Beca v. City of Baltimore

• Decision Date: 10 January 1977
• Docket Number: No. 30,30
• Citation: 279 Md. 177,367 A.2d 478
• Parties: Shelby J. BECA v. Mayor and CITY Council OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 177

279 Md. 177

367 A.2d 478

Shelby J. BECA v. Mayor and CITY Council OF BALTIMORE.

No. 30.

Court of Appeals of Maryland.

Jan. 10, 1977.

William H. Engelman, Baltimore (Kenneth P. Niman and Kaplan, Heyman, Greenberg, Engelman & Belgard Baltimore, on the brief), for appellant.

Harry L. Chase, Asst. City Solicitor, Baltimore (Benjamin L. Brown, City Solicitor, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

MURPHY, Chief Judge.

We granted certiorari in this case to consider whether an employee of the Police Department of Baltimore City injured in the line of duty may lawfully be required to reimburse the City, out of the preceeds of a settlement obtained from a third party tort-feasor, for sick leave benefits and medical expenses paid by the Department to the employee.

Shelby Beca, a meter maid, was injured in the course of her employment with the Department on September 29, 1970 due to the negligence of a third party. As a result, she lost 191 days from work and incurred medical expenses in the amount of $1,636.34. In accordance with the Department's personnel policy, she received her full wages for the period of her sick leave, which amounted to $2,958.59, and the Department paid all of her medical expenses. Subsequently, Beca sued the third party tort-feasor and obtained a settlement of $15,000, out of which she paid $5,000 to her attorney.

At the time of Beca's accident, as now, Rule VIII, § 8 of the Rules and Regulations and Manual of Procedure of the Police Department of Baltimore City required members of the Department injured in the line of duty by the negligence of a third party to reimburse the Department 'for expenses advanced by it provided that such reimbursement shall be made out of the proceeds of settlement with the tortfeasor or his insurer.' The rule provides that expenses for which the Department must be reimbursed 'shall consist of wages, hospital costs, doctors' fees, and any other medical expenses advanced by the Department.' The rule amending Rule VIII was promulgated by the Police Commissioner or Baltimore City as General Order 69-13 and was dated September 30, 1969. ¹

Upon Beca's refusal to reimburse the Department for the amount of her sick leave the medical expenses in accordance with the requirements of the rule, the City sued her in the District Court of Maryland. Evidence was adduced at the trial on behalf of the City through a Deputy Commissioner of the Department and two supervisory police officers. It showed that Beca was employed by the Department in 1968; that at that time Rule VIII provided that employees of the Department could file a claim in court for injuries sustained only with the prior consent of the Police Commissioner; that when Rule VIII was amended by General Order 69-13, on September 30, 1969, the Police Commissioner's consent to suit was no longer required, but rather only prior written notification to him was mandated, together with an acknowledgement 'by publication of a Personnel Order'; that General Order 69-13 was distributed in accordance with departmental policy to all sworn and civilian personnel, which included all meter maids; that General Order 69-13 was read at roll calls on three consecutive days and posted on bulletin boards throughout the Department; that by letter dated December 28, 1970, Beca requested permission through departmental channels to sue the third party tort-feasor; that her request was acknowledged with specific reference being made to General Order 69-13, and a personnel order was issued dated June 4, 1971, which Beca acknowledged by her signature; and that the Department notified Beca's lawyer, by letters dated July 27 and September 9, 1971, in response to inquiries received from him, of the reimbursement requirements of General Order 69-13.

There was evidence that one of Beca's supervisors talked with her about General Order 69-13 in connection with the filing of her claim against the third party tort-feasor in this case. There was also evidence that Beca had been involved in other accidents and was familiar with departmental procedures. There was no evidence, however, that Beca ever actually received a copy of General Order 69-13, nor that she was present at roll calls when the order was read, nor that she read it on the bulletin board.

Beca did not testify at the trial and put on no evidence. She argued that absent a statute the City had no subrogation right to all or any part of the settlement she obtained. She also argued that the rule did not create any contractual right permitting the City to be reimbursed since it was unilaterally adopted by the Police Commissioner and there was no evidence that she ever assented to it.

The District Court entered judgment for Beca. The record does not indicate that the court made any findings of fact and the basis for its decision cannot be ascertained from the record.

The City's appeal to the Circuit Court for Baltimore County was taken on the record made in the District Court, and the judgment was reversed. The court there held that the issue was whether Beca assented to the provisions of General Order 69-13. It held that she had knowledge of the order and was bound thereby as a part of her employment contract.

The authority of the Police Commissioner of Baltimore City to promulgate rules and regulations binding upon members of the Department emanates from Chapter 203 of the Laws of Maryland of 1966, now codified as §§ 16-1 through 16-40 of the Code of Public Local Laws of Baltimore City (Everstine 1969). Under § 16-2 the Department is constituted as an agency of the State, although under § 16-8 its operations are funded by the City. The Police Commissioner of Baltimore City is designated as the chief executive officer of the Department by § 16-4 and its 'affairs and operations' are placed under his supervision and direction. Section 16-7 provides, with exceptions not here pertinent, that the Commissioner shall 'be vested with all the powers, rights and privileges attending the responsibility of management, and (he) may exercise the same, where appropriate, by rule, regulation, order, or other departmental directive which shall be binding on all members of the Department when duly promulgated.' The authority vested in the Commissioner under § 16-7 includes the power to regulate 'attendance, conduct, . . . and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and of its members.' It also includes the power to 'establish and modify systems . . . (for) the administration, management and operations of the Department.' The Commissioner is empowered under § 16-7(14) 'To suspend, amend, rescind, abrogate or cancel any rule, regulation, order or other departmental...