Lusby, Phipps case continues
Wrongful removal lawsuit headed to state’s special court of appeals
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.
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.