March 21, 2008|By John Fritze | John Fritze,Sun reporter
Baltimore erred in firing former police Commissioner Kevin P. Clark in 2004, the state's highest court ruled yesterday -- advancing a case that could reduce the city's control over the Police Department.
Mayors may sack commissioners only under certain circumstances -- such as for official misconduct or inefficiency -- the Court of Appeals ruled. Former Mayor Martin O'Malley fired Clark in November 2004 after allegations resulting from a domestic dispute with his fiancee. The allegations were later determined to be unfounded.
Portions of the case, including how much Clark may be entitled to in damages, must still be resolved by the Baltimore City Circuit Court. Clark's original lawsuit sought $120 million and the opportunity to return to his job -- though city officials said his return is highly unlikely.
"We're pleased with the outcome, obviously," said Neal M. Janey Sr., who is representing Clark. "We expected to prevail in the case because the mayor's position as far as we were concerned had no legal merit."
O'Malley hired Clark in February 2003, and the former commissioner signed a contract stipulating that the city could fire him for any reason. After allegations surfaced about the dispute with Clark's fiancee, O'Malley said the issue had become a distraction and fired him.
Clark argued that the at-will provision of the contract was invalid because state law says the police commissioner may be fired only for "official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness." A Circuit Court ruled for the city, but the Court of Special Appeals -- which is the court just below the one that made yesterday's ruling -- reversed the decision.
The city appealed, arguing that state law sets only a "baseline" of circumstances under which a mayor can fire a police commissioner and that the city could stipulate further circumstances, as it did in the contract. But the Court of Appeals disagreed, countering that the law invalidated the contract provision.
In its decision, the court explains the unusual legal history of the police department, repeatedly noting that it is technically a function of state government. Wrested from Baltimore's control before the Civil War, the police commissioner was appointed by the legislature and then the governor for decades.
In 1976, the mayor was given the power to appoint the commissioner for a term of six years but, according to the opinion, the "police commissioner remains an employee and agent of the state of Maryland," even though the mayor and City Council have oversight of the department's budget.
Clark's successor, Leonard D. Hamm, resigned in July. The current commissioner, Frederick H. Bealefeld III, has the same language in his contract regarding termination without cause.
City officials argued that Clark is unlikely to return to his job because his term would have expired in June 2008 even if he had not been fired. Remaining legal issues are likely to take longer than that to resolve, they said.
The city may argue in the lower court that Clark's case should be thrown out because he accepted some portions of the contract, such as pension rights, but has tried to disavow others.
Attorneys will also wrangle over how much the city may owe Clark if he is ultimately successful. The contract said the city is required to make only one lump-sum payment equal to six months salary.
City Solicitor George Nilson said he believes the law should be changed to give the city more latitude to fire its commissioner.
"This decision is unfortunate public policy," Nilson said. "We ought to be seriously considering going down to Annapolis to change the law that tied our hands here."
That kind of change is likely to receive a favorable hearing from O'Malley, now the governor. He issued a statement saying he would support giving the mayor power to fire the commissioner at will.
"We would support any efforts by the city now or in the future to clarify the law so that the mayor of Baltimore has the same hiring and removal authority that other county executives have," the statement says.
john.fritze@baltsun.com
