Clark v. O'Malley

Decision Date23 August 2013
Docket Number94 Sept. Term, 2009.,Nos. 93,s. 93
Citation434 Md. 171,73 A.3d 1086
PartiesKevin P. CLARK v. Mayor Martin O'MALLEY, et al. Natasha Clark v. Mayor Martin O'Malley, et al.
CourtMaryland Court of Appeals


Neal M. Janey, Baltimore, MD (A. Dwight Pettit of A. Dwight Pettit, P.A., Baltimore, MD; of Counsel: Stuart O. Simms of Brown, Goldstein & Levy, LLP, Baltimore, MD), on brief, for Petitioner/Cross–Respondent in No. 93, Sept. Term, 2009.

Matthew W. Nayden, Chief Solicitor (Kathryn W. Sullivan, Assistant Solicitor of Baltimore City Department of Law, Baltimore, MD), on brief, for Respondents/Cross–Petitioners in No. 93, Sept. Term, 2009.

Andrew Radding (Jeffrey Kinstler of Adelberg, Rudow, Dorf & Hendler, LLC, Baltimore, MD), on brief, for Petitioner in No. 94, Sept. Term, 2009.

Kathryn W. Sullivan, Assistant Solicitor (Matthew W. Nayden, Chief Solicitor, Baltimore City, Department of Law, Baltimore, MD), on brief, for Respondents in No. 94, Sept. Term, 2009.

Argued before HARRELL, BATTAGLIA, GREENE, BELL,*MURPHY,**JOHN C. ELDRIDGE, (Retired, Specially Assigned) and IRMA S. RAKER (Retired, Specially Assigned), JJ.


The present appeals are the second time during the course of the parties' litigation that this case has come to this Court. They, like the one before them, can be traced back to the discharge of Kevin Clark, the petitioner, from his position as Police Commissioner for Baltimore City, by the former Mayor of Baltimore City, Martin O'Malley (“Mayor”), and the City Council of Baltimore, the respondents. The facts surrounding that discharge and the procedural posture of the case pending this Court's first decision were summarized in Mayor & City Council v. Clark, 404 Md. 13, 944 A.2d 1122 (2008) (Clark II ):

“The respondent, Kevin P. Clark (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.’ 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, the applicability of PLL § 16–5(e) to the removal of the Commissioner 1 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.’

“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. 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, 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 A.2d 279 (2006) [Clark I ]. 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).”

Id. at 16–19, 944 A.2d at 1124–26.

After considering and rejecting the various arguments advanced by the petitioners in that case in challenging the intermediate appellate court's decision, we addressed the only question presented by the petitioner's “cert” petition: “whether KevinClark is bound by the unambiguous ‘right to terminate without cause’ provision in the employment contract that he negotiated with the City of Baltimore.” Id. at 36, 944 A.2d at 1136.2 We held that a provision of an employment contract, entered into by the Mayor and a candidate for police commissioner in connection with the latter's appointment to that office, and which gave the Mayor the right to terminate the Police Commissioner's employment, without cause, did not trump P.L.L. § 16–5(e), which, by its terms limited the Mayor's power of discharge to the grounds set forth therein and, therefore, was unenforceable. We explained:

“The removal power, as articulated in § 16–5(e), we hold, is not modifiable by a MOU, and, in particular, the contractual language at issue in the case sub judice. In that regard, we reiterate, ‘a contract conflicting with public policy set forth in a statute is invalid to the extent of the conflict between the contract and that policy.’ Medex v. McCabe, 372 Md. 28, 39, 811 A.2d 297, 304 (2002). See also State Farm Mut. Auto. Ins. Co. v. Nationwide Mut. Ins. Co., 307 Md. 631, 643, 516 A.2d 586, 592 (1986) (holding that a contractual provision that violates public policy is invalid, but only to the extent of conflict between stated public policy and contractual provision). Thus, because the provision of the MOU that states that [e]ither party may terminate this contract at any time, by giving forty-five (45) days prior written notice to the other’ without need to provide cause, conflicts with § 16–5(e) of the Public Local Laws, that provision, pursuant to which the Mayor acted to terminate Clark, is unenforceable.”

Id. at 33, 944 A.2d at 1133–34.

We affirmed the judgment of the Court of Special Appeals. That court, as we have seen, reversed the judgment of the Circuit Court on the grounds that the Mayor's reliance on Section 12 of the employment contract did not entitle him to judgment as a matter of law. Thus, concluding that “the circuit court erred in holding as a matter of law that the entire contract between the parties was valid and enforceable,” it remanded the case to the Circuit Court to “consider the additional questions that have been raised by the City, including questions of waiver, estoppel, and damages.” Clark v. O'Malley, 169 Md.App. at 440, 901 A.2d at 297aff'd sub nom. Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 944 A.2d 1122 (2008). More particularly, with respect to damages, the intermediate appellate court advised:

“The Mayor argues that Paragraph 2B of the contract is a valid and enforceable provision providing for limitation of liability and liquidated damages,’ and maintains that Clark has already been paid all the monetary damages to which he is entitled. Because the court ruled that section 12 of the MOU was valid and enforceable, and that Clark had been properly terminated under that provision, it did not address whether section 2.B. limits Clark's claim for damages.”

Id. at 440 n. 10, 901 A.2d at 297 n. 10.

Armed with the opinion in Clark II, Mr. Clark claimed entitlement to, among other things, reinstatement as Police Commissioner of Baltimore City. Accordingly, he filed in the Circuit Court a Motion for Writ of Mandamus or Motion for Injunction for Reinstatement to Office Forthwith.3 In that motion, referencing counts III and V of his First Amended Complaint, Mr. Clark argued that this Court, in Clark II, “ruled unanimously ... that Plaintiff was removed from the Office of Police Commissioner of Baltimore City illegally by Mayor...

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