from the Circuit Court for Baltimore County. H. Patrick
BY: John S. Hashim, Jr. (Michael E. Field, County Attorney on
the brief) all of Towson, MD. FOR APPELLANT
BY: Matthew Clash-Drexler (Bredhoff & Kaiser, PLLC on the
brief) all of Washington, D. C. FOR APPELLEE
BEFORE Nazarian, Reed, Sharer, J. Frederick (Retired,
Specially Assigned), JJ[*] .
Md.App. 78] Reed, J.
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
option upon his second retirement from the BCPD?
reasons that follow, we answer in the negative, and affirm
the decision of the circuit court.
AND PROCEDURAL HISTORY
facts of this case are not in dispute.
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" ), 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
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,
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
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
the effect of Special Rule 2.14 was to place Officer Bradford
in the same position he was before he had retired.
his return, Officer Bradford worked an additional 13 years as
officer, giving him a total of more than 35 years of County
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
(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
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.
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.
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