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Fraternal Order of Police, Montgomery County Lodge 35 v. Montgomery County

Court of Appeals of Maryland

April 18, 2014

FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, ET AL.
v.
MONTGOMERY COUNTY, MARYLAND, ET AL

Argued March 11, 2014.

As Corrected May 13, 2014.

Certiorari to the Special Appeals (Circuit Court for Montgomery County. Civil Case No. 349201), Joseph M. Quirk, JUDGE..

SYLLABUS

Under the Police Labor Relations Act (" PLRA" ) of the Montgomery County Code, the County Executive and a representative of the Fraternal Order of Police, Montgomery County Lodge 35 (" FOP" ), must negotiate certain employee benefits. After an agreement is reached through the negotiation or " impasse procedure," the County Executive presents the collectively-bargained agreement (" CBA" ) to the County Council (the " Council" ), which has the authority to choose to fund, or to refuse to fund, the CBA. If the Council indicates in writing that it will refuse to fund the CBA in full or in part, the negotiating parties are given a nine-day period of time thereafter to attempt to re-negotiate an agreement acceptable to the Council. In the present case, the Council indicated that it would refuse to fund several provisions in the CBA for fiscal year 2012 due to budgetary concerns, but the parties were unable to re-negotiate an agreement. The Court of Appeals held that, under such circumstances, the Council's refusing to fund certain provisions, and thereby changing the terms of the CBA, was not in violation of the PLRA.

ARGUED BY William J. Chen, Jr., (Chen & McCabe, LLP of Rockville, MD; Margo Pave, Zwerdling, Paul, Kahn & Wolly, P.C. of Washington, DC) on brief FOR PETITIONERS.

ARGUED BY Edward B. Lattner, Chief County Attorney (Marc P. Hansen, County Attorney of Rockville, MD) on brief FOR RESPONDENT.

Amicus Curiae brief of the Maryland State Fraternal Order of Police

Bruce Lerner, Esquire, Matthew Clash-Drexler, Esquire, Bredhoff & Kaiser, P.L.L.C., Washington, DC. for PETITIONER

Barbera, C.J., Harrell, Greene, Adkins, McDonald, Rodowsky, Lawrence F. (Retired, Specially Assigned), Wilner, Alan M.(Retired, Specially Assigned), JJ. Opinion by Harrell, J.

OPINION

Page 1094

[437 Md. 620] Harrell, J.

" Proximity to power deludes some into thinking they wield it," observed the character Francis Underwood, portrayed by Kevin Spacey, in the U.S.-version of the television series " House of Cards." Petitioner here, the Fraternal Order of the Police, Montgomery County Lodge 35 (" FOP" ), fell under such a spell in maintaining this litigation. The Police Labor Relations Act (" PLRA" ) of the Montgomery County Code grants the FOP a proximity to power in requiring the County Executive to negotiate certain employee benefits with a representative of the FOP. Despite this proximity, the FOP lacks actual power under the PLRA because, as the well-known adage provides, " he who holds the purse strings rules the roost." Under the PLRA, the County Council (the " Council" ) in Montgomery County holds the purse strings ( i.e., the actual power) each fiscal year when it approves the budget.

Thus, we hold that the Council acted in this case within its authority under the PLRA in deciding not to fund fully--and, thereby, to " change" --certain benefits in the pre-existing collectively-bargained agreement, at least where the " changes" are fiscal in nature and the County Executive and the FOP did not submit a re-negotiated agreement to the Council.

I. THE UNIVERSE OF DISCOURSE: THE PLRA

This litigation centers on whether the Council (and, thereby, the County) violated the requirements of the PLRA, codified at § § 33-75 to 33-85 of the Montgomery County Code (2004) (" MCC" ). The PLRA was enacted to implement the mandate in § 510 of the Charter of Montgomery County, Maryland (" County Charter" )[1] and governs negotiations between Montgomery [437 Md. 621] County (the " County" ) and members of its police force over collective bargaining agreements and amendments to those agreements. Specifically, it requires that a " certified employee organization[2] and the employer[3]. . . bargain collectively" on a number of subjects, such as wages, employee benefits, and the process for settling grievances. MCC § 33-80(a). " [T]o bargain collectively" is defined as " to meet at reasonable times and places and to negotiate in good faith . . . ." MCC § 33-76. If the parties cannot reach an agreement, the PLRA requires the parties to submit to an " impasse procedure" in which a neutral arbitrator chooses one side's proposed

Page 1095

contract for submission to the Council for its consideration. MCC § § 33-81(b); 33-80(g).

Once an agreement is reached, regardless of whether the terms are achieved through negotiation or the " impasse procedure," the County Executive submits the collectively-bargained agreement to the Council. MCC § 33-80(g). Then, the Council must " indicate by resolution of its intention to appropriate funds for or otherwise implement the agreement or its intention not to do so, and shall state its reasons for any intent to reject any part of the agreement" on or before May 1 of each year. MCC § 33-80(h) (emphasis added). The May 1 deadline may be deferred to any date not later than May 15 by a majority vote of the Council taken on or before May 1.

If the Council indicates by resolution its intention not to appropriate funds for or otherwise implement the agreement, certain procedures provided in MCC § 33-80(h) are engaged. First, the Council must " designate a representative to meet [437 Md. 622] with the parties [the County Executive and the representative of the FOP] and present the Council's views in their further negotiations . . . [and] in any ensuing impasse procedure." MCC § 33-80(h). The parties are to " meet as promptly as possible and attempt to negotiate an agreement acceptable to the Council." Id. (emphasis added). As part of this re-negotiation process, " [e]ither of the parties may initiate the impasse procedure set forth in Section 33-81." Id. (emphasis added). The results of the re-negotiations or impasse procedure must be submitted to the Council on or before May 10 (or by the postponed deadline if the Council deferred the May 1 deadline for indicating its intent).

Additionally, the PLRA contemplates procedures for not just single year agreements, but also multi-year agreements. First, the requirements for the Council's review and indication of intent in subsection (h) apply also " to Council review of wage or benefits adjustments after the first year of any multi-year agreement." MCC ยง 33-80(j). The PLRA envisions also that the Council will refuse to fund certain provisions for adjustments from time to time and requires that " any agreement shall provide either for automatic reduction or elimination of conditional wage or benefit ...


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