Mayor of Baltimore v. Clark

BELL, Chief Judge. The Appointment, term, and qualifications of the Police Commissioner of Baltimore City are prescribed by § 16-5(a) ¹⁶ of the Code of Public Local Laws of Baltimore City (1997 Edition). 1 As relevant, that section provides: “The Police Commissioner of Baltimore City shall be appointed by the Mayor of Baltimore City, subject to confirmation by the City Council by a majority vote of its members, for a term of six years, the first term to commence July 1, 1978, and continue until a successor is appointed and qualified as herein provided, but no person is eligible for the appointment unless that person is a citizen of the United States, not less than 30 years of age, and has not had less than five years’ administrative experience that is sufficiently broad, responsible and technical to prepare that person to function effectively at the desired level as police commissioner.” The removal of the Police Commissioner of Baltimore City is addressed in § 16-5(e), which provides: “The Police Commissioner is subject to removal by the Mayor for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness, in the manner provided by law in the case of civil officers.” As the reasons enumerated make clear, the Code of Public Local Laws contemplates that removal of the Police Commissioner be “for cause.” The respondent, Kevin P. Clark 2 (hereinafter “Clark” or “the respondent”), in 2003 was appointed the Police Commissioner of Baltimore City by the Mayor of the City of Baltimore (hereinafter “Mayor”) and confirmed by the City Council. Prior to his confirmation, Clark and the Mayor entered into a contract, denominated “Memorandum of Understanding” (MOU), “to employ the services of Clark as the Police Com ¹⁷ missioner of Baltimore City.” 3 The contract, which purported to be for “the remaining term of the last Commissioner until June 30, 2008,” addressed the terms and conditions of Clark’s employment as Police Commissioner. One term related to his removal as Commissioner.

Albeit in the context of “Additional Compensation/Severance Pay,” the parties acknowledged, in Section 2. A. of the MOU, 4 the applicability of PLL § 16-5(e) to the removal of the Commissioner and denied any intention to “affect the rights of the Mayor in that respect.” In another section, however, the agreement introduced and prescribed another method of removal, one not contemplated or addressed in the Code of Public Local Laws, termination without cause. Section 12. of the MOU provides: “Either party may terminate this contract at any time, by giving forty-five (45) days prior written notice to the other. Notwithstanding the above sentence the provisions of Section 2B [ 5 ] remain in force.” ¹⁸ Clark commenced his role as Police Commissioner following the signing of the MOU.

A little more than a year and a half later, on November 10, 2004, however, “pursuant to Sections 12 and 13 of the Memorandum of Understanding,” he was relieved of his command. 6 The letter providing the requisite forty-five days notice of the termination of the MOU and, thus, terminating his tenure as Police Commissioner, was delivered to Clark by the City Solicitor, and, as relevant, advised: “This notice is sent on behalf of the Mayor and City Council of Baltimore (the “City”) pursuant to Sections 12 and 13 of the Memorandum of Understanding (“MOU”) between you and the City dated February 19, 2003. This notice shall serve as the City’s 45-day notice of termination of your employment. Thus, your employment shall terminate 45 days from today. However, as the Mayor announced this morning, you have been relieved of all official duties as of 8:30 a.m., November 10, 2004, and therefore, your further access, if any, to Police Department facilities, equipment, or documents will be subject to the specific, prior authorization of Acting or Interim Police Commissioner Hamm.” Clark filed, in the Circuit Court for Baltimore City, a verified complaint, naming as defendants, Mayor Martin O’Malley and the Mayor and City Council of Baltimore 7 , in ¹⁹ which, in addition to seeking reinstatement as Police Commissioner and monetary damages, he requested declaratory and injunctive relief.

After some preliminary skirmishing, consisting of the denial of injunctive relief and the denial of the petitioner’s dispositive motion for summary judgment, Clark filed an amended complaint. In response, the petitioner again moved for summary judgment. Following a hearing, the Circuit Court granted summary judgment to the petitioners, concluding that the MOU was a valid and unambiguous contract, pursuant to which Clark had been lawfully terminated, upon notice properly given pursuant to paragraphs 12 and 13 thereof. The Circuit Court also issued a declaratory judgment, in which, consistently, it declared that the Mayor properly had terminated Clark, without cause, on proper notice.

Clark immediately noted an appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment of the Circuit Court. Clark v. O’Malley, 169 Md.App. 408 , 901 A.2d 279 (2006). Concluding that the trial court erred in holding, as a matter of law, that the MOU was valid and enforceable, it held that the Mayor did not have the authority to remove a Police Commissioner pursuant to a contract providing for removal without cause, the Mayor’s ability to remove the Police Commissioner having been limited by the General Assembly, 169 Md.App. at 439 , 901 A.2d at 297 , and, therefore, the removal provisions of the MOU were invalid.

The Mayor and the Mayor and City Council of Baltimore timely filed a petition for writ of certiorari with this Court, which we granted. Baltimore v. Clark, 395 Md. 56 , 909 A.2d 259 (2006). 8 A. The arguments advanced by the petitioners to challenge the judgment of the Court of Special Appeals are multi-faceted. ²⁰ First, noting that the parties in fact entered into an employment relationship via contract, in which there was “an extensive set of ... promises that each made to the other” and, particularly, that Clark was represented by counsel of his choice throughout the process, they argue that “public policy” is not a valid basis for invalidating the provisions of the contract at issue in this case. This is so, the petitioners submit, because of “the profound importance of permitting individuals to ‘exercise broad powers to structure their own affairs by making legally enforceable promises, a concept which lies at the heart of the freedom of contract principle,’ ” citing and quoting Maryland-National Capital Park & Planning Comm’n v. Washington Nat’l Arena, 282 Md. 588, 606 , 386 A.2d 1216, 1229 (1978), and because “‘Maryland courts have been hesitant to strike down voluntary bargains on public policy grounds, doing so only in those cases where the challenged agreement is patently offensive to the public good, that is, where “the common sense of the entire community would ... pronounce it” invalid. ’ ” Id., quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 , 1879 WL 4349 , ⁸ (1879) (emphasis added). Next, the petitioners acknowledge that Section 16-5(e) of the Public Local Laws of Baltimore City prescribes a list of enumerated causes for which the Baltimore City Police Chief “is subject to removal,” but they do not concede that the section or the enumeration is dispositive.

The petitioners argue, instead, that “[t]he provision does not ... prohibit the City from entering into a contract with a prospective police commissioner that contains terms of removal additional to those that it identifies. In other words, § 16-5(e), by its terms, establishes a baseline (‘is subject to removal’). The statutory provision is not prohibitive, nor does it abolish parties’ right to contract.” This is particularly the case, they posit, noting the Court of Special Appeals’ characterization of the pertinent contractual provision as “expanding] the Mayor’s removal authority,” Clark, 169 Md.App. at 439 , 901 A.2d at 297 , when there is no ²¹ “actual conflict” between the statutory and contractual provisions. The petitioners rely on Stearman v. State Farm Mut.

Auto. Ins. Co., 381 Md. 436, 455-57 , 849 A.2d 539, 550-52 (2004) and State Farm Mut. Auto.

Ins. Co., v. Nationwide Mut. Ins. Co., 307 Md. 631, 637 , 516 A.2d 586, 589 (1986), Maryland cases in which this Court refused to invalidate an exclusion that was not expressly authorized by statute, and County of Giles v. Wines, 262 Va. 68 , 546 S.E.2d 721, 723 (2001); Thompson v. Adams, 268 F.3d 609 , 612-13 (8th Cir. 2001).

The petitioners also argue that, “even if the Court were to accept Clark’s interpretation of [Public Local Law, § 16—5(e)], the Court should be dubious of a claim that a provision of the Public Local Laws reflecting the specific concerns of antebellum and Civil War-era governance in Baltimore accurately reflects the current ‘public policy’ of the City or the State.” Noting the office of a public local law is to address a matter of governance peculiarly local in nature, quoting Norris v. Mayor & City Council of Baltimore, 172 Md. 667, 681 , 192 A. 531, 537-38 (1937), and that such laws, by constitutional provision, may be repealed and amended by the Mayor and City Council, Maryland Constitution, Article XI-A, § 3, 9 they suggest that ²² the contractual provision may well be “a more accurate reflection of current public policy.” Decrying the respondent’s argument that, because the Baltimore City Police Department is a State, rather than a City, agency, the Police Commissioner may be removed only for “official misconduct, malfeasance, inefficiency or incompetency,” as amounting to anti-democratic, anti-civilian control, the petitioners finally urge that it be given “especially close scrutiny.” More particularly, they submit: “It is of course true, as the Court of Specials recognized, that the Baltimore Police Department remains an agency of state government for many state law purposes. See, e.g., Clea v. Mayor & City Council of Baltimore, 312 Md. 662 [, 668, 541 A.2d 1303, 1306 ] (1988); Baltimore Police Dept. v. Cherkes, 140 Md.App. 282 [, 303-04, 780 A.2d 410, 422-23 ] (2001). But it is also true, as a matter of now long-standing practice, that the State undertakes virtually no oversight or supervision of the Police Department. This is not a criticism of the State.

The disappearance of oversight by the State became an essentially unavoidable reality after (1) in 1966, the City became the agency of government responsible for appropriating money for the operation of the police department, see Mayor & City Council v. Silver, 263 Md. 439, 450-51 [, 283 A.2d 788, 794 ] (1971); and (2) in 1976, the Mayor became responsible for appointing the Police Commissioner, see Clea, 312 Md. at 669 [, 541 A.2d at 1306 ]. What remained, particularly after 1976, was an institutional configuration in which only city government could effectively and meaningfully oversee the Police Department. “The deeply troubling (as well as anti-democratic) consequence of Clark’s argument, if accepted by this Court, is that the Police Commissioner will not be subject to any meaningful civilian control or oversight. City government would be blocked from overseeing the Department. It would be unrealistic to expect that the State would return to fill the void.” Article XI-A of the Maryland Constitution authorizes counties within Maryland and Baltimore City to elect a “charter ²³ board” and to “prepare ... a charter or form of government,” through which that board is to act.

Md. Const, art. XI-A, § 1. These charters, as adopted, “become the law of said City or County, subject only to the Constitution and Public General Laws of this State, and any public local laws inconsistent with the provisions of said charter and any former charter of the City of Baltimore or County shall be ... repealed.” Md. Const, art. XI-A, § 1.

The Charter of Baltimore City (“Charter”), most recently ratified in 1994, provides that “[e]xcept as otherwise provided in the Charter, the Mayor shall have the sole power of appointment of all municipal officers, subject to confirmation by the City Council by a majority vote of its members” Charter, art. IV, § 6(a). The same article also provides that: “The Mayor shall have the power to remove at pleasure all municipal officers, except members of boards and commissions established by Charter or other law, appointed by the Mayor in the manner prescribed in this section and confirmed by the City Council; provided, however, that appointees holding office pursuant to the provisions of the Charter relating to the Civil Service may be removed from office only in accordance with such provisions.” Charter, art. IV, § 6(c).

There is one reference to the Baltimore Police Commissioner in the Charter of Baltimore City. It occurs in Article II, which provides that the Mayor and City Council “have and [may] exercise within the limits of Baltimore City all the power commonly known as the Police Power to the same extent as the State has or could exercise said power within said limits; provided, however, that no ordinance of the City or act of any municipal officer shall conflict, impede, obstruct, hinder or interfere with the powers of the Police Commissioner.” Charter, art. II, § 27. This is reflective of the fact that the Baltimore Police Department is not an agency of the City of Baltimore and has not been for some time, see Acts of 1860, ch. 7, § 14; Mayor & ²⁴ City Council of Baltimore v. State, 15 Md. 376, 454-55 , 1860 WL 3363 , ³⁵ (1860) (upholding legislative act that placed the Baltimore City Police Department under the control of Police Commissioners appointed by the State’s General Assembly 10 ), and suggests the reason therefor.

See Upshur v. Mayor & City Council of Baltimore, 94 Md. 743, 756-57 , 51 A. 953, 958 (1902) (noting that “during [the] period when the police force was wholly under the.control of the municipality, the city authorities failed to suppress disorder ... ”). See also Mayor & City Council of Baltimore v. Silver, 263 Md. 439, 447 , 283 A.2d 788, 792 (1971) (noting that in 1860, the General Assembly of Maryland was “intent upon taking the City of Baltimore out of the business of controlling civil disorders”). Pursuant to Acts of 1860, ch. 7, the Baltimore Police Department was removed completely from the control of the city government: “The police board was created, and its members, and the force enrolled by them, were made state officers; and the city was denied, in the most positive manner, any right to interfere with or control the policemen. The underlying purpose was to deprive the city of all power over the police.” Upshur, 94 Md. at 756 , 51 A. at 958 .

The power to remove the commissioners “for official misconduct” originally resided with the General Assembly from 1867 ²⁵ until 1900. Cull v. Wheltle, 114 Md. 58, 78 , 78 A. 820, 821 (1910). If the General Assembly was not in session, the Governor was empowered to remove a commissioner convicted of any felony before a court of law, and to appoint a successor to such delinquent commissioner until the next session of the Legislature. Id. at 78-79 , 78 A. at 821 .

Thereafter, by chapter 15 of the Acts of 1900, the Governor was empowered to appoint, with the advice and consent of the Senate, the three police commissioners. Amending then Article 4, § 740 of the Code of Public Local Laws, that Act also made the commissioners subject to removal by the Governor “for official misconduct or incompetency, in the manner provided by law in the case of other civil officers” and entrusted to the Governor, “in case of the death, resignation, removal or disqualification of any commissioner” and “subject to the provisions of [§ 740], and of the Constitution of the state,” 11 the appointment of their successor “for the remainder of the term so vacated.” Id. at 79, 78 A. at 821 . The Baltimore City Police Department was placed under the supervision and direction of a Police Commissioner by the Acts of 1966, ch. 203. Section 16-4 of the Code of Public Local Laws, thereby enacted by the General Assembly, provided: “The affairs and operations of the department shall be supervised and directed by a commissioner of police, who shall function as the chief police and executive officer of the department, and be known as the Police Commissioner of Baltimore City.” Authority was given to the Governor for the Police Commissioner’s appointment, § 16-5(a) (“[t]he Police Commissioner of Baltimore shall be appointed by the Governor of Maryland for a term of six years”) and removal.

Section 16-5(e) (“Said ²⁶ Commissioner shall be subject to removal by the Governor for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness, in the manner provided by law in the case of civil officers.”). Significantly, § 16—2(a) was unambiguous in stating that “[t]he Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland.” The power to appoint and remove the Baltimore City Police Commissioner was shifted, in 1976, from the Governor to the Mayor of Baltimore City. By Laws of Maryland 1976, ch. 920, § 16-5(a) of the Code of Public Local Laws was amended to provide for appointment by “the Mayor of Baltimore City, subject to confirmation by the City Council by a majority vote of its members, for a term of six years,” and § 16-5(e) was amended to substitute “Mayor” for “Governor.” 12 . Despite these changes, and others not here relevant, 13 § 16-2, which designates the Baltimore Police Department as an agency of the State, remained, and still remains, unchanged.

The decisions of this Court concerning the liability of the City of Baltimore for the acts, activity and inaction of the Police Department, over which it has no power, have been consistent and unequivocal, premised on, and holding uniformly, that the Baltimore Police Department is an entity of the State, and not of the City of Baltimore. Silver, 263 Md. at 449-50 , 283 A.2d at 793-94 (noting that, by making the Police Department a state agency, with “control of the department ... vested in the State with immediate supervision and direction of the department under a police commissioner who is appointed by the Governor,” the Legislature “removed the incongruous imposition of liability of the City for the acts of ²⁷ the police department over which it had no control”); Green v. Mayor and City Council of Baltimore City, 181 Md. 372, 376 , 30 A.2d 261, 263 (1943) (noting that “[a]s the police department is an agency of the state, and not of the city, the effect of any action against it would be against the state”), Taxicab Company of Baltimore City v. City of Baltimore, 118 Md. 359, 367 , 84 A. 548, 550 (1912) (citing Sinclair v. Mayor & City Council of Baltimore, 59 Md. 592, 597 , 1883 WL 6071 , ³ (1883), in noting that “ ‘the power of the city government is confined to mere matter of regulation by proper ordinance ... the enforcement of the regulation is entirely dependent upon a separate and independent police department, over which the city has no control’ ”). Additionally, in Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 668-69 , 541 A.2d 1303, 1306 (1988), this Court noted: “By Ch. 367 of the Acts of 1867, the General Assembly of Maryland made the Police Department of Baltimore City a state agency; its officials and officers were designated as state officers. Since that time, this Court has consistently held that Baltimore City should not be regarded as the employer of members of the Baltimore City Police Department for purposes of tort liability. “It is true that, by Ch. 920 of the Acts of 1976, the General Assembly transferred the power to appoint the Baltimore City Police Commissioner from the Governor to the Mayor of Baltimore City.

At the same time, however, the General Assembly maintained the express designation of the Baltimore City Police Department as a state rather than a local government agency. Furthermore, the General Assembly, and not the Baltimore City Council, has continued to be the legislative body enacting significant legislation governing the Baltimore City Police Department.” (Internal citations and footnotes omitted) (emphasis in original). ²⁸ B. As we have seen, notwithstanding the Mayor’s role in appointing and removing the City’s Police Commissioner, the Baltimore City Police Department is a state agency. Accordingly, the Mayor’s authority in that regard is not inherent. Nor is its basis the City Charter-the power given the Mayor, by Article IV, is to appoint and then to remove, “at pleasure,” certain “municipal officers,” that Article quite clearly, if not explicitly, does not refer to the Baltimore City Police Commissioner.

Rather, the Mayor has no more authority to remove the Police Commissioner than did the Governor, to whose authority he simply acceded. Before 1976, when that accession occurred, the Police Commissioner could have been removed by the Governor only for cause, “for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness, in the manner provided by law in the case of civil officers.” 14 After 1976, when the Mayor assumed the appoint ²⁹ ing and removal responsibility, removal required the same cause. C. For the petitioners, this does not end the inquiry. Viewing the provisions of § 16—5(e) of the Public Local Laws as a “baseline” for, rather than a prohibition on, the Mayor’s removal power, they argue that the parties could, as they did, contract for a more favorable, to the Mayor, removal provision, that the law does not “prohibit the City from entering into a contract with a prospective police commissioner that contains terms of removal additional to those that it identifies.” The petitioners rely, as indicated, on County of Giles v. Wines, 262 Va. 68 , 546 S.E.2d 721 (2001) and Thompson v. Adams, 268 F.3d 609 , 612-13 (8th Cir.2001) 15 for the proposition, “in employment eases involving analogous facts, courts in other jurisdictions have declined to hold that municipal ordinances and municipal employment manuals enumerating specific causes for which an employee may be terminated, but not stating that those causes are the ‘only’ causes for termination, preclude the municipality from terminating an employee for causes other than those enumerated, or for no cause.” The ³⁰ petitioners urge that the same result is appropriate in this case, notwithstanding that, here, unlike in those cases, it is a statute that is being interpreted.

In County of Giles , the issue was whether sufficient evidence had been presented to support a jury finding that the plaintiff had an employment contract terminable at will. Id. at 721. The municipal employee plaintiff was employed, and had been for two years, as a recreation area manager, a position which he performed well and for which he received significant pay increases. When four new Board of Supervisor