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Commander's pension pact spurs inquiry

The Baltimore Sun

For two years Marcus L. Brown quietly served as the steady hand in a Baltimore Police Department whose top job had been beset by political turmoil and turnover.

Through it all, the former deputy commissioner worked behind the scenes to execute then-Mayor Martin O'Malley's policing policies while largely avoiding the distracting scrutiny leveled against police commissioners.

Until now.

When O'Malley took over as governor in January, he picked Brown to lead the Maryland Transportation Authority Police, at a salary of $127,500. But before Brown left in March, the city granted him a nearly full pension of $55,500 - thanks to an exit clause in a contract signed by O'Malley in April 2005 and honored this year by Commissioner Leonard D. Hamm in a move that is causing a political furor.

Mayor Sheila Dixon has promised a review of similar deals for employees in city government, and Councilman Kenneth N. Harris Sr., who is running for council president, asked the city's pension board yesterday to investigate.

"Perception is everything, and this does not look good," said John Flynn, executive director of the Maryland Republican Party. "This looks as if it's some sort of favoritism. ... After O'Malley said he would handle personnel matters on merit and not personal reasons, you see a friend of his getting a sweet deal."

Brown's exit clause allows the 42-year-old to leave with a pension without having reached the retirement system's two main qualifications: 20 years of service or age 50. With 20 years, an officer gets the maximum payout of 50 percent of his final average salary.

Brown has worked for the city since December 1992 and had 17 years of service in the pension system thanks to three years transferred from his previous job, according to pension officials. Brown's 2005 contract allowed him, even with only 17 years, to be paid a pension, but only if he were removed from his appointed job. The pension amounted to 42.5 percent of his final salary.

Brown was granted the pension because Hamm wrote in a Jan. 29 letter that he had notified the pension board of Brown's "lay-off from the department effective March 29, 2007," according to the letter.

"The above action ... makes you eligible for retirement benefits," the letter states.

Without Hamm's letter, Brown may not have been eligible for his payout. But Brown's new state job and his acceptance of it were announced on Jan. 26 - three days prior to Hamm's "lay-off."

The disclosure of Hamm's letter on behalf of Brown was first reported by WBAL-TV.

O'Malley said yesterday that although he signed Brown's initial contract, he did not recall the details and had no further involvement. He said Brown's city pension never came up when he was hired by the state.

"I believe it's an issue between [Brown] and the police commissioner," O'Malley said.

The governor declined to give his opinion on Hamm's actions, though he said similar arrangements have been made over the years.

Some talented officers are reluctant to take command-level jobs because they lose civil service protections, O'Malley said.

"The issue of whether this was proper, whether legal procedure was followed, is really something for the police department to determine," the governor said.

O'Malley said he does not believe any other members of his state administration have made similar arrangements upon leaving city government.

Reached by phone yesterday, Brown declined to comment.

City Solicitor George Nilson said the city's law department, at Dixon's request, is reviewing the contract approved by the Board of Estimates in 2005, which was also signed by Hamm. He said his office is reviewing similar contracts struck with other city employees.

Nilson said Hamm should have worded the letter differently. Rather than say Brown was being laid off, Hamm should have written that he had "withdrawn" Brown's appointment as deputy commissioner, a characterization that would have made him eligible to receive a pension.

"Given the circumstances that existed at the time [of Brown's promotion to deputy commissioner], I don't have any problem with the rationale of the contract," Nilson said. "I think I understand what that contract meant to accomplish."

But Nilson said part of his review is looking at the language in Brown's contract to determine what it means for the police commissioner to "withdraw" the appointment. "That's just a little bit out of the ordinary," he said.

Karen S. Hornig, the police department's chief legal counsel, said yesterday that the commissioner has "ultimate authority," according to the law, in appointing and removing top commanders in what is essentially a paramilitary organization.

"It is the police commissioner who must remove them from their position. He has the ultimate authority. He can grant your request, or he can say, 'No, I'm not going to remove you from your command right now,'" she said. "And if you walk out the door, it could be considered failure to obey an order. He's the one with the ultimate authority over his command. It isn't exactly like the rest of city government."

Brown, Hornig said, served as deputy commissioner with the understanding that he was entitled to the benefit of that agreement. The Board of Estimates agenda explaining the contract states that it "provides assurances to Brown in the event his services are no longer required ... or should he decide to retire."

Yesterday, Hamm defended his letter, saying he did not understand why it was controversial.

"The letter was appropriate. It's not the first time we've done it," Hamm said.

When asked why Brown would need such a letter, Hamm said that the correspondence was designed to show that the former deputy commissioner "had paid for all of his time," including 14 years of service with Baltimore police and three years of police work in San Jose, Calif.

He declined to name the other members of the department who had received similar letters to the pension board in the past, but said that those requests had been honored without a problem.

Thomas Taneyhill, executive director of the Fire and Police Employees' Retirement System, said the board has already reviewed the matter and that its legal counsel has said the city must continue to pay the pension unless Hamm rescinds his letter.

The type of pension benefit given to Brown is not common, Taneyhill said. The pension system has approved it for only about 12 police and fire employees in the past several years, he said. "I didn't say that I liked it," Taneyhill said. "But that's where we are at this point.

"It requires the commissioner putting his name on the line," Taneyhill said. "Once we have that, that's what we go on. If [Brown's situation] isn't as it was stated in his letter then [Hamm] should rescind it."

gus.sentementes@baltsun.com doug.donovan@baltsun.com

Sun reporters Andrew A. Green and Matthew Dolan contributed to this article.

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