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Fired state Public Defender Forster loses lawsuit

Former state Public Defender Nancy S. Forster cannot pursue her $1 million wrongful-termination lawsuit, the state’s highest court held Tuesday.

Nancy S. Forster

The Court of Appeals said Forster, as a state employee, should have pursued an administrative appeal within 15 days of her Aug. 21, 2009, firing, and that her failure to do so bars her from taking the case to court.

“If an employee fails to appeal disciplinary action …, the action is considered accepted by the employee,” Judge Glenn T. Harrell Jr. wrote in the 5-2 majority opinion.

Forster, now a solo practitioner in Towson, said in an email that “I understand and accept, as I must, the majority’s decision.”

She had filed suit in Baltimore City Circuit Court on Aug. 16, 2010. Judge Pamela J. White dismissed the suit in February 2011, saying Forster had presented a legally insufficient wrongful-termination claim because her firing resulted from a policy dispute with the trustees over how best to run the office.

Two of the Court of Appeals’ seven judges wrote separately Tuesday to say they would have affirmed on the grounds stated by White.

“There is simply nothing to suggest that the board fired her for refusing to break the law or for exercising her duties as public defender,” Judge Sally D. Adkins wrote for herself and Judge Lynne A. Battaglia. “Rather, her termination was simply the culmination of a long-running disagreement with the board about how best to deal with the financial crisis plaguing the office.”

Forster, in her email, said she was “disappointed” that Adkins and Battaglia viewed her termination as the result of a mere policy disagreement.

“Were this true, the same demands made by the board that I refused to implement, would have been made of my successor,” Forster wrote. “They were not.”

She added the changes ordered by the board’s then-chairman, T. Wray McCurdy, were rooted in his “petty, personal dislike of certain agency employees and on keeping money in his own pocket as a private criminal defense attorney who made it clear to me and others that he believed the office was taking clients away from those, like him, in private practice.”

McCurdy denied Forster’s allegations on Tuesday.

“I can’t believe after all this time, she is still saying that,” said McCurdy, an Essex solo practitioner who continues to serve on the board. “The agency has moved on.”

Forster, who was Maryland’s public defender for five years, was fired after refusing the board’s “non-negotiable” demands to make structural and personnel changes in the 900-person agency, which included disbanding the Capital Defense division, the Juvenile Defender division and Northwest Community Defenders in Baltimore.

Forster claimed the changes would have violated public policy and her statutorily prescribed duties to run the office. McCurdy and board member Margaret A. Mead voted to remove her, with the third 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.

Forster, in her email, lauded those changes.

“Fortunately, the legislature recognized the importance of an independent Public Defender by changing the law to diminish the power of any single board member by increasing its size to 13 members and by allowing the removal of the Public Defender only for cause,” she wrote. “I have moved on and have a successful private practice. I wish Mr. DeWolfe and his dedicated employees nothing but the best.”

WHAT THE COURT HELD

Case:

Forster v. State Office of the Public Defender, CA No. 92, Sept. Term 2011. Reported. Opinion by Harrell, J. Concurrence and dissent by Adkins, J. Argued March 1, 2012. Filed May 22, 2012.

Issue:

Must a fired executive-branch employee exhaust administrative appeals before filing suit in court?

Holding:

Yes; Title 11 of the State Personnel and Pensions Article requires administrative exhaustion.

Counsel:

Andrew M. Dansicker for appellant; Adam D. Snyder for appellee.

RecordFax # 12-0522-22 (56 pages)