Culver, council on collision course over appointments

A power struggle is boiling over between Wicomico County’s executive and legislative branches and no one knows who the winner will be or what fallout might result.

Portions of the county’s charter, adopted during the formation of the County Executive system of government more than a decade ago, make clear the oversight responsibilities the County Council has when it comes to certain aspects of current County Executive Bob Culver’s official powers.

Developing as an issue is how deep the council can go in approving the executive’s department leader appointments.

Under Section 413 of the County Charter, the executive’s appointments of people to lead county agencies are subject to post-election approval. Culver was re-elected to a second term on Nov. 6.

The charter states:

“Within six months after each election for County Executive, the County Executive shall appoint all heads of each department or agency of the executive branch as defined by Section 502 and 503 of this Charter and the Code of Wicomico County, subject to confirmation by the Council as required by Section 315 of this Charter.”

That would mean that the 10 department leadership positions that form Culver’s executive cabinet would need to be approved by Monday, May 6.

There have been some behind-the-scenes rumblings that the council might decline to confirm some of Culver’s reappointments. Against that backdrop, Culver has told the council he will not forward any names and will instead challenge the charter provision created in 2006.

Culver left it to his lawyer, County Attorney Paul D. Wilber, to publicly break the news to the council that no nominees would be forthcoming. When the council met April 16, Wilber was on hand to relay the news that Culver was challenging the re-nominations based on 1970s case law from Western Maryland that concluded “holdover appointments” from one term to another legally do not require reconfirmation.

Wilber also took the opportunity to announce that Culver was challenging a charter amendment approved by voters in November that now allows the council to also approve deputy department directors.

Wilber said Culver believes public advertisement of the charter amendments “was not legally sufficient” and his boss has called “the legal validity of the entire charter section into question.” Culver also challenges the ballot question’s wording.

  Wilber then surprised council members by stating that he was not in agreement with Culver’s opinion about the 2018 amendments and that he felt the advertising had indeed been “legally sufficient.”

Cites 1970s case law

Wilber — who himself is subject to reappointment and council confirmation — didn’t offer a firm opinion on the 1975 case law from Allegheny County, but explained its detail. Ultimately heard by the Maryland Court of Special Appeals, Grooms vs. LaVale Zoning Board  involves appointments to a local zoning board, however, and does not pertain to department heads in an executive branch.

The case seemingly protects “holdover appointments” from having to withstand a second round of scrutiny or be judged on their performance by anyone outside of the executive branch.

The distinction could be that while new appointees are only judged on their credentials and previous work experience, current directors are potentially judged on their in-office performance.

An experienced attorney for an array of local municipalities over several decades, Wilber seemed almost embarrassed at having to make the presentation.

He said that if the council elects to take legal proceedings challenging Culver’s action — or lack thereof — he could not be involved because of the obvious conflict, and outside counsel would need to be called in.

But, he said, a judicial decision would be the best remedy to the dispute. He added later: “The charter is in place and should be complied with.”

Council members reacted harshly to Wilber’s comments, but didn’t appear to blame the messenger.

“I appreciate your opinion and I think the County Executive should be appreciative of it as well,” Council President John Cannon told the attorney.

Councilman Marc Kilmer, meanwhile, appeared distressed at the news, declaring Culver can’t ignore the charter by saying “I don’t care — I’m going to do it anyway.”

Kilmer, who has previously acted as the council’s point man when charter amendments are discussed, also asked rhetorically: “What are the options when there’s a blatant disregard of the charter?”

Wilber repeated the matter might have to be sorted out in the courts.

“It is somewhat unfortunate that we’re going down this road,” Cannon said. “This is jeopardizing the county’s ability to operate as a whole. This should come to a resolution so that we don’t have to take any more steps. The game should stop — and stop soon.”

Culver and Cannon are Republicans, as is the majority of the County Council.

Councilman Bill McCain, a Democrat, made the point that the charter doesn’t address any avenues for punishment if Culver doesn’t submit his nominees.

Wilber was asked if Culver could be accused of misappropriation of funds if he were to pay directors who had not been approved by the council, but the attorney had no real answer

Executive’s argument

The matter will no doubt come to a head in the council’s Tuesday, May 7, meeting. No agenda has been released as of yet.

Cannon said Culver is obligated to uphold his oath and follow county law. “The charter isn’t a code of honor, it is the law,” he said.

The county’s No. 2 executive official, Director of Administration Wayne Strausburg, was nominated and council-approved in January, as was Deputy Director Weston Young.

  Culver contends the charter amendment overwhelmingly approved in November overwrites the previous charter language.

He also said he believes the question put to voters violated the charter on legal grounds.

“When you change something and amend it,” Culver asked, “do you not take out the old?”

Culver agrees his position is “an interpretation” and maintains the council has been fully aware of his viewpoint all along.

Under “Question A” of the November ballot, the amendment was titled “Administrative Appointments and Confirmation of Appointments — Director of Administration, Assistant Director of Administration, and Deputy Directors of Departments and Agencies.”

The amendment text read:

“To amend the County Charter to provide: (A) the County Executive shall appoint the Director of Administration, the Assistant Director of Administration, and the initial appointment of the Deputy Department Directors subject to confirmation by the County Council; and (B) within six months after each election for County Executive, he or she shall appoint the Director of Administration and the Assistant Director of Administration.”

Because department heads are not mentioned in the amendment, Culver feels it is within his right not to submit them for reappointment.

“Question A changes everything,” Culver said.

Culver points out that he followed the amendment earlier this year, by submitting Strausburg’s and Young’s names for approval.

“You can’t say ‘This is what I meant,’” Culver said of the council. “This is what it is.”

The County Executive dispatched a letter to the council on Monday that made his next steps clear.

He wrote:

“The County Council, through a ballot question, changed the law during the 2018 Gubernatorial Election. Included with this letter is the ballot and the exact text presented to the 29,566 people that voted on this charter amendment.

“I have fully complied with the new charter requirements as I have submitted and received your confirmation for the Director of Administration and the Assistant Director of Administration within the six-month time period after the election. There have not been any initial appointments of Deputy Directors of Departments.”

Setting up the potential legal fight to come, Culver also wrote:

“If you wish to further discuss this matter, discussion will include legal counsel with no conflict of interest in this matter. While the County Council has their own legal advisor (Robert Taylor) and the County Attorney (Paul Wilber) is in conflict by virtue of representing both government bodies, the Executive is without proper representation. The Executive Office must be afforded legal representation of its own choosing to eliminate any conflict of interest and provide equitable solutions.”

Workers manual changes

That last sentence refers to recent criticism from the council, in which the legislative branch members questioned Culver’s hiring of outside counsel to deal with a personnel matter.

Also in hot dispute is whether department heads have been transformed into merit employees from their previous status as at-will, politically appointed workers.

On Tuesday, the County Council will address that point — it will hold a hearing on amending the county Personnel Manual to “correct the definition of ‘Termination at-Will’ to properly describe the status of employees on their initial probationary period and appointed employees, as ‘at-will’ employees.”

The 11 offices that comprise the Executive Cabinet are:

•Emergency Medical Services, David Shipley, Director.

• Steve Miller, Parks, Recreation & Tourism, Director.

•Public Works, Dallas Baker, Director.

•Information Technology, John Monar, Director.

•Planning & Zoning, Lori Carter, Director.

•Local Management Board (Wicomico Partnership for Families and Children), Michelle Bradley, Director.

•Department of Corrections, Ruth Colbourne, Director.

•Michelle Ennis, Human Resources, Director.

•Department of Law, Paul Wilber, County Attorney.

•Finance/Budget Department, Position is currently vacant.

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