The Daily Item, Sunbury, PA

September 26, 2013

US magistrate recommends dismissal of Bartello allegation

By Francis Scarcella
The Daily Item

LEWISBURG — SUNBURY — A U.S, magistrate judge is recommending that the Northumberland County Court should handle two remaining allegations included in a civil lawsuit filed by a Sunbury councilman against the city.

However, U.S. Magistrate Judge Thomas M. Blewitt also recommends that Joseph Bartello’s allegation that Sunbury Mayor David Persing initiated an illegal investigation into him in retaliation for speaking out at a public meeting on alleged code issues involving the former Celotex industrial site in Sunbury. A fourth count may be dismissed at Bartello’s request, according to court documents.

All litigants will have an opportunity to make further arguments before a U.S. District Judge reviews the case and issues a final order.

Blewitt recommends sending back to Northumberland County Court Bartello’s claims that Sunbury officials violated the Pennsylvania Sunshine Act. Bartello contends that Persing failed to provide a reasonable opportunity for public comment before taking official action regarding alleged code violations at the former industrial site.

Bartello, who is waging an independent campaign for Sunbury mayor in the November election, also contends that Persing improperly called for a private closed-door meeting to discuss the code issue, violating the Sunshine Law.

Northumberland County Court also would hear Bartello’s allegation that Persing violated the Pennsylvania Third Class City Code and the Pennsylvania Right to Know Law when he initiated an investigation focusing on Bartello and ordered Bartello to surrender his city-issued computer to the police or face prosecution.

The dispute leading to the lawsuit began earlier this year when attorneys for Moran Industries, Watsontown, which operates at the former Celotex site, filed a Right To Know request seeking emails from Bartello’s city-owned laptop computer.

Twelve hours before Bartello surrendered the machine to police under threat of punishment by Persing, the computer’s operating system was changed, a Bloomsburg forensics company reported. In a report, Optimo Digital Forensics said files were destroyed in the process. The company added that it also found pornographic images on Bartello’s computer.

At the time, Bartello was in charge of the city’s code enforcement office and was in a dispute with Moran over alleged code violations.

Attorneys Kymberley Best and Tim Bowers, of Sunbury, who represent Bartello, said Thursday that they were not pleased with the court’s decision and plan to appeal.

“We respectfully disagree with the federal magistrate’s ruling,” Best said. “We do believe that Bartello was speaking as an employee on matters of concern to the citizens of Sunbury, and we intend to file exceptions and test the issue before (U.S. District) Judge Matthew Brann.”

Bartello said he didn’t think the lawsuit would go far.

“They spend $5,000 to smear my political campaign by searching the computer,” Bartello said Thursday. “If Persing wanted to do that, why didn’t he spend his own money? He could have saved the taxpayers $5,000.”

Bartello will take the advice of his attorneys, he said.

The city has spent more than $10,000 to date on the lawsuit, and Councilman Jim Eister said, “That’s a shame.”

“This was a frivolous lawsuit. It’s a shame that we had to even be involved in this just because a councilman was using a city-owned computer for his self pleasure,” Eister said.

“This has cost the taxpayers a lot of money, which could have been used for other projects in the city,” he added. “I am very happy the court realized there was no merit to this. It is a shame this has happened.”

Persing could not be reached for comment.