Opinions diverge in Wicomico Attorney ordeal

Karpinski-Letter

19-1203-Council-To-Karpinski

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19-1119-County-Attorney-News-Release

Paul Wilber.

Who should serve as County Attorney isn’t exactly a burning issue within the citizenry of Wicomico County, but it is the centerpiece debate at the heart of the legislative-executive dysfunction under way in the Government Office Building.

A layman’s reading on the County Charter is pretty clear. As adopted in 2004, the Charter says the county will have a Department of Law headed by an attorney selected by the County Executive and approved by a majority vote of the County Council.

The charter treats the attorney’s position differently than other department leadership posts, specifically declaring the attorney “shall serve at the pleasure of the Executive and the Council,” suggest a position requiring dual buy-in.

The charter also allows the council to use a super-majority vote to fire the County Attorney at any time. If a firing occurs, the County Executive is to submit a new name, and the system returns to normal.

But, since Bob Culver was elected County Executive in 2014, the system has undergone a transformation that likely doesn’t match what the charter’s crafters envisioned. The county hasn’t had a formal Department of Law since then-County Attorney Ed Baker retired following the election five years ago, and his attorney assistant who stepped in briefly as Acting County Attorney, Maureen Lanigan Howarth, bolted for the identical County Attorney’s post in neighboring Worcester.

Culver turned to well-known Salisbury lawyer Paul Wilber, a veteran municipal attorney of the law firm Webb, Cornbrooks, Wilber, Vorhis, Douse, Leslie & Mathers. Serving as an attorney for other municipalities and being a partner in one of the region’s top law firms, Wilber wasn’t about to give that up for a desk job practicing law in a county office.

Wilber agreed to serve as County Attorney and be paid an hourly rate, with his partners and office assistants at the firm backing him up, rather than a staff of deputy lawyers and paralegals based in the county offices.

Culver had essentially promised this legal arrangement during his campaign against then-incumbent Rick Pollitt, and often touts its savings for the county’s taxpayers. The council has occasionally questioned Culver’s statements on how much cash his legal process saves the county’s coffers, but the council has never formally acted to restore a Department of Law.

Interestingly, Section 504 of the County Charter — which covers any department reorganizations sought by the County Executive — exempts the Law Department.

In having an attorney who also works for other governments, the county is treading on ground the charter was designed to avoid.

Wilber additionally works as the town attorney for three local municipalities, two of which are located in Wicomico County: He is paid for legal services by Princess Anne, Sharptown and Pittsville.

While public agendas show he personally attends governmental meetings in Princess Anne and Pittsville, he sends law associates from his firm to Sharptown’s meetings.

The charter declares that the County Attorney cannot “practice as an attorney before the council or any department of the county government other than to represent the county’s interests” — so his dual practices could at times come into conflict.

Unless summoned for some purpose, the unfailingly polite Wilber doesn’t routinely attend County Council meetings. In 2016, following a charter amendment referendum approval by the voters, the council began to employ its own advice-dispensing/legislative-writing attorney on a per-hour basis. That role is currently filled by Robert Taylor, formerly of the now defunct Adkins, Potts & Smethurst law firm in Salisbury.

Having two attorneys in the room — one serving the executive and departments and another serving the council — has sometimes produced some awkward exchanges as competing legal opinions have been aired.

Only once have the two lawyers publicly exhibited anything close to a clash, however. That occurred when Taylor countered Wilber on an accounting of a contractors’ expenses in a sewer matter.

Culver has long chosen to pay the County Attorney on a per-hour basis, without any publicly stated council objection. Wilber’s firm charges the county $170 per hour.

The county budgeted $314,000 for the Law Department this year; the total law expenditure was $347,000 in fiscal 2015.

A yearlong saga

The County Attorney saga has been playing out now for more than a year. Under Section 413 of the County Charter, the County Executive is required to designate cabinet members — be they new or retained — within six months of an election.

That would mean Culver would have had to present a slate of department heads for council approval by early May. That never happened. Instead, Culver only presented his incumbent picks for his top two deputies — the Director and Assistant Director of Administration — for council approval.

Citing voter-approved amendments to the charter, Culver announced that all other nominations were no longer required. Culver’s logic on that was vague — even the gentlemanly Wilber publicly told the council that he didn’t agree with his boss’ interpretive reasoning — and the council resorted to the unprecedented exercise of voting whether to confirm the people already heading the 10 official departments.

Wilber’s reappointment was rejected, which was no surprise, as council members had telegraphed their displeasure with Wilber’s performance since even before the November 2018 election.

Apparently because of personnel privacy concerns, council members have been careful not to announce their direct concerns concerning Wilber’s performance, and relatively little of their interaction with the attorney occurs in public. Government bodies routinely address pending legal matters behind closed doors — in closed sessions permitted under the Open Meetings Act — and confer with their attorneys in secret.

In fact, closed meetings of some sort are held most every time the council gathers for its twice-monthly quorum sessions.

Renewed legal turmoil

Since the council’s action in May, an assortment of legal wrangling has occurred, with Culver seeking to rely on a series of interpretations to keep Wilber in the attorney’s post.

Culver first advertised for bids for the County Attorney services, and received three proposals from Salisbury-based law firms — including Wilber’s. Following its established processes, the county Purchasing Department deemed Wilber’s firm to be the most qualified for the lowest price.

This was unacceptable to a majority of council members, who said the move subverted their intentions.

The council allowed the County Executive more time to select another replacement, relying on a 60-day window that would allow Wilber to keep conducting business so the county — with an assortment of pending legal matters pending — wouldn’t go lawyerless.

That window, by the council’s reckoning, officially closed last month, on Tuesday, Nov. 5.

John Cannon, the then-Council President, began informing the public, as well as the county’s legal circles, that things had reached a breaking point.

On Nov. 22, on behalf of himself and his council colleagues, Cannon issued a formal news release and sent letters to county Circuit Court Administrative Judge Jimmy Sarbanes and state District Court Administrative Clerk Renee Andrews.

Obtained as part of a Freedom of Information Act request, the court letters mirror the news release, which declares that the county, at present, “does not have a duly appointed County Attorney.” Cannon goes on to state: “Wicomico County will be unable to conduct essential business transactions such as borrowing funds through the issuance of bonds or form bank loans, ratifying contracts and legal documents, accepting grants and approving numerous other matters. In addition, this could adversely affect the county’s interest in lawsuits.”

In his letter to the court system, Cannon seeks to recognize that Wilber and his firm — despite the council’s termination decision — should follow “rules of court that may require that Mr. Wilber or other attorneys with the firm … continue to represent the county, pending withdrawal from proceedings pursuant to the rules of court.”

The letter to Sarbanes and Andrews goes on to state: “… Mr. Culver, for more than five months, has exhibited a total disregard for his obligations by refusing to select another County Attorney for consideration and confirmation by the County Council in accordance with the County Charter.”

In the statement released to the public, Cannon goes even further in attacking Culver’s actions — or lack thereof: “… During the past six months, Paul Wilber has been removed and rejected as the County Attorney by the County Council on two separate occasions in accordance with the County Charter. During this period the council has offered to meet with the County Executive to consider selection of another County Attorney. Other qualified local attorneys and law firms have expressed interest in that position. Mr. Culver, however, has flatly refused to confer with the Council to resolve this critical matter.”

The letter continues: “The charter expressly states that the appointment may not exceed 90 calendar days except by council approval. During that period, Mr. Culver could have worked with the County Council to select another County Attorney or asked council to extend the temporary appointment, but did not do so. Instead, Mr. Culver has informed council members that he intends to continue to use Mr. Wilber as the County Attorney.”

Cannon then raises the possibility that Wilber might also be held accountable.

“… If Mr. Wilber continues to furnish legal services to the county, with limited exception regarding pending court cases, that could violate the Maryland Attorney’s Rules of Professional Conduct.

Whatever damage or harm occurs to the County will be the regrettable consequence of the County Executive’s failure to address this matter with the County Council in a reasonable manner.”

The Karpinski letter

The Friday before Cannon’s letters and news release, Culver received a letter from Kevin Karpinski, who heads a Baltimore law firm and works for LGIT, the Local Government Insurance Trust.

Well-known to those who lead municipal governments, LGIT was formed more than 30 years ago to help local government entities deal with insurance issues, ranging from routine coverage to dealing with employee issues.

Because it’s his specialty, Karpinski has previously served as a Human Resources attorney for the county.

Offering guidance on behalf of LGIT, Karpinsky writes that law and precedent require that the county have an attorney in place at all times, because the legal consequences are too great if the county goes without an attorney.

The validity of county actions could come under legal questioning — and possibly undoing — if no lawyer exists to handle county business.

In a complex summation and extension of advice, Karpinsky asserts that Wilber should as the “de facto” County Attorney.

Karpinsky writes: “… The County Attorney serves an essential function within county government. It is my understanding that the County Attorney reviews all contracts executed by the county. The County Attorney is involved in extensive litigation on behalf of the county and provides consultation to various departments within county government.

“In short, leaving the County Attorney’s position vacant clearly would have such a deleterious impact on the county’s ability to conduct day-to-day business. This is contrary to the well-established stated policy in Maryland that positions need to be filled in order to accomplish the operations of government.”

Karpinsky then offers to play the role of peacemaker between Culver and the council.

“I have been authorized by the Local Government Insurance Trust to attempt to facilitate a resolution between the County Executive’s Office and the County Council regarding the duties and responsibilities of the various branches of government,” Karpinsky writes.

“I would welcome the opportunity to meet with the administration and the council to attempt to facilitate an amicable resolution to any questions or concerns regarding the duties and the responsibilities of the County Executive and County Council.”

Documents show Culver forwarded the Karpinsky letter to the council members the same day he received it. Later, on Dec. 2, Culver forwarded the letter to both Circuit Judge Sarbanes and District Court Clerk Andrews.

Without offering much explanation, Culver writes simply: “… The County Attorney position remains filled until another County Attorney is appointed and confirmed. I consider Paul Wilber to be the Acting County Attorney in all Circuit Court matters involving Wicomico County. I request that the (courts) take no action on the Nov. 22, 2019, letter from Council President John Cannon.”

Council, Cannon rebuttal 

Culver’s reply received a quick rebuttal from Cannon and the County Council’s lawyer, Robert Taylor.

The lengthy summation prepared by Taylor seeks to rebut Karpinsky’s points and, in a manner similar to Karpinsky, cites numerous cases in Maryland law. 

Writes Taylor: “Despite its length, citation to and quotation from various court decisions and secondary authority, Mr. Karpinski’s analysis is faulty and his opinion is incorrect.”

Taylor adds: “Mr. Karpinski … fails in his letter to consider both the factual scenario and controlling matters of law, presents no meaningful legal precedent and misinterprets the so-called de facto officer doctrine that he regards as appropriate.”

Taylor goes on to cite the County’s Charter concerning the appointment and removal of the County Attorney, explains the expiration of Wilber’s status as “Acting County Attorney,” and denies claims that the matter is an “emergency” situation since the situation has continued for six months.

Taylor then seeks to poke a hole in Karpinsky’s key point about Wilber’s “de facto” service.

“The de facto officer doctrine does not confer authority to hold a position, but rather serves to defeat a challenge to an action by a ‘holdover’ official who has not been duly elected or appointed, as occurred in cases mentioned by Mr. Karpinski.”

Taylor further offers a biting summation: “Finally, Mr. Karpinski’s analysis and opinion make the County’s Charter completely meaningless. In effect, Mr. Wilber could continue to serve indefinitely as the County Attorney — after being removed from that position in accordance with the Charter — and that’s an absurdity.

“Although it is sound policy for the position to be filled, that does not operate to nullify the Charter. And in this instance, the County Executive has now had nearly six months to cooperate with the council to select and install another County Attorney, during which he has failed to do so.”

In an interview last week, Culver restated previous assertions that Wilber is the most-qualified locally to hold the position, citing his decade of rough-and-tumble service as Salisbury’s City Attorney, as well as the lawyer’s work in a host of municipalities.

He said he is comfortable with Karpinski’s advice of a “de facto” status, but he knows he hasn’t heard the last of it.

He said he would like to tell the council: “You all have to get used to this.” 

Since the exchange of letters, the County Council has reorganized, which means Cannon is unlikely to remain the point man in seeking to hold Culver accountable to the charter.

Larry Dodd is now the new Council President. Without offering a lot of details, Culver said he and Dodd have met and “Larry wants us all to get along.”

Greg Bassett is editor and general manager of Salisbury Independent. Reach him at gbassett@newszap.com

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