Fraternal Order of Police Lodge 35 v. Montgomery Cnty.

• Decision Date: 02 December 2013
• Docket Number: Sept. Term, 2011.,No. 132,132
• Parties: FRATERNAL ORDER OF POLICE LODGE 35, et al. v. MONTGOMERY COUNTY, Maryland, et al.
• Court: Maryland Court of Appeals

436 Md. 1

80 A.3d 686

FRATERNAL ORDER OF POLICE LODGE 35, et al.

v.MONTGOMERY COUNTY, Maryland, et al.

No. 132, Sept. Term, 2011.

Court of Appeals of Maryland.

Dec. 2, 2013.

Francis J. Collins (David Gray Wright and Patricia A. Ramudo of Kahn, Smith & Collins, P.A., Baltimore, MD), on brief, for Appellants/Cross–Appellees.

Jonathan S. Shurberg (Jonathan S. Shurberg, P.C., Silver Spring, MD), on brief, for Appellees/Cross–Appellants.

Karen L. Federman Henry, Division Chief (Marc P. Hansen, Co. Atty., Erin Ashbarry, Associate County Attorney, and Silvia C. Kinch, Associate County Attorney, Office of County Attorney, Rockville, MD), on brief, for Appellees/Cross–Appellants.

Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and BELL,^* JJ.

BELL, C.J. (Retired).

In this case, the issue for decision is whether all of the signatures of registered voters collected by an affiant, who, in completing his affidavit to an election referendum petition, provided partially incorrect zip code information, are, for that reason, invalidated. We hold that they are not.

Similar to the general collective bargaining law for County employees, Montgomery, Md., Code §§ 33–101 to 33–112, the collective bargaining law for police department employees, Montgomery, Md., Code §§ 33–75 to 33–85, requires the Montgomery County Executive (“Executive”) to bargain over wages, benefits, and working conditions. On July 19, 2011, the Montgomery County Council passed Bill 18–11 ¹ to amend Section 33–80(a)(7) of the Montgomery County Code. Section 33– 80(a), which prescribes the scope of County collective bargaining with its police department union, provided, before its amendment:

“ Collective bargaining.

“(a) Duty to bargain; matters subject to bargaining. A certified employee organization and the employer must bargain collectively on the following subjects:

“(1) Salary and wages, provided, however, that salaries and wages shall be uniform for all employees in the same classification;

“(2) Pension and retirement benefits for active employees only;

“(3) Employee benefits such as, but not limited to, insurance, leave, holidays and vacation;

“(4) Hours and working conditions, including the availability and use of personal patrol vehicles;

“(5) Provisions for the orderly processing and settlement of grievances concerning the interpretation and implementation of the collective bargaining agreement, which may include binding third party arbitration and provisions for exclusivity of forum;

“(6) Matters affecting the health and safety of employees; and

“(7) The effect on employees of the employer's exercise of rights listed in subsection (b).”

Montgomery, Md., Code § 33–80(a) (2007). Section 33–80(b), on the other hand, delineates certain “rights” of the Executive that cannot be impaired through police collective bargaining. It provides, in pertinent part:

“ Employer rights.

“This article and any agreement pursuant hereto shall not impair the right and responsibility of the employer.

“(1) To determine the overall budget and mission of the employer and any agency of county government;

“(2) To maintain and improve the efficiency and effectiveness of operations;

“(3) To determine the services to be rendered and the operations to be performed;

“(4) To determine the overall organizational structure, methods, processes, means, job classifications or personnel by which operations are to be conducted and the location of facilities;

“(5) To direct or supervise employees;

“(6) To hire, select and establish the standards governing promotion of employees and to classify positions;

“(7) To relieve employees from duties because of lack of work or funds, or under conditions when the employer determines continued work would be inefficient or nonproductive;

“(8) To make and enforce rules and regulations not inconsistent with this law or a collective bargaining agreement;

“(9) To take actions to carry out the mission of government in situations of emergency;

“(10) To transfer, assign and schedule employees.”

Montgomery, Md., Code § 33–80(b) (2011).

Prior to the enactment of Bill 18–11, Section 33–80(a)(7), which required “effects collective bargaining,” i.e., that the Executive bargain with a certified employee group over the “effect on employees of the employer's exercise of rights listed in [Section 33–80](b),” restricted the free and unfettered exercise of the Executive's rights. Thus, for example, § 33–80(b)(4) may have granted the Executive the right to “determine the overall ... methods, processes, means ... by which operations are to be conducted,” but prior to the enactment of Bill 18–11, if the Executive wanted to install video cameras in police cruisers, or distribute new public safety equipment, Section 33–80(a)(7) required him to bargain with the police union over how and when the initiative would be implemented, giving the police union, in effect, a veto-like restriction over the exercise of the Executive's powers under Section 33–80(b).

Bill 18–11 was enacted to prevent police unions from using effects bargaining to hinder the implementation of Executive initiatives made pursuant to Section 33–80(b). Upon its enactment, effects bargaining was limited to situations where an Executive initiative enacted under Section 33–80(b) results in the loss of police jobs. Section 33–80(a)(7) provided after its passage:

“(a) Duty to bargain; matters subject to bargaining. A certified employee organization and the employer must bargain collectively on the following subjects:

* * *

“(7) Amelioration of the effect on employees when the employer's exercise of rights listed in subsection (b) causes a loss of existing jobs in the unit.”

Montgomery, Md., Code § 33–80(a) (2011) (emphasis added).

Fraternal Order of Police, Lodge 35 (“FOP 35”), in response to the passage of Bill 18–11, initiated a petition drive (“the Petition”) to place the bill on the November 4, 2012 ballot for voter referendum. To do so, pursuant to Montgomery County Charter § 114 ² and consistent with Article 11–F, Section 7 of the Maryland Constitution,³ FOP 35 was required to obtain approximately 30,000 signatures. FOP 35 engaged the services of a California and Michigan based company, which specialized in gathering signatures for petition drives, to assist in gathering the required signatures. Through the company's efforts, FOP 35 collected 48,935 signatures in Montgomery County. Those signatures were timely submitted to the Montgomery County Board of Elections (“MCBE”) for verification and validation.

Each petition page submitted to the Board, as required by Maryland Code (2003, 2010 Repl.Vol.) § 6–201(c) of the Election Law Article (“EL”) ⁴ contained, among other things, a copy of Council Bill 18–11, spaces for signatures, printed names, and signer addresses and, at the foot, the affidavit of the circulator. The circulator's affidavit was in the form of, and contained the statements required by, EL § 6–204,⁵COMAR 33.06.03.07,⁶ and COMAR 33.06.03.08.⁷ It provided, in part:

“ Circulator's Affidavit: Under the penalties of perjury, I swear (or affirm) that: (a) I was at least 18 years old when each signature was obtained; (b) the information given to identify me is true and correct; (c) I personally observed each signer as he or she signed this page; and (d) to the best of my knowledge and belief: (I) all signatures on this page are genuine; and (ii) all signers are registered voters of Montgomery County, Maryland. I made available to each signer a copy of the entire bill on the reverse of this page.”

Pursuant to COMAR 33.06.03.07, following the affidavit was also a space for the circulator's name, signature, telephone number, and address, including city, state, and zip code.

Two circulators, Christopher Head (“Head”) and Jesse Rowe (“Rowe”), misstated the zip codes for their addresses by one or two digits on each page that they signed. Head provided as his address: 1229 Richland Avenue, Kalamazoo, Michigan 49008. Although “49008” was a valid Michigan zip code, the actual zip code for that area of Kalamazoo was 49006. Rowe provided as his address: 1405 Upland Drive, Kalamazoo, Michigan 49004. Again, although a valid Michigan zip code, the actual zip code for his address was 49048. Head submitted 1,019 pages with his error, pages that contained 3,392 signatures. Rowe submitted 942 pages with his error, pages that contained 2,744 signatures.

Despite the incorrect zip codes in the circulator affidavits, the MCBE checked each signature and certified that 34,828 of the 48,935 signatures were those of registered voters of Montgomery County, approximately 4,600 signatures more than required by law. In November 2011, the Board announced by letter that Bill 18–11 was certified for placement on the ballot of the November 2012 General Election.

Seeking to prevent the referendum on Bill 18–11, Montgomery County, Maryland, and Steven Farber, the staff director of the County Council and a registered voter of Montgomery County, (collectively “the respondents”), filed, on November 28, 2011, in the Circuit Court for Montgomery County, a complaint ⁸ against the MCBE, seeking judicial review and declaratory relief pursuant to EL § 6–209(a) and (b).⁹The complaint challenged the MCBE's certification of the Petition, alleging violation of the requirements for petitions prescribed by EL § 6–203.¹⁰

FOP 35, as proponents of the petition to referendum, having been granted leave to intervene, moved to dismiss the complaint, arguing that the respondents' failed to exhaust available administrative remedies, as well as failed to file timely the administrative record before the MCBE in compliance with Maryland Rule 7–206.¹¹ The Circuit Court denied the motions.¹²

Having abandoned its challenge to the referendum petition under EL § 6–203, the respondents amended their complaint to add another action for declaratory judgment, this one pursuant to the Maryland Uniform Declaratory Judgment Act (“MUDJA”), M...