FRATERNAL ORDER OF POLICE, et al.
MONTGOMERY COUNTY, MARYLAND, et al
January 7, 2016.
[Copyrighted Material Omitted]
Circuit Court for Montgomery County. #370302.
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.
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
C.J., Greene, Adkins, McDonald, Watts, Raker, Irma S.
(Retired, Specially Assigned), Wilner, Alan M. (Retired,
Specially Assigned), JJ. Opinion by Wilner, J.
Md. 495] Wilner, J.
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."
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
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
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.
Indeed, an attempt to add it to that law in 1986 was rejected
by the County Council.
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.
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
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." 
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.
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
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.
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)).
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. [446 Md. 499]
Both sides commenced their respective campaigns to capture
the hearts and minds of the county voters.
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.
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?
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
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
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.
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)).
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
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.
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).
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.
addition to the declaratory relief, each of the first six
counts also sought costs and other unspecified general
7 through 10 also sought declaratory relief but money damages
as well, as follows:
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. 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.
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.
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'
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
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, ...