Early pension was legal, says city solicitor

The Baltimore Sun

Following advice from the city's attorney, Mayor Sheila Dixon said yesterday that she was convinced that Police Commissioner Leonard D. Hamm followed the "intent and letter of the law" when he requested an early pension for his former top deputy, who left in January for a state job.

But the mayor ordered that all city agencies comply with new guidelines crafted by City Solicitor George A. Nilson on handling early-pension requests that include consulting with the mayor's office, obtaining a review from the city's law department and ensuring that decisions are in the "best interest" of the city.

"It is clear that more deliberation must be used by all city agencies in pursuing discretionary pension allowances going forward," Dixon said in a statement. She added that she wants to make the pension process "more transparent and open to public scrutiny."

The mayor did say that Hamm should have used "more appropriate language" in filing paperwork with the Fire and Police Employees' Retirement System.

Members of the retirement system have criticized Hamm for writing in a January letter that he laid off Marcus L. Brown, his top deputy at the time. That triggered a provision in Brown's contract that guaranteed him a pension if his appointment was "withdrawn" by the commissioner after he reached 15 years of service, five years early.

Days later, Brown, a close ally of Gov. Martin O'Malley, left the city Police Department to take over the Maryland Transportation Authority Police force, which has responsibility for protecting the state's tunnels, bridges, airport and port. Later, because of Hamm's letter, the pension board granted Brown an early pension valued at $55,000 a year, plus health benefits, for life. He earns $127,500 as the transportation authority police chief.

Nilson supported Hamm's authority under the pension law to request the award of "optional allowances" to individuals after 15 years of service. The solicitor said Brown didn't need to be laid off or terminated to qualify for an early pension, and he said Hamm merely worded his letter poorly.

"There is nothing in the language of the law or the agreement that would prevent the commissioner from withdrawing Brown's appointment because Brown wants to take another position," Nilson said. "The law gives the discretion to the commissioner to withdraw the appointment for any reason or for no reason."

But Stephan G. Fugate, the chairman of the pension board and head of the city's fire officers union, criticized the mayor and the city solicitor for defending Hamm's actions.

"In this particular case, I think [Nilson] is obfuscating the case at hand," Fugate said. "The fact of the matter is, Mr. Brown was not removed. He was not laid off. He took employment elsewhere, and the Police Department falsified documents for him to get his pension. Bottom line. Period."

Fugate said he expects that the pension board, at its next monthly meeting in July, will discuss whether members should open an independent investigation into Brown's pension award.

Anthony McCarthy, a spokesman for Dixon, said the mayor wouldn't comment beyond her prepared statement. Matt Jablow, a Police Department spokesman, said he thought Nilson's opinion letter "speaks for itself."

Nilson's six-page opinion letter also revealed that the practice of granting early pensions to city employees was not unique to the Police Department.

He counted 178 employees of various city agencies - in addition to police and fire - who received pensions before 30 years of service. City employees are entitled to tap their pension once they put in 30 years; firefighters and police officers can receive pensions after 20 years.

Since 2000, Nilson counted 14 police employees who received early pensions, including Brown. Two Fire Department employees received early pensions before 2000 but none after that year, Nilson wrote.

Regarding the early pensions for police, Nilson did not disclose specific facts for each case. But he noted that six employees received early pensions as the result of settlement of employment or disciplinary disputes; four left to take other jobs; two were "no longer desired" as commanders; and two left for medical reasons.

Since January 2002, other city agencies have given more employees early pensions than the Police Department did, according to Nilson. The city's Bureau of General Services gave early pensions to 30 people; the state's attorney's office to 22 people; the mayor's office to three people; and the law department to three employees. Names of the employees were not disclosed.

"Virtually every significant agency has generated one or more request," Nilson wrote. He said it was clear that agency heads have construed the legal term "removed without fault" to apply to a various circumstances, including "a number" of cases where "senior and valued City employees who left voluntarily ... to go to other employment."

Rick Abbruzzese, a spokesman for O'Malley, said that many of the instances in which city personnel were granted pensions early were related to layoffs when O'Malley, as mayor, "worked to make city government more accountable and more efficient."

He said the city offered early pensions to people who qualified for them as a way to control spending as part of a "long-standing legal practice. ... Given the realities of the city's financial health when he took office ... it was necessary to reduce spending, including the size of the city work force, while at the same time making government more efficient," Abbruzzese said.

In an interview last night, Nilson said he reviewed the practice only during the past six years, but he said it was his understanding that agency heads using their discretion to award pensions early "has been a fairly common practice for quite some time.

"There's nothing at all that suggests that this is a recent phenomenon or that it's unique to the [former] O'Malley administration" in Baltimore, he said.

Nilson is recommending new legislation for allowing "decision documents" involved in early pension decisions to be open to the public through the state's Public Information Act. Dixon said she would work with the City Council to craft the legislation.

gus.sentementes@baltsun.com

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