Editor's note: This story has been updated to reflect the fact that this lawsuit was initially filed two years ago. 

HONESDALE, PA — At a Honesdale Borough Council meeting May 13, the council discussed an ongoing lawsuit against the borough and its former mayor, brought by Honesdale borough police chief Richard Southerton.

Advising the council at its May 13 meeting that the lawsuit will come to trial in June unless a settlement is reached beforehand, borough solicitor Richard Henry said federal law requires that one or more of the named defendants appear at a pretrial conference scheduled for May 29. He asked that council appoint at least one defendant to appear.

The lawsuit, which was initially filed in 2017—and amended three times thereafter—accuses the Honesdale Borough Council of retaliating against Southerton for excercising his First Amendment rights to freedom of speech and not paying him for overtime hours. A motion to dismiss those claims was denied in part—the overtime claim was dismissed on prejudice—and approved in part. Southerton was granted leave to again amend his complaint regarding First Amendment retaliation.

Councilman James Brennan said he didn't know what the lawsuit was about and questioned the advisability of appearing at a conference without prior knowledge of its nature and legal advice pertaining to it. Although Henry and the council said they were not free to discuss the case publicly because it is pending litigation, Henry stated that the defendants named are being represented by Joseph Joyce, an attorney appointed by the borough’s professional liability insurance carrier.

When asked if there could be a monetary judgment leveled against the borough, Henry affirmed that as a distinct possibility, but said the insurance carrier would be responsible for all monetary judgments, with exception of the $5,000 deductible stipulated in the borough’s contract with its insurance carrier. That cost would be borne by the defendants, if the court finds for the plaintiff.

Honesdale Borough Council has been on the receiving end of so many lawsuits in recent years that it struggled to find a professional liability insurance carrier willing to take it on and now pays high premiums.

Henry’s suggestion, that president Michael Augello be appointed by council to appear at the pretrial conference, was met with protest by both Brennan and councilman Robert Jennings. Jennings said appearance by a named defendant constituted a conflict of interest, and Brennan was reluctant to let Augello act on behalf of the council at the pretrial conference.

However, after Henry said that he had made clear to all parties scheduled to appear at the pretrial conference that Augello is not empowered to act on behalf of the council, Brennan agreed that Augello should appear at the conference to gather facts and information and then report back to the council. The council would then vote on action to be taken by the borough in response to the lawsuit.

Brennan asked that council be permitted to consult with Joyce prior to the pretrial conference; Henry said he would try to arrange it in the next week or so. Henry then repeated his request that council pass a resolution naming one defendant to appear at the pretrial conference. Council members eventually agreed to the vote, “so that they could move on to more important business.” Henry said, “I don’t think there is anything more important.”

A resolution to appoint Augello as the council’s representative at the May 29 pretrial conference passed 3-1, with Bob Jennings opposed. Council members Bill Canfield, Travis Rivera and Tim Lauffenburger were absent.