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Federal court rejects
Elder's due process claims

Richard D. L. Fulton
Emmitsburg Dispatch

(5/18) U. S. District Judge L. Frederick Motz has rejected denial of federal due process-related claims alleged by former Emmitsburg town commissioner, Arthur "Art" Elder, in his lawsuit against the Emmitsburg Ethics Commission, one of its members, and Mayor James E. Hoover, and dismissed the claim that the town should pay Elder's legal fees. At the same time, Judge Motz, while questioning the merits of Elder's state law claims, remanded those claims to the Circuit Court for Frederick County for review.

Motz wrote in his April 21 decision that the town ethics commission did not deprive Elder of due process during its 2004-2005 investigation into ethics complaints filed against him. "What they did deprive him of," Motz stated, "was his ability to engage in certain conduct …"

Elder filed suit in the Circuit Court for Frederick County on Nov. 23, 2005, seeking $5.4 million in damages, resulting from the town ethics investigation.

Due process argument dismissed

Elder, a town commissioner from 2002 to 2005, was found by the town's ethics commission to have violated town ethics regulations, and was further served with a cease and desist order preventing him from participating as a town commissioner in issues in which he might have a personal interest.

The former commissioner claimed he had been denied due process because the ethics committee had not provided him with the guidelines under which they intended to operate, and also that the investigation was being led by a former political opponent.

Elder did not participate in the ethics inquiry, although, according to affidavit, the commission asked him several times to do so.

The federal judge indicated in his decision that he found nothing in Elder's complaint that warranted federal action beyond his dismissing due process-related claims.

Motz wrote, "Elder alleges that every stage of the investigation was infected by personal vendetta and suffered from constitutional infirmity…(but)…he has not pled facts that would entitle him to relief."

"The fourteenth amendment due process clause protects persons against the deprivation of life, liberty, or property…the defendants' actions with respect to the investigation and the release of the commission's report did not deprive Elder of his life or property," the judge determined.

No right to town-paid defense

Case sent to circuit court

Elder had also claimed that he was entitled to repayment of his legal expenses because he was a town official at the time of the ethics investigation. Motz said that repayment of these expenses was part of Elder's due process claim. However, because the ethics investigation was not equivalent to a civil suit, the town is not responsible for paying Elder's fees.

Motz pointed out that "Maryland law grants immunity from civil suit to local government officials for non-malicious discretionary acts conducted within the scope of their employment" and "towns are required to provide a defense for them (town officials) whenever they are sued for 'any act arising within the scope of (their) employment or authority.'"

Elder claimed that the investigation entitled him to a defense provided by the town, "making the defense fee a property right protected by the due process clause."

But Motz stated, "The fundamental problem with this argument is that it improperly equates the commission's investigation with a civil suit. Because the two are not the same, Elder did not have a right to a town-funded defense."

The judge then remanded the remaining, state-law claims to the Circuit Court for Frederick County, because he concluded that no federal causes of action remained.

The federal court decision is available online at http://www.mdd.uscourts.gov/Opinions152/Opinions/Opinion%20-%20Final.pdf.

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