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WILKES-BARRE — A federal judge ordered the attorneys defending former city police chief Marcella Lendacky in a retaliation suit by the leaders of the Wilkes-Barre police union to hand over the file of a confidential investigation that cost taxpayers $7,782 into her claim of harassment by one of the officers.
The Dec. 13 order by U.S. District Judge Robert Mariani ended the sparring between attorneys on both sides over documents during the discovery stage of the civil case, including the investigative report prepared by a private attorney hired by the city that cleared Sgt. Phil Myers.
Myers, president of the Wilkes-Barre Police Benevolent Association, who was suspended without pay twice, and Officer Dan Duffy, vice president of the PBA, who was fired in 2017 and reinstated this year, alleged they were disciplined for their criticism, as union leaders, of how the department was managed.
The report sought by attorney Ryan Lockman, of the Mark B. Frost & Associates law firm of Philadelphia, on behalf of the officers dealt with allegations Myers “created a harassing and hostile environment” when he told Lendacky in late April of this year that he was “not done with her yet.”
At the time Lendacky was the outgoing chief, having notified Mayor Tony George who appointed her that she would retire in June. The timing of her exit followed the March release of a report by the Pennsylvania Chiefs of Police Association that said Lendacky and former Commander Ron Foy lacked the professional qualifications to hold their appointed senior level management posts. The PBA lobbied city council for an independent investigation of the department to resolve the discord between the rank-and-file officers and management. The PCPA’s review and report cost the city $26,212.
The investigation conducted by attorney Alexia Blake of Scranton into Lendacky’s harassment claim also noted the friction between the chief and Myers. Assistant City Attorney Maureen Collins notified Myers by letter on Aug. 15 of the results, saying Blake concluded he was speaking in his PBA leadership role and “reflect the PBA’s opposition to former Chief Lendacky’s leadership.”
The letter added, “As a result, (Blake) concluded that it is more likely than not that you did not engage in workplace harassment or sexual harassment of former Chief Lendacky and that you did not create a hostile work environment for her. (Blake) further concluded that it is more likely than not that you did not violate the City’s Anti-Harassment Policy.”
However, Collins noted the “detailed confidential investigation report” will not be made public to either Myers or Lendacky.
Attorneys for Lendacky, who along with Foy, the city and the mayor are named as defendants in the suit, initially objected to handing over the report on the grounds that it was a non-criminal investigation and exempt under the state’s Right-to-Know law.
“This report is confidential, does not constitute an ‘investigation file’ as Plaintiffs incorrectly claim, is subject to attorney-client privilege and, therefore, is properly barred from being turned over in discovery,” wrote attorney Mark Bufalino of the law firm Elliott Greenleaf & Dean in Wilkes-Barre.
The judge’s order directed the defendants’ attorneys to produce the file as well as other documents pertaining to “written complaints by (Duffy and Myers) against Defendant Lendacky from 2016 through 2018,” and “internal affairs into Defendants Lendacky and Foy’s conduct leading to discipline from 2014 through the present.”
Lendacky is scheduled to appear to give sworn testimony in a deposition today at her attorneys’ offices in Wilkes-Barre.
