will not work.”

According to the suit filed Thursday in Washington County Court, Jim Brice was given a Loudermill hearing last week but he was not provided with advance notice of the issues to be discussed. Those in attendance included Pavelko, Jim Brice, Ackerman, Berestecky and Gabriel in addition to Brice’s attorney, John Egers, by phone.

During the hearing, the suit states, Gabriel informed Jim Brice of the allegations against him at the time of the hearing and not before, and Gabriel questioned Brice and solicited responses from him regarding those allegations.

According to the suit, Ackerman and Berestecky did not speak to Brice nor speak during the hearing until Egers requested a roll call to determine who was present.

“At the conclusion of the Loudermill hearing, Attorney Gabriel immediately notified James Brice of the fact that Borough Council was placing him on paid suspension and prohibited him to come to work for Donora pending the completion of Borough Council’s investigation into the allegations made against him,” the lawsuit states.

When contacted Thursday, Gabriel said Jim Brice is not suspended, he is on paid administrative leave.

Pavelko said last night that during the hearing Gabriel used the word “suspension,” but the words used when council voted last week were “paid administrative leave.”

The suit claims that based on Gabriel’s announcement of Brice’s suspension at the end of the hearing, with only two council members present, Gabriel could not have made that announcement without a prior meeting of a quorum of council and approval of a majority of that quorum.

Further the suit states that Thompson and Cindy Brice were not present at any meeting when council discussed hiring or assigning Gabriel to represent Donora in any disciplinary action or investigation into Jim Brice’s work. It also claims they were not notified of the decision to suspend Brice, they were not present for any executive session or aware of any executive session concerning Brice in terms of discipline or investigation and were not provided any notice of the Loudermill hearing.

“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 … with said suspension to begin as of the conclusion of the hearing conducted by attorney Gabriel,” the suit states.

The suit essentially claims that all defendants made these decisions at a meeting held without the full knowledge of council or without reporting it to the public.

Additionally, the vote to place Jim Brice on paid administrative leave (as stated in the meeting last Thursday), was made during a meeting in which council failed to post the agenda 24 hours in advance as required by the Sunshine Act.

Pavelko said Thursday night that after realizing the agenda hadn’t been posted, he went back and double checked and it’s his belief an agenda hasn’t been properly posted by council since June.

The lawsuit also points out that the vote was held without any public deliberation and with council declining to answer questions from the public. The Sunshine Act calls for deliberations by public agencies to be held in the open prior to votes.

The suit contends there was no deliberation or official action taken at a public meeting, nor discussed in an executive session, to hire or assign Gabriel to the duty of investigating and conducting a Loudermill hearing into the allegations, referencing a lack of council’s announcement of any executive sessions having been announced. Pavelko, Cindy Brice and Thompson claim this violates the Sunshine Act and any actions taken during the violation of the act can be declared invalid. The suit also claims the court can enforce the Sunshine Act by injunctive relief or making a declaratory judgment

The suit asks the court to rule that Gabriel’s hiring violates the Act and to invalidate his hiring for this assignment.

The second count claims no public deliberation or official action took place in a public meeting regarding the decision to put Brice on leave and that no executive session on the same was ever announced. Further, it states that council’s 5-1 vote last Thursday does not “cure the illegality of the imposition of the suspension by Attorney Gabriel” last Wednesday because the agenda for the meeting was never posted as required and the suit contends that failure invalidates all actions taken at that meeting. The suit asks the court to declare the “suspension” invalid as a result.

The third count specifically speaks to the lack of an agenda being posted last Thursday as required.

“An agenda must be posted to Donora’s internet website no later than 24 hours in advance of the meeting, nor was it posted at the location of the meeting on Thursday, Aug. 11, 2022, or at the Borough Council’s offices,” the suit states. “Official action cannot take place on a matter of agency business if it was not included in the public notice required by the Act.”

The suit explains that Pavelko, Ackerman and Berestecky all knew Brice was “suspended” as of 10:04 a.m. last Wednesday, giving council more than enough time to post the agenda for a full 24 hours before the 6 p.m. meeting the next day.

Again, the suit asks the court to declare the vote to place Brice on leave invalid.

Because violations of the Sunshine Act are subject to an injunction pending a determination as to the legality of the meeting, the suit asks for the court to render a declaratory judgment that the leave is invalid.

Pavelko said the actions of council over the last couple weeks were the “straw that broke the camel’s back” and led him to want to file suit.

“I’ve seen Sunshine violations for the past two and a half years,” Pavelko said. “But where do you go? What do you do? We had to sue the borough. I feel this was the right thing to do for the people of Donora.”

During last week’s meeting, Cindy Brice mentioned she thought there were Sunshine Act violations and Greco said “something to the effect of, ‘Then do something about it,'” Pavelko said.