Fraternal Order of Police, Montgomery Cnty. Lodge 35 v. Montgomery Cnty. Exec.

Decision Date04 March 2013
Docket NumberSept. Term, 2011.,No. 0722,0722
Citation210 Md.App. 117,62 A.3d 238
CourtCourt of Special Appeals of Maryland


William J. Chen, Jr., (Chen & McCabe, LLP, Rockville, MD, Margo Pave, Zwerdling, Paul, Kahn & Wolly, PC., Washington, D.C.), all on the brief, for Appellant.

Edward B. Lattner, Chief (Marc P. Hansen, County Attorney, on the brief), Rockville, MD., for Appellee.

Panel: WRIGHT, HOTTEN, JAMES R. EYLER, (Retired, Specially Assigned), JJ.


This appeal arises from appellee, Montgomery County Executive (County Executive) Isiah Leggett's, failure to include sufficient funds to implement a collective bargaining agreement (“CBA”) in the proposed budget for Fiscal Year 2012 (“FY12”). Appellant, the Fraternal Order of Police, Montgomery County Lodge 35 (“FOP 35”), filed a prohibited practice charge against the County Executive, accusing him of violating §§ 33–80(g) and 33–82(a)(8) of the Montgomery County Code (“MCC”), part of the Police Labor Relations Act (“PLRA”). The Permanent Umpire (“Umpire”) found that the County Executive was required to include the CBA and sufficient funds to implement it in the proposed budget and that the County Executive's failure to do so constituted a prohibited practice. The County Executive filed a motion for a writ of mandamus in the Circuit Court for Montgomery County and FOP 35 filed a motion for summary judgment in response. The circuit court granted the County Executive's writ, denied FOP 35's motion, and reversed the decision of the Umpire. This timely appeal followed.

Question Presented

FOP 35 asks us to determine the following:

Is the decision of the Permanent Umpire supported by substantial evidence of record which is fairly debatable and premised upon a correct application of law?

Finding that the circuit court erred in denying FOP 35's motion for summary judgment and reversing the decision of the Umpire, we reverse the circuit court's judgment.

Facts and Procedural History

The facts in this case are undisputed. FOP 35 is the exclusive certified bargaining unit representative for Montgomery County police officers below the rank of lieutenant.1 In June 2010, FOP 35 and the County Executive entered into a two-year CBA (2011 Agreement”). In November 2010, the parties began negotiations for an amendment to the 2011 Agreement and soon came to an impasse. Upon impasse, the parties submitted the issues to an Impasse Neutral (“the Neutral”), pursuant to MCC § 33–81(c),2 which stated in pertinent part:

(c) An impasse over a reopener matter or the effects on employees of an exercise of an employers [sic] right must be resolved under the procedures in this subsection. Any other impasse over a matter subject to collective bargaining must be resolved under the impasse procedure in subsections (a) and (b).

(1) Reopener matters.

(A) If the parties agree in a collective bargaining agreement to bargain over an identified issue on or before a specified date, the parties must bargain under those terms. Each identified issue must be designated as a “reopener matter.”

(B) When the parties initiate collective bargaining under subparagraph (A), the parties must choose, by agreement or through the processes of the American Arbitration Association, an impasse neutral who agrees to be available for impasse resolution within 30 days.

(C) If, after bargaining in good faith, the parties are unable to reach agreement on a reopener matter by the deadline specified in the collective bargaining agreement, either party may declare an impasse.

(D) If an impasse is declared under subparagraph (C), the dispute must be submitted to the impasse neutral no later than 10 days after impasse is declared.

(E) The impasse neutral must resolve the dispute under the impasse procedure in subsection (b), except that:

(i) the dates in that subsection do not apply;

(ii) each party must submit to the impasse neutral a final offer on only the reopener matter; and

(iii) the impasse neutral must select the most reasonable of the parties' final offers no later than 10 days after the impasse neutral receives the final offers.

Section 33–81(b)(5) required the Neutral to analyze the offers as follows:

(5) On or before February 1, the impasse neutral must select, as a whole, the more reasonable, in the impasse neutral's judgment, of the final offers submitted by the parties.

(A) The impasse neutral must first evaluate and give the highest priority to the ability of the County to pay for additional short-term and long-term expenditures by considering:

(i) the limits on the County's ability to raise taxes under State law and the County Charter;

(ii) the added burden on County taxpayers, if any, resulting from increases in revenues needed to fund a final offer; and

(iii) the County's ability to continue to provide the current standard of all public services.

(B) After evaluating the ability of the County to pay under subparagraph (A), the impasse neutral may only consider:

(i) the interest and welfare of County taxpayers and service recipients;

(ii) past collective bargaining contracts between the parties, including the bargaining history that led to each contract;

(iii) a comparison of wages, hours, benefits, and conditions of employment of similar employees of other public employers in the Washington Metropolitan Area and in Maryland;

(iv) a comparison of wages, hours, benefits, and conditions of employment of other Montgomery County employees; and

(v) wages, benefits, hours[,] and other working conditions of similar employees of private employers in Montgomery County[.]

The Neutral found that the final offer made by FOP 35 was the more reasonable offer. On February 18, 2011, the Neutral issued a decision, or arbitration award (“Award”). Under MCC § 33–81(b)(7), the Award then became integrated into the 2011 Agreement, resulting in the final agreement between the parties (“Final Agreement”). Section 33–81(b)(7) states:

The offer selected by the impasse neutral, integrated with the previously agreed upon items, shall be deemed to represent the final agreement between the employer and the certified representative, without the necessity of ratification by the parties, and shall have the force and effect of a contract voluntarily entered into and ratified as set forth in subsection 33–80(g) above. The parties shall execute such agreement.

In turn, section 33–80(g) states:

Submission to Council. A ratified agreement shall be binding on the employer and the certified representative, and shall be reduced to writing and executed by both parties. In each proposed annual operating budget, the County Executive shall describe any collective bargaining agreement or amendment to an agreement that is scheduled to take effect in the next fiscal year and estimate the cost of implementing that agreement. Any term or condition of a collective bargaining agreement which requires an appropriation of funds or enactment, repeal or modification of a County law shall be timely submitted to the County Council by the employer by April 1, unless extenuating circumstances require a later date. If a later submission is necessary, the employer shall specify the submission date and the reasons for delay to the Council President by April 1. The employer shall make a good faith effort to have such term or condition implemented by Council action. Each submission to the Council shall include:

(1) all proposed legislation and regulations necessary to implement the collective bargaining agreement;

(2) all changes from the previous collective bargaining agreement, indicated by brackets and underlines or a similar notation system; and

(3) all side letters or other extraneous documents that are binding on the parties.

On March 15, 2011, the County Executive submitted a proposed operating budget for FY 12 (“FY 12 Budget”) to the Council. The County Executive did not include the Final Agreement in the FY12 Budget, but instead submitted the final offer that he had presented to the Neutral. In response, FOP 35 filed a prohibited labor practice charge against the County Executive. In his answer to the charge, the County Executive admitted that he failed to submit the Final Agreement in the FY12 Budget but argued that his actions were permitted by Charter § 303 and, therefore, the charge should be dismissed.

On April 13, 2011, the Umpire conducted a hearing and on April 28, 2011, issued a decision. After analyzing whether Charter § 303 permitted the County Executive's actions, the Umpire's decision stated:

For all of these reasons, I find that the County Executive violated Sections 33–80(g) and 33–82(a)(8) of the PLRA by failing to request in the FY 2012 Budget Request funding necessary to implement the 2011 Agreement and the FY 2012 Award. The assertion that Section 303 of the Charter sanctioned this action is rejected. To the contrary, although I lack jurisdiction to enforce a violation of the Charter, I find that Section 303 of the Charter was violated by the County Executive's refusal to follow the directive that the FY 2012 Budget Request conform to applicable law, including specifically the PLRA.

On April 29, 2011, the County filed a petition for judicial review with the circuit court. On May 3, 2011, FOP 35 filed a motion for summary judgment and on May 6, 2011, the circuit court conducted a hearing and issued an oral ruling.

The circuit court stated that it relied on Wicomico County v. Todd, 256 Md. 459, 260 A.2d 328 (1970) for “a number of legal points [to] guide [its] decision.” Citing the Wicomico case, the trial court stated, “the question of just how much power has been granted to one branch or the other is a matter of statutory construction.” The court stated further that in Montgomery County, Charter § 101 “vests the legislative powers which may legitimately be exercised under the Maryland Constitution and under the laws passed by the General...

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