February 26, 2013 | Vol. 73 No. 31

Borough council approves settlement, Michener receives $50K from lawsuit

Mount Oliver council President Betty “Billie” Michener’s civil rights lawsuit against the borough and past and present members of council was settled for $50,000 by three “yes” votes of the seven-member council on Feb. 18.

Voting in the affirmative were Patrick Malloy, Darnell Sains, and Corey McGough, with Mrs. Michener abstaining. Council members George Farneth, John Smith, Sr., and Christine Brendel were absent.

The lawsuit was filed on June 7, 2011, three weeks after Mrs. Michener’s council seat was vacated by a vote of council for not attending a council meeting since January, 2011.

Mrs. Michener claimed in the lawsuit that threats and intimidation directed at her by council for exposing corruption, waste, and wrongdoing the prior three-and-a-half years caused her such stress and anxiety she could no longer participate in council meetings.

“I think it’s been a long journey because I don’t think anybody besides council and my attorney and family realize what they did to me personally and politically.

“I could challenge them on any borough issues; what affected me most was when they attacked me in my personal life and my credibility,” said Mrs. Michener, who was reelected to council in November, 2011.

On May 16, 2011, council members President James Cassidy, Mr. Farneth, Dennis Obeldobel, and Mr. Malloy voted to vacate Mrs. Michener’s seat. Ms. Brendel abstained, and Mr. Smith was absent.

“She was repeatedly asked by the council president why she was able to attend other meetings, including the HEDC [Hilltop Economic Development Corporation], and not able to participate in council meetings or council-related duties.

“It seemed she wanted to collect a paycheck, which she kept collecting, but did nothing to earn it,” Mr. Farneth said of his vote.

Before casting his vote, Mr. Cassidy acknowledged Mrs. Michener’s work on behalf of the borough.

“But I need people sitting up here,” he said in reference to her frequent attendance at council meetings as an audience member.

A month earlier, Mr. Obeldobel made a motion to vacate her seat for lack of attendance and participation, and failure to respond to an inquiry of when she would return.

At a hearing two weeks later, Mrs. Michener said she provided a medical excuse in January for missing the meetings. She said at that time she did not know when her doctor would allow her to return.

As originally filed, the lawsuit names as defendants Mr. Cassidy, Ms. Brendel, Mr. Smith, Mr. Obeldoble, Mr. Malloy, Mr. Farneth, and the borough. Mr. Smith and Ms. Brendel were eventually removed as defendants.

It involved three specific charges related to her ouster prior to the expiration of her term of office: Count 1: Deprivation of rights without due process of law; Count 2: Denial of equal protection and gender discrimination; and Count 3: Abridgement of First Amendment rights.

The lawsuit asserted Mrs. Michener’s removal from office was unconstitutional under the Pennsylvania Constitution; and unconstitutional under the Fourteenth Amendment of the U.S. Constitution as it deprived her of her equal protection rights and discriminated against her based on her gender.

Regarding the latter claim, Mrs. Michener said although male council members Mr. Obeldobel and Mr. Smith missed numerous meetings, their seats were never vacated as was hers.

The lawsuit also asserts her removal was unconstitutional under the First Amendment of the U.S. Constitution as it was intended to “silence plaintiff and deprive her of her right to freely express her views and associate with like-minded persons pursuant to her duties as a duly elected borough councilwoman.”

According to the lawsuit’s “Factual Allegations” of the events leading to Mrs. Michener’s ouster, she was an “outspoken critic of corruption and misconduct” of the borough, council, and police in her role on the borough’s finance and economic development committees.

The police allegations include undocumented credit expenses, fraudulently obtained police employment contract concessions, and more.

When reached by telephone, police Chief Frank Mosesso said he is not permitted to comment because of the pending litigation in another case.

The lawsuit also states as a result of the ensuing threats and harassment by the defendants through the police department, her health suffered such that she could no longer participate in meetings in her capacity as a council member.

However, she continued to serve on the finance and economic development committees.

Mrs. Michener said the lawsuit was never about the money but, rather, about righting injustices.

“I wanted them [defendants] to be called out for all of the wrongs, so that other communities and council members dealing with the same problems had something to look at and say, ‘This is happening in my borough.

‘She did it, why can’t I’?” she said.

“I always thought it was frivolous from the beginning,” Mr. Malloy said of the lawsuit and its allegations.

“She was kicked off council, but never answered questions about why she was in the audience and would not take her seat.

“When we set up the discovery [pre-trial phase of lawsuit], she never answered questions,” he said.

As for voting in favor of the settlement, “I wanted to end it, and I was out of it,” he said.

Mr. Farneth takes issue with the statement in the Pittsburgh Post-Gazette attributed to Mrs. Michener’s attorney, Lawrence Fisher, that her “... civil rights have been vindicated by a $50,000 settlement.”

“Contrary to Mr. Fisher’s claim, this is another example of the insurance company deciding it is substantially less expensive to settle a case than to litigate it even if the case has little to no merit.

“The big question that still remains unanswered is why did Mrs. Michener repeatedly refuse the defense attorney’s request that she sit for her deposition and answer questions under oath, including questions about her prior psychological and health history, her prior employment history, her prior claims and litigation history, and what damages, if any, she actually suffered as a result of her council seat being declared vacant,” he said.

Councilman Darnell Sains said he is glad the case is over as it polarized the borough.

“It is by no way a good thing that it ever happened, and it never should have happened, and by law it should have never happened,” he said.

“In Section 904 of the borough code there is no allowance or acceptance of taking a person from their seat. It was signed by the state in 2007, and has never been recognized in federal court.

“I emphatically asked for it [as an audience member] not to happen on May 16, 2011, the day before Billie was voted back in office by the public. (On May 17, Mrs. Michener was the leading vote-getter with 162 votes in the primary election. She received the third most votes with 249, behind Mr. Sains and Corey McGough in the November general election, Write in candidates also split 344 votes in the election.)

“It was illegal and unconstitutional,” he said of the ouster.

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