The Commonwealth Court has weighed in on a drawn-out legal spat between the mayor of Macungie, Pa., and the local government and its police department.

Among other things, the en banc panel ruled the mayor is the borough’s chief law enforcement officer and that he is entitled to access the local police department’s records, as long as those records aren’t protected information.

Back in the trial court’s hands after a 30-page analysis from Judge Robert Simpson is the issue of Mayor Rickie Hoffman’s legal costs — between $150,000 and $175,000, his lawyer said. Simpson said it was with reluctance that he remanded the case, extending its timeline even more, in order for the Lehigh County Court of Common of Pleas to determine whether the borough committed vexatious conduct, which could lead to a ruling adding on the legal fees.

The borough had paid the mayor a statutorily allowed $2,500 per 12-month period in counsel fees per the trial court’s direction. Simpson’s decision that the trial court re-evaluate counsel fees came over dissent from Judge Renee Cohn Jubelirer.

Attorneys in the case noted that settlement discussions were unsuccessful and it was not without a word of advice on the “over-litigated” matter of Hoffman v. Borough of Macungie that Simpson kicked it back to the lower court.

“Skilled attorneys usually exert more of a moderating influence on testy litigation than occurred here,” Simpson said. “Nevertheless, we encourage all parties and counsel to consider the monetary and emotional cost of this litigation, and to question whether the citizens of Macungie will benefit from more of it.”

That said, the appeals court largely affirmed Judge Michele A. Varricchio on issues such as whether Hoffman’s assertion of being Macungie’s chief law enforcer conflicted with the Municipal Police Jurisdiction Act or the Commonwealth Attorneys Act (it did not), and whether Hoffman was entitled to access the police department’s files.

The court, though, reversed the lower court’s decision to award back pay to the borough chief of police. Hoffman had suspended Macungie’s chief of police, Edward Harry Jr., for insubordination, but the borough council overturned and expunged the suspension and issued the police officer back pay.

On appeal, Simpson said a borough council does not have authority to overturn a mayor’s decision to impose a suspension on a police officer, a statutorily vested power for Pennsylvania mayors.

According to Hoffman’s attorney, Jeffrey R. Dimmich of Dimmich and Dinkelacker in Orefield, Pa., the legal battle dates back to 2010, when Macungie’s residents elected Hoffman and a new borough council. Shortly thereafter, Hoffman asked Harry for access to the police department’s schedules and a key to the station. According to Simpson’s opinion, Harry denied the request and Hoffman suspended him without pay for 10 days.

Lehigh County District Attorney James B. Martin got involved, his dog in the fight being the protection of potentially sensitive police information.

Ruling on the dispute, Simpson said the court’s review of the issue was “hindered by the arguments of the parties and the ambiguity of the records sought by Mayor Hoffman.”

He noted Hoffman indicated in his brief that the mayor sought pleadings to “‘all files,’” “‘work schedules,’” and “‘personnel files’” — not sufficient enough descriptions of the particular types or locations of the records he is seeking, in Simpson’s view.

Martin, on the other hand, referred to protected information pertaining to ongoing police investigations, closed cases where no arrest was ever made and files containing the identity of informants.

Simpson said the Criminal History Record Information Act requires criminal justice agencies to maintain complete and accurate “criminal history information,” a definition under which the law designates and excludes certain information.

Protected information, stored within the state’s central repository and “in automated systems,” includes intelligence information, investigative information and treatment information (mental and physical), Simpson said.

As a general proposition, Simpson agreed with the lower court that Hoffman maintains a supervisory status within the police department and is entitled to most information housed within.

However, as the parties did not develop the access issue, Simpson concluded the court lacked a basis for review regarding the protected files.

“Accordingly, we conclude Mayor Hoffman waived a decision on access to any information from the central repository or in any automated system, and to protected information,” Simpson said. “Also, we view the trial court’s decision as confined to hard-copy records created and maintained by the police department which do not require an ‘automated system’ to access and which do not include intelligence information, investigative information or treatment information.”

“Under our holding, Mayor Hoffman is not presumptively entitled to receive information regarding undercover investigations or intelligence operations in Macungie,” he added.

Simpson had this to say about the genesis of the cross-appeals:

“Unfortunately, it is undisputed that several dysfunctional relationships within Macungie’s local government underlie this litigation.”

He added that “the genesis of this distrust and intractable behavior is not fully clear from the record.”

According to Simpson, after Hoffman suspended Harry, the acting officer-in-charge sought Martin’s guidance regarding Hoffman’s request for access to the police station and the department’s schedule.

Simpson said the “tension” between the parties led the borough’s solicitor to issue a memorandum to the council, saying the mayor is entitled to the schedule and a key.

Meanwhile, at one of its regular meetings, the borough council overturned and expunged the suspension and gave him back pay.

The council also directed the chief to provide Hoffman with the files, Simpson went on, prompting a local police union to file suit to block Hoffman from getting the schedules.

In response, Hoffman filed a separate lawsuit against Macungie, the council and Harry in which he asked for a judgment declaring him Macungie’s chief law enforcement officer.

It was at that time that Martin intervened and the trial court consolidated both actions. The trial court came back largely for Hoffman and it was Martin’s appeal (and Hoffman’s cross-appeal) that landed Hoffman in front of the Commonwealth Court.

“My intervention was on a very narrow basis — to constrain the mayor from having access to protected information under the Criminal History Record Information Act,” Martin said. “To that extent, I believe the Commonwealth Court has agreed with me.”

However, Martin took issue with the court’s decision to vest a mayor with operational control of a police department.

Martin said he did not think it was the legislature’s intention to vest a mayor with that authority; Martin noted he didn’t think that was good public policy.

“Do you really want a mayor who has no training in law enforcement to be able to overrule a chief of police in some operational incident?” Martin said.

Ben Present can be contacted at 215-557-2315 Follow him on Twitter@BPresentTLI.

(Copies of the 34-page opinion in Hoffman v. Borough of Macungie, PICS No. 13-0057, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •