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Fraternal Order of Police v. Montgomery Cnty.

Court of Appeals of Maryland

February 23, 2016


         Argued January 7, 2016.

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[Copyrighted Material Omitted]

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          Circuit Court for Montgomery County. #370302.

         ARGUED BY William J. Chen, Jr. (Chen & McCabe, LLP of Rockville, MD; Martha L. Handman, Martha L. Handman, P.C. of Gaithersburg, MD) on brief FOR PETITIONERS/CROSS-RESPONDENTS.

         ARGUED BY Edward B. Lattner, Chief, Division of Government Operations (Charles L. Frederick, Associate County Attorney, Haley M. Roberts, Assistant County Attorney, Marc P. Hansen, County Attorney of Rockville, MD) on brief FOR RESPONDENTS/CROSS-PETITIONERS.

         Barbera, C.J., Greene, Adkins, McDonald, Watts, Raker, Irma S. (Retired, Specially Assigned), Wilner, Alan M. (Retired, Specially Assigned), JJ. Opinion by Wilner, J.


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          [446 Md. 495] Wilner, J.

         There are several issues presented in this appeal. The principal one is whether a charter county -- Montgomery County in this instance -- is authorized to use its human and fiscal resources to encourage the electorate of the county to support, or oppose, a ballot measure that may have a significant impact on the operations of the county government. The Circuit Court for Montgomery County said " no," the Court of Special Appeals said " yes," and we also shall say " yes."


         The Battle Over Effect Bargaining

          Sections 33-75 through 33-85 of the Montgomery County Code provide for collective bargaining between the county and the certified representative of county police officers below the rank of lieutenant which, in this case, is petitioner, Lodge 35 of the Fraternal Order of Police (FOP). The provisions most relevant to this appeal are § § 33-80 and 33-81.

          Section 33-80(a) lists the matters that are subject to mandatory collective bargaining. Section 33-80(b) lists certain rights and responsibilities of the county that are not subject to mandatory collective bargaining but, under subsection (c), may, in the county's discretion, be discussed with the union. They include such things as determining the overall budget and mission of the police department; maintaining and improving the efficiency and effectiveness of the department; determining the overall organizational structure, methods, processes, means, job classifications, or personnel by which operations are to be conducted; directing and supervising employees; hiring, selecting, and establishing standards governing promotion of employees; transferring, assigning, and [446 Md. 496] scheduling employees; and taking actions to carry out the mission of government in situations of emergency.

          The items listed in § 33-80(a), for the most part, are those common in collective bargaining laws -- salary and wages; pension, retirement, and other benefits; hours and working conditions; a grievance procedure; and matters relating to the health and safety of employees. Prior to 2011, there was an additional matter (§ 33-80(a)(7)) that also was subject to mandatory bargaining -- " the effect on employees of the employer's exercise of rights listed in subsection (b)." That provision, insofar as Montgomery County was concerned, was unique to collective bargaining with the police union. It was not part of the county collective bargaining law pertaining to firefighters or county employees generally.

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Indeed, an attempt to add it to that law in 1986 was rejected by the County Council.[1]

         Subjection of the " effect" of the county's exercise of rights reserved to it under § 33-80(b) to mandatory bargaining had particular significance because of § 33-81(c)(2), which dealt with the procedure for resolving impasses in bargaining over such " effects." The procedure was a form of final offer arbitration. Under that section, if the county notified FOP that it " intends to exercise a right listed in Section 33-80(b), the exercise of which will have an effect on members of the bargaining unit," the parties were required to choose an impasse neutral, and, unless they were otherwise able to resolve the dispute, each was required to submit a final offer to the neutral. The neutral was then empowered to select what he or she believed was the more reasonable offer and, if appropriate, to provide retroactive relief.

          [446 Md. 497] Section 33-80(a)(7) was part of the original collective bargaining law for police officers enacted in 1982. The legislative history of that law indicates that the intent of the provision was not to subject the " decision to exercise a management right" to bargaining, but only the method of implementing that decision. The county personnel director at the time stated, by way of example, that a decision to lay off employees would not be subject to bargaining, but the decision as to whom to lay off first would be. At least one councilmember disagreed with that interpretation, but an attempt to delete the provision failed.

         On January 31, 2011, the Montgomery County Organizational Reform Commission, created in 2010 by County Council Resolution to recommend changes that would increase the efficiency of county operations, filed its Final Report which, in Recommendation 21, urged that § 33-80(a)(7) be amended to make it consistent with the scope of bargaining for firefighters and other county employees. The Commission noted that, in practice, effect bargaining " has become the exception that makes most management decisions subject to bargaining" and " has hampered the ability of the Police Department to issue directives to govern how police officers must operate." It added that " FOP has recently delayed the implementation of all directives by refusing to respond to them." [2]

         Responding to the Commission's recommendation, the County Council President introduced Bill No. 18-11 in June 2011 to amend § 33-80(a)(7) by limiting effect bargaining to the " amelioration" of the effect on employees when the county's exercise of rights under § 33-80(b) " causes a loss of jobs in the [bargaining] unit." The bill also deleted the special impasse procedure under § 33-81(c) with respect to effect bargaining.

         At the County Council hearing on the bill, the county Police Chief listed the kinds of administrative directives that were [446 Md. 498] subject to effect bargaining. He estimated that bargaining over a minor issue normally required between two weeks and 90 days, without impasse arbitration, that impasse arbitration added an additional

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two to three months, and that a " significant" matter could take up to two years to resolve. He noted that the county's attempt to create a mandatory electronic reporting system was delayed by three years of bargaining and that he still was required to send all communications to officers in paper form because they had refused to establish county e-mail accounts.

         The bill was passed by the County Council in July 2011 and was signed by the County Executive on August 1. Pursuant to § 112 of the Montgomery County Charter, the law took effect October 31, 2011 - 91 days after it was signed. FOP promptly commenced an effort to refer the law to referendum pursuant to § 114 of the County Charter and Art. 11-F, § 7 of the Maryland Constitution. That drive ultimately proved successful. Petitioners were able to collect more than the required number of signatures (five percent of the qualified voters in the county), whereupon the county challenged the validity of several thousand of those signatures. That challenge was not resolved until August 12, 2012, when this Court concluded that the signatures were valid. See FOP Lodge 35 v. Montgomery Co., 427 Md. 522, 50 A.3d 8 (2012) ( per curiam Order explained later in 436 Md. 1, 80 A.3d 686 (2013)).

         Upon the filing of our per curiam Order, Bill No. 18-11 was slated to appear on the ballot at the November 6, 2012 general election as Question B, whether the bill should become law. A " yes" answer would sustain the law; a " no" vote would nullify it. In accordance with § 115 of the County Charter, the effect of the law which, as noted, had taken effect the previous October, was stayed pending the result of the referendum.[3] [446 Md. 499] Both sides commenced their respective campaigns to capture the hearts and minds of the county voters.

         The County Executive, Isiah Leggett, believing that the requirement of effect bargaining had significantly hampered the ability of the Police Chief to efficiently manage the operation of the County Police Department, directed an effort by the County government to encourage county voters to vote " yes" on Question B. The effort was managed in large part by Patrick Lacefield, Director of the County Office of Public Information. Leggett authorized Lacefield to spend up to $200,000 from the funds appropriated by the County Council to his office in furtherance of the effort.

         Lacefield ultimately spent $122,350, which went for such things as putting ads in buses, displaying posters in county libraries and bumper stickers on county cars, purchasing ads in the local media, producing and distributing flyers and lawn signs, posting a " Vote for Question B" on the county website, including advocacy materials in its electronic newsletter distributed to about 125,000 county residents, mass mailings to more than 163,000 households in the county, employing political and media consultants, and hiring individuals to distribute campaign literature. Leggett enlisted the support of both the Democratic and Republican Central Committees. The central message of the county was that FOP had been holding up a variety of policies necessary to the efficient operation of the Police Department, which raised the question of who should be running the Department -- the Police Chief or the union leaders?

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          FOP, which contemporaneously was running a vigorous campaign to defeat the new law, objected to the county's advocacy and, in particular, to the use of county funds and personnel in furtherance of it. FOP complained to the American Civil Liberties Union, the County Inspector General, the State Prosecutor, and the United States Attorney for the District of Maryland, and when it received no relief from them, petitioners (FOP and two of its members, individually), filed this lawsuit on November 5, 2012 -- one day before the [446 Md. 500] election. The next day, the voters approved Question B, 58 percent voting " yes" and 42 percent voting " no."

         The Complaint

         The complaint was brought both individually and as a class action -- the class being Montgomery County police officers below the rank of lieutenant -- against the county, Leggett, and Lacefield. As amended, it contained ten counts. Counts 1 through 6 sought declaratory and injunctive relief as follows:

         Count 1, against Leggett and Lacefield, sought a declaratory judgment that their conduct violated the campaign finance organization and activity requirements of Title 13, Subtitle 2 and the reporting requirements of Subtitle 3 of the State Election Law Article (EL) and a directive that they comply with those requirements.

         Count 2, also against Leggett and Lacefield, sought a declaratory judgment that their conduct violated Article 24, § 13-105 of the Maryland Code (since revised as § 1-304 of the Local Government Article (LG)).[4]

         Count 3, against Leggett and Lacefield, sought a declaratory judgment that their conduct violated § § 405, 406, and 408 of the Montgomery County Charter, § 19-A-14 of the County Code, and Montgomery County Personnel Regulation 3-8.[5]

          [446 Md. 501] Count 4, against the county, sought a declaratory judgment that the county had no power or authority to engage in electioneering and campaigning activities to promote the approval of Question B and that its actions were ultra vires and unlawful.

         Count 5, also against the county, sought a declaratory judgment that the electioneering and campaigning activities of the county in promoting the approval of Question B were in violation of Maryland law, including EL Title 13 and Art. 24 § 13-105 (LG § 1-304).

         Count 6, against the county, sought a declaratory judgment that the county's electioneering and campaigning activities were in violation of § § 405, 406, and 408 of the County Charter, § 19-A-14 of the County Code, and County Personnel Regulation 3-8.

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          In addition to the declaratory relief, each of the first six counts also sought costs and other unspecified general relief.

         Counts 7 through 10 also sought declaratory relief but money damages as well, as follows:

         Count 7 charged that Leggett's use of county resources to promote the approval of Question B violated Article 6 of the Md. Declaration of Rights and constituted misconduct in office.[6] It sought a " determination" to that effect and an order that he reimburse the county for the cost of all of the electioneering and campaign activity undertaken by the county, plus reasonable attorneys' fees. Count 8 sought the same relief against Lacefield.

         Count 9 purported to be a taxpayer cause of action seeking a declaratory judgment that Leggett's and Lacefield's activities in support of Question B constituted an impermissible use [446 Md. 502] of public funds and demanded an accounting by them and reimbursement to the county.

         Count 10, against the county, Leggett, and Lacefield, alleged that their activities violated " the State Constitutional rights" of FOP and its members and sought a declaration to that effect plus damages and reasonable attorneys' fees.[7]

         The county contested the merits of the complaint and argued, in addition, that petitioners had no standing to bring the action, that the claims were barred by laches, and that, because FOP had participated in a campaign in connection with a 2010 ballot question, FOP was proceeding with unclean hands.

         The Judgment

         After a 10-day bench trial, the Circuit Court, on March 21, 2014, entered a memorandum and order, followed a week later by a series of declaratory judgments. The court rejected the defenses of lack of standing, laches, and unclean hands. The heart of its decision were declarations by the Court that the county, Leggett, and Lacefield had no authority to do what they did and that their conduct violated the State and local laws, as alleged by petitioners. In that regard, it declared inapplicable the doctrine of " government speech," which the county asserted permitted governmental entities to promote or oppose legislative measures, including ballot questions, that may affect its operations. With respect to Counts 7 through 10, however, ...

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