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 Town Council votes to reimburse Commissioner ethics legal fees

 Ingrid Mezo
The Gazette

(8/3) Emmitsburg commissioners voted 3-1 vote Monday to cover the cost of legal advice two of them sought during an ethics investigation the town conducted against them.

The town officials, Commissioners Art Elder and Bill O'Neil, were found guilty of violating the town's ethics code in April. The two voted in favor of granting themselves money for attorneys' fees on Monday, along with Commissioner Chris Staiger.

Commissioner Glenn Blanchard was absent from the meeting, and Mayor James Hoover voted against the measure.

Hoover was visibly disappointed in the board's decision.

"I'm going to veto it, absolutely," Hoover said in a phone interview Tuesday. "I've done made up my mind. One, I think it's wrong, and two, I don't think [Elder and O'Neil] should have voted. ... My job is to protect the town, so this is my only recourse."

While Hoover agreed with Staiger that the town should cover officials' attorney fees in some cases, the town is not obligated to pay for O'Neil and Elder's legal fees in this case, he said. The ethics commission found them in violation of town code, and the code indicates that the town will not pay officials' attorney fees in such cases.

Hoover has 10 days to prepare and present a letter to the commissioners informing them of the veto and his reasons for it. O'Neil and Elder could bring the issue back up for a vote at a later date, and overturn the mayor's veto, Hoover said.

The town will pay $4,370.65 for O'Neil's legal costs to attorney Rosemary McDermott. Elder's lawyer, Leslie Powell, will be given $2,609.15 from the town. O'Neil initially requested $5,827.50, the amount before McDermott's 25 percent discount. Staiger made a motion to lower the amount to what McDermott actually charged O'Neil.

"I never wanted an attorney and I never got one until this thing went to the state's attorney," Elder said at the meeting after the vote was cast. "You can't wait until they put you in jail before you get an attorney. But I'm sorry that the taxpayers have to pay for it."

Hoover agreed that "there are some cases where the town should be legally obligated to pay [for officials' legal representation]," but saw a conflict of interest in O'Neil and Elder's case.

"One of them made the motion, and the other one seconded the motion," Hoover said. "...It obviously stands to be a conflict of interest because they are the only ones that stood to gain a financial benefit by a favorable vote."

Prior to the vote, Hoover said that the town could not request Elder and O'Neil to recuse themselves since there was no legal conflict in their voting on this matter.

The board denied Elder's request for the town to pay for his legal fees on June 6. Hoover, Blanchard and Staiger voted against allowing Elder to submit the fees at the time since the town code states that it will not pay attorney's fees for any officials found guilty of ethical violations.

The Emmitsburg Ethics Commission found that Elder had violated Emmitsburg's Municipal Code, according to a signed order of the town on April 29. The commission determined that Elder sought to harm Silo Hill Car Wash, which directly competes with a business he owns. In addition, the commission found that Elder had sought to harm Custom Image Printing, for the benefit of Chronicle Press, a business partly owned by his cousin, Lisa Elder, and that he used his political position to request favors from town employees to do it.

Furthermore, the ethics commission found that both Elder and O'Neil attempted to intimidate town employees in their duties as they concerned the application of Custom Image Printing.

O'Neil argued that since the ethics commission is not a legal entity, it does not have the right to find anyone guilty of anything. In this case, the ethics commission reviewing O'Neil and Elder's actions had made accusations and reached conclusions that had dragged the two officials' reputations through the mud, he said.

"I think that it was a just decision," O'Neil said of the Monday vote. "We were denied our right to due process, we were denied the opportunity to call our witnesses who were mentioned in the report, and neither did the ethics committee call them."

"I know many people have had comments whether they liked [the ethics commission's procedures] or they disliked [them]," Hoover said. "But Commissioners O'Neil and Elder chose not to go and give their testimony to the ethics commission, based on the advice of their attorneys."

In addition, O'Neil had previously publicly stated that he was not going to request the town to pay the bill, Hoover said.

"I am recanting that," O'Neil said. "...I was not allowed to participate. ... So now you have the bill before you."

Although Staiger voted to grant O'Neil and Elder attorney's fees, he questioned their judgment in not recusing themselves from voting.

Staiger said he was also concerned about setting a precedent when he voted in favor of the town's absorption of O'Neil and Elder's legal fees.

"As an elected official you are put in the position to make controversial decisions," Staiger said. "It's not improbable that as a result of a decision, you might be charged with some sort of malfeasance. And I would like to think that the town would participate in my legal defense if the need should arise."

Frederick County Commissioner Michael L. Cady (R) attended the Monday meeting, and applauded the town's decision. Cady was found in violation of the county's ethics ordinance in February for using the prestige of his office for private gain among other ethical offenses, when he planned the a weightlifting championship in Emmitsburg last summer.

"You do not have that safety net at the county level," Cady said. "I'm delighted that you've given this such an open and public hearing."

The town plans to review its ethics code and make appropriate changes in the future, which may include changing the code's wording to provide more specific guidelines.

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