UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CRAIG RICHBURG,
Plaintiff-Appellant,

v.

MAYOR AND CITY COUNCIL OF
BALTIMORE, MARYLAND; CITY OF
BALTIMORE; BOARD OF SCHOOL
COMMISSIONERS,
Defendants-Appellees,

and

WALTER G. AMPREY; KURT SCHMOKE;
                                               No. 98-1935
PHIL FARFEL, Doctor; KATHLEEN
FEELEY, Sister; CHARLES ANGELINO;
HARRINGTON; ABBEY HARRISTON;
ELIZABETH COLETTE; REDMOND,
BURGIN & CRUZ, P.A.; ALEXANDER,
BEARDEN, HAIRSTON & MARKS, LLP;
JEANETTE EVANS, Dr.; TONY HARRIS;
UNKNOWN NAMED AGENTS OF
BALTIMORE CITY PUBLIC SCHOOLS;
WBFF TV FOX 45; SINCLAIR
BROADCAST GROUP INCORPORATED,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-96-3888-MJG)

Argued: May 4, 1999

Decided: December 13, 1999
Before WIDENER, MURNAGHAN and NIEMEYER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Craig Forrest Ballew, FERGUSON, SCHETELICH &
HEFFERNAN, P.A., Baltimore, Maryland, for Appellant. William
Rowe Phelan, Jr., Principal Counsel, DEPARTMENT OF LAW, Bal-
timore, Maryland, for Appellees. ON BRIEF: Robert L. Ferguson,
Jr., FERGUSON, SCHETELICH & HEFFERNAN, P.A., Baltimore,
Maryland, for Appellant. Frank C. Derr, Deputy City Solicitor,
Jerome A. Nicholas, Jr., Associate Solicitor, DEPARTMENT OF
LAW, Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant, Craig Richburg, assigns error to the district court's
refusal to appoint counsel, pursuant to Md. Code. Ann., Educ. § 4-
104(d), to defend him, at the expense of the City, 1 against a sexual
harassment suit by a former co-worker, Jennifer Francis. We affirm.
_________________________________________________________________
1 We refer to the defendants collectively as the City.

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I.

Richburg formerly served in the Baltimore City public schools as
head of the Management Information Systems Department. When he
assumed that position in October 1995, Miss Francis already worked
in the Systems Department as Acting Procurement Manager. Miss
Francis alleged that, on November 8, 1995, Richburg had her trans-
ferred from the Systems Department to the Finance Department and
returned to the position of Accountant II, the position she had held
prior to Acting Procurement Manager. Richburg's own tenure with
the Systems Department ended in October 1996 when his position
was eliminated.

Several months later, Miss Francis sued both Richburg and the Bal-
timore City Board of School Commissioners pursuant to Title VII of
the Civil Rights Act of 1964 for sexual harassment. Miss Francis
accused Richburg of requesting sexual favors from her in return for
her promotion to permanent Procurement Manager. She alleged that
Richburg accused her of having conducted a sexual relationship with
his predecessor, Terry Laster; that Richburg squeezed her waist; and
that Richburg made inappropriate comments regarding her physical
appearance. Miss Francis further alleged that she refused Richburg's
advances and was subsequently transferred from Richburg's depart-
ment. Following that transfer, Miss Francis complained that Richburg
continued to harass her by approaching her in her new location,
whereupon he would whisper her name or make reference to her
alleged sexual relationship with Laster.

Miss Francis sued Richburg in the district court in Francis v. Balti-
more City Board of School Commissioners, Civil Action No. AMD-
97-4015 (Francis), whereupon he informed the City and requested
that counsel be provided to defend him. The City denied Richburg's
request, and Richburg filed an Emergency Motion For Injunctive and
Declaratory Relief Enforcing Plaintiff's Right to Legal Representa-
tion, which was denied by Judge Davis by letter order filed February
14, 1998.

That order related that Richburg's motion was based on his claim
that he was the victim of unlawful retaliation by way of the Francis
case, and that being the case, Richburg should move to amend his

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pending law suit (this case) against the City to seek appropriate relief.
Because the February 14th order in the Francis case, on its face,
recited that Richburg should seek the same relief in his pending case
(this case), it is implicit that the Francis order, filed February 14,
1998, was without prejudice. See United States v. Lucchese, 365 U.S.
290 (1961).

Next, on March 16, 1998, Richburg filed his motion in this case for
injunctive and declaratory relief, seeking to require the City to
appoint counsel for him in the Francis case under Md. Code Ann.,
Educ. § 4-104. The response of the City to that motion was filed
March 19, 1998, and the district court decided the merits of the
motion in a written memorandum and order filed May 27, 1998,
which, among other things, recited that "the parties wish the court to
resolve the motion on the papers filed." A.92. The statement just
quoted in the district court's opinion is not refuted. The district court
denied the motion, from which order this appeal is taken, we having
been advised that it is the final order remaining for disposition in this
case.

II.

We are of opinion that the district court correctly decided that Md.
Code. Ann., Educ. § 4-104(d) did not entitle Richburg to counsel pro-
vided by the school district in this instance. Section 4-104(d) does
require the school board to provide employees of a school board with
counsel if the action sued on: 1) "was taken in the performance of his
duties," 2) was "within the scope of his employment," 3) was "without
malice," and 4) was "within his authorized official capacity." See
Matta v. Board of Educ. of Prince George's Co., 552 A.2d 1340,
1341 (Md. Ct. Spec. App. 1989). As the district court recognized,
however, Richburg did not comply with the four, independently nec-
essary, statutory criteria.

First, the allegations in Francis constituted malice as defined by
the Maryland Court of Special Appeals in Matta . Miss Francis com-
plained of "an intentional and unauthorized touching," as well as inap-
propriate comments about her physical appearance and rumors
regarding her sexual relationship with another man. Further, Miss
Francis' complaint included an allegation that Richburg accused her

                     4
of threatening other employees in a letter to the school district's chief
financial officer as well as a request for punitive damages. Nothing
in Miss Francis' complaint suggests that Richburg's actions were neg-
ligent in nature. See Matta, 552 A.2d at 1344 (equating merely negli-
gent with non-malicious). Instead, Miss Francis' allegations recite
intentional actions that were directed against her personally and inex-
cusably -- the very essence of a claim of malice under Matta. 552
A.2d at 1344.

Richburg's claim also fails under Md. Code. Ann., Educ. §4-
104(d)'s requirement that the actions sued over took place within his
authorized official capacity. While Miss Francis accused the school
board of failing to take remedial action, there is no suggestion that the
board authorized his conduct. Matta, 552 A.2d at 1345. The Matta
court foreclosed that such sexually harassing conduct would be within
the scope of employment. Matta, 552 A.2d at 1345. We conclude that
the City had no duty to provide Richburg counsel under Md. Code.
Ann., Educ. §4-104(d).

The judgment of the district court is accordingly

AFFIRMED.2
_________________________________________________________________
2 The City alternately contends the motion should have been denied
because of a non-compliance with Fed. R. Civ. P. 57. There being no
merit in the motion, we do not address that procedural question.

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