Questions have been raised about why Luzerne County is providing legal representation to county Councilman Chris Belles in litigation over his online posting of a link to view referendum petition signatures.
The names and addresses were those of voters seeking a 2027 primary election referendum allowing voters to decide if they want to repeal the county’s new anti-discrimination ordinance.
Citizens Ben Herring and Walter Griffith filed the litigation, arguing Belles’ release was not done for a “legal electoral purpose” and was instead “an act of targeted exposure designed to identify, and thereby deter, citizens from participating in the referendum process.”
Belles said he posted the information to obtain public assistance in the petition challenge process and asserted, “There is no such thing as a private public referendum.”
During public comment at Tuesday’s council meeting, Herring said the litigation made it “very, very clear” Belles was sued in his individual capacity.
Herring argued Belles should not receive county representation because Belles posted the information “on his own personal time” without County Council authorization, which means it was not “constituting some type of official action” related to his role as a council member. If the council had authorized the posting, the litigation would have been filed against the county, Herring said.
No response was provided to Herring during the meeting, but county Chief Solicitor Harry W. Skene addressed the matter in a Thursday email to the council.
“I want to flag that Ben Herring has once again requested information regarding payment for the lawsuit against Councilman Chris Belles through the county’s insurance coverage. Given the pattern of this inquiry, Council should be aware that Mr. Herring may seek to bring the County and County Council into the litigation directly,” Skene wrote.
According to Skene’s email, the administration followed its standard protocol for submitting claims, and the carriers decided coverage would be afforded.
When the lawsuit was filed, at Belles’ request, the county, through standard procedure, forwarded the complaint to the county insurance broker, which in turn distributed it to the applicable carriers for a coverage determination, Skene wrote.
Two carriers accepted coverage — Greenwich Insurance Company, which provides the public officials policy, and cyber insurance carrier Travelers Insurance, he wrote.
The county would have to pay approximately $100,000 for the deductible before insurance payments kick in, the administration said.
Anticipating an inquiry like the one from Herring, the administration followed up “to ask on what basis coverage had been accepted,” Skene wrote.
“We were advised that the determination rested on the U.S. Supreme Court’s decision in Lindke v. Freed, which addresses when a public official’s social media activity constitutes state action for purposes of Section 1983 liability,” Skene wrote.
If the county or council is “drawn into this litigation,” it would need its own independent counsel, he wrote.
“The county’s interests are adverse to Mr. Belles’ in this matter, and a single attorney cannot represent both without a conflict,” Skene wrote.
In closing, Skene’s email reiterated the county had “declined to simply post the petition signatures on our website” and instead required an affirmation from those receiving the petition “specifically to afford some measure of protection to the individuals who signed it.”
“That same institutional caution needs to guide how we respond here,” Skene wrote.
County Councilman John Lombardo replied to Skene’s communication, raising concerns about the county coverage and requesting an upcoming closed-door executive session.
“I have listened intently to the facts of this issue and do not believe they are appropriate to justify the county expending taxpayer dollars to defend the actions of a member of council that were clearly done on his own time, and against a policy that was set forth by our own office of law,” Lombardo wrote.
The potential for the county “being dragged into this lawsuit” and requiring separate representation is “evidence on its face that Councilman Belles should not be defended by our taxpayers,” Lombardo wrote.
“I also have significant concerns about Councilman Belles directing legal counsel on his own and without approval from council as a whole when we may be tasked with approving the terms of any settlement,” Lombardo wrote.
Lombardo maintained the county is setting a precedent with county representation and must determine “what constitutes an action of an elected official that would allow them to be defended by the county taxpayers.” Taxpayers “deserve the transparency that so many of us on this body preach,” he wrote, adding that he “vehemently” opposes the use of taxpayer funds to “defend such an issue” and believes it is a “horrific situation that a fellow member of the council has placed the county and our taxpayers in.”
Belles said Thursday he sought the same insurance coverage determination process that would be provided to any council member and had no power over the carriers’ determination to accept the request and assign him legal counsel.
He said the determination was based on the insurance carriers’ review of the suit filed against him.
“It’s their complaint that is the reason I am covered. I had no control over it. The county had no control over it,” Belles said.
He also noted he never heard of a situation in which the county refused to accept coverage approved by an insurance carrier.
Belles is represented by Attorneys John P. Morgenstern and Arthur R. Murphy of O’Hagan Meyer in Philadelphia, the court docket says.
Belles’ legal counsel moved the litigation from the county Court of Common Pleas to federal court and then filed a motion to dismiss the case on Aug. 10.
According to the memorandum of law seeking dismissal:
“Plaintiffs’ claims for constitutional violations arising out of either the Pennsylvania or United States constitution fail at the outset because plaintiffs have failed to allege state action.”
Both constitutions “only restrain governmental actors,” which does not apply in this case because the complaint alleges Belles acted personally on his own Facebook page and was not “authorized, directed, or ratified” by County Council or the county.
“Without an allegation that Mr. Belles acted with actual authority from Luzerne County, plaintiffs’ claims fail,” it said.
The filing also argues the plaintiffs are challenging Belles’ disclosure of public information, not the government’s disclosure of the petition.
“Rather than using the First Amendment, and the analogous Pennsylvania constitutional protections, for the shields of protection from governmental interference that they are, plaintiffs seek to use these bastions of freedom as swords to cut down Mr. Belles’ own speech,” it said.
Herring said his legal counsel, Attorney J. Chadwick Schnee, of Schnee Legal Services in Lititz, is preparing a response in opposition to dismissal.
Herring said Belles’ arguments for dismissal — that he acted on his own instead of as a “state actor” — are the same points Herring is citing as a reason Belles should not receive county insurance coverage in the first place.
“So how is he being covered by taxpayers when they’re saying he is not a state actor?” Herring said, noting he and Griffith spent $10,000 on legal counsel for the suit to date.