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Employees' Ret. Sys. of Baltimore County v. Bradford

Court of Special Appeals of Maryland

February 24, 2016


         Appeal from the Circuit Court for Baltimore County. H. Patrick Stringer, JUDGE

         ARGUED BY: John S. Hashim, Jr. (Michael E. Field, County Attorney on the brief) all of Towson, MD. FOR APPELLANT

         ARGUED BY: Matthew Clash-Drexler (Bredhoff & Kaiser, PLLC on the brief) all of Washington, D. C. FOR APPELLEE

         ARGUED BEFORE Nazarian, Reed, Sharer, J. Frederick (Retired, Specially Assigned), JJ[*] .


Page 387

         [227 Md.App. 78] Reed, J.

         The Employees' Retirement System of Baltimore County, Maryland (" ERS" ), appellant, seeks to reverse the decision of the Baltimore County Board of Appeals (the " Board" ), which found that ERS improperly denied Police Officer Brandt Bradford, appellee, the ability to choose a particular retirement option based upon the circumstances of his 2012 retirement from the Baltimore County Police Department (" BCPD" ). ERS filed a Petition for Judicial Review in the Circuit Court for Baltimore County, which affirmed the Board's decision slightly over a year later. ERS noted timely appeal, and presents one question for our review, which we have rephrased:

Did the circuit court err in affirming the Board's decision that the Baltimore County Code did not prevent Officer Bradford from changing his retirement

Page 388

option upon his second retirement from the BCPD?

         For the reasons that follow, we answer in the negative, and affirm the decision of the circuit court.


         The facts of this case are not in dispute.

         Officer Bradford joined the BCPD on December 16, 1974. On February 18, 1998, he retired from the force, with approximately 23.5 years of service with Baltimore County (the " County" ). In addition to his service retirement allowance provided under the Baltimore County Code (the " Code" ),[1] Officer Bradford was also entitled to select one of several " optional allowances," which provide for different means by which the service retirement allowance is paid to a retired employee's beneficiary after the retiree's death. See Code § 5-1-231. Officer Bradford elected Option 4 under what was, at the time, § 23-61 of the Baltimore County Code, 1988 (now § 5-1-231 of the Baltimore County Code, 2003), which [227 Md.App. 79] provided a fixed dollar amount to his wife in the event of his death. Shortly thereafter, he began receiving his monthly retirement allowance, which was reduced by approximately $250.00 a month, the amount designated by Officer Bradford.

         Less than 18 months later, Officer Bradford was rehired by the BCPD on December 1, 1999. The record reflects that Officer Bradford was rehired pursuant to " Special Rule No. 2.14," found in Code § 4-8-102 regarding " SPECIAL PERSONNEL RULES FOR POLICE AND FIRE DEPARTMENTS, which states:

Special Rule 2.14. Former sworn employees.
A. Notwithstanding any other provision of these rules and subject to the conditions of this section, the Director of Human Resources, upon written recommendation from the Chief of Police, may hire former employees of the Police Department who previously have been separated from employment from any sworn position in the Department into the position of police office within twenty-four (24) months of the effective date of their separation from employment if:
1. The separation from employment is without prejudice; and
2. The employee has previously been certified as eligible for rehire.
B. The former sworn employee may be considered without further competition for the class of police officer, if a vacant position exists, subject to reasonable inquiries into the background and physical status of the employee between the time of separation from employment and application for rehire as may be deemed appropriate by the Chief of Police. The rehired employee's anniversary date shall be the date of rehire. Time away shall be considered as leave without pay for the purposes of calculating service and longevity credit. The rehired employee's sick leave balance at the time of resignation shall be restored unless it was used to determine the creditable service requirement, and other leave accruals shall be based on the adjusted service [227 Md.App. 80] time. Benefits may not be earned for the time away from county service.

         Essentially, the effect of Special Rule 2.14 was to place Officer Bradford in the same position he was before he had retired.

         Following his return, Officer Bradford worked an additional 13 years as a police

Page 389

officer, giving him a total of more than 35 years of County employment.

         On June 12, 2012, Officer Bradford retired from the BCPD for the second time. Once again Officer Bradford submitted a retirement application, but this time selected Option 7 for his optional allowance; an option that was not available at the time of his 1998 retirement. Option 7 reads, in pertinent part:

(7) Option 7. Subject to subsection (d) of this section, an employee who has completed at least twenty-five (25) years of actual service as a sworn Baltimore County police officer . . . may retire with the option of having fifty (50) percent of the retired member's retirement allowance continued throughout the life of and paid to the original beneficiary upon the retired member's death. This option shall be provided at no cost to the employee.

Code § 5-1-213(a)(7). As Officer Bradford puts it in his brief: " In other words, while County employees who choose to designate a portion of their monthly pension benefit to their beneficiaries upon their death receive a reduced monthly pension benefit, for police officers with at least 25 years of service, the County Code provides that the designation by an officer to his or her beneficiary does not reduce the officer's monthly pension benefit." Sergeant Cole Weston, President of the Baltimore County Fraternal Order of Police Lodge No. 4 (" FOP" ), testified before the Board that Option 7 was negotiated between the FOP and the County around 1999 in order to encourage police officers to extend their careers beyond the " normal twenty year service requirement."

         Notwithstanding the fact that Officer Bradford met the eligibility requirements for Option 7 and had not begun to collect any retirement payments based on his June 2012 retirement, the Board of Trustees (" BOT" ) of ERS denied his [227 Md.App. 81] request and instead required him to select Option 4, the election he made in 1998. According to the ERS, his request was denied pursuant to Code § 5-1-231(a), which reads, in pertinent part: " A member who has elected an optional benefit may not change such election after the first payment of the member's allowance becomes normally due, except as provided below." In short, because Officer Bradford had already retired and already received benefits under Option 4, the ERS believed that he was no longer allowed to change his selection.

         On June 11, 2012, in response to a request from the administrator of the ERS for a legal opinion on whether Officer Bradford could change his optional allowance, the County Attorney issued an interoffice memorandum, opining that " the language of the statute is unambiguous" and " [a]s the statute clearly provides that the option may not be changed after 'first payment' and [Officer Bradford] received more than a first payment, it clearly provides that he may not change his option." On June 20, 2012, Officer Bradford appealed the decision to the Board.

         An evidentiary hearing was held before the Board on April 4, 2013, and both sides were permitted to submit post-hearing briefs. Based on their review of the record, the Board reversed the decision of the ERS in a written opinion dated October 18, 2013, finding that § 5-1-231(a) was " not applicable" to the circumstances of Officer Bradford's 2012 retirement. Because the Board's reasoning is important under this case's standard of review (discussed infra ), we set out the pertinent parts of their opinion at length:

[Officer Bradford] contends that his " rehire" in 1999 effectively rendered his retirement in 1998 a nullity. [Officer Bradford's] argument is based upon the ...

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