Montgomery Cnty. v. Fraternal Order of Police

• Decision Date: 03 April 2015
• Docket Number: No. 175, Sept. Term, 2014.,175, Sept. Term, 2014.
• Parties: MONTGOMERY COUNTY, Maryland, et al. v. FRATERNAL ORDER OF POLICE, et al.
• Court: Court of Special Appeals of Maryland

222 Md.App. 278

112 A.3d 1052

MONTGOMERY COUNTY, Maryland, et al.

v.FRATERNAL ORDER OF POLICE, et al.

No. 175, Sept. Term, 2014.

Court of Special Appeals of Maryland.

April 3, 2015.

Marc P. Hansen, County Atty., Edward B. Lattner, Chief (Charles L. Frederick, Haley M. Roberts, Division of Human Resources & Appeals, Rockville, MD), on the brief, for appellant.

William J. Chen, Jr. (Chen & McCabe, LLP, Rockville, MD), Martha L. Handman (Martha L. Handman PC, Gaithersburg, MD), on the brief, for appellee.

Panel: DEBORAH S. EYLER, LEAHY, J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

Opinion

DEBORAH S. EYLER, J.

Montgomery County (“the County”); Isiah Leggett, the County Executive; and Patrick Lacefield, the Director of the County's Office of Public Information (“OPI”), challenge a declaratory judgment entered by the Circuit Court for Montgomery County ruling that they acted without authority and contrary to law by using County funds to campaign for the passage of a local ballot question. The Fraternal Order of Police, Montgomery County, Lodge 35, Inc. (“the FOP”), and two police officer members, Michael Kane and Mario Mastrangelo, ¹ cross-appeal from the court's denial of their claims for monetary relief.

We hold that the County acted within its powers and not illegally by spending County funds to campaign in favor of the particular ballot issue; and that Leggett and Lacefield did not violate any laws. Accordingly, we shall reverse the judgment of the circuit court. Our resolution of the appeal necessarily resolves the cross-appeal.

FACTS AND PROCEEDINGS

The Montgomery County Code establishes the collective bargaining rights of County employees, including Montgomery County Police Department (“MCPD”) officers below the rank of lieutenant. See Montgomery County Code (“Code”) (2004), §§ 33–75–33–85. Prior to the events central to this case, one such collective bargaining right held by these police officers was the right to engage in “effects bargaining.” “Effects bargaining” is collective bargaining about the effects of certain decisions that are reserved to the discretion of the County Executive, such as budget allocations and changes in the organizational structure of County agencies. Fraternal Order of Police Lodge 35 v. Montgomery Cnty., 436 Md. 1, 5, 80 A.3d 686 (2013).

On July 19, 2011, the Montgomery County Council unanimously passed Bill 18–11, amending the Code to eliminate effects bargaining for MCPD police officers below the rank of lieutenant. Leggett signed Bill 18–11 into law on August 1, 2011. Unhappy with the bill, the FOP, as the exclusive bargaining representative for the affected MCPD police officers, petitioned the bill to referendum. Its petition was certified by the Montgomery County Board of Elections on November 18, 2011. As a result, Bill 18–11 was suspended from taking effect “until thirty days after its approval by a majority of the registered voters voting thereon.” Montgomery County Charter (“the Charter”) § 115.²

The referendum on Bill 18–11 was designated to appear on the November 6, 2012 General Election ballot as “Question B.” The ballot question asked: “Shall the Act to modify the scope of collective bargaining with police employees to permit the exercise of certain management rights without first bargaining the effects of those rights on police employees become law?” A “Yes” vote would approve Bill 18–11 and allow it to take effect.

Early in the summer of 2012, the FOP launched a campaign against Question B. In August of 2012, Leggett, acting in his capacity as County Executive, decided that the County would mount its own campaign to encourage the electorate to vote “Yes” on Question B. Leggett directed Lacefield, as Director of the OPI,³ to coordinate the Question B campaign and authorized him to spend up to $200,000 in funds appropriated for OPI's fiscal year 2013 budget for that purpose. OPI is an office in the executive branch of the County government. See Code, § 1A–201(a). Its responsibilities include “[s]erv[ing] as a focal point for communications with citizens and community organizations”; “[e]stablish[ing] and maintain[ing] a public information program”; and “[c]arry[ing] out related matters as may be assigned.” Code § 2–64H.

Lacefield obtained legal advice from the County Attorney about the propriety of the County's using funds from OPI's budget for the Question B campaign. In a “Memorandum” dated September 19, 2012, and entitled “Government Speech–Effects Bargaining Referendum,” the County Attorney reiterated prior oral advice he had given Lacefield on that matter. He opined that a County-funded campaign to advocate for a “Yes” vote on Question B would be “legal and appropriate” because the County is “entitled to engage in speech supporting and explaining its policies, including speech that advocates support of a ballot measure.” The County Attorney also advised that state and local prohibitions against County employees' engaging in “political activity” during work hours are directed toward “partisan political activity,” i.e., actions taken for or against a candidate or a slate of candidates associated with a particular political party, and do not apply to activities in support of a ballot measure.⁴

In the Question B campaign, Lacefield used excerpts from the record of the County Council hearings on Bill 18–11, particularly the testimony of the Chief of Police and MCPD lieutenants espousing that effects bargaining was harming the operation of the MCPD, to create advocacy material, such as mailers, posters, flyers, yard signs, bumper stickers, and advertising for County buses. He also spoke with some of the MCPD managers about their views on effects bargaining. A “fact sheet” prepared by OPI about Question B provides a useful summary of the County's position. It states that effects bargaining means that the Chief of Police must bargain with the FOP on “the effects of any and all management decisions” and that this interferes with his ability to run the MCPD in the most “efficient and productive way.” (Emphasis in original.) The “fact sheet” notes that the County's police force is the only one in Maryland with the right to effects bargaining and that no other County employees have this right in their union contracts. It emphasizes that eliminating effects bargaining is not an attack on unions and that the FOP will remain entitled to bargain on wages, benefits, hours, working conditions, and leave. It gives examples of how effects bargaining was hampering the Chief of Police in his management of the MCPD, including that a proposed new “Use of Force” policy had been sent to the FOP for approval in June 2008 but remained pending years later.

In mid-September of 2012, the County began featuring a “Vote for Question B” graphic on the homepage of its website. Visitors who clicked on that graphic were directed to a separate page that gave additional information advocating for the passage of Question B. In addition, the County included advocacy materials on Question B in its electronic newsletter, “the Paperless Airplane,” which was disseminated to about 125,000 County residents five times between September 14, 2012, and election day.

By mid-October of 2012, the County had installed on the interiors and exteriors of all County-operated Ride–On buses signs emblazoned with some version of the following statement: “Who Do You Think Should Run the County Police? The Police Chief or Union Leaders? Vote FOR Question B.” The signs were marked with the County seal and “Montgomery County Office of Public Information.”⁵

The County also expended OPI funds on a mailing campaign urging recipients to “Vote for Question B.” It hired an outside consulting firm to design the two mailers, identify target recipients, and obtain mailing lists. It paid the firm $13,095. In the week before the election, the County sent the two mass mailings to more than 163,000 County households, at a cost of over $90,000.

Aside from the outside consulting firm, most of the work on the County's campaign in favor of Question B was performed by County employees. OPI staff designed signs, bumper stickers, t-shirts, and flyers. Employees in the County Department of General Services (“DGS”) distributed signs and posters to County facilities, including libraries and recreation centers.

Leggett personally reached out to local Democratic and Republican party officials, speaking to the Democratic Party Ballot Question Advisory Committee, the Democratic Central Committee, and the Republican Central Committee. Both parties supported passage of Question B.

In all, the County spent $122,350.17 in OPI funds on the Question B campaign. This sum exceeded 10% of OPI's budget for fiscal year 2013.

During the campaign, the FOP challenged the County's right to spend public funds on a political campaign and argued that the County was making false and misleading statements about effects bargaining. On September 20, 2012, it filed a complaint with the County Inspector General. The Inspector General did not respond until November 8, 2012, two days after the election. He advised the FOP that the County's activities were consistent with the legal advice it had received from the County Attorney and were taken in good faith. With respect to the allegation that the County's campaign was misleading, the Inspector General advised that his office had reviewed the complained of statements and had found all of them to be reasonable.

In the meantime, on October 17, 2012, the FOP filed a complaint about the County's activities with the Office of the State Prosecutor. By letter of October 22, 2012, the State Prosecutor advised Leggett and the County Council that his office had received a complaint that the County was expending public funds and using County employees to push for passage of Question B; that this conduct might be a violation of state campaign finance laws; and that his office would be opening an investigation into these activities to determine if any...