City of Hagerstown v. Blenard

McWilliams, J., delivered the opinion of the Court. A while back we recalled Gilbert’s observation that “the policeman’s lot is not a happy one.” Cook [a Cumberland policeman] v. Sherry, 268 Md. 26 , 299 A. 2d 811 (1973). What was true in Cumberland appears to be true also in Hagerstown; and, indeed, it seems to have been that way for at least 70 years. Duffey v. Rickard, 194 Md. 228 , 71 A. 2d 41 (1950); Board of Street Commissioners of Hagerstown v. Williams, 96 Md. 232 , 53 A. 923 (1903).

Our present concern is an order of the trial judge, Naughton, J., directing the reinstatement of the appellee (Blenard) who had been “retired” by the Mayor (Mills). We shall affirm. The facts of record are not in significant dispute. Blenard joined the force in October 1940.

In November 1968 he was promoted to captain; his salary was raised to $10,500. On 11 September 1970 Mills told Blenard that he was to be retired. Mills’s letter of 2 November, an excerpt from which is set forth below, confirmed September’s bad news. “This letter will confirm your retirement from the Police Department of the City of Hagerstown, effective November 1,1970. “This was a very difficult decision for me to make. It was only after many months of study and consultation with the Chief of Police, the Chairman of the Board of Public Works, and the Personnel Director, that the decision was reached which resulted in your retirement. “You will be retired at an annual salary of $5,520 for your lifetime.

In addition, health insurance for you and your dependents will be paid for by the City of Hagerstown for life.” When Blenard’s request for reinstatement was refused he filed his petition for the issuance of the writ of mandamus. Blenard alleged in his petition that “at all times while a member of the Police Department, and most ³⁸⁴ particularly while holding the position of Captain, [he] conducted himself properly and performed his duties efficiently, honestly and capably,” that Mills had no just cause for his “summary and arbitrary dismissal,” that the Personnel Director “preferred no charges against [him],” that he was given no reason for his discharge, that he wa* not given a copy of any charges, nor was he given an opportunity to be heard and to be represented by counsel at a hearing. He alleged further that his service had been faithful, that he is physically capable of performing the duties of the office, that he is not permanently disabled and that Mills did not procure a certificate signed by two reputable physicians that he is incapable of performing active police duty and that his disability is permanent. Mills’s demurrer to the petition having been overruled, he answered saying Blenard “knew or should have known why he was being retired” and that his (Mills’s) “generous and benevolent” action was taken “after a thorough investigation and a just determination that the efficiency of the Police Department required his retirement.” He admitted he had made no attempt to show that Blenard was “physically incapable.” He said “he proved to be wholly incompetent” to be the second in command of the Police Department.

The alternative to retirement, he continued, would have been the preferring of “charges of incompetency and misconduct” the “probable” result of which would have been his discharge “without pension.” Blenard filed a motion for a summary judgment which he later withdrew. His demurrer to Mills’s answer was sustained with leave to amend. In his amended answer Mills again alleged Blenard’s incompetence; he declared that a “thorough investigation determined that the overall efficiency of the Police Department required . . . [his] retirement.” The demurrer to the amended answer was sustained without leave to amend. Judge Naughton ordered Blenard’s reinstatement on 18 August 1972. ³⁸⁵ In 1949 the General Assembly repealed Hagerstown’s 65 year old charter and enacted a new charter in lieu thereof.

Chapter 117 of the Laws of 1949. Directly thereafter the new charter was submitted to and approved by the city’s qualified voters. Everstine, Code of Public Local Laws of Washington County, 1970 ed., Art. 15, Hagerstown. Section 15-47 provides, in part, as follows: “15-47.

Classified service; rules. “The Personnel Director shall prescribe, amend and enforce rules for the classified service, which shall have the force and effect of law, shall keep minutes of all proceedings and records of his examinations, and shall make investigations concerning the enforcement and effect of this Charter and of the rules. He shall make an annual report to the Mayor. The rules shall provide: * * * “(12) For discharge or reduction in rank or grade after appointment or promotion is completed only after the person to be discharged or reduced has been presented with