ANNAPOLIS – The role of an obscure oversight board that fired the state’s public defender earlier this year underwent sharp questioning at a Senate Judicial Proceedings Committee hearing Tuesday.
The Office of Public Defender Board of Trustees became the subject of scrutiny after its controversial firing of then public defender, Nancy S. Forster, in August.
Forster, who testified at the hearing, said that she believed the board overstepped its limits when it voted to fire her.
“What [the board] really wants is to micromanage the Office of the Public Defender, and decide who stays and who goes,” she testified.
The mandate of the board of trustees is to oversee the Office of the Public Defender. The board’s three members are appointed by the governor and the position is voluntary.
The nature of that oversight was the principal focus of the hearing.
Forster’s firing came after the board sent her a letter in July pushing for eight substantive policy changes.
In the letter, the board’s chairman, T. Wray McCurdy, wrote that Forster should disband several independent offices she had created devoted solely to the death penalty and juvenile cases. McCurdy also asked Forster to justify her employment of social workers.
Forster responded to McCurdy on July 16, writing that his suggestions were shortsighted and potentially unlawful as they would prevent the public defender’s office from fulfilling its mission to provide services to indigent defendants.
At the end of August, the board voted 2-1 to fire Forster. McCurdy and board member Margaret Mead voted in the majority, while member Theresa Moore voted against Forster’s firing.
One of the central questions of Tuesday’s hearing was whether or not the board has the right to instruct the public defender on how to manage its office. Committee Chairman Sen. Brian E. Frosh, D- Montgomery, asked McCurdy if he felt the board had the power to tell the public defender where to place personnel, to fire individuals or to demand specific policy changes.
“We end up having the situation where we’re trying to get an agency to be able to handle a pretty big onslaught of financial problems, and we’re charged with making recommendations and it does create stress, it does, it just does,” McCurdy said.
Frosh said he viewed McCurdy’s letters to Forster as instructions, not recommendations, and he said he did not believe the board had that power under existing law.
McCurdy responded by saying that though the statute governing the board is vague, it has power to remove the public defender if it sees fit.
“Somebody has to have the right to hire and fire the public defender,” said McCurdy.
“You’re asking me do I have the power to direct them and as a mandate, what if they don’t do it?” McCurdy said. “The public defender serves at our pleasure, as the way the statute is currently written, and we have the authority to advise, there is a bit of internal conflict in that.”
Forster said she agreed the board should have the power to fire the public defender, but only for an actionable reason, and not on a “whim.” She also suggested members be added to the board to provide more regional representation.
David Carroll, of the National Legal Aid & Defender Association, provided the committee with national perspective on publicly funded legal advocacy. He said Maryland’s oversight board was not in line with national standards.
“Unlike Maryland, the commission should have diverse appointment authorities so that no single branch of government has unchecked power,” Carroll said. “There should also be enough people in place so that no political party has unchecked power. National standards say that there should be a minimum of nine people on the oversight board.”
Sen. Alex X. Mooney, R-Frederick, asked McCurdy whether he thought the number of members on the board should be increased.
“Quite frankly senator, that’s up to the legislature. This is a volunteer position, we’ll follow the law, if you change the law we follow it,” said McCurdy.