Court of Appeals Takes Up Ex-Public Defender's Wrongful-Dismissal Suit

by Steve Lash
Published: December 28th, 2011

Article Forster Nancy

Maryland’s top court has agreed to consider whether fired State Public Defender Nancy S. Forster can proceed with her $1 million wrongful-termination lawsuit against the state.

The Court of Appeals said this month that it will hear Forster’s argument that a Baltimore trial judge erred in dismissing Forster’s claim that her Aug. 21, 2009, firing was due to her refusal to implement illegal orders from the three-member board of trustees that presided over the public defender’s office.

Forster argues in her appeal that complying with the trustees’ order — to disband the Juvenile Defender Division and other units in the agency — would have violated public policy and her statutorily prescribed duties of “operating, administering and conducting” the public defender’s office.

“We think the case is a fairly simple case,” Forster’s attorney, Andrew M. Dansicker, said Wednesday. “She was asked to engage in illegal conduct and was fired when she refused to do so. Plainly, we think this is adequate grounds for a wrongful-termination claim under Maryland law.”

The appeal follows Baltimore City Circuit Court Judge Pamela J. White’s dismissal of Forster’s lawsuit in February, saying the claim was based on a “deep disagreement” between her and the board of trustees on how best to perform the agency’s work.

Firings that result from such employment disputes do not amount to a violation of a “clear mandate of public policy,” the standard for a wrongful-termination cause of action, White wrote.

“The parties may debate the interpretation and extent of the board’s statutory responsibilities, and Plaintiff may reasonably complain that the Board’s advice and instructions would interfere with her performance of statutory duties; however, there is nothing specified in the Complaint that reflects unlawful or particularly reprehensible conduct of the Board,” White wrote.

“Such differences of opinion … without allegations of actual statutory breaches, are too general, too vague, too conclusory as to constitute a prima facie claim of wrongful discharge,” White stated, adding that the public defender serves at the “pleasure of the board.”

But Dansicker, a Hunt Valley lawyer, said White “overreached” in dismissing Forster’s complaint, which he said presents a substantial enough claim of wrongful termination to warrant a trial.

The Maryland attorney general’s office, which is defending the board’s decision, expressed confidence that the Court of Appeals will uphold White’s dismissal.

“Upon considering all the arguments, Baltimore City Circuit Court Judge Pamela White rejected Ms. Forster’s contention that she was wrongfully terminated,” Alan M. Brody, a spokesman for the office, stated in an email. “We expect Judge White’s ruling will be affirmed by the Court of Appeals.”

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 certain units, such as the Juvenile Defender Division, the Capital Defense Division and Northwest Community Defenders in Baltimore, and make other cost-cutting changes.

When Forster refused, McCurdy and Mead voted to remove 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.

Forster had appealed White’s dismissal to the Court of Special Appeals, but the high court — acting on its own motion — chose on Dec. 16 to hear the case without it first being considered by the intermediate court.

The Court of Appeals has tentatively scheduled arguments for early March in the case, Nancy S. Forster v. State of Maryland, Office of the Public Defender, No. 92, Sept. Term 2011.