Mayor Can't Fire Police Commissioner: Kevin Clark Could Be Reinstated, With $120 Million Bonus, Says State's High Court

The mayor of Baltimore cannot fire the police commissioner without cause, according to Maryland's highest court.

The Maryland Court of Appeals decision, handed down today in Mayor and City Council of Baltimore v. Kevin P. Clark, also contains other surprises for those not well versed in Baltimore and Maryland history and law. As it turns out, the Baltimore Police Department is not an entity of city government. Instead, it is an instrument of state government, even though the mayor took over from the governor in 1976 the right to appoint police commissioners.

The full decision, says Clark, who served as Baltimore's police commissioner in 2003 and '04, should get back his job as Baltimore's top cop.

It's not likely he'll be sliding behind Commissioner Frederick Bealefeld's desk anytime soon, but the ruling does mean Clark can return to the Circuit Court for a full hearing on his $120 million lawsuit seeking reinstatement. He and two deputies have also sued the department for racial discrimination.

Then-Mayor Martin O'Malley fired Clark on Nov. 10, 2004. The word came during a press conference. As O'Malley told the TV cameras of his decision, the Baltimore SWAT team (50 members strong) surrounded Clark at his desk and ransacked his and two other officers' files, according to the discrimination suit.

Clark later said he had started an investigation of some members of O'Malley's administration and police commanders in the months before he was fired. He said he was fired after his internal-affairs officers took their information to federal law enforcement.

Clark's firing also came in the wake of a bizarre series of events in which his girlfriend first accused him of abuse, and then retracted the accusation and said the police officer who reported her allegation had gotten it all wrong. An outside investigation cleared Clark in June 2004, but O'Malley refused to release that report. The mess went on for six months before the fateful press conference.

Clark sued the city for wrongful termination, citing the state law that limits the circumstances under which a city police commissioner can be fired. The city has claimed, to the contrary, that the mayor inherited that power from the governor in 1976, and anyway, even if the mayor is not allowed to fire a police commissioner under governing statute, it can write up a contract--a "memorandum of understanding," or MOU--that gives it that power.

"We do not agree," the court decision says. "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 subjudice. 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.'"

Got that? In English, that means it doesn't matter what kind of contract you sign; if state law says something can't happen, it can't happen.

And the state law is very plain. Below find a handy checklist that spells it out in lay mayor's terms:

*Reasons the mayor can effect removal of the police commissioner: "for official misconduct, malfeasance, inefficiency or incompetency, including prolonged illness."

*Reasons the mayor cannot effect removal of the police commissioner: "on whim, for spite, general amusement, random bile, or astrological prerogative, including 'cause-I-said-so."