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Excerpts of lawsuit

Unedited excerpts from former Baltimore Police Commissioner Kevin P. Clark's lawsuit against Mayor Martin O'Malley:

The actions of the Mayor came about at the critical stage of several investigations that were being conducted by the Baltimore Police Department. They included internal administrative investigations that involved not only instances of possible official misconduct but also possible criminal conduct. Indeed, the Mayor's actions came within 48 hours after the Chief of the Internal Investigative Division conferred with federal prosecutors and federal investigators to seek the assistance of federal authorities in the investigations. In addition, the Police Department was also conducting several sensitive criminal investigations, one of which may lead to criminal charges against a City official.

Under circumstances that appear to be almost surreal, on Wednesday, Nov. 10, 2004, at approximately 8:30 a.m., members of the Baltimore Police Department's SWAT Team were deployed to occupy the offices of the Police Commissioner and to station themselves within Police Headquarters in order to intercept the Police Commissioner upon his arrival at work.

The Police Commissioner has not received any notice from the Mayor or anyone else that the Mayor was seeking to remove him from office on any of the grounds set forth in State law, that is, for official misconduct, malfeasance, inefficiency, incompetency or prolonged illness. No specification of charges have been served on the Police Commissioner. He has never been given a hearing. ... The actions taken by the Mayor on Wednesday, Nov. 10, 2004, are nothing short of bizarre. Just two weeks before removing the Police Commissioner, the Mayor held a news conference at Police Headquarters in which he was boasting about Baltimore leading other cities in the nation with respect to a 40 percent decrease in violent crime.

On July 29, 2004, the Mayor and the Police Commissioner exchanged a series of e-mails concerning a certain commander who was under internal investigation.

a. Mayor: Did you see the speech? Is [Commander X] in trouble?

b. Mayor: I heard he was in some sort of disciplinary problem? Not following up on someone indicted in his command or something?

c. Commissioner: I called around and he and [Commander X] may have failed to immediately suspend an officer indicted for first degree assault, I know he is tight with some people in the administration but to bring you into the loop on his problems could be spun in the wrong way.

On August 6, 2004, there was another exchange of emails between the Mayor and the Police Commissioner concerning internal investigations as follows:

a. Mayor: I have just asked ... to call you regarding a rumor that ... has served ... with papers requiring him to answer charges of dereliction of duty in connection to the allegations that were leveled against you. You will recall that I have ordered that The City Solicitor manage this investigation and that no charges are to be made without ... approval. You will also recall that I didn't appreciate and will not tolerate ... insubordination to my ... authority on this matter. I would have said something to ... directly had ... attended the policestat meeting.

b. Commissioner: Sir no one has been charged with anything in this case. Someone is feeding you really bad info and is going to cause rumors to start spinning that someone is trying to get you directly involved. I had just spoken to the Chief about meeting with the Solicitor when ... comes off of leave about the monitoring of the investigation. I am concerned with who is passing out this information to you about an ongoing investigation. The way this case is monitored, overseen or supervised could start the usual internal rumble and get spun out negatively. I clearly remember I was told that everyone let Howard County run their case without any perception of interference or they would back out so that's what I was told people did. Howard County did whatever they needed to do investigatively so it would never be said that city hall or BCPD interfered. They recommended follow-up on procedures etc followed by members of the department. The key is not to appear things are being done any differently. But the info your getting is dead wrong and is pointing at ... in a negative light that is unjustified. The bottom line me and ... will be sitting down with ... next week. I just found out ... was served notification to appear in the ... case where he didn't suspend him for first degree assault. His notification had nothing to do with the follow-up Howard County recommended.

On September 29, 2004, the Mayor and the Police Commissioner exchanged another series of e-mails concerning internal investigations as follows:

a. Mayor: I'm hearing from FOP that ... are being given notice of accused letters. In the midst of a shooting and murder wave with juveniles dying and schools out of control. ...

d. Mayor: Why are we tearing apart your upper command staff with notice of accused letters when this could be resolved with education and training regarding the general order and notification. This is such a big distraction from the job that isn't getting done.

e. Commissioner: Why is the FOP getting involved in this matter. I remember they wanted me suspended and charged it's a strange shift in their view. Was it Fickus, Loomis or Weiner that called? This is bizarre. ...

g. Commissioner: You believe this was a training issue and the FOP also thinks so well I disagree as would anyone in policing around this country. ... I went without a lawyer and if it's a training issue why would they need a lawyer. Which command staff need lawyers. Also tonight at comstat in front of everyone ... to my shock and others in the room openly state his cops are afraid. He couldn't explain what he was doing with the 240 cops he was given to suppress the murders and shooting which he guaranteed in writing he would accomplish immediately.

h. Mayor: Don't know, Kevin. But I do know that a failure to notify IAD is a bull-- reason to tear apart one's command staff. And it comes at a really bad f-- time in our crime rate. Nor is it a big help in defending the confidential nature of the Howard County report which we litigate 7 days ahead of election day.

i. Commissioner: Well sir before the failure to notify IAD my murders were down double digits and crime was down double digits. If these are men of integrity why are they having or maybe he is having so much trouble with having to talk to IAD. My people are afraid on patrols.

j. Mayor: And how do they no when the cause isn't determined. My main point is, we've got big threats and bigger threats. And command staff not notifying IAD on your thing isn't one of them. Let's move on and get back to the people's business.

The next day, on Sept. 30, 2004, the City Solicitor sent an absolutely extraordinary letter to the Chief of the Internal Investigative Division that state, in pertinent part, as follows:

... I need to take a more active role in this investigation. I intend to do so and I expect your complete cooperation.

Before any additional interviews are conducted, I want to review the complete investigative file. ... No further interviews or any other investigative actions are to be taken until I review the file and specifically authorize you to proceed.

The unprecedented attempt by the City Solicitor to intervene in Police Department operations and to literally take over an Internal Affairs investigation being conducted by the Police Department was so extraordinary that the Police Commissioner felt compelled to respond to that letter, by a letter dated Oct. 1, 2004, as follows:

... It is imperative to prior to the Internal Affairs investigation being taken over ... I believe it would be advisable that as the City Solicitor, you provide an opinion on these issues:

... Aside from this case, would such action on your part set a new precedent now allowing such review by non-law enforcement agencies? ...

Please consider if the actions you are ordering in this specific case will also have policy ramifications on intervention into other sensitive administrative or criminal matters, current and future, being investigated by the Baltimore Police Department. This may well place the administration in a negative light with the public perception of the reason for such intervention. This undoubtedly would cause public alarm and concerns for the police department's integrity and ability to police itself. ...

With respect to a certain sensitive criminal investigation that involves a City official, the Police Commissioner issued an internal memorandum dated November 1, 2004, that stated in pertinent part, as follows:

This memo will confirm receipt of sensitive material related to the case ... To ensure that there was no compromise of data or other misuse of the computer laptop, which is the property of the Baltimore Police Department, during the period of the theft, the Office of the Police Commissioner will now continue the investigation. Any identified misuse or compromise of this computer will determine if any further criminal charges or other appropriate action will be forthcoming.

That memorandum was followed up by another internal memorandum dated November 4, 2004, that stated in pertinent part, as follows:

On October 24, 2004 at my request ... was directed to ensure that a Baltimore Police Department laptop computer, which had been in the procession of ... (prior to its theft on ... and subsequent recovery on ... had not been compromised by the suspect in custody or other possible associates.

During the review process, information was discovered showing an inappropriate use of the agency's property, specifically graphic material. Upon further confidential review of the laptop's discovered graphic content by this Office, it is recommended that investigative actions commence to determine if any issues of criminality exist. The assigned investigator will ensure that this matter be conducted confidentially and under the direct supervision of ... Any assistance on this sensitive matter will be provided by ...

The Mayor had absolutely no legal authority for the action he took. Although there was an employment contract, and a provision in that contract concerning a notice of termination, that provision, as the Mayor well knows, was no longer enforceable once the City Council confirmed the Commissioner's appointment on March 3, 2004, for a fixed term of office. The suggestion that such a contractual provision, which is contrary to State law and public policy, was the basis for the Mayor's action is nothing short of ludicrous.

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