Haub v. Montgomery County

• Decision Date: 09 April 1999
• Docket Number: No. 132,132
• Citation: 727 A.2d 369,353 Md. 448
• Parties: Mary HAUB, et al. v. MONTGOMERY COUNTY, Maryland.
• Court: Maryland Court of Appeals

727 A.2d 369

353 Md. 448

Mary HAUB, et al. v. MONTGOMERY COUNTY, Maryland.

No. 132, Sept. Term, 1996.

Court of Appeals of Maryland.

April 9, 1999.

William W. Thompson, II (Zwerdling, Paul, Leibig, Kahn, Thompson & Wolly, P.C., on brief), Washington, DC, for appellants.

Eward B. Lattner, Associate County Atty., (Charles W. Thompson. Jr., County Atty.; Linda B. Thill, Chief Counsel, Rockville), on brief for appellee.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and ROBERT L. KARWACKI (Retired, specially assigned), JJ.

ELDRIDGE, Judge.

This case involves an effort by some Montgomery County merit system employees to obtain administrative and judicial review of provisions in the County's operating budget for fiscal year 1996, as proposed by the County Executive and enacted by the County Council, which "privatized" certain county government functions.

I.

Montgomery County is a home rule county, having adopted a charter pursuant to Article XI-A of the Maryland Constitution. As we have pointed out, "[a] home rule county charter is a local constitution." Bd. of Election Laws v. Talbot County, 316 Md. 332, 341, 558 A.2d 724, 728 (1988). Furthermore, under Article XI-A, § 1, of the Maryland Constitution, it is appropriate for a county home rule charter to contain a "system for budgeting and appropriating revenues," Annapolis v. Anne Arundel County, 347 Md. 1, 15, 698 A.2d 523, 530 (1997).

Article 3 of the Montgomery County Charter sets forth the budgetary process for Montgomery County. The Montgomery County budget system differs somewhat from the type of executive budget systems in several other charter counties and at the state government level.¹ Under § 302 of the Montgomery County Charter, the County Executive is required to "submit to the [County] Council, not later than March 15 of each year, comprehensive six-year programs for public services and fiscal policy." The County Council, by a majority vote, is to approve, or modify and approve, these six year programs.

Section 303 of the Charter provides, inter alia, that the County Executive by March 15th of each year must submit to the County Council a proposed operating budget for the ensuing fiscal year, "including recommended expenditures and revenues...." The proposed operating budget "shall be consistent with the six-year programs."

Section 305 of the Charter authorizes the County Council to "add to, delete from, increase or decrease any appropriation item in the operating ... budget." The same section goes on to require that the "Council shall approve each budget, as amended, and appropriate the funds therefor not later than June 1 of the year in which it is submitted." Section 305 also mandates that the County Council, by June 30th of each year, make tax levies necessary to finance the budget for each year.

Under § 306 of the Charter, the County Council, upon approval of the budget, must deliver it to the County Executive who, within ten days after delivery, "may disapprove or reduce any item contained in it." If the Executive vetoes or reduces any item, the budget is returned to the County Council which has until June 30th of each year to override the Executive's action. With certain exceptions, a two-thirds vote of the Council is required to override the Executive's veto or reduction.

Article 4 of the Montgomery County Charter concerns the merit system. Section 401 of the Charter provides that the County Council "shall prescribe by law a merit system for all officers and employees of the County government" with specified exceptions. Section 401 goes on to state that any law which "designates a position as a non-merit position" must be enacted by a two-thirds vote of the Council. In addition, § 401 provides that

"[o]fficers and employees subject to a collective bargaining agreement may be excluded from provisions of law governing the merit system only to the extent that the applicability of those provisions is made subject to collective bargaining by legislation enacted under Section 510, Section 510A, or Section 511 of this Charter [relating to collective bargaining for county employees]."

Section 401 also states that

"[t]he merit system shall provide the means to recruit, select, develop, and maintain an effective, nonpartisan, and responsive work force with personnel actions based on demonstrated merit and fitness."

Section 402 of the Charter requires the County Executive to adopt personnel regulations for the administration and implementation of the merit system law. Section 403 creates a "Merit System Protection Board," and § 404 provides that a merit system employee

"who is removed, demoted, or suspended shall have, as a matter of right, an opportunity for a hearing before the Merit System Protection Board...."

Section 404 further provides that the "decisions of the Board ... shall not be subject to review except by a court of competent jurisdiction." The statutory provisions implementing Article 4 of the Charter more specifically provide that final decisions of the Merit System Protection Board are subject to judicial review in the Circuit Court for Montgomery County under the judicial review standards of the State Administrative Procedure Act, Maryland Code (1984, 1995 Repl.Vol.), § 10-222 of the State Government Article, and that decisions of the circuit court in such cases may be appealed to the Court of Special Appeals. See § 33-15 of the Montgomery County Code.

The Montgomery County Code provisions implementing Article 4 of the Charter provide that "[a]ny merit system employee ... who has been notified of impending removal, demotion or suspension shall be entitled to file an appeal to the" Merit System Protection Board and receive a hearing. See § 33-12(a) of the Montgomery County Code. Section 33-12(b) of the Montgomery County Code appears to grant rights in addition to those set forth in Article 4 of the Charter, stating in relevant part as follows:

"(b) Grievances. A grievance is a formal complaint arising out of a misunderstanding or disagreement between a merit system employee and supervisor with reference to a term or condition of employment. The determination of the board as to what constitutes a term or condition of employment shall be final. Grievances do not include the following: Classification allocations, except due process violations; failure to reemploy a probationary employee; or other employment matters for which another forum is available to provide relief or the board determines are not suitable matters for the grievance resolution process. * * *"

The Montgomery County personnel regulations adopted by the County Executive, in § 29-2, also provide for appeals to the Merit System Protection Board when a merit system employee has a "grievance" concerning "a term or condition of employment."²

II.

In March 1995, the County Executive of Montgomery County, in submitting to the County Council the proposed operating "Budget and Public Services Program" for fiscal year 1996, recommended contracting out and privatizing certain county government functions and services previously performed by county employees.³ In April 1995, 156 county merit system employees received notices that positions in their various job classifications or occupational classes were targeted for abolition based upon the proposed budget for the next fiscal year. These programs and services would not be terminated if the proposed budget was passed; rather, the functions would no longer be provided by county merit system employees. Receipt of a "notice of intent letter," however, did not necessarily mean that a particular employee's position would be abolished. The county administrative procedure regulations require that notices be provided to all employees in the targeted occupational class even if only one position in that class may be affected.

On May 2, 1995, the merit system employees who received the "notice of intent letters" filed complaints with the Montgomery County Office of Human Resources. The relief requested by the employees was that

"the privatization or contracting out of these programs, functions and services be withdrawn and rescinded; that these programs, functions and services continue to be performed—if at all—by County merit system employees; and that all merit system employees adversely affected by any of the privatization or contracting be restored and made whole for any losses in pay or other remuneration, benefits, or adverse effects on any terms or conditions of employment."

The budget and public services programs, including the privatizing/contracting out provisions, were approved by the County Council and went into effect on July 1, 1995, prior to a decision on the employees' complaints by the Office of Human Resources.

In a decision rendered on July 7, 1995, by the Labor/Employee Relations Manager of the Office of Human Resources, and reiterated in August 1995 by the Director of the Office of Human Resources, the Office decided that the complaints were not grievable under the Charter, the merit system ordinances and the personnel regulations. The Office pointed out that the employees "seek to contest the right of the County to contract out/privatize certain government functions. More specifically, [they seek] that the contracting out/privatization of certain services and programs recommended by the County Executive in the FY 1996 General County Government Budget and adopted by the County Council be `withdrawn and rescinded.' " (Emphasis added). The Office went on to state that the employees involved are covered by collective bargaining agreements, that if the complaints were grievable the exclusive forum would be the collective bargaining contract grievance procedure, but that, as the employees acknowledged, "contracting out/privatization of government work is not negotiable under the County Collective Bargaining Law." The Office took the position that employees covered by a...