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Here’s how to pull the pensions of bad Baltimore cops, recoup payment for lawsuit awards | COMMENTARY

Even when they identify a problem, Baltimore officials have an unfortunate tendency to try to deflect responsibility for solving it. Such is the case with lamentations by City Council President Nick Mosby and Comptroller Bill Henry about their lack of power to revoke the pension of a police officer found to have committed misconduct in office or recoup any of the $100,000 paid out to settle a claim against him.

Messrs. Mosby and Henry vowed to lobby for a change to state law that would allow the city to seek indemnification from officers of the Baltimore Police Department (BPD) for damages paid by the city because of their misconduct. But the problem does not lie with state law, it lies with the collective bargaining agreements between the city and the Fraternal Order of Police (FOP) that apply to BPD officers in the ranks of lieutenant and below.

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State law allows the city to seek indemnification from an officer for damages that the city is required to pay when an officer acts with “actual malice,” defined by statute as “ill will or improper motivation.”

Officer Michael O’Sullivan was convicted of perjury and misconduct for testifying in court that he observed a man, Yusuf Smith, ditch a handgun while running from officers on The Alameda in May 2018 — an observation that body camera footage later proved was physically impossible.

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Officer O’Sullivan’s testimony resulted in Mr. Smith’s conviction on a weapons charge. Mr. Smith was exonerated after the body camera footage came to light, but not before spending time in jail.

Officer O’Sullivan acted with actual malice. Under state law, the city could seek indemnification from him. It is precluded from doing so, however, by Article 15 of the collective bargaining agreements. It effectively waives the city’s right to seek indemnification for monetary damages paid as a result of actions taken by an officer within the scope of the officer’s employment without regard to the nature of the officer’s actions.

If Mr. Mosby wants to change that, he can introduce a bill prohibiting the city labor commissioner from bargaining away the city’s right to seek indemnification from an employee who acts with ill will or improper motivation. The current collective bargaining agreements expire in June, so he must act fast to ensure that the ordinance is in place before the next agreements are negotiated.

As for Officer O’Sullivan’s pension, it is city law that prevents the city from denying or revoking it because of his criminal conduct. In 1967, the Maryland Court of Appeals held that the pension of a public employee terminated for misconduct can be denied only if such action is expressly permitted by the pension plan.

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The city’s Fire and Police Employees’ Retirement System, found in Article 22 of the City Code, contains no provision allowing city officials to deny a pension to an employee terminated because of misconduct. Again, if Mr. Mosby wants to change that, he can introduce a bill to do so.

Some state and local governments provide that the pensions of police officers and other employees can be denied if employees are terminated because of serious misconduct; others do not. The subject became a matter of national discussion after it was revealed that Minneapolis police officer Derek Chauvin would be eligible for an annual pension of $50,000 even if convicted of murder for the killing of George Floyd last May.

Police officers should not be held financially responsible, nor denied pensions, because of the inevitable mistakes that they make in the course of their difficult duties. No one would become a police officer if that was the case. But mistakes and ordinary negligence are one thing; malicious actions and crimes like perjury are quite another.

The mayor and City Council should consider whether waiving the right to seek indemnification from police officers whose malicious acts cost the city money and allowing officers to retire on lucrative pensions even if fired for serious wrongdoing create what economists refer to as “moral hazard.” Moral hazard is the risk that people will act more recklessly when relieved of financial consequences for that recklessness.

The opaque, slow and ineffective disciplinary system of the BPD has proved to be a woefully inadequate deterrent to officer misconduct. Perhaps eliminating the moral hazard created both by the city’s collective bargaining agreements with the FOP and the city’s police pension plan would give deterrence of wrongdoing in the department a much-needed boost.

David Plymyer retired as Anne Arundel County Attorney in 2014 and also served for five years as an assistant state’s attorney for the county. His email is dplymyer@comcast.net; Twitter: @dplymyer.

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