Myers v. Chief, Baltimore County Fire Bureau, 150

• Decision Date: 03 March 1965
• Docket Number: No. 150,150
• Citation: 207 A.2d 467,237 Md. 583
• Parties: Jerome F. MYERS v. CHIEF, BALTIMORE COUNTY FIRE BUREAU et al.
• Court: Maryland Court of Appeals

Page 583

237 Md. 583

207 A.2d 467

Jerome F. MYERS v. CHIEF, BALTIMORE COUNTY FIRE BUREAU et al.

No. 150.

Court of Appeals of Maryland.

March 3, 1965.

Marvin Ellin, Baltimore, for appellant.

Lee S. Thomson, Asst. County Sol. (E. Scott Moore, County Sol. and Walter R. Haile, Deputy County Sol., Towson, on the brief), for appellees.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT and OPPENHEIMER, JJ.

PRESCOTT, Chief Judge.

Appellant was a Baltimore County firefighter drawing sick pay because unable to work due to a heart ailment. On October 14, 1960, more than nine months after appellant had sustained his heart attack, the Chief of the Fire Bureau informed him by letter that: (1) he had used all of the sick leave to which he was entitled; (2) under the applicable Baltimore County personnel laws an employee should be removed from his job, if he has some permanent or chronic physical ailment or disability which prevents the proper performance of his duties; (3) the Fire Bureau physicians had determined that he was physically unable to perform his duties as a fireman; (4) in the physicians' opinions, his illness could not be considered as having been caused by his occupation; (5) for the aforementioned reasons, he was not eligible for a disability pension.

Following receipt of this letter, the appellant, without attempting to secure administrative review of his dismissal, brought the present action in the Circuit Court for Baltimore County against the Chief of the Baltimore County Fire Bureau, the Director of Finance, the County Executive, the Secretary to the County Executive, the Director of Personnel, and the members of the Personnel and Salary Advisory Board praying that: (1) the writ of mandamus issue against the Chief of the Fire Bureau compelling him to place appellant's name on the 'roll of disabled fire fighters' and continue his name thereon pending judicial review of his case; (2) the writ of mandamus issue against the Director of Finance commanding him to make retroactive salary payments to appellant from September 23, 1960, and to continue making such payments until a final determination is reached in this matter; (3) the writ of certiorari issue directing all defendants to transmit all papers, records, and evidence pertaining to appellant's disability and subsequent dismissal to the court in order that it might inquire into the regularity of the proceedings resulting in appellant's discharge; (4) the court decide, under the 'Uniform Declaratory Judgments Act,' appellant's right under existing law.

From an order sustaining appellees' demurrer to appellant's third amended petition without leave to amend, appellant has taken the present appeal.

He argues, in effect, that he was improperly denied a disability pension by the appellees; that he was entitled to have a hearing before some one or more of them on the merits of his claim, which hearing was refused him; and that he is entitled to the issuance of a writ of mandamus commanding that his name be placed on the roll of disabled firefighters and continued thereon until a judicial review of appellees' actions is had.

Appellant claims that he is entitled to a disability pension citing § 21-9 of the Baltimore County Code (1958). That section was amended by Bill No. 154 (1959) of the Baltimore County Council, and the amended version is contained in the subsequent cumulative supplements to the Baltimore County Code (1958). Section 21-9 authorized the Director of Personnel to 'retire from office' and to place on a pension role any permanent member of the Fire Bureau, provided that three separate and distinct conditions were met. These were: that the member shall have 'become permanently disabled while in the active performance of duty'; that the member 'shall have been examined by the board of physicians herein provided for'; and that the board of physicians' 'findings as to the disability assigned as reason for retirement shall have been certified by them to the Director of Personnel.'

The appellant failed to allege that the Director of Personnel ever received a certification from the board of physicians as required by the provisions named above. He was advised that the physicians were of the opinion that his disability could not be considered as having been caused by his occupation; but now contends that the Director of Personnel, or someone, should be directed to retire him on a disability pension, notwithstanding the lack of certification, or the adverse finding of the physicians.

In Brack v. Bar Association, 185 Md. 468, 474, 45 A.2d 102, 105, this Court said:

'The petition for the writ must show both a clear legal right to the petitioner and also an imperative duty on the part of the defendant and unless these rights and duties are clearly established, there is no ground for the issuance of mandamus.'

Since the appellant failed to allege the existence of all the prerequisites required by law for the payment of a pension, he has failed to establish a clear legal right to a disability pension; and further, he has failed to establish on the part of the appellees, or any of them, an imperative duty to pay him one. In fact, it is shown by the petition that the payment of a pension to the appellant is clearly not within the authority of the Director of Personnel, or any of the appellees, under the provisions of § 21-9 above cited.

Appellant also contends that he was refused a hearing in connection with his removal before the board of examiners of the Fire Bureau, and cites as his authority for the requirement of such a hearing § 12-15 of the Baltimore County Code (1958). In order to dispose of this contention, it is necessary to follow the legislative history of the laws relating to the board of fire examiners and the personnel of the Fire Bureau.

Section 801 of the Baltimore County Charter contains a direction that, at the first annual legislative session after the effective date of the Charter, the County Council shall enact a county personnel law. Subsequent to said effective date, the Baltimore County Council enacted Bill No. 14 (1957), creating the 'Personnel Law of Baltimore County.' Thus, upon the enactment of this bill pursuant to the terms of the Charter, the board of examiners for the Fire Department was abolished. Baltimore County Charter, Section 804. Further §§ 12-10 through 12-14 inclusive of the Baltimore County Code (1958), dealing with the creation, composition and duties of the said board, were repealed by County Council Bill No. 45 (1960), enacted and effective April 25, 1960. The 'Personnel Law of Baltimore County,' created by Bill No. 14 (1957) above referred to, is now condified as §§ 22-1 through 22-19 of Title 22 of the Baltimore County Code (1958). Section 22-3 of this title clearly includes firemen in the 'classified service' of Baltimore County, and thus makes them subject to the provisions of the law relative to employees in 'classified service.' Section 22-13(a) of Title 22, 'Dismissals for Cause,' does not require a hearing as a condition precedent to the discharge of an employee for cause.

Also contained in Bill No. 14 (1957) is § 351, which reads as follows:

'351. Conflicting Public Local Laws Repealed.

'All Public Local Laws or parts of Public Local Laws in conflict herewith or inconsistent with the provisions of this Act are hereby repealed.' (Emphasis supplied.)

By Bill No. 2 (1958) and in accordance with the provisions of the Charter and the previously enacted Bill No. 14 (1957), the County Council added a new section to Title 22, known as § 22-3.1, 'Personnel Rules and Regulations.' The provisions of Rule 15, 'Dismissal,' as contained in said section, reaffirm the right of the appointing authority to remove an employee in the classified service for cause and provide that the employee shall have rights of appeal under Regulation 2.03, which provides as follows:

'Regulation 2.03--The Board may hear protests from employees in the County Classified Service who feel aggrieved by the personnel and employment practices of Baltimore County. All such...