Judge favors city in battle over DSS hire

State unlawfully named interim chief, ruling says

Mayor's approval not obtained

Governments get 45 days to decide on replacement

July 13, 2004|By Laura Vozzella | Laura Vozzella,SUN STAFF

The administration of Gov. Robert L. Ehrlich Jr. acted unlawfully when it appointed Floyd R. Blair to lead a city-based social service agency over the objections of Mayor Martin O'Malley, a Baltimore Circuit Court judge ruled yesterday.

Judge M. Brooke Murdock granted the city's motion for summary judgment at the end of an hourlong hearing in which City Solicitor Ralph S. Tyler described Blair's appointment as "a lawless exercise of brute force."

Murdock gave the state and city 45 days to agree on someone to replace Blair at the helm of the long-troubled Baltimore City Department of Social Services, a primarily state-funded agency that employs 2,600 and serves more than 50,000 children and adults.

She did not remove Blair from his post in the meantime. The city had sought his immediate removal when it filed its lawsuit in November, but it did not ask for that remedy yesterday.

"We're pleased that the court upheld the mayor's argument and found that the state had acted unlawfully," Tyler said.

Assistant Attorney General Steven M. Sullivan, who represented the state in the case, said he was not sure if the state would appeal. "I have to discuss that with the governor and secretary," he said, referring to Secretary of Human Services Christopher J. McCabe.

The question of who leads DSS is considered important because the department is responsible for the welfare of the city's most vulnerable children and adults. There have been a number of horrific cases - the fatal beating of month-old twins in May; the starvation death of 15-year-old Ciara Jobes in December 2002 - in which critics have accused the agency of dropping the ball.

But along with human stakes, the appointment battle comes with a political subplot. Ehrlich and O'Malley are bitter political foes. The Democratic mayor is widely expected to be among the candidates to challenge the Republican governor in 2006.

The political acrimony was hardly snuffed out by the ruling. Ehrlich issued a statement that noted his right to appeal, praised Blair's accomplishments, suggested Blair should be considered a candidate for the permanent post and criticized O'Malley as being uncooperative.

"Today I find myself in the position of again asking the Mayor to put politics aside and act in the best interests of Baltimore City's citizens," Ehrlich said.

Letter to McCabe

Steve Kearney, a spokesman for O'Malley, said the mayor's staff sent a letter yesterday to McCabe, saying City Hall was ready to work with him on the search. But in a statement, the mayor also had harsh words for Ehrlich.

"It's a good day for the vulnerable children and adults who rely on DSS in Baltimore," he said. "Substance and the law have won out over politics. It is a shame that the governor refused our repeated calls to work together, and wasted a year that we didn't have to spare. Now, the court has spoken, and it's time to get an effective leader for this troubled agency."

McCabe appointed Blair in September as interim director against the wishes of O'Malley. In November, O'Malley filed a lawsuit seeking Blair's removal because he lacked five years' management experience and the mayor's approval. Both are required by law.

At the time, Blair contended he was qualified for the job, in part because of his inspirational life story. A self-described "poor kid from the projects," Blair became a lawyer who worked for President Bush for 17 months as an associate director of a faith-based social services initiative.

Blair's qualifications were not debated during yesterday's hearing, which centered on whether McCabe had the legal right to put Blair in the job without O'Malley's consent.

Tyler came to court armed with a poster-sized excerpt from state law, Article 88A, Section 13(b), which states that the director is to be appointed "with the concurrence of the Secretary of Human Resources and ... the Mayor of Baltimore City."

While conceding that the mayor has a say in who directs the department, Sullivan said the requirement did not apply to Blair because he was serving in an interim capacity. If the governor's office was denied the power to appoint a temporary director, Sullivan argued, a mayor who wanted to stonewall the state could prevent the agency from functioning.

Tyler said McCabe did not have the authority to appoint a director, even on an interim basis, without the mayor's consent. He said McCabe had no intention to replace Blair, who has been in the post 10 months.

Trying for a choice

Sullivan said Ehrlich and McCabe had been trying to come up with a permanent choice who would be acceptable to O'Malley.

"You're not saying politics would interfere with their ability to do right by the citizens of Baltimore?" Murdock asked.

Sullivan said politics should not play a role, but the selection was complicated because the officials involved were "diametrically opposed" to each other.

In her ruling, Murdock noted that McCabe had sought and obtained O'Malley's consent for the appointment of a previous interim director, and that McCabe put Blair in the position after O'Malley had rejected him as a permanent choice. She expressed hope that the Ehrlich administration and O'Malley would "overcome political differences" and agree on someone to take the helm of the "large, complex and troubled organization."

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