Baltimore Police Commissioner Darryl De Sousa, who resigned Tuesday after being charged with federal tax crimes, will not receive a large severance package like his two predecessors, who were fired “without cause” by the last two mayors, according to his contract.
But, he is eligible to receive accrued leave and other benefits earned during his time as commissioner, which he would not have received had he been fired “with just cause” by Mayor Catherine Pugh, according to the contract.
It’s unclear whether the federal tax charges against him would have provided “just cause” for his termination, under the terms of his contract.
It’s also unclear whether the city and De Sousa might have struck some other terms outside his contract, prior to his resignation on Tuesday, or how much leave and benefits De Sousa would receive. City solicitor Andre Davis could not immediately be reached for comment on Tuesday.
De Sousa, a 30-year veteran of the department, is still entitled — under the terms of his contract — to vested benefits, including his pension.
Former Commissioner Anthony Batts made a salary of $201,700, and his contract provided for $190,000 in severance plus other benefits were he fired without cause, which he was by then-Mayor Stephanie Rawlings-Blake in 2015.
Batts’ successor, Commissioner Kevin Davis, made at the end of his tenure a salary of $212,000, and his contract provided for $150,000 in severance plus other benefits were he fired without cause, which he was by Pugh in January.
Both Batts and Davis received their severance.
De Sousa, who made a salary of $210,000, stood to receive $150,000 in severance were he also fired without cause, but no severance and no other benefits were he fired with cause. By resigning, he receives all accrued leave and benefits, but no severance, according to his contract.
De Sousa was charged in federal court records unsealed Thursday with willfully failing to file federal income tax returns in 2013, 2014 and 2015. He admitted in a statement on Twitter the same day that he did not file state or federal tax returns in those years, but did have taxes withheld from his police salary. He said it was a mistake he is trying to rectify, and his attorneys slammed prosecutors for not giving him a chance to do so before filing criminal charges against him.
Pugh initially expressed her confidence in him after the charges were unsealed. On Friday, she suspended him pending the outcome of the federal case. Then, on Tuesday, he resigned.
Pugh could have fired De Sousa at any time, with or without cause, according to his contract, but there would have been different implications for the city depending on whether a cause was determined.
There were only a few things that constitute “just cause” for termination in his contract. They included repeated dereliction of duty, chronic intoxication, mental or physical incapacitation, and being indicted for the “commission of a felony or other crime involving moral turpitude or theft.”
Officers have a duty, by policy, to “fulfill their personal financial obligations,” though it’s unclear whether repeated failings to file federal tax returns would constitute repetitive dereliction of duty.
De Sousa was not indicted, but charged under a criminal information — which is a distinct legal mechanism — and it is unclear whether failing to file federal income tax returns constitutes a crime of “moral turpitude.” State officials have said there is no state law defining the term.
In 1996, the Maryland Attorney General’s office issued a letter of advice to a client who was asking for a definition, but that advice was not in the form of a formal opinion by the office.
In the letter of advice, an assistant attorney general at the time wrote that “crimes for which fraudulent intent is a requisite element of proof will always constitute crimes of moral turpitude.” But she also wrote that “willful failure to file an income tax return is not a crime involving moral turpitude per se and a determination of whether moral turpitude is involved will depend on the facts of the case.”
Were he fired without cause, effective immediately and without notice, De Sousa also would have been entitled to a lump sum payment equal to 45 days worth of his salary.
Prior to his resignation, it was unclear whether De Sousa could have remained commissioner were he to be found guilty of the three misdemeanor counts he’s facing in federal court.
The city code requires the police commissioner to be a United States citizen who is at least 30 years old and who has at least five years of administrative experience. It also says the mayor, prior to appointing a commissioner, must consider evidence of the appointee’s “demonstrated ability to accept and successfully meet increasing responsibilities, as well as evidence respecting excellence of character, professional reputation and employment record.”
However, the city code does not list a criminal record as something that would preclude a candidate from being appointed commissioner.
A spokesman for the state Department of Public Safety and Correctional Services, which oversees the agency that regulates and certifies police officers in Maryland, said that the politically-appointed Baltimore police commissioner does not have to be certified by the state, and that there is nothing in state law to preclude the mayor from appointing someone with a criminal record as commissioner.