Police Superintendent Richard Pennington might be risking as much as $350,000 in pension benefits to run for mayor, according to some local legal experts. But a source close to the popular chief says the "golden parachute" that Mayor Marc Morial negotiated for Pennington in 1998 was "hardly a factor" in the superintendent's decision to run for mayor.
"It's not enough money," the source says. "He has offers to do consulting deals around the country. In the scheme of things, he really didn't think about [the pension] much."
After two weeks of other candidates publicly calling for him to be a "full-time chief" or a "full-time candidate," Pennington will step aside as the city's top cop to run for mayor in the Feb. 2 elections, the source says. Assistant Superintendent Duane Johnson will serve as interim chief.
If Mayor Marc Morial declines to grant Pennington's request for a leave of absence, the source says, Pennington will resign.
But either a temporary leave or a permanent resignation may cost Pennington some if not all of his NOPD pension, according to some local attorneys who reviewed the contract at our request.
Here's how -- and why. On March 30, 1998, Morial announced that his administration had come up with a four-year compensation package to keep Pennington from leaving the NOPD for top cop jobs in other cities. At the time, Pennington was being considered for the chief's job at the Washington, D.C. Metropolitan Police Department, among other cities. To keep away "raiders," Morial negotiated a hefty raise for the chief (higher than the mayor's own salary) from $101,000 to $150,000 annually.
In addition, the chief received a guarantee of $50,000 a year for the rest of his life upon retirement from NOPD, atop the $60,000-a-year pension Pennington already gets from his former job as a No. 2 cop with the D.C. police department.
On Oct. 15, 1998, Morial and Pennington both signed the agreement, with the approval of then-City Attorney Avis Russell, which took effect retroactively to May 4, 1998. The contract ends on May 5, 2002, which is also the last day of the Morial Administration.
For Pennington, an African-American male who celebrates his 55th birthday on Nov. 26, his lifetime NOPD pension alone is estimated at $1 million, based on life expectancy tables posted by the Centers for Disease Control. But Pennington's three-page contract reveals his pension could be complicated by his political ambitions.
If Pennington goes through with his planned "leave of absence," the effect on his contract is unclear and could be subject to a legal challenge, experts say. "There is nothing here in the contract for a leave of absence," says Bob McKnight, a local attorney and associate editor of the monthly legal publication Fifth Circuit Civil News. "It does create a question of, 'How do you treat a leave of absence?' Is it equivalent to a voluntary termination? It certainly seems like it should be."
According to the contract, Pennington would receive 65 percent or $32,500 a year for life, if he "voluntarily terminates" his employment after the third year of his four-year deal. But the contract also states Pennington is "not entitled to any retirement sum if [he] shall terminate this agreement to take employment as a chief law enforcement officer or Chief of Police for any municipality or state."
In other words, Pennington wouldn't get a dime in pension benefits if he ran for, say, criminal sheriff of Orleans Parish. But the chief's contract is silent on what would happen if Pennington runs for mayor or any other elected office.
Gilbert Buras, a former deputy city attorney and expert on municipal law, says Pennington is an unclassified appointee of the mayor whose pension is governed by the administrative rules of the mayor and the City Council. Buras notes that the city's Home Rule Charter permits the council to remove any unclassified employee for "incompetence or neglect of duty."
"My reading is the Council would have to make the final call as to whether a 'leave of absence' would be tantamount to a 'neglect of duty,'" Buras says.
The Council includes two mayoral candidates -- Troy Carter and Jim Singleton -- who arguably would not have been so enthusiastic about ratifying the chief's contract in 1998 if they had thought that Pennington would one day compete with them for mayor. Jay Banks, a top aide to Councilman Singleton, says a leave of absence would violate the "spirit" of the contract. "I think the spirit of the contract was that he not give up running the department as chief," he says.
State Sen. Paulette Irons, also a candidate for mayor, says Pennington should resign. "Our city is the murder capital of the nation," she says. "While our nation is experiencing a national emergency, we will also host a Sugar Bowl, a Super Bowl and Mardi Gras. Clearly, the citizens of this town need a full-time police chief. If I were mayor, I would not tolerate having a part-time chief for even one week, much less several critical months."
Pennington has personally assured National Football League Commissioner Paul Tagliabue that the Super Bowl will be adequately protected. Moreover, Pennington will be available to interim NOPD Chief Johnson for consultations, a source close to Pennington says.
Councilman Carter was the first of the major mayoral candidates to call for Pennington to resign. "Mr. Pennington is in a different position from all the other mayoral candidates, all of whom are elected officials," Carter says. "He is an appointed official, serving at the pleasure of the mayor, enjoying a lucrative contract created just for him."
Two other local attorneys, who did not want to be named, say the contract does not give Pennington a parachute if he decides to quit being police chief. "There is a very strong argument that taking a volitional leave of absence is outside the contract and that therefore he is breaking the contract," one attorney says. "The contract is written to keep him employed and to keep him from acting on his own volition."
Pennington will make his formal announcement at a rally scheduled for 6 p.m. Tuesday (Nov. 20), at the Fairmont Hotel. Qualifying is Dec. 12-15. Pennington campaign consultant Greg Buisson says Pennington will address the leave of absence issue first. "Then we'll all take a deep breath and go," Buisson says.