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Judge rules former commissioner’s due process rights not violated; final count sent to civil court

Ingrid Mezo
The Gazette

(5/18) U.S. District Court Judge J. Frederick Motz ruled in favor of Emmitsburg town officials on three of four counts in a civil lawsuit filed by former town commissioner Art Elder.

In a memorandum dated April 21, Motz found that Elder’s constitutional due process rights had not been violated, and granted summary judgment to the defendants, effectively clearing the town of claims totaling $3.9 million.

Defendants included Mayor James Hoover, individually and in his official capacity, and Patrick Brennan individually and in his official capacity as chair of the Emmitsburg Ethics Commission. Ethics Commission members Scott McClendon and Steven Kleindienst and the town’s Board of Commissioners, including Chris Staiger, Bill O’Neil, Glenn Blanchard and Elder himself, were also defendants in their official capacities.

The lawsuit resulted from an ethics investigation of Elder and O’Neil, and a subsequent report issued in April 2005 by the town’s Ethics Commission, which stated that the two had violated the town’s ethics code. O’Neil denied that, and has said the Ethics Commission is not a legal entity and has no authority to issue such a statement.

Motz found that Elder was not entitled to have the town pay his legal fees once the town launched an ethics investigation against him because to do so would ‘‘improperly equate the commission’s investigation with a civil suit," he wrote.

Motz remanded the case back to Frederick County Circuit Court for a judgment on a remaining $1.5 million count, which includes charges of defamation, negligent infliction of emotional distress, negligence and humiliation.

Whether or not the Circuit Court finds in Elder’s favor on the remaining count, his lawyer, Rosemary McDermott, said she would consider his case a success if the Circuit Court provides a declaratory judgment in his favor.

‘‘We would like the court to declare that the ethics procedures were not followed," McDermott said. ‘‘I’m hoping that when the court makes its declaration, that no other public official is ever subjected to this. I hope that public officials act in an ethical manner, but I also hope that the ethics commission acts in an ethical manner, and that an ethics investigation is not used as political tool to besmirch the character of a public official. That’s all we’re really hoping for, honestly."

Kevin Karpinski, attorney for the defendants, said his firm has already filed a motion to either dismiss the remaining count, or to grant summary judgment in favor of the defendants.

Karpinski pointed out that while Motz had not ruled on the final count, he did provide a footnote about it.

In the footnote, while Motz makes it clear that he is not ruling upon claims in the fourth count — including defamation, negligent infliction of emotional distress, and negligence — he notes deficiencies in the claims.

‘‘First, Maryland does not recognize an independent tort of negligent infliction of emotional distress," Motz said. ‘‘Second, Elder is unable to point to a single Maryland case recognizing the existence of an independent tort of humiliation. Third ... the defendants did not violate Elder’s constitutional right to due process."

Motz also extensively outlined how Elder’s claim failed to meet the four elements of a defamation claim — that the defendant made a defamatory communication, that the statement was false, that the defendant was at fault in communicating the statement and that the plaintiff suffered harm.

‘‘Elder is a public official for First Amendment purposes, requiring that he establish by clear and convincing evidence that the commission and Brennan acted with actual malice ... that the defendant acted with ‘knowledge that the publication was false or with reckless disregard of whether it was false or not’ [and] nowhere in the complaint does Elder assert that either defendant knew that the report was false or recklessly disregarded its falsity," Motz said.

Karpinski added that his firm has only recently filed the motion to dismiss or for summary judgment, and that Elder would have 15 days plus three mailing days to respond. He could not estimate when a decision on the case was likely.

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