Montgomery County v. FOP MONTGOMERY COUNTY LODGE 35

• Decision Date: 04 November 2002
• Docket Number: No. 2339,2339
• Citation: 810 A.2d 519,147 Md. App. 659
• Parties: MONTGOMERY COUNTY, Maryland, v. FRATERNAL ORDER OF POLICE MONTGOMERY COUNTY LODGE 35, INC.
• Court: Court of Special Appeals of Maryland

810 A.2d 519

147 Md. App. 659

MONTGOMERY COUNTY, Maryland, v.FRATERNAL ORDER OF POLICE MONTGOMERY COUNTY LODGE 35, INC.

No. 2339, Sept. Term, 2001.

Court of Special Appeals of Maryland.

November 4, 2002.

Karen L. Federman Henry, PrincipalCounsel(Charles W. Thompson, Jr., County Attorney and Davis E. Stevenson, Associate County Attorney on the brief), Rockville, for appellant.

Carla M. Siegel(Zwerdling, Paul, Leibig, Kahn & Wolly, P.C. on the brief), Alexandria, VA, for appellee.

Argued before JAMES R. EYLER, SHARER and THEODORE G. BLOOM, (Ret., specially assigned), JJ.

JAMES R. EYLER, Judge.

The question presented by this case is whether the circuit court erred in denying a petition to vacate an arbitrator's decision based on an assertion that the arbitrator had exceeded his powers and there was no valid agreement to arbitrate the matter in dispute.SeeMaryland Uniform Arbitration Act(MUUA), Md.Code(1998 Repl. Vol.), Cts. & Jud. Proc., §§ 3-201—3-234.¹The arbitrator was appointed pursuant to a collective bargaining agreement following the filing of a grievance on behalf of a police officer.The principal argument in support of the petition to vacate was that the Law Enforcement Officers' Bill of Rights(LEOBR), Md.Code Ann.(1996 Repl.Vol.), art. 27, § 727, et seq., provides the exclusive procedure and remedy governing the rights of police officers in disciplinary proceedings and thus preempts the subject matter.An additional argument was that the dispute between the parties is not within the scope of the collective bargaining agreement.For the reasons discussed below, we shall reverse the judgment of the circuit court and remand with instructions to vacate the arbitrator's decision.

Factual Background

On October 26, 1998, the Chief of the Montgomery County Police Department suspended Officer Diane Quinn with pay, based on an alleged incident.Officer Quinn was a member of the police department of Montgomery County, appellant, and a member of the Fraternal Order of Police, Montgomery County Lodge 35, Inc., appellee.Officer Quinn was advised that she had the right to an emergency suspension hearing before a board consisting of one member, without the right to present witnesses and documents.

On December 15, 1998, appellee filed a grievance on behalf of Officer Quinn, asserting that an emergency suspension review had to be conducted by a three member board.The grievance was filed, pursuant to the terms of a collective bargaining agreement (CBA) between appellant and appellee in effect from July 1, 1998 through June 30, 2001.²

In order to understand the grievance, it is helpful to provide some background information.Section 727(d) of the LEOBR defines a hearing board as consisting of not less than three members.Appellant admits that the longstanding practice had been that emergency suspension hearings were held before a board consisting of three members and that the presentation of witnesses and documents had been permitted.A police department directive, Function Code 301.C, so provided.In 1989, LEOBR, section 727(d)(2) was amended to permit an agency that has certified an exclusive collective bargaining representative, such as the Montgomery County Police Department, to negotiate with that representative an alternate method of forming a hearing board.In 1990, the parties negotiated an addition to the existing CBA that laid out the details of the alternate method of forming a hearing board.The amendment also provided that a police officer could elect the alternate method except in cases where summary punishment is imposed, pursuant to LEOBR section 734A, and where a hearing is convened, pursuant to LEOBR section 734A(2)(iii), which governs emergency suspensions with pay.After the 1990 agreement, Function Code 301.C was amended to include the alternate method of forming a hearing board, but the three member procedure continued to apply to emergency suspension hearings.The language negotiated in 1990 appears in article 43 of the CBA, which was in effect at the time that the dispute arose.

In the grievance, appellee pointed out the longstanding practice and the content of Function Code 301.C.According to the grievance, the composition of emergency suspension hearing boards was a permitted subject of negotiation in the collective bargaining process; the parties negotiated an alternate method of forming a hearing board; and the parties agreed that the alternate hearing method did not apply to emergency suspension hearings.Finally, according to the grievance, the change from a three member to a one member board was done without bargaining and without following the procedures set forth in article 61 of the CBA, governing the changing of directives and administrative procedures.

Appellant denied relief on the ground that the issue was not within the scope of the CBA and was not a permissible subject for negotiation because it was governed exclusively by the LEOBR.³Specifically, appellant pointed to article 45 of the CBA, which expressly states that only non-LEOBR personnel actions give rise to the right to grieve and/or arbitrate, pursuant to the procedures set forth in article 8 of the CBA.

Following efforts on behalf of the parties to resolve the dispute themselves, appellee requested arbitration, and the matter was assigned to an arbitrator.Appellant did not seek to prevent the arbitration proceeding, but at the hearing before the arbitrator, appellant contended that the issue in dispute between the parties, i.e., the composition of the hearing board, was not arbitrable for the reasons stated above, and suggested that the arbitrator decide the question of arbitrability before addressing the underlying dispute.The arbitrator agreed, and after holding hearings on August 25 and September 5, 2000, rendered a decision, dated January 23, 2001, in favor of appellee.

Appellant, contending that the arbitrator incorrectly decided the issue of arbitrability, filed a petition to vacate the arbitrator's decision in the Circuit Court for Montgomery County.The parties filed cross motions for summary judgment.After a hearing on the motions, the court, by order dated December 5, 2001, granted appellee's motion, denied appellant's motion, confirmed the arbitrator's decision, and remanded the case to the arbitrator for resolution of the dispute.

Questions Presented

The underlying issue between the parties relates to the method of forming an emergency suspension hearing board when a police officer is suspended with pay.In essence, the dispute is whether the board must consist of three members or may consist of a single member.The parties agree that the arbitrator did not decide that underlying issue, and it is not before us.

Appellant asserts that the issue before us is whether the arbitrator exceeded his powers in ruling that the underlying issue was arbitrable.Appellant contends that it is not arbitrable because the underlying issue was not within the scope of the CBA, and it could not legally be governed by grievance procedures laid out in the CBA because the statute preempts the field.As a result, appellant argues that the issue can only be determined through procedures established by the LEOBR, in this case, by filing with the court an application to show cause, pursuant to section 734. Md.Code, art. 27, § 734.

Appellant appears to read the arbitrator's decision as having determined both the scope of the CBA and the question of preemption and determined them adversely to appellant.Accordingly, appellant contends that the issue before us is one of jurisdiction of the arbitrator, subject to de novo review, and properly decided by a court before or after arbitration, or after partial but before full arbitration, such as in the case before us.Alternatively, appellant appears to argue that, even if the arbitrator did not determine the scope of the CBA or the question of preemption, this Court can now decide those issues because they relate to arbitrability.

Appellant, apparently concerned about appealability, also alludes to the final judgment rule and the collateral order doctrine and argues that (1) jurisdiction is separate from the merits, (2) a decision now will promote judicial economy, and (3) a later review would be meaningless.

Appealability, Reviewability, and Standard of Review

Appellant appears to merge concepts of appealability and reviewability.We agree that the case is appealable.The only claim filed in the circuit court was the petition to vacate the arbitrator's decision, and when the court resolved that claim, there were no open matters.Thus, the order dated December 5, 2001, when entered, constituted a final judgment.

The arbitrator did not render an award and did not resolve the dispute between the parties.The arbitrator rendered a preliminary decision.Nevertheless, the parties have not argued that an arbitrator has to render a final award before a petition to vacate a preliminary decision can be filed, and we are not aware of any authority compelling that conclusion.

While the parties argue the law relevant to the issue of arbitrability, we must be mindful of its procedural context.In the present case, there was no motion to compel arbitration, pursuant to section 3-207 of MUAA, nor was a motion filed to stay the arbitration, pursuant to section 3-208.A petition to vacate was filed, pursuant to section 3-224, following the arbitrator's preliminary decision.That section provides that a court shall vacate an arbitrator's award if, in pertinent part, the "arbitrators exceeded their powers,"Md.Code, Cts. & Jud. Proc., § 3-224(b)(3), or there was no arbitration agreement.Id.§ 3-224(b)(5).

With one exception,⁴the cases cited by appellant for the proposition that we can decide the issue of arbitrability, in the context in which it is presented, are not on point.The cases of Holmes v. Coverall North America, Inc.,336 Md. 534, 649 A.2d 365(1994);...