Baltimore v. Clark, No. 68 Sept. Term, 2006.

CourtCourt of Special Appeals of Maryland
Writing for the CourtBell
Citation404 Md. 13,944 A.2d 1122
Docket NumberNo. 68 Sept. Term, 2006.
Decision Date20 March 2008
PartiesMAYOR & CITY COUNCIL OF BALTIMORE, et al. v. Kevin P. CLARK.
944 A.2d 1122
404 Md. 13
MAYOR & CITY COUNCIL OF BALTIMORE, et al.
v.
Kevin P. CLARK.
No. 68 Sept. Term, 2006.
Court of Appeals of Maryland.
March 20, 2008.

[944 A.2d 1123]

Ralph S. Tyler, City Sol. (Joshua N. Auerbach, Asst. City Sol., Baltimore City Dept. of Law, on brief), Baltimore, for petitioners.

Neal M. Janey (Stuart O. Simms and A. Dwight Pettit, on brief), Baltimore, for respondent.

ARGUED BEFORE BELL, C.J., RAKER, CATHELL*, HARRELL, BATTAGLIA and GREENE, JJ., and ALAN M. WILNER, J. (Retired, specially assigned).

BELL, Chief Judge.


The Appointment, term, and qualifications of the Police Commissioner of Baltimore City are prescribed by § 16-5(a) of the Code of Public Local Laws of Baltimore City (1997 Edition).1 As relevant, that section provides:

944 A.2d 1124

"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. Clark2 (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 Commissioner 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:

944 A.2d 1125

"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."

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 Baltimore7, in 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

944 A.2d 1126

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. 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 "expand[ing] the Mayor's removal authority," Clark, 169 Md.App. at 439, 901 A.2d at 297, when there is no "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.

944 A.2d 1127

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 the contractual provision may well be "a more accurate reflection of current public policy."

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66 practice notes
  • Estate of Bryant v. Balt. Police Dep't, Civil Action No. ELH-19-384
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 10, 2020
    ...1306 n.5 (1988). However, Maryland law hasPage 61 long recognized the BPD as a State agency. Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 23, 944 A.2d 1122, 1128 (2008) ("[T]he Baltimore Police Department is not an agency of the City of Baltimore and has not been for some time.")......
  • Middleton v. Balt. City Police Dep't, Civil Action ELH-20-3536
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 28, 2022
    ...not a local one. Id. Since 1867, the BPD has been regarded as a State agency under Maryland law. Mayor & City Council of Balt. v. Clark, 404 Md. 13, 23, 944 A.2d 1122, 1128 (2008). In Clark, the Maryland high court said, id. at 28, 944 A.2d at 1131: “[N]otwithstanding the Mayor's role in 22......
  • Coleman v. Soccer Ass'n of Columbia, No. 9
    • United States
    • Court of Special Appeals of Maryland
    • July 9, 2013
    ...policy in Maryland is to retain the principle of contributory negligence. Chief Judge Bell emphasized for the Court in Baltimore v. Clark, 404 Md. 13, 36, 944 A.2d 1122, 1135-1136 (2008), the following:"It is well settled that, where the General Assembly has announced public policy, the Cou......
  • Balt. City Lodge No. 3 of the Fraternal Order of Police, Inc. v. Balt. Police Dep't, Civil Action No. 1:16-cv-3309-ELH
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 28, 2017
    ...to the MWHL. As to the BPD, it has long been considered an agency of the State of Maryland. See Mayor & City Council of Balt. v. Clark, 404 Md. 13, 21, 944 A.2d 1122, 1128-30 (2008) (outlining the BPD's history as a State agency). The Maryland Court of Appeals has stated: "[N]otwithstanding......
  • Request a trial to view additional results
66 cases
  • Estate of Bryant v. Balt. Police Dep't, Civil Action No. ELH-19-384
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 10, 2020
    ...1306 n.5 (1988). However, Maryland law hasPage 61 long recognized the BPD as a State agency. Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 23, 944 A.2d 1122, 1128 (2008) ("[T]he Baltimore Police Department is not an agency of the City of Baltimore and has not been for some time.")......
  • Middleton v. Balt. City Police Dep't, Civil Action ELH-20-3536
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 28, 2022
    ...not a local one. Id. Since 1867, the BPD has been regarded as a State agency under Maryland law. Mayor & City Council of Balt. v. Clark, 404 Md. 13, 23, 944 A.2d 1122, 1128 (2008). In Clark, the Maryland high court said, id. at 28, 944 A.2d at 1131: “[N]otwithstanding the Mayor's role in 22......
  • Coleman v. Soccer Ass'n of Columbia, No. 9
    • United States
    • Court of Special Appeals of Maryland
    • July 9, 2013
    ...policy in Maryland is to retain the principle of contributory negligence. Chief Judge Bell emphasized for the Court in Baltimore v. Clark, 404 Md. 13, 36, 944 A.2d 1122, 1135-1136 (2008), the following:"It is well settled that, where the General Assembly has announced public policy, the Cou......
  • Balt. City Lodge No. 3 of the Fraternal Order of Police, Inc. v. Balt. Police Dep't, Civil Action No. 1:16-cv-3309-ELH
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • July 28, 2017
    ...to the MWHL. As to the BPD, it has long been considered an agency of the State of Maryland. See Mayor & City Council of Balt. v. Clark, 404 Md. 13, 21, 944 A.2d 1122, 1128-30 (2008) (outlining the BPD's history as a State agency). The Maryland Court of Appeals has stated: "[N]otwithstanding......
  • Request a trial to view additional results

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