Fired Maryland PSC spokesman loses defamation suit

Daily Record, The (Baltimore), Feb 21, 2008 by Brendan Kearney

A fired Public Service Commission spokesman waited too long to sue his former boss and the state for defamation, a Baltimore judge has ruled.

At a pretrial motions hearing on Wednesday in Baltimore City Circuit Court, Judge Alfred P. Nance heard about an hour of argument before throwing out Robert M. Higginbotham II's amended complaint.

"Given the substantial public interest in this case, there's going to invariably be an appeal," said Howard J. Schulman, Higginbotham's current attorney.

Higginbotham, who was terminated along with four other employees in April 2004, had argued the display of an 8 1/2-inch by 11-inch photo of him in the lobby of the PSC's headquarters at William Donald Schaefer Tower sullied his reputation and made him appear criminal.

But his original defamation complaint against the PSC, filed in January 2005 by a different lawyer, had only mentioned then- Chairman Kenneth D. Schisler's alleged cover-up of the firings.

Higgenbotham's amended complaint, filed in 2007, added claims against Schisler and the state based on the photograph.

"This court is left with no alternative but to rule the posting of the photograph in the lobby was a separate and distinct act," Nance said in court. "The filing of that [claim] was done at the time of the amended complaint."

Higginbotham, who was not at work the day he and his co-workers were terminated, admitted in his affidavit that he learned of the photo postings in an April 19, 2004, phone conversation with Deborah Richardson, secretary to Chrys Wilson, another fired PSC employee.

That started a one-year clock ticking on his defamation claim, Nance said.

While Higginbotham's January 2005 defamation complaint against the PSC was timely filed by Kathleen M. Cahill, his current attorneys later agreed not to proceed on that claim.

In April 2005, Baltimore City Circuit Judge W. Michel Pierson stayed the case to allow the Court of Appeals to rule in Wilson's wrongful termination case.

Higginbotham's complaint was amended last September to include Schisler and the state as defendants and to include specific mention of the photograph.

Schulman argued that a September 2004 notice to the state treasurer under the Maryland Tort Claims Act gave his client three years from that date to file.

"This court disagrees," Nance said, concluding the hearing.

PSC General Counsel Douglas R.M. Nazarian declined to comment.