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

Maryland, et al., No. 67, September Term 2013 

LOCAL GOVERNMENT – COLLECTIVE BARGAINING 

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. 
 

IN THE COURT OF APPEALS 

OF MARYLAND 

No. 67 

September Term, 2013 

______________________________________ 

FRATERNAL ORDER OF POLICE, 

MONTGOMERY COUNTY LODGE 35, 

ET AL. 

v. 

MONTGOMERY COUNTY, MARYLAND, 

ET AL.

______________________________________ 

Barbera, C.J., 

Harrell, 

Greene, 

Adkins, 

McDonald, 

Rodowsky, Lawrence F. (Retired, 

 Specially assigned), 

Wilner, Alan M. (Retired, 

 Specially assigned), 

JJ. 

______________________________________ 

Opinion by Harrell, J. 

______________________________________ 

Filed: April 18, 2014 

Circuit Court for Montgomery County

Civil Case No. 349201

Argued: 11 March 2014
“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 
2 

§ 510 of the Charter of Montgomery County, Maryland (“County Charter”)1

 and governs 

negotiations between Montgomery 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 

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-

 1 Section 510 provides: “The Montgomery County Council shall provide by law 

for collective bargaining with binding arbitration with an authorized representative of the 

Montgomery County police officers. Any law so enacted shall prohibit strikes or work 

stoppages by police officers.” 

2 A “certified representative” is defined as “an employee organization selected in 

accordance with this chapter to represent a unit.” MCC § 33-76. 

3 The “employer” is defined as “the county executive and the Executive’s 

designees.” MCC § 33-76. 
3 

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 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 § 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 adjustments if . . . 

sufficient funds are not appropriated for any fiscal year when the agreement is in effect.” 

MCC § 33-80(i). 
4 

II. THE PRESENT DISPUTE. 

In November 2010, the FOP and County Executive entered into negotiations over 

amendments to the pre-existing, two-year, collectively-bargained agreement covering 

fiscal years 2011 (“FY 11”) and 2012 (“FY 12”) (hereinafter, “CBA”).

4

 Article 31 of the 

CBA provided for a limited “reopener” on changes to cash compensation for FY 12, the 

second year of the CBA. The parties were unable to reach an agreement and proceeded 

to the impasse procedures in MCC § 33-81. The impasse neutral determined that the 

FOP’s offer proposing a 3.5% wage increase for service and longevity increments

(conditioned upon funding by the Council) was more reasonable than the County’s offer. 

Thus, the resulting CBA provided for the conditioned wage increase. See MCC § 33-

81(b)(7) (“The offer selected by the impasse neutral, integrated with the previously 

agreed upon items, shall be deemed to represent the final agreement between the 

employer, and the certified representative . . . .”). The other terms in the pre-existing 

CBA, including the employment benefits at issue in this case, were not affected by the 

impasse neutral’s decision and were to continue to apply in FY 12. On 1 April 2011, the 

County Executive submitted the details of the “reopener” agreement (i.e., the conditioned 

 4

 The pre-existing CBA for FY 2011 and FY 2012, for example, states: 

[A]ny wage and/or benefit adjustment set forth in this Agreement which 

requires the Montgomery County Council to take action necessary to 

implement the Agreement, or to appropriate funds, shall be automatically 

reduced or eliminated if the County Council fails to take the necessary 

action to implement the Agreement, or if funds are not appropriated or if a 

lesser amount is appropriated. 

CBA Art. 48 (emphasis added). 
5 

wage increase) to the Council and, pursuant to MCC § 33-80(g),5

 included the 3.5% wage 

increase as part of its proposed operating budget for FY 12. 

In preparing for the FY 12 budget, the County’s Office of Management and 

Budget (OMB) provided the Council with a “Fiscal Impact Statement,” which, inter alia, 

compared the cost of funding the employment benefits as described in the CBA for FY 

12 with that of funding a less generous level of benefits as proposed by the County 

Executive in his FY 12 recommended operating budget.6

 The Fiscal Impact Statement 

 5

 Subsection (g) provides: 

Submission to Council. A ratified agreement shall be binding on the 

employer and the certified representative, and shall be reduced to writing 

and executed by both parties. In each proposed annual operating budget, 

the County Executive shall describe any collective bargaining agreement or 

amendment to an agreement that is scheduled to take effect in the next 

fiscal year and estimate the cost of implementing that agreement. Any term 

or condition of a collective bargaining agreement which requires an 

appropriation of funds or enactment, repeal or modification of a County law 

shall be timely submitted to the County Council by the employer by April 

1, unless extenuating circumstances require a later date. . . . The employer 

shall make a good faith effort to have such term or condition implemented 

by Council action. Each submission to the Council shall include: 

(1) all proposed legislation and regulations necessary to implement the 

collective bargaining agreement; 

(2) all changes from the previous collective bargaining agreement, 

indicated by brackets and underlines or a similar notation system; and 

(3) all side letters or other extraneous documents that are binding on the 

parties. 

MCC § 33-80(g). 

6 It may not be appropriate for the County Executive to end-run the PLRA 

requirements in this manner, if one assumes the accuracy of the OMB Statement. As the 

Court of Special Appeals held in Fraternal Order of Police, Montgomery County Lodge 

35 v. Montgomery County Executive, 210 Md. App. 117, 62 A.3d 238 (2013), under the

(Continued...) 
6 

concluded that funding employment benefits as described in the CBA would cost 

$3,960,090 more in FY 12 than funding benefits at the level recommended by the County 

Executive. 

On 9 May 2011, the Council adopted Resolution No. 17-119, stating its intent to 

reject funding the arbitration award and three other contract provisions in the pre-existing 

CBA. The Resolution provided specifically, as follows: 

The County Council intends to reject full funding and disapprove the 

following contract provisions: 

1. 3.5% service and longevity increments for bargaining unit members. 

 

(...continued) 

PLRA, the Montgomery County Executive must include the terms of the collective 

bargaining agreement with the police union in its proposed budget, as well as provide 

sufficient funding in its proposed budget to implement the final collective bargaining 

agreement. See also MCC § 33-80(g) (requiring the County Executive to include “all 

proposed legislation and regulations necessary to implement the collective bargaining 

agreement” in each submission to the Council and to “make a good faith effort to have 

such term or condition implemented by Council action”). 

In this case, it appears that the County Executive included in his proposed budget 

the amended terms pursuant to the reopener arbitration award, but deleted other, preexisting provisions of the two-year CBA that should have extended into 

FY 12 automatically, unless the Council refused to fund the benefits fully. The County 

Executive is bound by the negotiated agreement. We do not wade further into these 

cloudy waters, however. The FOP did not challenge the propriety of the County 

Executive’s actions, but rather focused its complaint solely upon the Council’s conduct. 

Moreover, the record does not contain the County Executive’s proposed budget. The 

only reference to the fact that the County Executive’s proposed budget may have been

contradictory to the pre-existing CBA is in the OBM’s “Fiscal Impact Statement,” which 

stated: 

The County Executive’s FY12 recommended operating budget is 

inconsistent with the arbitrated awards for . . . FOP. . . . Instead, the 

County Executive recommends restricting employee compensation by 

modifying the cost sharing arrangements for the County’s Government’s 

health insurance and retirement plans and reducing certain group insurance 

benefits coverage. 
7 

2. Retirement benefits for bargaining unit members.

3. Health, dental, vision, and prescription drug benefits for bargaining 

unit members.

4. Life and long-term disability insurance benefits for bargaining unit. 

Pursuant to the time deadlines set forth in MCC § 33-80(h), when the Council did not 

indicate by resolution its intent not to appropriate funds until May 9 (eight days after the 

May 1 deadline), the deadline for the FOP and the County Executive to submit a renegotiated agreement was extended automatically to May 18. 

 Pursuant to MCC § 33-80(h), after the issuance of the resolution, the parties (the 

County Executive as employer and the FOP representative) met with the Council’s 

representatives (Council President Valerie Ervin and Council Vice-President Roger 

Berliner) to attempt to re-negotiate an agreement acceptable to the Council. Thereafter, 

on May 16, the Council e-mailed the FOP representative, stating: 

We appreciate the FOP’s willingness to work with the Council to help 

produce a balanced budget. As you know, the Council’s role in collective 

bargaining negotiations is limited to meeting with the parties to explain our 

reasons for not accepting or funding certain provisions of your collective 

bargaining agreement. In our meetings over the last week, we explained 

our position and presented you with the Council’s proposed plan for 

employee compensation and benefits, which significantly lessens the 

burden on all County employees and moves further toward achieving equity 

with employees of all County-funded agencies. Because of our deadline 

to adopt the annual budget, the Council will vote on these

compensation and benefits proposals tomorrow [Tuesday, May 17], 

and we will take our overall votes on the operating budget on Thursday 

[May 19]. As you know, the Executive, as the employer, must negotiate 

with the FOP over terms and conditions of employment. Your counterproposals are interesting, and to the extent they involve mandatory topics of 

bargaining the Executive should be ready to address them during future 

negotiating sessions after this budget is completed. The Council will look 

forward to seeing the result of those negotiations. In the short-term, the 

Council’s Government Operations and Fiscal Policy Committee expects to 

consider possible changes to the retirement plans for new employees in 
8 

June. We would greatly appreciate your input during this legislative 

process. 

(Emphasis added.) Two days later, on the May 18 deadline, the Director of the County’s 

Office of Human Resources, Joseph Adler, sent an e-mail to the Council’s representatives 

informing them that the negotiating parties had not reached a re-negotiated agreement. 

On 26 May 2011, the Council adopted Resolution No. 17-149, an Operating 

Budget for FY 12 for the CBA. The changes to the CBA were summarized in Paragraph 

17 and detailed in Paragraph 66 of Resolution No. 17-149. Of relevance in this case, 

Resolution No. 17-149 “changed” three contract provisions for FY 12 in the pre-existing 

CBA (specifically, the retirement benefits; health, dental, vision, and prescription drug 

benefits; and life and long-term disability insurance benefits).

7

 The FOP summarized the 

relevant changes (in an undisputed manner) as follows: 

Term Life Insurance and Accidental Death 

and Dismemberment Benefits

Existing collective bargaining agreement: Collectively-bargained terms 

for Term Life Insurance coverage and Accidental Death and 

Dismemberment benefits by which an officer received a life insurance 

benefit equal to two times his/her annual salary.

Resolution No. 17-149: The terms for the collectively-bargained Term 

Life Insurance coverage and Accidental Death and Dismemberment 

benefits for the affected Montgomery County police officers were 

changed in that an officer will now receive a life insurance benefit equal 

to only one year of his/her annual salary with the right, at the officer's 

expense, to add an additional amount equal to his/her annual salary. 

 7 The FOP acknowledges that the Council has the authority to choose to fund fully 

or partially or to refuse to fund the negotiated re-opener agreement and, thus, conditioned 

their proposal explicitly on the Council’s funding. Accordingly, the FOP does not 

dispute the Council’s refusal to fund the 3.5% service and longevity increments. 
9 

Group Insurance Benefits 

Existing collective bargaining agreement: Collectively-bargained terms

for Group Insurance Premiums by which the County contributed 80% of 

the insurance premiums for a Point-of-Service (POS) medical plan, a 

Stand-alone prescription drug plan (Standard Option plan), a Dental Plan, 

a Vision Plan, Basic Life insurance, Dependent Life insurance 

$2,000/$1,000/$100 tier, and Long-term disability insurance with the 

remaining 20% of the premium paid by the affected police officers. 

Resolution No. 17-149: The terms of the collectively-bargained health 

benefits for the affected Montgomery County police officers were 

changed by reducing the County's contribution for Group Insurance 

Premiums for a Point-of-Service (POS) medical plan, a Stand-alone 

prescription drug plan (Standard Option plan), a Dental plan, a Vision 

plan, Basic Life insurance, Dependent Life insurance $2,000/$1,000/$100 

tier, and Long-term disability insurance to 75% of the insurance 

premiums, and increasing the amount of the contributions to be paid by

the affected police officers to 25%. 

Prescription Drug Benefits 

Existing collective bargaining agreement: Collectively-bargained terms

for Prescription Drug Benefits by which the affected police officers and 

their dependents were able to purchase brand name prescription drugs 

and unrestricted dosages of certain other drugs. 

Resolution No. 17-149: The terms of the collectively-bargained Prescription 

Drug Benefits were changed to require affected police officers to receive

generic prescription drugs, if available, instead of brand name drugs and

limiting the dosage of certain drugs available to the affected police officers. 

Retirement Benefits

Existing collective bargaining agreement: Collectively bargained [sic] terms

for Retirement Benefits for the affected police officers by which each officer

contributes a set percentage of regular earnings to his/her retirement and the

County contributes an additional amount depending on actuarial assumptions

and analysis to fund the officer's retirement benefit. In addition, the 

Retirement Benefits include an annual cost of living adjustment ("COLA") for

inflation which is 100% of the Consumer Price Index ("CPI") up to 3% plus 

60% of the CPI over 3%. 

Resolution No. 17-149: The terms of Retirement Benefits for the affected

police officers were changed in that the amount of each officer's

contribution to his/her pension benefit was increased by 1.0% for FY12 and
10 

2.0%, total, for FY13. Additionally, the annual COLA was changed to be

no more than 2.5% of the CPI. The net effect of these changes was a

reduction in the County's contribution to each officer's retirement benefit. 

(Emphases added in the original.) 

On 24 June 2011, the FOP filed suit against the County and the Council in the 

Circuit Court for Montgomery County challenging the legality of the Council’s actions in 

adopting Resolution No. 17-149 and the actions of the Council and the County in 

implementing the changes in the Resolution. The Amended Complaint, filed on 3 

October 2011, contained six counts seeking/asserting: (1) a declaratory judgment that the 

County is obligated to comply with the CBA, that the Council’s adopting Resolution No. 

17-149 violated the rights of the affected police officers and the PLRA, and that the 

County’s and Council’s implementation of the Resolution violated the rights of the police 

officers; (2) an injunction directing the County to comply with the CBA and enjoining the 

implementation of the Resolution as to the changes in employment benefits; (3) breach of 

contract for altering the employment benefits in the CBA; (4) mandamus for judicial 

review of the Council’s decision in Resolution No. 17-149; (5) violation of the PLRA in 

adopting the Resolution; and (6) violation of State constitutional rights, “including, inter 

alia, Articles 19 and 24 of the Maryland Declaration of Rights,” in adopting the 

Resolution. The County and the Council filed, collectively, a Motion to Dismiss or, in 

the alternative, Summary Judgment. In response, the FOP filed a motion opposing the 

defendants’ Motion to Dismiss or, Alternatively, Summary Judgment, as well as a CrossMotion for Summary Judgment. 
11 

On 1 March 2012, the Circuit Court issued a memorandum opinion and 

declaratory judgment, declaring that the Council's actions were permissible under the 

PLRA, the Maryland Declaration of Rights, and the existing collectively-bargained 

agreement. The FOP filed a motion to reconsider, which the Circuit Court denied. The 

FOP appealed to the Court of Special Appeals, which affirmed the decision of the trial 

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

County, Maryland, 212 Md. App. 230, 66 A.3d 1183 (2013). 

We granted the FOP’s Petition for Certiorari to consider the following question: 

“May the County Council unilaterally change the terms of a pre-existing negotiated 

collective bargaining agreement?” 432 Md. 466, 69 A.3d 474 (2013). The County 

frames the question(s) presented a bit differently: 

(1) Did the County Council properly exercise its discretion under the police collective

bargaining law when it decided, in the FY 12 Annual Operating Budgeting 

Resolution, not to fully fund the employment benefits described in the police 

collective bargaining agreement for FY 12? 

(2) Did Petitioners state a claim under Articles 19 or 24 of the Maryland Declaration 

of Rights? 

III. STANDARD OF REVIEW 

“Deciding an appeal is not a matter of approaching the problem as if for the first 

time. It is determining whether another, earlier, carefully structured decision should be 

upheld.” Frank M. Coffin, The Ways of a Judge: Reflections from the Federal Appellate 

Bench 52 (Houghton Mifflin 1980); see also id. at 53-54 (characterizing this limitation as 

a “source of strength” because the “raw materials for appellate deliberation are already 

fixed, assembled, and focused”). The appellate court is not an advocate tasked with 
12 

searching for each party’s winning argument. Rather, the appellate court is limited 

ordinarily to the arguments raised by the parties and the issues decided by the lower 

courts. 

This case, as laid before us, is seen through the small window that the parties have 

opened for our view. The basis of the Petitioner’s lawsuit is that the Council violated the 

PLRA by “changing” improperly the terms of collectively-bargained employee benefits 

in the course of carrying out its budgetary approval function. The County and the 

Council argue that the Council’s actions were proper because the Council has the 

ultimate authority to choose to fund or to refuse to fund the benefits provided in the CBA. 

The FOP agrees that the Council has the ultimate budgetary approval function and that 

the Council has the authority to refuse to appropriate funds for parts of the CBA, but 

argues that the Council does not have the authority under the PLRA to change the terms 

of the benefits. 

As an appellate court, we are circumscribed ordinarily by the stipulated facts and 

arguments. As such, certain areas of inquiry or comment are “off-limits” (even though 

our addressing them may have provided a more lucid picture of the situation and the 

applicable laws). See, e.g., supra note 6. In determining the question of whether the 

Council violated the PLRA when it adopted Resolution No. 17-149, we are tasked with

construing the relevant law, the PLRA. “We construe local ordinances and charters 

under the same canons of statutory construction as we apply to statutes,” 120 W. Fayette 

v. Baltimore, 413 Md. 309, 331, 992 A.2d 459, 472 (2010), and we review the Circuit 

Court’s decisions without deference to determine whether the conclusions involving 
13 

ordinance construction were correct legally. See, e.g., Atkinson v. Anne Arundel Cnty., 

428 Md. 723, 741, 53 A.3d 1184, 1195 (2012). 

IV. ANALYSIS.

The PLRA permits the Council to refuse to fund the CBA. MCC § 33-80(h). At 

issue here is (1) whether the Council has the authority under the PLRA to define and 

change the terms of the CBA, and (2) whether the Council terminated “unilaterally” the 

negotiations in violation of the PLRA. We hold, as to the first question, that the Council 

has such authority, at least when the changes are fiscal in nature and the parties are 

unable to reach a re-negotiated agreement, in accordance to the fiscal demands of the 

Council. Secondly, we hold that the Council did not terminate improperly any 

re-negotiations. 

1. The Council has the authority to define and change terms of 

the CBA, at least in these circumstances. 

The Circuit Court concluded, and the Court of Special Appeals agreed, that the 

Council may change the terms of the CBA as part of its budgetary approval function, 

pursuant to MCC § 33-80(i).8

 Those courts interpreted subsection (i) as providing that, 

whenever the Council does not take action necessary to implement or fund a provision in 

the CBA, that provision is reduced or eliminated automatically. The FOP disagrees, 

arguing that this subsection “does not provide for an automatic reduction or elimination 

 8 Subsection (i) provides, in pertinent part, that “any agreement shall provide 

either for automatic reduction or elimination of conditional wage or benefit adjustments 

if . . . sufficient funds are not appropriated for any fiscal year when the agreement is in 

effect.” MCC § 33-80(i). 
14 

of conditional benefits. Rather, that section provides that the CBA must provide for such 

a reduction.” 

We agree with the FOP that the subsection does not reduce or eliminate 

automatically the conditional benefits, but rather requires that the CBA provide for such a 

reduction. We note further that MCC §§ 33-80(i) and (j) are inapplicable in this case 

because the relevant provisions are not “conditional wage or benefit adjustments.” 

Subsections (i) and (j) apply to provisions in multi-year agreements that are set to adjust 

“after the first year of any multi-year agreement.” The relevant provisions at issue here 

were set to continue automatically into the second year of the multi-year agreement. 

Thus, we are left with determining how the Council should proceed when, after 

determining that it will not appropriate fully funds for the CBA, the parties do not submit 

a re-negotiated agreement.9

 

The FOP asserts that “the ‘how’ of any automatic or involuntary reduction or 

elimination must be achieved through collective bargaining with binding arbitration.” 

Thus, according to the FOP, there is a difference between refusing to fund a benefit, 

 9 The PLRA envisions that the Council will decide to appropriate funds (or not) 

for the collectively-bargained agreements each fiscal year. As MCC § 33-80(g) provides: 

“In each proposed annual operating budget, the County Executive shall describe any 

collective bargaining agreement or amendment to an agreement that is scheduled to take 

effect in the next fiscal year and estimate the cost of implementing that agreement.” 

(Emphasis added.) Thus, that the refusal to fund all of the benefits applied to previously 

agreed-upon terms in the pre-existing CBA does not change the analysis. Because the 

Council is not bound by the CBA, as the County Executive is bound, and because the 

Council’s authority lies in its budgetary powers, which arise every fiscal year, it follows 

that the Council has the authority, every year, to choose to fund or to refuse to fund the 

CBA in full or in part. 
15 

which the Council is permitted to do, and defining (or re-defining) the terms of the 

agreement, which the Council is not permitted to do. In response, the County and the 

Council characterizes the FOP’s argument as “sophistry” and the perceived difference 

between funding a benefit and establishing the terms of the benefit as “metaphysical.” 

In determining the outcome, we find subsection (h) most instructive. According to 

MCC § 33-80(h), the Council designates representatives “to meet with the parties [the 

County Executive and the FOP] and present the Council’s views” in the parties’ attempts

to re-negotiate a CBA acceptable to the Council. Subsection (h) does not require the 

parties to reach an agreement that is acceptable to the Council, but rather requires that the 

parties—again, the County Executive and the representative of the FOP—attempt to renegotiate an acceptable agreement. The Council—which is the sole actor being 

challenged in this lawsuit—is required only to designate a representative to meet with the 

parties to convey the Council’s views in their further negotiations. In other words, under 

the PLRA, the Council’s representative has a very limited role: to facilitate the renegotiation process. The Council’s representative is not a “party” to the re-negotiations 

and, thus, is not responsible for the progress, success, or failure of the re-negotiations. 

Although the FOP agrees that the Council is not a party to the negotiations, the 

FOP avers that the Council may never determine any of the terms to the CBA. We 

disagree. The PLRA provides the negotiating parties with nine days to attempt to renegotiate an agreement acceptable to the Council. MCC § 33-80(h). The PLRA states 

that either party may initiate the impasse procedures. Id. Such language—“attempt to 
16 

re-negotiate” and “either party may initiate”—suggests that the PLRA envisioned 

scenarios in which the parties may not reach an agreement to propose to the Council. 

The FOP and the County Executive, as the parties responsible for negotiating a 

new agreement acceptable to the Council, were given the opportunity to set forth the 

“how,” but were unable to reach an agreement and chose not to proceed with the impasse 

procedures. That the parties did not reach such an agreement and did not initiate the 

impasse procedure left the Council with the responsibility to determine how the funding 

cuts would be made. By the very nature of the Council’s budgetary approval function, if 

the parties do not set forth an acceptable agreement, then the Council must have the 

authority to finalize the budgetary process and determine which provisions in the CBA

should be cut, and in what manner, in order to reach set budgetary goals. In this case, no 

agreement was reached; none was proposed to the Council; and, thus, the Council acted 

correctly in making the cuts where deemed necessary. 

2. The Council did not terminate “unilaterally” negotiations. 

The FOP maintains that, even if the PLRA is interpreted as we have above, the 

negotiating parties were not at fault in failing to produce a re-negotiated agreement 

acceptable to the Council in this case, but rather the Council was at fault in frustrating the 

re-negotiations from taking place over their maximum term. According to the FOP, the 

16 May 2011 e-mail from the Council to FOP President Marc Zifcak “unilaterally 

terminat[ed]” prematurely the re-negotiations between the County Executive and the 

FOP, two days short of the nine-day period allowed by the PLRA for re-bargaining. In 

response, the County and Council argue that the FOP waived this argument when it failed 
17 

to raise it before the Circuit Court prior to the FOP’s post-judgment Motion for 

Reconsideration.10 

Assuming, arguendo, that the e-mail is properly before us for consideration,11 the 

e-mail, standing alone as it does in the record, is insufficient from which to determine 

that the Council ended “unilaterally” and prematurely negotiations. The author of the 

e-mail states that the Council’s statement was in response to an earlier e-mail from 

Zifcak. The record does not contain a copy of the earlier e-mail. Thus, we do not have 

any point of reference to place in context the Council’s statements. Moreover, the record 

does not inform us what happened after the e-mail was sent. For example, the record 

provides no indication whether the FOP attempted to continue negotiations with the

County Executive. Perhaps had the Council rejected such an attempt by the FOP, we 

 10 As the County points out correctly, the Complaint “contains no allegation that 

the Council prematurely terminated or refused to participate in negotiations during the 

nine-day period for re-bargaining under the PLRA.” The 16 May 2011 e-mail appeared 

for the first time in the Circuit Court record when the FOP attached it to Zifcak’s second 

affidavit as part of their Motion for Reconsideration. In Zifcak’s second affidavit, he 

referred to the e-mail in ¶ 5 as follows: 

Until its action in adopting Resolution No. 17-149 on May 26, 2010, when 

the County Council expressed an intent that it would not fully fund a 

collective bargaining agreement the County Executive and FOP 35 entered 

into negotiation to modify or change terms or conditions of the collective 

bargaining agreement to be acceptable to the County Council pursuant to 

the [sic] § 33-80(h), PLRA, procedure. However, in May 2011, the 

Council refused to follow the statutory procedure mandated by § 33-80(h), 

PLRA. See, Attachment 6. 

11 Resolving the preservation challenge is unnecessary because we conclude that, 

assuming the FOP’s argument was preserved, the e-mail is insufficient evidence that the 

Council terminated “unilaterally” the re-negotiations, in violation of the PLRA. 
18 

might view the case differently. What the record does tell us is that the impasse 

procedure was not initiated by either party; the Council did not determine its next steps

for the FY 12 budget for the CBA until the May 18 deadline; and, the Council did not 

vote to adopt the operating budget for FY 12 until 27 May 2011, nine days after the May 

18 deadline. 

Moreover, because the Council’s only role in the re-negotiations is to designate a 

representative to meet with the parties and to present the Council’s views in the further 

negotiations, the e-mail could be interpreted as the Council informing the parties that it 

had presented its views and that, unless the parties inform the Council of an alternative 

proposal, the Council plans on voting for the budget, as indicated in the earlier resolution, 

promptly after the May 18 deadline. Although the e-mail does not state this explicitly, 

without other evidence regarding the apparent exchange of communications, this 

circumstance cannot be ruled out. As such, the Council’s actions hardly can be viewed as 

“unilateral.” The PLRA provides avenues through which the FOP and County Executive 

can (and are encouraged to) determine the employee benefits through a series of 

negotiations. We cannot fault the Council, however, where the FOP and the County 

Executive fail to do their part. Thus, we hold that, as the record stands before us, the 

Council did not “unilaterally terminate” the re-negotiations in violation of the PLRA.12

 12 Because the FOP’s due process arguments depend upon us acquiescing in its

interpretation of the PLRA, we do not reach the second question regarding the 

petitioner’s rights under the Maryland Declaration of Rights. 
19 

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS AFFIRMED. 

COSTS TO BE PAID BY 

PETITIONERS.