Clark v. O'Malley

• Decision Date: 10 June 2009
• Docket Number: No. 768, September Term, 2008.,768, September Term, 2008.
• Citation: 973 A.2d 821,186 Md. App. 194
• Parties: Kevin P. CLARK, et al. v. Martin O'MALLEY, et al.
• Court: Court of Special Appeals of Maryland

973 A.2d 821

186 Md. App. 194

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

No. 768, September Term, 2008.

Court of Special Appeals of Maryland.

June 10, 2009.

Neal M. Janey & Gregory M. Kline (Andrew Radding, Adelberg, Rudow, Dorf & Hendler, LLC, A. Dwight Pettit, Mitchell D. Treger, Stuart O. Simms on the brief), Baltimore, for appellant.

Matthew W. Nayden & Kathryn W. Sullivan of Baltimore, for appellee.

Panel: SALMON, GRAEFF and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

This appeal arises from a dispute between appellant, Kevin P. Clark, the former Police Commissioner for Baltimore City, and appellees, the Honorable Martin O'Malley, the former Mayor of Baltimore City ("Mayor"), and the Mayor and City Council of Baltimore ("City").¹ The dispute centers on the Mayor's actions in terminating Mr. Clark's employment on November 10, 2004. Substantial litigation has ensued since that time.

Shortly after Mr. Clark was terminated, he filed in the Circuit Court for Baltimore City a complaint, and a first amended complaint, for declaratory and injunctive relief. Mr. Clark requested: (1) a declaration that the Mayor's actions in terminating his employment were unlawful; (2) reinstatement to his position as Police Commissioner; and (3) compensatory and punitive damages. The circuit court granted appellees' motion for summary judgment, concluding that the Mayor properly terminated Mr. Clark, without cause, pursuant to a Memorandum of Understanding ("MOU") signed by the parties. Mr. Clark appealed.

In Clark v. O'Malley, 169 Md.App. 408, 439, 901 A.2d 279 (2006) ("Clark I"), this Court reversed the circuit court's order, holding that the Mayor could remove the Police Commissioner only for cause as set out by Baltimore City Public Local Laws ("P.L.L."), § 16-5(e). This Court held that the MOU, which provided that either party could terminate the employment contract by giving 45 days written notice, expanded "the Mayor's authority beyond that granted by the General Assembly," and that provision, therefore, was invalid. Id. at 438, 901 A.2d 279. Thus, we held that summary judgment on this ground was improper, and we remanded the case to the circuit court to address other defenses raised by appellees.

The Court of Appeals affirmed this Court's decision in Mayor & City Council v. Clark, 404 Md. 13, 33, 944 A.2d 1122 (2008) ("Clark II"). The Court of Appeals agreed that "[t]he removal power, as articulated in § 16-5(e) ... is not modifiable by a MOU," and it held that the language in the MOU here, which allowed either party to terminate the contract without cause, conflicted with P.L.L. § 16-5(e) and was unenforceable. Id.

Mr. Clark then filed in the circuit court a Motion for Writ of Mandamus or Injunction For Reinstatement to Office Forthwith. On June 17, 2008, the Honorable Carol E. Smith denied the motion for reinstatement. On July 15, 2008, the Honorable Albert J. Matricciani, Jr. granted appellees' motion for summary judgment on the remaining counts of the complaint. Judge Matricciani then denied as moot a motion to intervene filed by Natasha Clark, Mr. Clark's wife, based on her "interest in protecting the confidentiality" of court records that appellees sought to have introduced into evidence.

Mr. Clark and Ms. Clark filed separate appeals. Mr. Clark presents the following issues for our review, which we rephrased as follows:

1. Did the circuit court err in denying Mr. Clark's request for reinstatement to the position of Police Commissioner?

2. In light of the Court of Appeals decision that Mr. Clark's employment could not properly be terminated without cause, did the circuit court err in denying Mr. Clark's motion for partial summary judgment on the issue of liability?

3. Did the circuit court err in granting appellees' motion for summary judgment on the ground that, pursuant to the liquidated damages clause in the MOU, Mr Clark had already received the damages to which he was entitled?

Ms. Clark presents the following issue for our review: Did the circuit court err in denying Ms. Clark's motion to intervene?

For the reasons set forth below, we shall affirm the judgment of the circuit court with respect to Mr. Clark. In light of that disposition, we shall dismiss Ms. Clark's appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Mr. Clark was appointed Police Commissioner of Baltimore City by the Mayor and confirmed by the City Council. In February 2003, prior to his confirmation, Mr. Clark and the Mayor executed a MOU in which Mr. Clark agreed "to serve the remaining term of the last Commissioner until June 30, 2008," for which he would receive a salary of $150,000 per year. The MOU provided three ways in which Mr. Clark's employment could be terminated. First, he could be terminated pursuant to P.L.L. § 16-5(e), which provided that "[t]he Police Commissioner is subject to removal by the Mayor for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness...." Second, Mr. Clark could be terminated for "just cause," defined in the MOU 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.

Third, the MOU provided that either party could terminate the employment agreement at any time, i.e., without cause, by giving 45 days written notice.

With respect to termination without cause, § 12 of the MOU provided:

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 2.B of the MOU set forth the compensation due to Mr. Clark if he was terminated "for any reason other than for just cause":

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 (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.

(Emphasis added).

Pursuant to this provision in the contract, on November 10, 2004, the City Solicitor hand-delivered a letter to Mr. Clark's counsel, informing Mr. Clark that his employment would terminate in 45 days. The letter advised, in part:

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.

For the next 45 days, through late December 2004, the City paid Mr. Clark, pursuant to the MOU, his biweekly salary of $5,769.24, minus deductions. Moreover, on January 25, 2005, pursuant to the MOU, the City sent Mr. Clark a check for $49,318.76, "reflecting Mr. Clark's aggregate salary for six months ($75,000), minus deductions." The next day, the City sent Mr. Clark another check for $8,513.22, for "unused vacation time and comp time in the amount of $ 13,269.25, minus deductions."²

A Mr. Clark's First Lawsuit in State Court

On November 16, 2004, Mr. Clark filed in the Circuit Court for Baltimore City a Verified Complaint for Declaratory and Injunctive Relief against the Mayor. Mr Clark subsequently filed a First Amended Complaint for Declaratory and Injunctive Relief, which added the Mayor and City Council of Baltimore as an additional defendant and included ten counts. Count I alleged that the Mayor's action in terminating him was unlawful and in violation of P.L.L. § 16-5(e). Mr. Clark requested a declaration that the Mayor's actions were unlawful and injunctive relief reinstating him to office. Count II requested a declaratory judgment that the Mayor's acts in relieving Mr. Clark of his command were illegal and that Mr. Clark "is the only person entitled by law to serve" as Police Commissioner "until his term of office expires in June 2008...." Counts III, IV, and V requested injunctive relief, a writ of quo warranto, and a writ of mandamus compelling appellees to reinstate Mr. Clark as Police Commissioner. Count VI requested the court to issue a writ of certiorari "to review" the Mayor's actions. ...