Please ensure Javascript is enabled for purposes of website accessibility

Court of Appeals hears Forster’s wrongful-termination suit

ANNAPOLIS — An attorney for fired Maryland Public Defender Nancy S. Forster urged the state’s top court Thursday to let her proceed with her $1 million wrongful-termination lawsuit against the state.

Nancy S. Forster

Andrew M. Dansicker told the Court of Appeals that a Baltimore trial judge erred in dismissing Forster’s claim that she was fired on Aug. 21, 2009, for refusing to implement illegal orders from the three-member board of trustees that presided over the public defender’s office.

But Assistant Attorney General Adam D. Snyder countered that the judge’s 2011 ruling was correct. The board acted within its authority when it fired Forster after an acrimonious year-long “policy disagreement” over how to reduce costs at the agency, which represents indigent criminal defendants, Snyder said.

“It is not an inappropriate use of the board’s termination authority to say ‘enough,’” Snyder told the high court.

Several judges on the panel appeared to side with Snyder during the hour-long court session.

Judge Dale R. Cathell, for example, noted that Forster was an at-will employee serving at the board’s pleasure and was dismissed when the relationship became too strained.

“She wasn’t giving them much pleasure,” said Cathell, a retired judge sitting by special assignment.

Judge Glenn T. Harrell Jr. suggested that Forster should have responded to her firing not with a lawsuit, but with a time-honored retort: “You can’t fire me, I quit.”

In response, Dansicker said Forster received not a request but an ultimatum from the board, a demand that she believed illegally encroached on her ability to run the agency and ensure its clients were being zealously represented.

Board members “don’t have the authority to run the office,” said Dansicker, of the Law Office of Andrew M. Dansicker in Hunt Valley.

Judge Lynne A. Battaglia, however, said the standard for bringing a wrongful-termination claim to trial is not a mere belief that the boss’s request was illegal. A judge may conclude that the employee’s belief was incorrect or unsubstantiated and dismiss the case, Battaglia added.

Dansicker responded that deciding whether the boss’s request’s was legal is a factual matter that should not be short-circuited by a dismissal before discovery in the case has even begun.

But Snyder told the court it would be “impossible to have a wrongful-termination claim dismissed” if employees could compel discovery simply by showing their subjective belief that the employer’s request was illegal.

Forster, who did not attend the court session, argues in her lawsuit that complying with the trustees’ 2009 “order” – which directed her to disband the Capital Defense and Juvenile Defender divisions and disburse the personnel to district offices — would have violated public policy and her statutorily prescribed duties of “operating, administering and conducting” the public defender’s office.

Forster, who was Maryland’s public defender for five years, alleges in her lawsuit that board Chairman T. Wray McCurdy and member Margaret A. Mead “overstepped their authority” with “not negotiable” demands for structural and personnel changes in the 900-person agency.

The board members wrote Forster a July 2009 letter requesting that she disband the units, as well as Northwest Community Defenders in Baltimore, and make other cost-cutting changes.

When Forster refused, McCurdy and Mead voted to remover her, with the third board member, Theresa L. Moore, dissenting.

In December 2009, the board appointed Paul B. DeWolfe, the state’s current public defender, to succeed Forster.

Forster’s firing prompted the General Assembly to revamp the board in 2010, expanding it to 13 members and allowing for the public defender to be removed only for cause.

After Judge Pamela White dismissed her suit in Baltimore City Circuit Court in February 2011, Forster challenged the ruling in the Court of Special Appeals. However, the top court, acting on its own motion, chose on Dec. 16 to hear the case without it first being considered by the intermediate court.

Forster, now a solo practitioner in Towson, did not return telephone and email messages Thursday seeking comment on her case and the high-court arguments.

The Court of Appeals did not indicate when it will decide the case, Nancy S. Forster v. State of Maryland, Office of the Public Defender, No. 92, Sept. Term 2011.


3 comments

  1. Forster really deserved to be fired. While the members of the Board are far from apolitical animals (and O’Malley’s fingerprints are all over the ousting), but their “suggestions” to Forster were correct and well-reasoned. Specifically, the Board wanted the Juvenile Protection Division gone and a certain District Public Defender gone. There were good reasons for those suggestions. The people in those positions are/were awful and incompetent. Forster thought she knew better. I know many attorneys who work for the OPD, and the stories of mismanagement are truly unbelievable. Sadly, not much has changed. The agency is still a mess.

  2. Beverly: perhaps you should provide your full name and explain the “stories of mismangement [that] are truly unbelievable.” I suspect you are/were an employee who got poor reviews for her work and are simply disgruntled about it. In fact, I suspect you work as a juvenile attorney in the Baltimore County office who suffered criticisms of her work by the Juvenile Protection Division. At least have the courage to identify yourself or, at the very least give support for your ridiculous accusations.

  3. Oh, and one more point Beverly: if the “suggestions” of the Board were “correct and well-reasoned” why, pray tell, have Mr. McCurdy and Ms. Mead both backed off of those ‘suggestions’ and not forced my successor to follow through with them? JPD still exists and still does the wonderful work it was established to do; Northwest Neighborhood Defenders is still up and running; the Capital Defense Division (renamed while I was there as the Aggravated Homicide Division) is still up and running; social workers are still there; law clerks have not been hired in violation of the hiring freeze; all CINA cases are not being forcefully paneled out in two districts. In short, McCurdy and Mead both know that these demands made of me had absolutely nothing to do with improving the work of the agency. Rather, they were McCurdy’s way of trying to have employees who he personally disliked fired (i.e., Balto. County DPD, and the JPD unit lawyers and management). And poor Ms. Mead, just too senseless to know what a tool she was for McCurdy. But then again, I would expect nothing less from a petty little district court lawyer from Essex and a criminal defense lawyer who pleads most of her clients guilty, including a client facing the death penalty for whom she managed to get a death sentence even though he was, in fact, ineligible for the death penalty. Don’t believe me? Read Metheny v. State, 359 Md. 576.