Clark v. O'Malley

• Decision Date: 30 June 2006
• Docket Number: No. 276, September Term, 2005.,276, September Term, 2005.
• Citation: 169 Md. App. 408,901 A.2d 279
• Parties: Kevin P. CLARK v. Martin O'MALLEY et al.
• Court: Court of Special Appeals of Maryland

901 A.2d 279

169 Md. App. 408

Kevin P. CLARK v. Martin O'MALLEY et al.

No. 276, September Term, 2005.

Court of Special Appeals of Maryland.

June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Neal M. Janey (Stuart O. Simms, A. Dwight Petit, on the brief), Baltimore, MD, for appellant.

Ralph S. Tyler, City Solicitor (Joshua N. Auerbach, on the brief,) Baltimore, MD, for appellee.

Panel: KENNEY, BARBERA, McAULIFFE, JOHN F. (Retired, specially assigned), JJ.

KENNEY, J.

Appellant, Kevin P. Clark ("Clark"), appeals the decision of the Circuit Court for Baltimore City granting summary judgment in favor of Mayor Martin O'Malley and the Mayor and City Council of Baltimore ("the Mayor"). Clark presents one question, which we have rewritten as follows:¹

Did the circuit court err in granting appellee's motion for summary judgment?

For the following reasons, we shall reverse the circuit court's judgment.

FACTUAL AND PROCEDURAL HISTORY

In February 2003, the City of Baltimore and Clark entered into a Memorandum of Understanding ("MOU") "to employ the services of Clark as the Police Commissioner of Baltimore City." The City Council confirmed Clark's appointment on March 3, 2003.

Relevant provisions of the MOU include the following:

SECTION 1. EMPLOYMENT

The City hereby engages the services of Clark to act as the Police Commissioner of the Baltimore City Police Department to serve the remaining term of the last Commissioner until June 30, 2008 ("Initial Term"). During the Initial Term Clark shall receive a salary of One Hundred Fifty Thousand Dollars ($150,000) per annum to be paid bi-weekly.

SECTION 2. ADDITIONAL COMPENSATION/SEVERANCE PAY.

A. The Commissioner recognizes that he may be terminated by the City pursuant to the removal provisions by the Mayor in Baltimore City Code of Public Local Laws (§ 16-5[e])[²] and nothing in this Agreement shall affect the rights of the Mayor in that respect. However, except as stated in Section 3[³] and for just cause as defined below, Clark shall be entitled to receive the additional compensation/severance pay as provided in section 2.B. of this Agreement regardless of the reasons for the termination of employment by the Mayor or City. Just cause for the purpose of this section shall be defined as:

(1) Gross dereliction of duty; as to any one incident or series of conduct.

(2) Illegal use of intoxicants or drugs; or

(3) Indictment of a felony or any other crime involving moral turpitude or theft.

B. If Clark is willing and able to perform employment duties under this Agreement and the employment of Clark is (1) terminated in the Initial Term by City for any reason other than for just cause as defined in Paragraph 2.A.; or (2) in the event Clark is forced to resign following a formal or informal suggestion by the Mayor that he resign; or (3) that Clark's salary is reduced below his present annual salary without Clark's written consent; or (4) in the event, for any reason whatsoever other than for just cause as above defined the Mayor does not reappoint and the Council confirm the reappointment of Clark to a full six-year term immediately following the Initial Term, City agrees to pay Clark a lump sum payment, as and for additional compensation/severance, equal to six (6) months aggregate salary, including retirement benefits calculated as the employer's share of retirement benefits at the time of termination or non-reappointment as defined herein. Clark shall also be fully compensated for any accrued sick leave, vacation, compensatory time and any other accrued benefits at the time of termination or failure of reappointment. Should Clark not be reappointed or terminated without just cause, Clark agrees that the additional compensation/severance lump sum payment set out above shall satisfy all obligations City has to Clark as a result of the termination/non-reappointment.

* * *

SECTION 12 RIGHT TO TERMINATE WITHOUT CAUSE

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 remain in force.

SECTION 13 NOTICES

Notices pursuant hereto shall be effective when hand-delivered or when mailed by certified mail. All notices to the City shall be addressed to the City at the Office of Law . . . . All notices from the City to Clark shall be addressed to an address to be named by Clark not more than 10 days after the execution of this contract and updated from time to time when his address changes.

On November 10, 2004, the City Solicitor delivered a letter to Clark giving him forty-five days' notice of his termination as Police Commissioner, and relieving him of his duties:

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.

The City will begin immediately to do a calculation of the salary and benefits to which you may be due under the February 19 MOU and will advise you of the details once appropriate calculations are made.

On November 16, 2004, Clark filed a complaint in the Circuit Court for Baltimore City, seeking declaratory relief, injunctive relief, money damages, and reinstatement to his former position as Police Commissioner.

On December 13, 2004, the Mayor moved to dismiss or, in the alternative, for summary judgment. The court held a hearing on January 31, 2005, after which it denied summary judgment, finding a genuine dispute of material facts related to the Mayor's issuance of notice of termination to Clark.

Clark filed an amended complaint on December 28, 2004. The Mayor again moved for summary judgment on February 10, 2005, asserting that admissible evidence clearly established that there was no genuine dispute of material fact with respect to notice.

The court held a hearing on April 4, 2005. After argument by counsel, the court found that the MOU is a valid and unambiguous contract, and that Clark had been properly terminated after proper notice was given pursuant to sections 12 and 13 of the MOU. The court thereby granted the Mayor's motion for summary judgment. The Court issued a declaratory judgment on April 4, 2005, stating that the Mayor had properly terminated Clark without cause, and with proper notice. Clark noted this appeal on April 5, 2005. Additional facts will be provided as necessary to our discussion of the issues.

STANDARD OF REVIEW

The circuit court may grant a motion for summary judgment "if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Maryland Rule 2-501(f). "This Court reviews the same material from the record and decides the same legal issues as the circuit court." Lopata v. Miller, 122 Md.App. 76, 83, 712 A.2d 24 (1998). Accordingly, "[w]hen reviewing a grant of summary judgment, we first determine whether a genuine dispute of material fact exists." Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 507, 883 A.2d 1008 (2005). "If the record reveals that a material fact is in dispute, summary judgment is not appropriate." Serio v. Baltimore County, 384 Md. 373, 388, 863 A.2d 952 (2004). "If we determine that no genuine issue of material fact is present, then we must decide `whether the [trial] court reached the correct legal result.'" Crews v. Hollenbach, 126 Md.App. 609, 625, 730 A.2d 742 (1999) (quoting Chicago Title Ins. Co. v. Lumbermen's Mut. Cas. Co., 120 Md.App. 538, 547, 707 A.2d 913 (1998)). "In making our analysis, we do not accord deference to the trial court's legal conclusions." Lopata, 122 Md.App. at 83, 712 A.2d 24.

DISCUSSION

I. Is there a Final Judgment?

At oral argument, Clark asserted that the court's grant of summary judgment applied to only count 10 of his amended complaint, which alleged "Breach of Contract—Termination Without Cause/Contract." To the contrary, we conclude that the court's judgment pertained to all of Clark's claims.

Clark's amended complaint included ten counts. In count 1, Clark argued that the Mayor's removal of him was illegal because it violated section 16-5(e) of the Code of Public Local Laws of Baltimore City (2005) ("PLL"), and sought declaratory and injunctive relief. In counts 2, 3, 4, and 5, Clark sought a declaratory judgment, injunctive relief, a writ of quo warranto, and a writ of mandamus based on the Mayor's alleged violation of PLL § 16-5(e). Clark also based his count 5 request for a writ of mandamus on the argument that his termination violated his due process rights under Article 24 of the Maryland Declaration of Rights. In count 6, Clark sought a writ of certiorari based on the Mayor's alleged violations of PLL § 16-5(e) and Article 24. In count 7, Clark asked for declaratory and injunctive relief based on the alleged violation of his rights under Article 24. In counts 8 and 9, Clark averred that the Mayor breached the terms of the MOU by terminating him without cause. In count 10, Clark asserted that his termination without cause violated the terms of the MOU because he was not given proper notice.

After the hearing on April 4, 2005, the court announced its judgment at follows:

Counsel, the court has had an opportunity to review the papers. The court's had an opportunity to review the contract, the notice that was provided on November 10th, 2004, the statutory references that were made in ...