The Office of the Baltimore City Solicitor is the  head of the snake
If you aren't aware of what the Solicitor does, allow me to give you a brief overview. The Baltimore City Solicitor is the legal representative for the Mayor & City Council and is appointed by the Mayor. The office protects the corporate and financial interests of the Mayor and City Council in the negotiation and consummation of contractual, financial, and real estate transactions. The lawyers under the direction of the City Solicitor aggressively defend the Mayor and City Council in liability cases, and furthers the collection efforts of the Mayor and City Council. In addition to overseeing the Department of Law, the City Solicitor is a member of the Board of Estimates. The Board of Estimates formulates and executes the fiscal policy of the City. The Board holds formal hearings and approves operating and capital budget requests, and is responsible for awarding contracts and supervising all purchasing by the City. The City Solicitor serves on the Board of Estimates with the Mayor, the President of the City Council, the Comptroller, and the Director of the Department of Public Works.  
The Fraud they commit
In the context of the broad tapestry of misconduct presented herein, there is perhaps nothing as primary and significant as the manner in which the Baltimore City Solicitor’s office perpetrated their fraud, as they provided false and misleading testimony on the most fundamental aspect of this matter. In the following, I intend to set forth those violations sufficiently to demonstrate that a long-standing pattern and practice of fraud is being committed by the Baltimore City Solicitor’s Office in the awarding of Line of Duty Retirement Disability Benefits from the Fire & Police Employees Retirement System of Baltimore City and justify the commencement of an investigation into the matter.

The fraud worked upon the court was comprised of numerous acts of misconduct. Although recklessness is all that need be shown to establish a fraud on the Court under the controlling authorities, the majority of the misconduct here is clear, intentional, and willful. Together, the acts amounted to a pervasive fraud driven by the goal of prevailing at whatever the cost. The following selected examples discuss only some of the more egregious acts of fraud.

Article 22 of the Baltimore City Code was enacted for the purpose of providing retirement allowances and death benefits under the provisions of that subtitle for such officers and employees of the Department of Aviation, of the Police Department and of the Fire Department of Baltimore City.  The City Solicitor of the City of Baltimore is the legal advisor of the Board of Trustees of the Fire and Police Employees Retirement System of Baltimore City. Firefighters who are disqualified from the further performance of their duties by the City of Baltimore are ordered to file an application with the Board of Trustees of the Fire and Police Employees Retirement System of Baltimore City. The Board of Trustees is responsible for conducting hearings on all matters involving non-line-of-duty disability claims, line-of-duty disability claims, 100% line-of-duty disability claims, line-of-duty death benefit claims, and any related matters arising out of these claims. One hearing examiner from the Panel of Hearing Examiners, provided for by the Board of Trustees of the Fire and Police Employees Retirement System of Baltimore City hears claims for benefits and conducts the hearings in an informal manner, with sufficient latitude to provide a fair and impartial hearing to all of the parties without requiring strict compliance with the rules of evidence. Testimony at the hearing is under oath and recorded.  The hearing examiner has the power to subpoena and require the attendance of witnesses and the production of papers and documents to secure information pertinent to the hearing, and to examine them.

While the Baltimore City Code does not require a strict compliance with the rules of evidence, for matters before the Panel of Hearing Examiners, it does not effectively throw them out to allow the Baltimore City Solicitor to have complete control over the process or to disobey state law on the issue. Under the Administrative Procedures Act of the State of Maryland Subtitle 10-213 (b), it provides that the presiding officer may admit probative evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs and give probative effect to that evidence. Probative evidence is that which has the effect of proof, tending to prove, or actually proves the elements of a case. It is obvious that the City Solicitor has taken full advantage of this rule and has used it to admit evidence that is totally irrelevant. It also does not allow the Baltimore City Solicitor to withhold probative evidence.

The record shows that not only was irrelevant material introduced into the record, which can only be viewed as an attempt to convolute the record and cause confusion, relevant and probative medical evidence was willfully withheld from inclusion. This includes virtually the entire incident that led to my being medically disqualified a second time. This information was vital to being able to prevail at the hearing before the F&PERS. This information was excluded because it was favorable to my case and it was withheld purposely to ultimately deny retirement benefits.

"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases ...
Article 22 Baltimore City Code (Law)
Peter E. Keith, Esq., Chairman
William “Ray” Hudson, Vice Chairman
Joan M. Pratt, CPA
Steve Kraus
Dean M. Palmere
Joe Wade
Frank B. Coakley
Benjamin F. DuBose Jr.
McKinley E. Smith
Robert A. Haukdal
Paul S. DeSimone
Article 22 Balto. City Code  
Administrative Procedures Act of the State of Maryland Subtitle 10-213 (b) 
On May 8, 1997, approximately 7 months after returning to duty from this injury, I experienced another episode of back pain. Out of an abundance of caution, with respect to the injury that occurred just prior to this, I sought the care of my doctor, who placed me off duty for 4 days due to what was diagnosed as a mild muscle strain. I continued with the full performance of my duties for 2 years after that until I was deemed to be medically disqualified from the performance of my duties by the City of Baltimore in 1999, as a direct and proximate cause of the Line of Duty injury that had occurred on August 2, 1996. (EXHIBIT 1).
The withholding of evidence led to the error in the first hearing for special line of duty retirement benefits

The Fire and Police Employees Retirement System of Baltimore City had the responsibility of assembling the medical record on behalf of the City of Baltimore and submitting it to the Panel of Hearing Examiners. In the occurrence of the first hearing for retirement benefits, the hearing examiner erroneously used, as a rational basis to deny Special Line of Duty Retirement Benefits, an injury occurring on May 8, 1999, as the cause for my medical disqualification from my duties. (EXHIBIT 1, PAGE 10. ALSO SEE DECISION 1, EXH. 3) It was impossible for me to be working out with weights on May 8, 1999, when the record clearly shows that I was already placed off duty on March 23, 1999 for an injury associated with the Line of Duty that occurred on August 2, 1996, which would ultimately require surgery. (EXHIBIT 1) There is no evidence in the record of an incident occurring on May 8, 1999. As previously mentioned, this decision was appealed, due to the hearing examiner’s error, and I was reinstated to the department. The City of Baltimore contends that I wasn’t happy with the hearing examiner’s decision and I chose to return to my duties. This is simply not true and is a total misrepresentation of the facts knowingly for the direct purpose of confusing a finder of facts of those facts. The Baltimore City Solicitor knew of the decision of the Chief of Fire Department to reinstate me due to the error that was made and the appeal pending in the Court to address it due to the possible legal liability it posed to the City of Baltimore. The Hearing Examiner was obviously biased and was motivated to deny benefits, or from returning to the performance of my duties, and therefore he abused his discretion.

See Decision 1    
The withholding of evidence led to the error in the second hearing for special line of duty retirement benefits

After having problems someone typically has after suffering from an injury like this, and suffering further injury to the spinal column resulting from having such an invasive surgery, I again experienced pain on several occasions both in the Line of Duty and Non-Line of Duty in the location of the previous injury in 2002, which led to my being deemed medically disqualified from the performance of my duties by the City of Baltimore a second time. I was ordered to apply for Special Disability Retirement Benefits from the Fire and Police Employees Retirement System of Baltimore City. A second hearing was conducted, in the same procedure as that aforementioned in the occurrence of the first proceeding, before the same hearing examiner that made the erroneous determination in the first hearing. The City of Baltimore was represented by the Baltimore City Solicitor. I was not represented by counsel. I was determined to be “not disabled from the further performance of the duties of a firefighter” and he was again denied Special Line of Duty Disability Retirement Benefits.
See Decision 2    
The withholding of evidence and false statements made by the city solicitor led to the confusion demonstrated by medical experts who provided testimony in the second application for special line of duty retirement benefits


In the supplemental letter of counsel for the City of Baltimore, the Assistant Baltimore City Solicitor, offers a “closing statement” that set forth the City of Baltimore’s position in the matter.  Counsel for the City obfuscated from the truth at virtually every turn and did not base his opinion on evidence that was a part of the record. He inaccurately reasoned “that the Claimant was ineligible for any retirement benefit at all.” His opinion is as follows:
Supplemental letter of counsel for the City of Baltimore  
“Claimant’s Cut-Off Ticket indicates “Retired” rather than “Dismissed” for medical reasons. Claimant’s physician, Dr. John Rybock, as recently as 9/20/02, reported that Claimant recovered from his 8/23/02 operation sufficiently to ‘be anxious to return to work…Claimant is not eligible for, nor entitled to receive, an Ordinary Disability Retirement Benefit pursuant to Section 34 (c) of Article 22 of the Baltimore City Code. (2000 Revised Edition)[1] The medical brief indicates that Claimant was and is capable of performance of duties, as a firefighter but chose not to continue with his career.”
This assertion is absolutely false and the misrepresentation of this fact is done knowingly and willingly by the City Solicitor. I was determined to be medically disqualified using the physical standards for firefighters, as prescribed in NFPA 1582 Section Spine Structural Abnormality, Fracture, or Dislocation. These policies and standards were accepted by the Baltimore City Fire Department and utilized by the City of Baltimore to deny me from continuing the further performance of my duties. If the entire medical record would have been introduced, and the probative evidence given the weight required by law, it would demonstrate that I was ready to return to duty, as I had felt as though I recovered sufficiently to return to my duties in the abbreviated time allowed due to the incorrect classification of this injury being a Non-Line of Duty occurrence by the City of Baltimore. I reported this to my doctor who noted that “Brian is anxious to return to work, so I think it is appropriate to do so.” I then reported to the medical clinic for the City of Baltimore and informed Dr. Lyons that Dr. Rybock was preparing to release me to duty. Dr. Lyons then consulted with the medical director for the City, Dr. James Levy, who determined that I was to be medically disqualified from returning to the further performance of my duties as a firefighter. I reported this to my doctor who noted in his next report the fact that I was being retired.  

The hearing examiner, upon the occurrence of the hearing, asked if a Functional Capacity Examination, or an FCE, was performed in association with the determination of the City to medically disqualify me from the further performance of my duties. An FCE was not submitted because the City of Baltimore never scheduled me to be examined prior to my "Cut Off" date of December 28, 2002. An FCE was conducted in March of 2003, as part of the Vocational Rehabilitation process. I offered that an FCE was conducted but well after the Cut Off date and was inappropriate to utilize at the hearing, as evidence shows that I was awaiting to have a further surgery for the injury at the time the FCE was conducted and the City failed to submit any evidence related to it to the hearing examiner. 

The City Solicitor goes on to assert:

As I was awaiting the extensive spinal reconstructive surgery which took place in October of 2003, it is inconceivable that anyone could demonstrate anything other than self-limiting behavior, in an examination to test his capacity to perform work, just prior to surgery. As is reflected in the letter, “the FCE occurred 3/11/03,” well after my “Cut-Off” date of 12/28/02. As this FCE was conducted for the purpose of the Vocational Rehabilitation plan, to assess my physical ability to do work, the representatives who performed this examination were not aware of the fact that I was awaiting to have surgery at the time of that examination because this information was willfully withheld from them.

I was still subjected to the administrative hearing process, despite being under the care of my doctor, as I was recovering from extensive spinal surgery that included the fusing of the vertebral discs that were affected.  This evidence was not only withheld from the administrative hearing examiner, but other professionals involved his case, despite the fact that the City of Baltimore was paying the costs of the Vocational Rehabilitation program. This permits the Baltimore City Solicitor to fabricate the record as they need to in order to obtain a ruling that is favorable to them. This information was withheld from the hearing examiner for that exact purpose.

The City Solicitor continues:

“The FCE reports that the Claimant self-limited his exertion during the evaluation: Extremity strength was self-limited with cog-wheeling behaviors for all muscle groups supporting lack of consistent effort.”
“In his most recent report dated 7/8/03, Dr. Halikman notes that he is “disturbed by the FCE and prior documentation showed that the Claimant was “capable of a high level of physical activity” and was recovering well post-surgery of July, 2002. He concludes that he has questions regarding whether Claimant is disabled.”
Dr. Halikman is a doctor employed by the City of Baltimore to offer opinions on cases that involve an employee’s disability who are undergoing the retirement process, such as I underwent. It is obvious that evidence of my medical file, which held relevant and important information relating to this injury, was withheld from even Dr. Halikman. As for Dr. Halkiman’s uncertainty as to whether I was disabled, obviously, he is unaware that the medical director for the City of Baltimore made this determination under the standards found in NFPA 1582, relating to firefighters who are seriously injured in the Line of Duty and wish to return to duty. I, nor my treating physician, ever asserted that I was disabled.

In the next paragraph of the letter, the Baltimore City Solicitor opined that: 
“Documentation in the medical brief and the Claimant’s testimony at the hearing reflecting his subjective complaints of physical inability resulting from pain must be discounted on account of his impeachment of his credibility from false statements he made in his 10/28/02 Application for Disability (Form 27EE) and during the 6/9/03 hearing held before you. On his Application, Claimant answers question 13(a) (“Date of injury occurred”) by listing his line of duty, within 5 years 3/23/99 accident as the cause of his herniated disc disability. When he first applied for line of duty disability retirement on 5/5/00, the Claimant listed his 8/2/96 injury as the cause of his herniated disc disability (which was within 5 years of that application) but not the 3/23/99 incident. Moreover, the Claimant answered “No” to question 13(f) (prior injuries) even though he has already applied for disability benefit for this injury and the medical brief is replete with documentation regarding multiple injuries to his back occurring on 8/2/96, 5/10/97, 3/23/99, 6/4/99, 2/3/00, 3/17/00, 9/15/01, and 6/7/02."
I originally injured my back on 8/2/96. I was subject to retirement in 2000 because of the injury and was denied benefits, as the hearing examiner determined that I had sufficiently recovered from that injury enough to return to work and perform my duties for a considerable time after that. There was evidence that a herniated disc, that was evident in the original occurrence had progressed but could not be the cause of my pain. It was found to be the scar tissue that had accumulated over the time since the first surgery and had to be considered a new injury rather than just a recurrence. If not, the I could not have recovered sufficiently, as evidence shows I had the scar tissue accumulating the entire time, which all evidence to the contrary would then show that I had not recovered from that surgery.

In question 13(f) (prior injuries) of the application for Disability Retirement Benefits, I was simply reflecting that I suffered no other injury than the one I suffered in the Line of Duty before I entered the Baltimore City Fire Department.  In both of these instances there is no attempt on my part to be considered non-credible in my testimony before the hearing examiner. This is just another misrepresentation by the City Solicitor to stack the deck in the City of Baltimore’s favor.

There’s more:

“At his 6/9/03 hearing, Claimant was less then forthcoming in answering questions regarding whether he had, in fact, undergone an FCE. In response to counsel’s questioning, the Claimant stated that he had no yet taken the test, yet when pressed towards the end of the proceedings when he would be scheduling an FCE, the Claimant produced the FCE report from his briefcase.

Indeed, you noted in your 9/17/00 decision awarding the Claimant an Ordinary Disability benefit but denying him a line of duty disability benefit that the Claimant’s testimony was not credible and was not consistent with the evidence in the medical record.”

As I testified before the hearing examiner, the FCE required for the purpose of the hearing for retirement disability benefits should have been scheduled by the medical director for the City of Baltimore before the “Cut-Off” date of my employment with the City of Baltimore on 12/28/02, as mentioned by the City Solicitor, but it wasn’t. I had no obligation to do this or provide it. The question of it not being submitted to the hearing examiner was a question for the City of Baltimore. The hearing examiner could not have determined the credibility of my testimony, based on the medical records, as introduced by the City of Baltimore that have been proven to be incomplete and were withheld willfully by the Baltimore City Solicitor. The misrepresentations by the City Solicitor continues unabated despite my objections, even when there is absolutely no evidence to support any of their testimony:
“Perhaps more than any verbal or written statement that the Claimant made, his actions provide the greatest indictment of his trustworthiness. After asserting in his 5/5/00 line of duty disability application and at the hearing for such benefit that he was no longer able to work as a firefighter, the Claimant “miraculously” went back to work after being denied the more lucrative line of duty benefit. Now he decides that he no longer wants to work as a firefighter so he applies once more for a line of duty benefit. F&P need not accommodate the Claimant with a side income to subsidize his newly chosen career.”
Again, the City Solicitor takes the evidence and the entire hearing off the rails and into a realm of make believe. As aforementioned, I did not “miraculously” return to work because I was not awarded the more lucrative line of duty benefit. I was reinstated to my duties, as a result of an appeal that was filed challenging the decision of the hearing examiner. At no point did I ever decide anything, as far as my ability to perform my duties. My retirement was decided by the Medical Director for the City of Baltimore.