Malone can keep job as firefighter

January 07, 1995|By Larry Carson | Larry Carson,Sun Staff Writer

A redefinition of Del.-elect James E. Malone Jr.'s duties as a Baltimore County firefighter will allow him to keep his job, his pension and his elected office, state and county officials said yesterday.

The juggling of Mr. Malone's duties by the county and some legal maneuvering by the state's lawyers appear to have led to a narrow path through the Maryland Constitution's legal brier patch.

In a Thursday letter, Assistant Attorney General Robert A. Zarnoch told Mr. Malone that a county proposal to strip the firefighter of his ability to write citations by making him more of a training officer "significantly changes the constitutional analysis." Mr. Malone now supervises firefighters who do safety inspections of buildings and issue citations for fire code violations.

In December, Mr. Zarnoch informed Mr. Malone, who was elected in November in District 12A, that under Maryland's Constitution he could not be a firefighter and a delegate at the same time.

After being home ill for several days, the 37-year-old fire lieutenant and assistant state fire marshal said he was feeling much better yesterday, physically and emotionally. "I'm ecstatic," he said. "Today is really the first time I feel like I won the election." He vowed to attend his swearing-in Wednesday "no matter what."

The solution to Mr. Malone's problem also will get the County Council off the hook. A controversial proposal that would have preserved the Catonsville Democrat's firefighter pension even if he became an ordinary employee now is unnecessary. Mr. Malone has been a firefighter for 13 years.

Mr. Zarnoch also said that Attorney General J. Joseph Curran Jr.'s office probably will offer a proposed constitutional amendment during the 90-day General Assembly session to help prevent similar problems. If approved by the legislature, the amendment would go before Maryland voters in 1996.

"It isn't fair," Mr. Zarnoch said of Mr. Malone's plight.

He said the technical legal differences in the state constitution between public workers who occupy an "office of profit" and those who don't are "crazy . . . almost unexplainable."

"The constitution prohibits anyone from occupying both an office of profit and a legislative seat at the same time," he said. "The case law has been around for 150 years."

The confusion is illustrated by the case of Del. James M. Harkins, a Harford County deputy sheriff beginning his second term in the legislature.

In 1990, Mr. Zarnoch wrote Mr. Harkins that a deputy sheriff is also permitted to be a delegate even though a sworn police officer in Maryland cannot hold elective office. "A deputy sheriff, even one who may exercise police powers, does not hold a post created by statute or the constitution of the state of Maryland," he wrote.

Another twist is that in Harford County, the sheriff's department does the same work police officers do in other counties and in Baltimore. In fact, Mr. Harkins said yesterday, if voters had approved a November referendum that proposed to change the sheriff's office into a police force, "I would have been out on the street."

He denounced the "hypocrisy" that allows public employees such as teachers and social workers to serve in elective office, but not police officers or firefighters. "I would like to see it resolved," he said.

Tuesday night, the County Council delayed voting on the bill to preserve Mr. Malone's firefighter pension, hoping that the issue would be resolved.

If Mr. Zarnoch had not provided a way out, Mr. Malone would have faced the loss of pension benefits accorded to county police and firefighters, which are greater than those for other county workers.

A report by County Auditor Mary B. Allen that was distributed to council members Tuesday said Mr. Malone could have lost up to $153,660 in pension payments had he become a regular employee. The reason was that firefighters earn more than other employees toward their pension for each year they work. And after 1998, they will be able to retire after 25 years of service, regardless of age. Regular county employees can't retire until they have worked 30 years.

As a fire lieutenant, Mr. Malone would be eligible for a pension of $30,732 a year after 25 years' service and $37,500 after 30 years. If he serves two terms in the legislature, he will be eligible for a state pension of at least $7,128.

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