FOP binding arbitration clause unconstitutional, court declares

(March 5, 2010) Although it has never been invoked in labor negotiations between the Ocean City Fraternal Order of Police and the town of Ocean City, the binding arbitration clause in the city’s labor code might not be as binding as previously believed.

A Feb. 1 ruling by the Maryland Court of Special Appeals in a case involving the Wicomico County Council and the Wicomico County Fraternal Order of Police found that the binding arbitration clause is unconstitutional because of how it was incorporated into the county charter.

Just as Ocean City voters did in 2002, Wicomico County voters in 2006 approved a ballot question that granted collective bargaining to police — sheriff’s deputies — with binding arbitration.

The County Council enacted the measure in January 2008, but said the arbitrator’s decision would be binding on the county executive and not the council itself. Accordingly, the executive would be obligated to abide by an arbitrator’s decision, but the council would not. Believing that decision violated the charter amendment, the FOP sued in Wicomico County Circuit Court and lost.

The circuit court found that the binding arbitration portion of the charter amendment restricted the legislative authority of the council and therefore was unconstitutional. The appeals court concurred when the FOP sought to overturn the lower court’s decision.

Writing for the three-judge panel, Judge James R. Eyler said while citizens can vote to change the form of government or require it to do certain things, they cannot take away its discretion in making legislative decisions. Citing a different example, the court said that citizens through a charter amendment could impose a cap on taxes, but could not tell government how to collect or spend them.

Following that reasoning, both the circuit court and the Court of Special Appeals ruled that the voters could not require the council to relinquish its decision making authority to an arbitrator. Had the ballot question given the council the option to impose that requirement on itself and it did so, the constitutional test would have been met, Judge Eyler wrote.

“We acknowledge that a charter amendment can limit the fiscal power and authority of a county council as part of a general structural change, or it can authorize a council to enact or preclude a council from enacting a particular type of legislation … but that is different from requiring the council to exercise its legislative authority in a certain way.” he said.

In this instance, he continued, “the electorate was attempting to circumvent the local legislative body and enact local law.”

Because of how binding arbitration was enacted in the resort, the court’s ruling also would apply to the collective bargaining amendment in Ocean City’s charter if someone challenges it, according to City Solicitor Guy Ayres.

No one on the council has ever questioned the binding arbitration clause, but it could happen now because of the court’s ruling.

“I know I’ve had prior discussions with constituents about collective bargaining … and the understanding of what binding arbitration meant,” said City Councilman Joe Hall, who supported the FOP throughout the process.

While the voters supported the police, he said, they did not understand what kind of leverage binding arbitration gave the union. He has had some second thoughts as well.

Initially, the FOP only wanted a seat at the table, something Hall enthusiastically endorsed. He also sided with the FOP in the two elections when the arbitration clause appeared, but now would vote differently.

“I would love to have the opportunity to re-think my vote,” he said. “I would only vote to give them collective bargaining. I was a huge supporter of collective bargaining. In hindsight, I’ve found that binding arbitration is too big of a hammer” for the union in its negotiations with the city.

Hall said council members were aware of the Wicomico County case, but had not been briefed on how it will affect Ocean City. That will happen soon enough.

“It’s timely for us … next year we’ll be negotiating with the officers,” he said.

But a challenge might not be as easy as City Hall believes, according to Glen McIntyre, president of the Ocean City FOP chapter.

“I think we’re on solid ground,” he said.

McIntyre said the FOP has been following the Wicomico case closely and while other Maryland counties with similar labor codes might be affected, the Maryland Constitution has different rules for municipal corporations and that Ocean City’s charter change is permitted.

In either case, he said, what is more important is how the FOP has conducted itself once it was allowed a seat at the negotiating table and how it intends to conduct itself in the future.

“We made a lot of promises to the citizens,” he said, adding that last year’s decision to forego raises was evidence of its good intentions.

Besides, he said, binding arbitration cuts both ways and that while it might obligate the city to abide by something it might not like, it also prevents FOP members from going to the table with outlandish requests.