Lusby, Phipps case con­tin­ues

Wrong­ful re­moval law­suit headed to state’s spe­cial court of ap­peals

The Calvert Recorder - - Front Page - By TA­MARA WARD [email protected]­news.com

For­mer Calvert County Plan­ning Com­mis­sion chair­man Mau­rice Lusby and vice chair­man Michael Phipps’ case against the Board of County Com­mis­sion­ers for “wrong­ful re­moval” is headed to Mary­land’s Spe­cial Court of Ap­peals.

All cases are screened at that level to de­ter­mine if me­di­a­tion prior to the ap­peal might be help­ful in re­solv­ing the case.

“While we, on be­half of Mr. Lusby and Mr. Phipps, felt that com­mu­ni­ca­tion and dis­cus­sion in the me­di­a­tion process would be help­ful, the com­mis- sion­ers’ at­tor­ney de­clined and asked that the ap­peal pro­ceed di­rectly without me­di­a­tion,” their at­tor­ney Lau­rence Cum­ber­land, of Prince Fred­er­ick’s Cum­ber­land & Erly LLC, said in a let­ter re­sponse to The Calvert Recorder.

Cum­ber­land said the court or­dered the case pro­ceed without me­di­a­tion and they are await­ing a sched­ul­ing or­der for the ap­pel­late process.

“Me­di­a­tion at the ap­pel­late level can be ef­fec­tive in ap­pro­pri­ate cir­cum­stances. How­ever, me­di­a­tion can­not set aside

[Judge James P. Salmon’s] or­der in this case,” County At­tor­ney John Nor­ris wrote in an email, re­fer­ring to a Calvert County Cir­cuit Court de­ci­sion to dis­miss the case.

The case’s pro­gres­sion to the Spe­cial Court of Ap­peals marks year three in the af­ter­math of cul­mi­nat­ing ten­sion be­tween the for­mer plan­ning board chairs and the for­mer board of com­mis­sion­ers on the di­rec­tion of the vi­sion for the county — re­tain­ing ru­ral char­ac­ter ver­sus busi­ness de­vel­op­ment and growth, just ahead of draft­ing the Calvert County Com­pre­hen­sive Plan up­date for 2040.

Early Novem­ber 2016, Lusby and Phipps were sus­pended from the plan­ning com­mis­sion for al­leged im­pro­pri­eties deal­ing with county fis­cal pro­ce­dures, fail­ure to hold a meet­ing in pub­lic and due process.

The pair im­me­di­ately re­sponded by fil­ing a law­suit against the BOCC in Calvert’s cir­cuit court.

The next month, the com­mis­sion­ers held a re­moval hear­ing where Lusby and Phipps had the op­por­tu­nity to con­test the board’s charges. How­ever, in a split de­ci­sion, the board voted to re­move them Jan. 10, 2017, with for­mer Com­mis­sion­ers’ Pres­i­dent Evan Slaugh­en­houpt (R), Com­mis­sion­ers’ Vice Pres­i­dent Tom Hejl (R) and Com­mis­sioner Mike Hart (R) in fa­vor. For­mer Com­mis­sion­ers Pat Nut­ter (R) and Steve Weems (R) were op­posed.

Nearly a year later, De­cem­ber 2017, Salmon, a re­tired Mary­land Court of Spe­cial Ap­peals judge sit­ting in Calvert cir­cuit court, dis­missed their ap­peal against the com­mis­sion­ers for their re­moval from the plan­ning board, prompt­ing Lusby and Phipps to ap­peal that de­ci­sion in June 2018. The pair cited nu­mer­ous mis­takes on the part of Hejl, Hart and Slaugh­en­houpt in their ap­peal.

At­tor­ney Kevin Karpin­ski, who rep­re­sented the county dur­ing the court pro­ceed­ings, ar­gued be­fore the cir­cuit court that there was no ap­peal process for the com­mis­sion­ers’ de­ci­sion to re­move the plan­ning chairs.

Salmon ruled there is no ap­peal from the board’s de­ci­sion, and the plan­ning chairs’ con­tin­u­a­tion of us­ing out­side coun­sel and in­cur­ring le­gal ex­penses af­ter con­di­tions were placed con­sti­tuted “mis­con­duct.” There was no court rul­ing on vi­o­lat­ing pub­lic meet­ing and due pro- cess laws.

Last year, Cum­ber­land said he felt Salmon’s de­ci­sion was in­cor­rect specif­i­cally with re­gard to there be­ing no ap­peal from the com­mis­sion­ers’ de­ci­sion, and that his clients wanted to ap­peal that de­ci­sion to the next high­est court.

Cum­ber­land also as­serted that the county’s ar­gu­ment was con­trary to Nor­ris’ pub­lic ac­knowl­edge­ment that the com­mis­sion­ers’ re­moval of pe­ti­tions for ju­di­cial re­view, by way of a res­o­lu­tion, only af­fected “one way an ag­grieved party may seek ju­di­cial re­view,” re­fer­ring to a Jan. 1, 2017 ar­ti­cle in the Recorder.

The county sub­mit­ted a coun­ter­claim in April 2017 seek­ing re­im­burse­ment of $16,755 in le­gal ex­penses in­curred by the plan­ning com­mis­sion, af­ter the chairs were told not to use out­side coun­sel on Sept. 16, 2016.

The “Board of County Com­mis­sion­ers dis­missed that claim as a sign of good faith and not want­ing to put salt into the wound af­ter Judge Sa­lomon af­firmed that Messrs. Lusby and Phipps’ ac­tions con­sti­tuted mis­con­duct,” Nor­ris in­formed the Recorder on Dec. 31, 2018.

Nor­ris said the de­ci­sion to with­draw the coun­ter­claim came in Jan­uary or Fe­bru­ary 2018 dur­ing a closed ex­ec­u­tive ses­sion to dis­cuss pend­ing lit­i­ga­tion, and that the hope was that “the com­mu­nity could let the past be the past and move for­ward,” but shortly there­after, Lusby and Phipps filed the cur­rently pend­ing ap­peal.

In a Dec. 4 exit in­ter­view with the Recorder, Hejl said in his fi­nal weeks as com­mis­sioner there was one pos­si­ble thing he would have done dif­fer­ently dur­ing his ten­ure.

“I don’t even know if I can talk about this be­cause it’s still in lit­i­ga­tion. So, I bet­ter not say any­thing,” Hejl said, ac­knowl­edg­ing the spe­cific case, but de­clin­ing to speak about any pos­si­ble mis­giv­ings with the de­ci­sion to re­move Lusby and Phipps from the helm of the plan­ning com­mis­sion.

As for whether the new board of com­mis­sion­ers may go in a dif­fer­ent di­rec­tion and pos­si­bly set­tle the case, Nor­ris said the cur­rent board has not been fully briefed on this case and it would not be ap­pro­pri­ate for him to spec­u­late on what may come next.

In sep­a­rate phone con­ver­sa­tions, both Lusby and Phipps ac­knowl­edged the case’s sta­tus, but Lusby de­clined to com­ment on the record. Phipps noted that while the case is pro­gress­ing, the fi­nal out­come is still an un­known.

STAFF PHOTO BY TA­MARA WARD

For­mer Calvert County Plan­ning Com­mis­sion Chair Mau­rice Lusby, right, and Vice Chair Michael Phipps at an Oct. 25, 2016, joint pub­lic hear­ing with the Board of County Com­mis­sion­ers, just a week be­fore the for­mer BOCC sus­pended them from their posts.

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