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Council decides against overriding Mayor's veto to pay commissioner's legal fees

Ingrid Mezo
The Gazette

(8/11) The Emmitsburg town commission on Monday decided against overriding a veto of its earlier vote to pay the legal fees two commissioners incurred during an investigation into unethical behavior on their part.

The veto and original vote led not only to further charges of unethical behavior, but could also lead the town to civil court and to change its charter to add a commissioner to the four-member legislative body so the mayor does not have to vote to break ties.

The town Ethics Commission in April issued a report stating that Commissioners Art Elder and Bill O'Neil had violated the town's ethics code.

The commission determined that Elder sought to harm Silo Hill Car Wash, which 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 and Elder, who called the constitutionality of the Ethics Commission's procedures into question, asked the town to pay their attorneys' fees. O'Neil submitted a bill to the town for $4,370.65, and Elder submitted a bill for $2,609.15 for legal advice both incurred during the Ethics Commission's months-long investigation.

The board voted 3-1 on July 18 to pay the bills. Elder and O'Neil voted in favor of granting themselves money for attorneys' fees, along with Commissioner Chris Staiger.

Mayor James Hoover was the sole vote against the town paying the fees, and he later vetoed the vote.

O'Neil and Elder asked the board Monday to consider overturning the veto, but neither motioned the board to do so fearing further allegations of unethical behavior. No one else made the motion, so the veto stood, leaving Elder and O'Neil responsible for the fees.

That led O'Neil to threaten a lawsuit. "If this town continues along this course of action and fails to override the mayor's veto, I will have no other recourse but to tender this as my notice that I intend to file in Frederick Circuit Court to clear my good name," O'Neil told the board.

Meanwhile, town attorney John Clapp and Harry deMoll, special counsel to the Ethics Commission, wrote the town individual letters earlier this month stating that Elder and O'Neil's July 18 vote violated the town's ethics code.

"In my view, the prohibition is clear," Clapp said. "The sole underlying purpose of the motion is to relieve the two Commissioners of the financial burden of paying their counsel fees."

Clapp and deMoll said the town's ethics code indicates that the town will not pay officials' attorneys fees when they have been found in violation of the town's code. It states town officials shall not "participate on behalf of the town in any matter which would to their knowledge have a direct financial impact on them, their spouse or dependent child or any business entity with which they are affiliated."

But O'Neil countered Monday that it could not be a conflict for him because he does not have to pay his lawyer, Rosemary McDermott, the $4,370.65 fee.

O'Neil said he submitted his attorney's fees to prove a point, one that the town would still have had to pay for. "At no time have I spent one red cent on attorney's fees," O'Neil said. "Ergo, there is no conflict of interest."

Hoover questioned why O'Neil would submit a bill that did not require payment.

"There has been no cost for a service yet we received a bill, so is this a fictitious bill?" Hoover asked in a phone interview Tuesday. "Now are we stealing money? If you're going to take $5,000 from the town's coffers, an actual bill should be submitted. And what does that say for the attorney's ethics if she's submitting a bill on her letterhead for services she never actually charged for?"

McDermott said she was not going to charge Bill O'Neil for the work. "But I was going to submit a bill to the town because I believed that there was a real problem with the Emmitsburg ethics code as written," she said.

Potential charter changes

The vote and veto has O'Neil accusing Hoover of abusing his power by both voting as a commissioner and vetoing decisions with which he disagrees.

"Now we are faced with a mayor who votes as a commissioner, then who loses the decision, vetoes it, only to later vote again to sustain his own veto," O'Neil said. "...I say, if he is so anxious to become a commissioner, let's dispense with the position of mayor, cut his salary to our level and grant him that right. Otherwise, he should stick to remaining the town's executive and leave the legislative body to its tasks."

Hoover agreed that the way the charter is written represents a balance of power conflict between the executive and legislative branches of the board. The town's charter defines the mayor as both a member of the board of commissioners and as the executive for the town, Hoover said.

"I do agree that there should be a clear separation between the legislative and executive body," Hoover said. "The town charter is very old and needs to be updated to more accurately define the separate roles."

Hoover will meet with the town's attorney next week to draft amendments to the charter and the town code to clearly define the mayor's role and add a fifth commissioner, he said.

A fifth commissioner will create an uneven number of legislators, so that one commissioner, rather than the mayor, can vote as a tie-breaker if necessary. The mayor will then no longer vote with the board of commissioners.

Hoover would like these changes to be prepared for the election in April so voters can elect two commissioners rather than one, he said.

The town also 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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