Opinion Backs Pension For Agency Police Chief

Official in Baltimore Called Benefit Inflated

The Maryland Transportation Authority's new police chief did not, as a Baltimore pension official has alleged, receive an improperly inflated benefit when he stepped down from his position as that city's deputy police commissioner, according to a formal opinion issued by the municipal law department.

City Solicitor George A. Nilson said in a June 28 memorandum that the pension awarded to Marcus Brown, a close ally of Gov. Martin O'Malley (D), was "within both the letter and the spirit" of the law and was consistent with recent past practice.

Brown, 42, who worked for the city for not quite 15 years, and who received credit for three years of service in San Jose, is set to collect more than $55,000 a year -- an arrangement that in recent weeks has drawn much scrutiny. The furor contributed to calls for the resignation of the city's police commissioner, Leonard Hamm, and prompted its mayor, Sheila Dixon, to impose restrictions on pension awards.

Brown makes $127,500 a year in his new position in the O'Malley administration. The transportation authority police force is responsible for protecting certain highways, tunnels and bridges, including the Gov. Harry Nice Bridge in Charles County as well as Baltimore-Washington International Thurgood Marshall Airport and the Port of Baltimore.

With the city police commissioner's help, Brown was allowed to receive benefits even though he had worked for the city for fewer than 20 years and was not yet 50 years old.

Under the city's code, the police commissioner can award "optional allowances" that enable an employee with between 15 and 20 years of service to collect a pension if he is "removed . . . without fault upon his part."

According to his 2005 employment agreement with Baltimore, Brown is entitled to receive the optional allowance if his appointment "be withdrawn" by the commissioner.

The agreement was signed by Brown, the commissioner and O'Malley, who was then the mayor.

In a letter dated Jan. 29, three days after Brown's appointment as head of the statewide police agency was announced, Hamm told Brown he had notified the retirement system "of your layoff." The action, Hamm wrote, "makes you eligible for retirement benefits."

But Steve Fugate, chairman of the police and fire pension board, has noted that Brown was neither removed nor laid off. Rather, Fugate said, Brown voluntarily left the city for the job in O'Malley's administration. Fugate contended that the optional allowances provision was intended to help longtime employees whose jobs are eliminated, a contention that Nilson disputed in his opinion.

After reviewing the opinion, Dixon said in a statement that she was convinced that Hamm followed the "intent and letter of the law" when he requested the pension. Dixon added that "more appropriate language could have and should have been used" by Hamm.

"It is clear that more deliberation must be used by all city agencies in pursuing discretionary pension allowances going forward," she wrote.

Through a spokesman, Brown has declined to comment on the pension.

O'Malley has said he was aware of Brown's contract with the city but was not involved in any subsequent discussions about the pension. "What happened after that is beyond my knowledge," O'Malley said.

According to Nilson's opinion, Brown need not have been laid off in order to receive the optional allowance. "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 wrote.

Hamm's letter was "at worst poorly drafted," Nilson wrote, adding that its assertion that Brown was laid off has caused "much of the confusion in this case." He wrote that Brown's appointment was "withdrawn," in the sense that he was free to leave.

As far back as 2000, Nilson wrote, optional allowances were granted to more than a dozen police department employees in a variety of circumstances, including to settle employment or disciplinary disputes and to allow them to take other jobs.

Nilson wrote that 178 civilian city workers, those not employed by the police or fire departments, have received similar early retirement benefits since 2001 under a separate provision of the city code. Among them is an employee who left in January and took a job with the O'Malley administration, he wrote. The opinion does not identify that employee.