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Mobtown Beat

Retaliation Syndrome

Lawsuits Claim Police Department Gets Back At Its Own

Frank Klein
BLUE MEN GROUP: Attorney Howard B. Hoffman is at the center of four lawsuits filed against the Baltimore Police Department--three of them by current or former officers.

By Van Smith | Posted 4/19/2006

The Baltimore Police Department is fending off four federal lawsuits, each alleging that an employee suffered illegal retaliation by the department for exercising job-related free speech. One case involves a lawyer who suggested improvements to the legal office handling the police department’s equal-employment issues. Two were brought by commanders, one who recommended the department not acquire 100 new vehicles that the commissioner wanted, and another who second-guessed the lethal force used against an elderly barricaded suspect. The most recent case, filed in March, features a terminated sergeant who asked for his job back pursuant to a court order. In each case, the complainants allege the Baltimore Police Department made their statements come back to haunt them with vengeance.

The four cases have something in common other than charges that the department retaliates against its own: Each involves 36-year-old attorney Howard B. Hoffman. He’s the plaintiff in the lawyer case, and he’s representing the officers in each of the other three cases. Over the last year and a half, Hoffman has made a cottage industry of trying to get justice for what he believes is the police department’s mistreatment of lieutenant colonels Mike Andrew and Stanford Franklin, Sgt. Jeremiah Kelly, and himself, a former special city solicitor detailed to handle police employment-law cases. In doing so, he’s making the city pay—to the tune of, in his case alone, $200,000 to Gallagher, Evelius, and Jones, a politically connected firm that is defending the city against Hoffman’s claims. “I’ve got them tied up in litigation,” he says.

“You should call the article ‘Enemies of the State,’” Hoffman says over the phone on April 11, upon first hearing from a reporter interested in writing about the cases. “Because that is how they treat Andrew, Franklin, Kelly, and me. It is remarkable that the government acts like this. It is an egregious abuse of government power and an egregious abuse of civil rights.”

Police department spokesman Matt Jablow says of the four cases, “we can’t comment because it is pending litigation.” In all but the Kelly case, which was filed March 16, denials of the accusations have been entered into the court record.

The issue of retaliation for job-related speech in public-safety agencies is currently before the U.S. Supreme Court, in Garcetti v. Ceballos, a case argued before the justices March 21. The question is whether a prosecutor who tells his bosses of suspected police misconduct loses his First Amendment protection against retaliation because his message was delivered as part of his job. Hoffman says that the high court’s decision in this case, which is expected soon, could make or break his Baltimore Police Department cases.

Stanford Franklin, who was hired by the department in 2000 as a major and promoted to lieutenant colonel in 2001, sued first in July 2004. In an August 2003 police CitiStat meeting, his claim asserts, Franklin, who headed up human resources, presented a written analysis showing that the department had a sufficient number of vehicles as long as the practice of using “take-home cars” was minimized. His conclusion flew in the face of the wishes of then-Commissioner Kevin Clark, who was seeking funding for 100 new police cars. Franklin’s analysis caught the interest of Mayor Martin O’Malley’s office, and Clark’s initial embarrassment mounted until he ordered Franklin fired in December 2003, the complaint alleges, and took other retaliatory measures.

Since Clark’s tumultuous days as police commissioner ended in November 2004, Franklin says his standing request for reinstatement has been ignored. Franklin’s lawsuit, meanwhile, continues to meander through the federal court.

Next up was Hoffman himself, who filed suit in September 2004. His complaint alleges that, beginning right after he started work as a police lawyer in February 2002 until he was fired in November 2003, he was generally mistreated compared to his colleagues. Hoffman is white, and his bosses and many of his colleagues black; he contends that the harassing atmosphere had racial overtones. The alleged culprits were, among other supervising attorneys, then-city solicitor Thurman Zollicoffer and then-deputy city solicitor Donald Huskey.

The situation deteriorated quickly in the fall of 2003, after Hoffman says he shared with police brass his concerns and policy recommendations arising from a reverse-discrimination case in which the department’s Equal Employment Opportunity Unit was accused of ignoring officers’ complaints, prompting the officers to sue in federal court. (Their claims were settled in February 2005.) Hoffman asserts that first he was suspended on trumped-up charges based on false complaints leveled by Equal Employment Opportunity staff, and then was fired for failing to apologize, as ordered, for the accusations he asserts are false. Just hours prior to his termination, Hoffman hired a lawyer and complained of race discrimination to Huskey and Zollicoffer, who proceeded to fire him.

Last June, a federal judge dismissed a good chunk of Hoffman’s complaint, but the wrongful-discharge elements of the case—which contend that Hoffman was fired for attempting to obtain, under the Maryland Public Information Act, copies of alleged complaint letters that were used to suspend him—survived. Hoffman seeks reinstatement and damages. Depositions and motions battles in the case are ongoing; the case has yet to be scheduled for trial.

In November 2004, Michael Andrew filed suit. He had been a major with 30 years in the department when 78-year-old Cephus Smith, an armed and barricaded murder suspect, was shot and killed by police on Dec. 8, 2003. Andrew, who had been at the scene, wrote a memo to then-Commissioner Clark, advising that police may not have exhausted other, less drastic tactics before storming in on the subject and killing him—a step that Andrew said unnecessarily placed officers in harm’s way. He shared the memo with The Sun, which published an article about it. Andrew alleges he immediately suffered retaliation.

The police department charged Andrew with “giving confidential internal information to the media,” the complaint states, and stripped him of his Eastern District command, placing him in the Evidence Control Unit. Then, in July 2004, Clark ordered him to retire, which Andrew asserts he was willing to do if the pending changes were dismissed. The standoff ended with Andrew awaiting dismissal of the charges and taking time off, first with pay, and then without pay. After Andrew notified the department of his intention to sue, he was told to stay away from Baltimore Police Department premises, and that the security detail would take action if he failed to do so. In the fall of 2004, Andrew was fired. Shortly thereafter, Clark was fired after a string of controversies. Andrew continued to press his claim—and still is, despite having resumed duties as lieutenant colonel. Motions continue to fly in the case, though a trial date has not yet been set.

Jeremiah Kelly, a 19-year department veteran, has survived two separate sets of corruption allegations and wants his job back as a sergeant. In 2001, the department fired him after finding that he’d approved a false report written by a subordinate officer. In August 2003, he successfully overturned the verdict and the Maryland Court of Special Appeals ordered the department to reinstate him. Days later, he was indicted in federal court on charges that he gave confidential police information to an informant.

In July 2005, a federal jury acquitted Kelly of the leak charges. Still, the department didn’t reinstate him. Instead, according to his complaint, it initiated an internal investigation of the same allegations over the objections of the investigator assigned to look into them. When he filed suit in March, alleging retaliation for seeking his job back, Kelly asserted that the department was continuing to set up illegal traps to keep from reinstating him.

Hoffman contends that these four cases point to a larger problem for the Baltimore Police Department. “There is an atmosphere within the department,” Hoffman contends over lunch at a west-side pub on April 12, “which is designed to intimidate individuals from talking, and to retaliate against people who make the commissioner or mayor look bad. Everything in the police department is geared toward making the mayor look good. It’s all a public-relations game. The people of Baltimore should have a real concern that the most candid, honest, ethical people in the police department are being run out.”

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