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Attorney asks court to dismiss Wivell suit

October 09, 2002|by ANDREW SCHOTZ

andrews@herald-mail.com

The Washington County Commissioners on Tuesday moved to dismiss Commissioner William J. Wivell's lawsuit filed over confidential compensation given to a retired employee.

Wivell sued the county commissioners - including himself - Sept. 5, demanding that the county's financial agreement with former Economic Development Commission Director John Howard be made public.

Noting that two Herald-Mail Co. requests under the Maryland Public Information Act have been denied, Wivell asked a Circuit judge to order the release of the information.

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In a response filed Tuesday on the county's behalf, Hagerstown attorney William McC. Schildt asks the court to dismiss Wivell's suit. Schildt argues that Wivell "lacks standing" as an aggrieved party because he hasn't filed his own Public Information Act request.

Wivell said he hadn't seen the county's response by 5:30 p.m. Tuesday. Told of Schildt's argument, Wivell said he has the right to sue the commissioners in this case "as a taxpayer of Washington County."

It didn't matter who filed the Public Information Act request, Wivell said, because if he had filed one, it likely would have been denied.

If a judge dismisses his suit on the grounds that he has no standing, Wivell said he'll file his own Public Information Act request and start the process again.

The county's tactic will, at worst, "only delay the inevitable by a few months," Wivell said.

Schildt said Tuesday that it's "not appropriate" for him to comment on pending litigation.

Commissioner Paul Swartz has also called for the information to be released. In August, he said he might resign over the controversy, but he changed his mind the next day.

Also in August, Commissioner Bert Iseminger said the county did not handle the situation correctly and apologized.

Commission President Gregory I. Snook said he's not opposed to releasing the information if a court rules that way.

"I just don't want to create any additional liability for the county," Snook said Tuesday.

Herald-Mail Executive Editor Terry Headlee said the newspaper will watch with interest to see if Wivell continues to press the issue by filing a Public Information Act request against himself and the rest of the commissioners.

"This shouldn't even be in court. We don't need a judge to tell us that it's wrong for elected officials to pass out checks from taxpayer-funded accounts without accountability," Headlee said.

Howard went on paid administrative leave in late March and left his job May 8. The county announced his retirement June 11.

Howard's salary was $82,067.

The county's response to Wivell's suit does not specifically address the county commissioners' decision to keep secret the agreement with Howard.

County Attorney Richard Douglas has advised the commissioners that Howard's compensation was personal income, not salary, so it does not have to be disclosed.

Schildt's response states that Wivell's motion for a writ of mandamus - a court order for a specific action - is not appropriate for a Public Information Act case. Wivell disagreed.

Last week, the commissioners met to discuss their response to the suit. Wivell excused himself from that session.

Douglas is not defending the county in this case.

"I felt that I have a conflict of interest since I represent the commissioners," he said.

It might be awkward to defend the commissioners against Wivell's suit and simultaneously work with Wivell or represent him in other matters, Douglas said.

The county is paying Schildt $165 per hour, which is a "public service discount" from his usual rate, Douglas said.

Schildt said a copy of the county's motion to dismiss and a supporting memorandum were mailed Tuesday to Wivell, who will have 18 days to respond.

Wivell, who is representing himself in the case, said he doesn't know how he'll respond until he sees the county's response.

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