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Wivell's lawsuit dismissed

January 06, 2003|by SCOTT BUTKI

scottb@herald-mail.com

HAGERSTOWN - A Washington County Circuit Court judge on Friday dismissed County Commissioner William J. Wivell's lawsuit seeking public disclosure of a secret agreement between the county and its former Economic Development Commission director.

Judge Donald Beachley ruled that the court had no authority to act because Wivell had not filed a Maryland Public Information Act request and therefore had not been denied the information under the provisions of the act.

Wivell asked in a suit filed Sept. 5, 2002, that the amount of money former Economic Development Commission Director John Howard was paid when he retired be made public. Attorneys have advised the County Commissioners against disclosing the content of the confidential agreement they signed with Howard.

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Wivell said he was disappointed but not surprised by Beachley's decision, and he expects better results from a lawsuit former Washington County resident Thomas Firey plans to file next week.

Firey, of Alexandria, Va., is an editor for the Cato Institute in Washington, D.C., who lived in Washington County for 31 years. He said Friday he believes the public has the right to know how much money the county paid Howard.

Attorney William McC. Schildt, who represented the County Commissioners in Wivell's suit, said he had no comment on Beachley's decision or on Firey's planned suit.

Wivell is not the only commissioner seeking to make the Howard agreement public.

Prior to being elected in November, Commissioner John Munson filed suit asking for the information to be released. A court hearing on a county motion to dismiss that suit is scheduled for Feb. 7 at 9:30 a.m.

Munson has filed a Maryland Public Information Act request for the Howard information to be made public.

That request and two similar requests by The Herald-Mail Co. were rejected by the county because disclosing the content of the agreement would violate state law protecting employees' privacy, County Attorney Richard Douglas said.

Schlidt argued - and Beachley agreed - that Wivell can't cite The Herald-Mail's failed attempts to get the information as a basis for his suit.

"He seems to be taking up the cause of The Herald-Mail, which has decided not to pursue that cause for whatever reason," Schildt said.

Herald-Mail Executive Editor Terry Headlee said the newspaper is waiting for the County Commissioners to do the right thing.

"The commissioners have a moral and legal responsibility to the taxpayers to release the information," Headlee said. "They can't spend taxpayer money without accountability. We don't need a court to tell us that."

Wivell said keeping the Howard agreement confidential violates his oath of office to follow Maryland laws and provide information to his constituents.

If Wivell believes Douglas is wrong and the agreement should be made public, there is nothing stopping him from ignoring the county attorney's advice, Beachley said.

"People disregard legal advice all the time," Beachley said.

As a member of the governing body that authorized the Howard agreement, Wivell already has access to the information he is seeking to have made public, but said he fears disclosing it without a judge's order would leave him open to a lawsuit.

Munson, who attended Friday's hearing, said he thinks his lawsuit has a better chance of succeeding because his formal information request was rejected. However, the fact the county gave him the information he requested when he became a commissioner may hurt his case, he said.

Munson and Wivell said they think Firey has the best chance of success because his formal public information request was rejected by Douglas and he does not have the information in his possession.

"I am glad to see someone else come forward that does not have the conflict that John has or that I have," Wivell said.

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