McCarty v. Mayor of Baltimore

McWilliams, J., delivered the opinion of the Court. The appellant (McCarty) was employed by the Mayor ⁴²⁵ and City Council of Baltimore (City) in 1948 as an inspector in the Bureau of Building Inspection. In 1959 he was promoted, he says, to the unofficial job of Building Code Enforcement Officer. In 1962 the City Council enacted Art. 11, Sec. 139 of the Baltimore City Code empowering and directing the Building Inspection Engineer to “designate an employee * * * as a Code Enforcement Officer.” McCarty was so designated.

On 1 July 1968 the Bureau of Building Inspection, including McCarty’s position of Code Enforcement Officer, was transferred to the newly created Department of Housing and Community Development. On the same day Robert C. Embry, Esq., was appointed Commissioner of Housing and Community Development. Early in 1970 Embry, purporting to act for reasons of economy and efficiency, decided to “abolish” the position of Code Enforcement Officer. To adopt the City’s euphemism, the position “was no longer funded as a budget item.” On 24 June 1970 McCarty filed in The Superior Court of Baltimore City a petition for the writ of mandamus, a declaratory judgment, an interlocutory injunction, a permanent injunction, $500,000 compensatory damages, $1,000,000 punitive damages and reasonable counsel fees.

Named as defendants were the City, Embry, and the Board of Estimates. We shall set forth the significant portions of McCarty’s petition: 4. “* * * [on 8 June 1970 Embry advised him his position had] been abolished in the 1971 fiscal year budget * * * giving notice of termination of employment as Building Code Enforcement Officer * * * [as of 30 June 1970].” 7. “That there has been illegally created a new position known as Chief of Code Enforcement * * 8. “That * * * [defendants’ actions] were not performed in good faith but as a subterfuge to get rid of * * * [him] * * *.” ⁴²⁶ The appellees, after a few preliminary skirmishes, answered the petition in October 1970 but for reasons undisclosed the case did not come on for trial until 27 October 1971. Judge Harris presided, unaided by a jury. Both parties seem to agree that the controlling principle of law is found in Ball v. Board of Trustees of the State Colleges, 251 Md. 685, 692 (1968).

There Judge Finan said, for the Court: “Authorities universally affirm the proposition that the executive departments of government may lay off a merit system employee by abolishing the position which he holds, with the limitation that it be for a bona fide reason and not a subterfuge to evade the merit system laws. Stockton v. Department of Employment, 25 Cal. 2d 264 , 153 P. 2d 741 (1944); Hooper v. Jones, 178 Md. 429, 434 , 13 A. 2d 621 (1940); Slavin v. City of Detroit, 262 Mich. 173 , 247 N. W. 145 (1933); Maxwell v. Board of Comm’rs of City of Wildwood, 111 N.J.L. 181 , 168 Atl. 143 (1933); Smith v. City Commission of Flint, 258 Mich. 698 , 242 N. W. 814 (1932); Owen v. City of Detroit, 259 Mich. 176 , 242 N. W. 878 (1932).” (Emphasis added.) Judge Finan also called attention to what Judge Delaplaine said for the Court in Hopper v. Jones, 178 Md. 429, 434 (1940): “* * * But, since the Legislature has failed to appropriate for the salary of the appellant, it is unnecessary in this case to determine the validity or the scope of the amendment. It has been repeatedly held that a Veterans’ Preference Act can not circumscribe the right of municipal officials to abolish a position whenever they consider that such action is necessary for the public welfare, even though a veteran may be ousted thereby, provided that there is no evi ⁴²⁷ dence of bad faith or subterfuge to defeat the statutory preference. Maxwell v. City of Wildwood, 111 N.J.L. 181 , 168 A. 143 ; Owen v. City of Detroit, 259 Mich. 176 , 242 N. W. 878 .” (Emphasis added.) McCarty concedes, grudgingly to be sure, that he has the burden of proof and that his burden is onerous.

We agree in both respects. Potee v. County Comm’rs of Anne Arundel County, 138 Md. 381 (1921). Judge Harris found that McCarty had “failed to sustain his burden of proof.” We cannot say his finding was clearly erroneous. Maryland Rule 886.

One can infer from McCarty’s testimony that he was something of a hotspur and, not surprisingly, a headache, at times, to his superiors in the department. In June 1967 Robert Deitrich, the Building Inspection Engineer, stated in a letter to McCarty that “ [p] eriodically over the past several years I have found it necessary to admonish you regarding your relationships with both your fellow employees and the general public. In spite of these periodic admonitions there has been no appreciable change in your attitude or your conduct. * * * Since you have not seen fit to transfer to another department or resign, I therefore find it necessary to dismiss you * * McCarty thereupon asked for and obtained a hearing before the Civil Service Commission. The charge filed against him was that he had been “wantonly offensive in his conduct towards the public or towards other employees.” The Commission thought “McCarty * * * [to be] a perfectionist, a person with little patience and a low flash point to his temper”; it found as a fact that he had “been curt and even abusive toward his fellow employees.” Nonetheless the Commission ordered his reinstatement, conditional, however, upon his “demonstrating a more tolerant attitude, both to the public and his fellow employees.” In January 1968 Deitrich “relieved [him] from duty for one week without pay * * When he returned the next week he was assigned “to other duties of substantially less importance and au ⁴²⁸ thority * * Again the Commission ordered his reinstatement but the “one-week suspension” was allowed to stand.

After Embry assumed direction of the department Ross Sanderson, Deitrich’s successor, told McCarty he was dissatisfied with his work and he urged him to transfer to another division. When McCarty refused Sander-son said (according to McCarty), “You are going to be sorry.” McCarty, although a member of the bar since 1955, “made no attempt whatever to find any work” from 30 June 1970 to 27 October 1971, the day of trial. He had been offered a job in the Division of Building Inspection in November 1970. His reason for refusing it was that he “didn’t want to do anything at all to prejudice the outcome of this case.” He said the reason he wanted to stay in the department was that he “was the only one honest enough * * * and conscientious enough * * * to handle that type of work.” McCarty’s testimony, taken together with his documentary evidence, séems to us to fall short of proving either bad faith or subterfuge.

He insists the implication is there but while one might infer bad faith or subterfuge one could quite as easily infer good faith and the absence of subterfuge. To shore up his case McCarty called Sanderson and Embry to testify in his behalf. While Sanderson may not have been a hostile witness he could hardly have been called friendly. Embry, however, was an adverse parly whose testimony was neither rebutted nor contradicted, nor was it discredited.

And McCarty, of course, was bound by it. Nizer v. Phelps, 252 Md. 185 , 203-4-5 (1969); Trusty v. Wooden, 251 Md. 294, 297 (1968). The following excerpts from Sanderson’s testimony require little, if any, comment: “* * * he [McCarty] did not perform his work satisfactorily in terms of the job that we expected to be done.” * * * ⁴²⁹ “* * * we felt that we couldn’t expect that his performance would improve in this respect and that we did feel that perhaps he could work satisfactorily in another part of the agency, and I asked him to consider, seriously consider the possibility of moving to another assignment.” * * * «* * * he gaid no, that it was a Civil Service job, it was his right to keep that assignment and that he would under no conditions give it up, and I said, would it be fair — now, I’m using my memory, that is a while back. I said, would it be fair to summarize his feelings about the matter in saying that he felt that he had an obligation on the part of the citizens of Baltimore to continue that job because he was the only one that was likely to continue in an honest and forthright manner and that anybody that might succeed him might not do it in such a fashion, and he said, yes, that would be a fair summary of why he insisted on staying on the job. “Q. In other words, he felt a conscientious obligation to do an honest and straightforward job, is that what you mean?

A. I think it could be interpreted that way, or it could be interpreted that he had