Kensington Volunteer Fire Dep't Inc. v. Montgomery County

Decision Date31 May 2011
Docket NumberCivil Case No. JFM–11–273.
Citation788 F.Supp.2d 431
CourtU.S. District Court — District of Massachusetts


John A. King, Brett Alan Pisciotta, King and Attridge, Rockville, MD, for Kensington Volunteer Fire Department, Inc., et al.Steven C. Kurtz, Bethesda, MD, pro se.Deborah Rokes, Damascus, MD, pro se.Stephanie Ayton, Gaithersburg, MD, pro se.Christine M. Collins, Patricia P. Via, Paul F Leonard, Jr., Office of the County Attorney for Montgomery County MD, Rockville, MD, for Montgomery County, et al.


J. FREDERICK MOTZ, District Judge.

Plaintiffs in this case, a collection of local volunteer fire and rescue departments 1 and several of their former administrative employees 2 (collectively, Plaintiffs), have filed this action against defendants Montgomery County and certain county officials 3 (collectively, Defendants) under various federal and state statutory and constitutional provisions. Plaintiffs seek injunctive relief, declaratory judgment, and damages for Defendants' elimination of public funding for certain administrative support positions at the local volunteer fire departments, allegedly in retaliation for Plaintiffs' opposition to a piece of legislation favored by Defendants. Defendants now move to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment pursuant to Rule 56. For the reasons stated below, Defendants' Motion to Dismiss is granted.


The following facts are uncontroverted or set forth in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The Montgomery County Fire and Rescue Service (“MCFRS”) is operated by both the County and a collection of independent local fire and rescue departments (“LFRDs”), which provide “fire, rescue and emergency medical services in conjunction with County employees in the Fire and Rescue Service.” Code of Montgomery County Regulations (“COMCOR”) § 21–1(a); § 2–39A(b). Although each LFRD is an independent corporation under Maryland law, the County has traditionally allocated public monies to fund administrative support positions at the LFRDs, including the positions formerly held by the individual Plaintiffs in this case. (First Am. Compl. ¶ 8.) Notwithstanding the public funding for these positions, however, the County Code of Regulations states that these administrative personnel are still considered employees of the individual LFRDs, not the County. See COMCOR § 21–16(a) (“Employees of local fire and rescue departments who are paid with tax funds are not County employees.”); see also COMCOR § 21–16(c) (“Nothing in this Chapter means that employees of the local fire and rescue departments are County employees, either on a de jure or de facto basis.”).

In May 2010, the County Council passed Budget Resolution 16–373 approving the budget for fiscal year 2011. Out of a total operating budget of approximately $1.16 billion, the County Council allocated approximately $1.58 million for the personnel costs of the LFRDs. (Budget Resolution No. 16–373: FY 2011 Operating Budget, Defs.' Ex. C, at 5–25.) Among other things, these monies were slated to be used to fund a total of twenty administrative support positions at various LFRDs. Additionally, Budget Resolution 16–373 contained a provision stating that all budget appropriations were contingent upon a requirement that the County Executive “transmit to the Council any recommended budget savings plan or similar action” for review and approval by the Council. (Budget Resolution No. 16–373, Defs.' Ex. C, at 5–14.)

As 2010 wore on, the County determined that, consistent with Resolution 16–373, it would need to implement a budget savings plan for FY 2011.4 Specifically, the County sought to offset the loss of revenue caused by the anticipated defeat of Bill 13–10, a piece of legislation which authorized the imposition of an Emergency Medical Services Transport fee (“EMST fee”). The EMST fee was projected to generate $14.1 million annually in revenue, and the County Council had incorporated this expected revenue into its FY 2011 budget plan. However, Bill 13–10 encountered fierce opposition after its proposal, and a petition campaign succeeded in subjecting it to a referendum vote on the November 2010 ballot, which would later succeed in defeating the bill. The LFRDs and other volunteer groups were particularly active in their opposition to Bill 13–10, and Plaintiffs allege that [v]olunteer opposition to the [EMST] fee was widely publicized throughout Montgomery County, and beyond.” (First Am. Compl. ¶ 22.) Prior to the referendum vote—but after recognizing that the ballot measure to defeat the EMST fee would “most likely succeed”—County Executive Isiah Leggett (“Leggett”) sent a budget savings plan proposal to the County Council in an effort “to address the potential loss of revenue” caused by the expected defeat of the bill. (Pls.' Ex. 6, FY11 Savings Plan Proposal, at 1.)

Leggett's savings plan proposal called for $14.3 million in spending cuts and the elimination of 133 publicly funded positions. (Pls.' Ex. 6, FY11 Savings Plan Proposal.) These proposed cutbacks affected a wide range of departments and services, including the MCFRS, the Department of Transportation, the Police Department, the Department of General Services, the Department of Recreation, the Public Libraries, and the Department of Health and Human Services. ( Id.) Most pertinent to the instant suit, however, was a recommendation to “discontinue funding 20 LFRD civilian employees,” at a savings of $592,000, and to offset their workload by creating five new administrative positions with the County. ( Id.) The proposal did not recommend cutting funding for any non-volunteer administrative support positions within MCFRS, and Plaintiffs assert that LFRD funding cuts were made “solely for the purpose of punishing, and retaliating against, the LFRDs” for their opposition to the EMST fee. (First Am. Compl. ¶ 17.)

Less than two months later, on December 2, 2010, Leggett submitted to the County Council a second savings plan for FY 2011 proposing “additional reductions” in an effort to close the gap on a projected $300 million budget shortfall for FY 2012. (Pls.' Ex. 4, FY11 Revised Savings Plan Proposal, at 1.) In a cover letter accompanying this proposal, Leggett explained that further budget cuts were necessary because “tax revenues in both FY11 and FY12 are anticipated to be below previous estimates” in light of the “continued weakness in the national, regional and local economy.” ( Id.) The revised savings plan called for even deeper reductions and proposed $36 million in budget cuts from a range of agencies. The revised plan contained no additional LFRD budget reductions, but it did retain the earlier proposal to eliminate funding for twenty LFRD administrative positions. ( Id.)

This revised savings plan was discussed at a session of the County Council on December 14, 2010. Plaintiffs contend that in testimony before the Council, Fire Chief Richard Bowers (“Bowers”) spoke in support of the proposal and “promoted the impression that the Council's choices [for funding priorities] lay between ‘boots on the ground’ and administrative personnel that readily could be supplanted by MCFRS operational personnel.” (First Am. Compl. ¶ 20.) Plaintiffs also emphasize that during the session of the Council, Councilmember Elrich appeared to blame the LFRDs for the defeat of the EMST fee and the subsequent budget crunch, and he stated that he thought LFRD budgets should be cut even further than called for by the savings plan.5 ( Id. ¶ 19.) Meanwhile, another councilmember assailed the proposal for having a “disproportionate hit on the volunteers.” ( Id. ¶ 21.) In the end, however, the County Council passed Budget Resolution 17–17 and thereby authorized reductions of $32,249,170 from the FY 2011 operating budget. (Pls.' Ex. 7, Budget Resolution No. 17–17: FY 2011 Savings Plan.) Of this total figure, approximately $592,000, or about 1.8%, would have been used to fund the twenty LFRD administrative support positions. ( Id.)

Two days after the passage of the savings plan, Bowers sent a letter to each LFRD stating that as of the end of the year, “LFRD employees will no longer by paid by Montgomery County.” (Bowers Letter, Pls.' Ex. 3.) The letter went on to explain that each LFRD “must immediately determine if the LFRD will retain your employee or effect a Reduction in Force (RIF).” ( Id.) The letter further encouraged the LFRDs to “reference Section 30 Montgomery County Personnel Regulations [“MCPR”] to process a RIF, if your LFRD elects to take this course of action.” ( Id.) Soon thereafter, each of the plaintiff LFRDs notified its administrative employees that it would be conducting a RIF pursuant to section 30 of the MCPR and terminating their administrative positions. ( See, e.g., KVFD Termination Letter, Defs.' Ex. L.)

Given the LFRDs' active and well-publicized opposition to Bill 13–10, Plaintiffs assert that Defendants eliminated funding for the LFRD administrative positions “as retaliation for Plaintiffs' exercise of legally protected rights in having opposed ambulance fee legislation.” (First Am. Compl. at 4.) Plaintiffs filed this action on January 4, 2011 in state court alleging five counts 6 and seeking injunctive and declaratory relief as well as damages. Specifically, Plaintiffs allege that Defendants actions violate the First Amendment of the United States Constitution, Article 40 of the Maryland Declaration of Rights, 42 U.S.C. § 1983, Maryland's common law ban on abusive discharge, and various County personnel regulations. (First Am. Compl. ¶ 38.) On February 1, 2011, Defendants removed the case to this Court pursuant to 28 U.S.C. § 1331 because...

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