Baltimore County v. Baltimore County Fraternal Order of Police, Lodge No. 4

MEREDITH, J. Baltimore County, appellant, mounts a variety of challenges to an arbitration award regarding retirement benefits that was issued in 2008, affirmed in 2010 by the Circuit Court for Baltimore County, and ultimately affirmed again in 2012 by the Court of Appeals in FOP Lodge No. 4 v. Baltimore Co., 429 Md. 533 , 57 A.3d 425 (2012), reconsideration denied, 429 Md. 533 , 57 A.3d 425 (2013). Although the County contends that it is not appealing the arbitration award itself, but rather its enforceability, that contention is undermined by the arguments the County makes. In the rulings which led to the present consolidated appeals, the Circuit Court for Baltimore County held that, in accordance with the law of the case doctrine, the County was required to comply with the previously confirmed arbitration award. Under protest, the County did pay the amount due as a result of the arbitration award, but continues to challenge the enforceability of the award.

QUESTIONS PRESENTED The County presented nine questions for our review, the majority of which had already been raised in proceedings prior to the previous appeal. The primary focus of the current appeal is: Did the trial court correctly apply the law of the case doctrine? 1 ⁶⁰⁰ For the reasons that follow, we affirm the judgments of the Circuit Court for Baltimore County. FACTS AND PROCEDURAL HISTORY This case has its roots in a grievance filed in 2007, although the backdrop to that grievance extends back to 1991. Appellee, FOP Lodge No. 4 (“appellee” or “FOP”), is the exclusive bargaining agent for the Baltimore County Police Department.

Periodically, the FOP and the County negotiate a Memorandum of Understanding (“MOU”) setting forth each party’s rights and obligations. In 1991, owing to what the County has ⁶⁰¹ characterized as a bad economic climate, the County offered its eligible employees a retirement incentive program; among the County employees to whom it applied were FOP members. The retirement incentive program provided that eligible officers who retired on or before January 31, 1992, were guaranteed a 90/10 health-insurance subsidy split; that is, it was guaranteed to those retirees that the County would pay 90% of their health-insurance premium, and the retiree would pay 10%. The County notified those employees who did not take advantage of that incentive program that the health insurance split would be as follows: “An individual who retires on or after February 1, 1992, with 30 or more years of creditable service will receive the same subsidy as an active employee and that subsidy may go up or down as a result of labor negotiations!/]” But, as part of the negotiations for the 1996 MOU, which took effect on July 1, 1995, the FOP and the County agreed that an 85/15 split would apply retroactively to those officers who retired between February 1, 1992, and July 1, 1995; they were, at that time, “locked in.” The specific language that “locked in” this split stated: “The health insurance subsidy in place at the time of retirement shall remain in effect until the retiree becomes eligible for Medicare.” It was the FOP’s position that the practical effect of this provision was to guarantee an 85/15 subsidy split to those retirees.

This arrangement was repeated in subsequent MOUs without dispute until the “2008 MOU” that would become effective July 1, 2007, and run through June 30, 2008. During negotiations about that MOU, the County, citing runaway health-care costs, informed the FOP that it intended eventually to move to an 80/20 split, with a one-percent decrease in the County’s contribution to take effect each year in five successive years. The County proposed to change the benefit to an 84/16 split in 2008, followed by an 83/17 split in 2009, and so on. The FOP voted against this change, but it was nevertheless accepted by ⁶⁰² the Health Care Review Committee, the official bargaining agent as to healthcare issues for several unions for County employees, including the FOP.

The County applied the less favorable split to all retirees, including those who had retired when there were MOUs in effect which included language the FOP considered a lock in of benefits. Pursuant to the procedures outlined in the relevant MOU, FOP filed a grievance against the County, alleging that the proposed downward adjustment of the health-care subsidy violated Section 7.3(a) and (c) of the 2007 MOU. 2 The griev ⁶⁰³ anee was denied by the Labor Commissioner on November 6, 2007; the Labor Commissioner concluded that, because FOP was complaining about a violation of Section 7.3 of the 2007 MOU, and that MOU expired on June 30, 2007, those sections were “no longer controlling,” and the County could not have violated them. FOP then demanded arbitration pursuant to the dispute-resolution provision of the MOU. On May 9, 2008, Arbitrator Richard Bloch, Esquire, conducted a hearing.

One of the arguments made by the County was that the grievance had not been timely filed because it was not filed within ten workdays after the 2007 MOU’s expiration on July 1, 2007. Rather, the grievance was filed on September 14, 2007, which was within ten workdays of September 1, 2007, the date on which the County’s new 84/16 split began to be reflected in the retirees’ health-insurance premiums. The main argument made by the County, however, was that there was nothing left to either grieve or arbitrate relating to the now-expired 2007 MOU. In his decision, Arbitrator Bloch rejected both of these contentions.

Because the arbitrator’s findings have been affirmed in subsequent proceedings, and, we will hold, remain binding, we will quote from them extensively: During 1995 negotiations for a new collective bargaining agreement, the Union successfully negotiated a health insurance provision that locked in the subsidy in effect at the time of retirement until the retiree reached age 65. Moreover, the parties agreed to apply that benefit retroactively to officers who retired between February 1,1992 and July 1, 1995, the effective date of the new Memorandum of Agreement (hereinafter “MOU”). Section 7.13 of the MOU stated, in relevant part: ⁶⁰⁴ Section 7.IS: Retiree Health Insurance — The County shall provide the same health insurance benefits (programs and contributions) for retirees under the age of sixty-five (65) as it does for active employees, at the time the employees retires (sic). The health insurance subsidy at the time of retirement will remain in effect until the retiree or the retiree’s surviving beneficiary reaches age sixty-five (65).

Effective July 1, 1995, retirees who retired on or after February 1,1992 shall receive the County contribution for health insurance as set forth above.[FN 3 OMITTED] As structured, this language had a two-fold impact. The first paragraph provided the “lock” for the subsidy in effect at the time of an officer’s retirement. The second paragraph ensured that officers who retired between February 1, 1992 and July 1, 1995 would receive the same guarantee with respect to the rate existing at their times of retirement. The language remained in subsequent MOUs until 2003-2004. [FN 4 OMITTED] The sole change at that time, however, related to removal of the sentence providing that “Effective July 1, 1995, retirees who retired on or after February 1, 1992 shall receive the County contribution for health insurance as set forth above.” (The parties did not then see that as a substantive change and do not claim here that it has any impact on the current dispute.) The critical lock-in language — “The health insurance subsidy in place at the time of retirement shall remain in effect until the retiree becomes eligible for Medicare” remained unchanged in the MOUs effective in 2004-2005, 200[ ]5-2006 and 2006-2007. [FN 5: “During those periods of time, the contribution split remained at 85/15.”] The dispute in this case centers on changes applicable to the July 1, 2007-June 30, 2008 MOU.

In negotiations preceding the agreement, the County proposed the following language: E. Retiree Health Insurance. The County shall provide the same health insurance benefit plans offered to active employees for retirees not eligible for Medi ⁶⁰⁵ care who attain sufficient creditable service for a retirement within their bargaining unit, or retirees who qualify for disability retirement. The County will contribute toward the premium for available benefit plans in accordance with the Administrative Officer’s Policy, on Insurance Benefits for Baltimore County retirees. Employees who retire from county service shall have the subsidy provided for in Exhibit (I). [FN 6 OMITTED] For all negotiations after 1995, the FOP, and other County unions, as well as a non-Union employee group, were represented (for health care issues) by a group known as the Healthfcare] Review Committee (“HRC”). [FN 7 OMITTED] That Committee initially objected to the County’s proposed revised language, specifically the removal of the “lock-in” terms. [FN 8 OMITTED] Nevertheless, the HRC agreed to the modified health insurance package.

Ultimately, the final proposal from the County on retiree health insurance read as follows: E. Retírete] Health Insurance “The County shall provide the same health insurance benefit plans offered to active employees for retirees not eligible for Medicare who attain sufficient creditable service for a retirement within their bargaining unit, or retirees who qualify for disability retirement: Individuals who retired prior to July 1, 2007 who are Medicare eligible the County Subsidy for the Medicare Supplemental Plan is 75% of the plan premium. The County will contribute toward the premium for available benefit plans in accordance with the County Policy, on Insurance Benefits for Baltimore County retirees. Employees who retiree (sic) from county service shall have the subsidy provided for in Exhibit I.” Pursuant to the existing process, each union brought the health insurance package to its membership for separate votes. The FOP membership, for its part, rejected the health insurance package.

On September 7, 2007, the ⁶⁰⁶ County moved to increase the retiree health insurance premium split. [FN 9 OMITTED] The FOP claims, in this arbitration, that the rejected portion of the health benefits package is not effective, as a result of its not having been ratified. Moreover, it contends the promises made during prior MOUs to retirees were in the nature of vested benefits and not only were not removed by the 2007 negotiations, but could not have been removed. Members covered by that language, it says, must continue to have health benefit subsidies remain at the level in effect at their retirement until they reach 65. Issue Do officers who retired on or after February 1, 1992 and before July 1, 2007 have a vested right to retain the health insurance premium split applicable to active officers as of the time of their retirement? [FN 10 OMITTED] FOP Position The FOP claims the promises made beginning in 1995 continue to be fully binding on the County.

The right to lock in benefit splits at the levels in effect upon retirement is vested, says the FOP, and cannot be changed with respect to those employees. It requests the County be directed to: (1) rescind the modification to the premium split for such retirees, (2) reset the contribution split to the 85/15 level and (3) direct that the County shall not implement other scheduled changes to the premium split. It also requests that the County be ordered to make retirees whole for the increased premium amounts improperly charged to them since September 1, 2007. County Position The County claims the grievance is not arbitrable.

The grievance itself was filed September 14, 2007, based on language in the FY 2007 MOU. But, says the County, the previous MOU expired June 30, 2007. Any rights existing thereunder were thereby extinguished. Moreover, says the County, the MOU makes the grievance procedure applicable ⁶⁰⁷ to “all employees.” The MOU defines an “employee” as “all sworn personnel up to and including the rank of lieutenant of the police department.” Since retirees are not “employees”, the FOP has no contractual right to grieve on their behalf.

It requests that the grievance be denied. Analysis For the reasons that follow, the finding is this grievance has merit. Central to the County’s rebuttal to the grievance, and its claim that the grievance is not arbitrable, is its contention that the 2007 MOU, on which the FOP’s grievance is premised, has expired. In the absence of any statutory foundation for healthcare benefits LFN 11 OMITTED] since the grievance was filed some three months after expiration of the 2007 agreement, says the County, the benefit expired and, with it, the arbitrator’s authority to enforce the labor agreement.

The end of a labor contract, however, does not always signal the death of negotiated rights thereunder, including the right to have a dispute over that matter resolved through arbitration. That principle was decided by the United States Supreme Court in Nolde Brothers, Inc. v. AFL-CIO [ ( 430 U.S. 243 , 97 S.Ct. 1067 , 51 L.Ed.2d 300 (1977) (FN 12 OMITTED) ].... ... [T]he Supreme Court held the grievance in that case did, in fact, survive the contract termination.... Concluding, finally, that national labor policy has established a strong presumption in favor of arbitrability [FN 16 OMITTED] the Court affirmed the arbitrability of the matter. In Litton v. National Labor Relations Board, et al. [.Litton Financial Printing Division, a Division of Litton Business Systems, Inc., Petitioner v. National Labor Relations Board, et al., 501 U.S. 190 , 111 S.Ct. 2215 , 115 L.Ed.2d 177 (1991)] [FN 17 OMITTED], the Supreme Court took the opportunity to expand on the Nolde principles.

It reiterated that the obligation to arbitrate disputes over post-expiration contract terms is by no means unlimited. An expired collective bargaining agreement, noted the Court, is no longer a legally enforceable document. [FN 18 OMITTED] ⁶⁰⁸ But the Court highlighted an exception, significant here, in cases involving “obligations already fixed under the contract but as yet unsatisfied.” [ ( 501 U.S. 190 at 197 , 111 S.Ct. 2215 ) (FN 19 OMITTED) ] The Nolde Brothers presumption is limited to disputes arising under the contract. A postexpiration grievance can be said to arise imder the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where, under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement. [ ( 501 U.S. 190 at 205-06 , 111 S.Ct. 2215 .) ] * * *!? In this case, the ultimate question is whether the retiree rights at issue may be considered vested and thus capable of continuing enforcement.

There is, in this case, a companion issue, however, that raises the question of whether the retiree rights were terminated through bargaining by the FOP’s designated bargaining agent, the Health[care] Review Committee. This opinion turns now to both those issues. As noted earlier, the HRC, while initially protesting the removal of the “lock-in” language, ultimately agreed to management’s proposed change. But this, one concludes, did not result in the FOP’s forfeiting the rights at issue. [FN 21 OMITTED] According to the record, the FOP rejected the health insurance package proposed by the County. [FN 22 OMITTED] The County directs the arbitrator’s attention to the decision of Arbitrator M. David Vaughan, who concluded, in January of 2008, that the County did not engage in an unfair labor practice by refusing to negotiate further with the FOP after it rejected the County’s proposed language changes.

Vaughan concluded, among other things, that the Health[care] Review Committee was the authorized representative of the Unions, ⁶⁰⁹ including the FOP, and that there was no provision, contractually or statutorily, for a dissenting unit to demand additional negotiations. This, however, does not set to rest the status of the retiree language. Arbitrator Vaughan held, in his decision, that the rejected proposal would not be made part of the FOP MOU: There is no “next step” in bargaining health care issues following rejection. The rejected proposal is not incorporated into the MOU, but through the County’s budget process, it can be funded and implemented as a Management initiative, outside of collective bargaining. [FN 23 OMITTED] The arbitrator’s conclusion that the FOP MOU would not contain the revised language is consistent with the language in each Union MOU, including the FOP’s, in which “tentative agreements are subject to ratification by the membership of each employee organization.” [FN 24 OMITTED] Significantly, the jurisdiction of the unfair labor practice arbitrator was confined solely to the question of whether the FOP could demand additional bargaining with the County over the issue.

Mr. Vaughan was clear, in his decision, that the contract question here at issue was not before him: There is apparently a contractual grievance, not before me, in the instant ULP claim, with regard to existing retirees and the County contribution for health Insurance. [FN 25 OMITTED] The remaining question — whether retirees had a vested right to the benefit here sought is answered directly by the unequivocal language of the MOUs: The statement that “the health Insurance subsidy in place at the time of retirement shall remain in effect until the retiree becomes eligible for Medicare” is subject to no interpretation other than that here proposed by the FOP. When the parties bargained this language, they made a binding promise to retirees that the subsidy would remain at whatever level existed at their retirement. That is a vested right, and it was not, and could not be, changed by the negotiations discussed in this Opinion. For these ⁶¹⁰ reasons, the finding is that the grievance is timely and that it should be, and is, granted.

AWARD The grievance is granted. Officers who retired on or after February 1, 1992 and before July 1, 2007 have a vested right to retain the health insurance split applicable to them as active officers at the time of their retirement. The County is directed to rescind its modification, to reset the contribution split applicable to these officers to 85/15, to continue that split so long as, by the terms of the language, these officers remain eligible and to make whole affected retirees for increased premium amounts improperly charged to them since September 1, 2007. (Emphasis added.) As noted, the Arbitrator’s decision that the grievance was timely and that it should be granted — and the accompanying “award” — was entered on July 15, 2008.

On August 14, 2008, the County filed a complaint in the Circuit Court for Baltimore County, seeking to vacate the arbitration award. In its complaint, the County made the following contentions: • “the Arbitrator exceeded his power, in that he did not have jurisdiction over the Grievance, which was filed on September 14, 2007 after the expiration of the Memorandum of Understanding (MOU) between the Baltimore County Administration and the Fraternal Order of Police, Lodge No. 4 which was in effect from July 1, 2006 through June 30, 2007”; • “the Arbitrator had no authority to provide the relief requested by the FOP [because] the Arbitrator’s Award rewrote the healthcare subsidy provisions of the FY 2008 MOU which had been negotiated by the Healthcare Review Committee, FOP Lodge 4’s health insurance bargaining agent”; ⁶¹¹ • “[the] Grievance was moot, because the FY 2007 MOU had expired at the time the Grievance was filed on September 14, 2007”; • “[b]ecause the FY 2007 MOU had expired on June 30, 2007, there was no agreement to arbitrate healthcare subsidy language contained in the expired FY 2007 MOU. Accordingly, there was no arbitration agreement as described in Section 3-206 of the Courts and Judicial Proceedings Article, the issue was not adversely determined in proceedings under Section 3-208 of the Courts and Judicial Proceedings Article, and Baltimore County raised its objection in the Arbitration Hearing and in its Post-Hearing Brief’; • “[t]he Arbitrator’s Award usurps the power of the Baltimore County Executive and the Baltimore County Council to enact a budget which provides for health insurance and health insurance subsidies pursuant to the terms negotiated by the Healthcare Review Committee, FOP Lodge 4’s bargaining agent”; • “[there] is no vested future right to the specific benefits prescribed in the expired FY 2007 MOU, as established by long-standing practice and applicable law”; and • “[t]he Arbitration Award is contrary to the very clear public policy, as stated in the Baltimore County Charter and Code, that the Baltimore County Council appropriates the funds needed to provide healthcare subsidies for retirees. The Arbitrator has no power or authority to order the Baltimore County Council to appropriate funds as stated in his Award.” (Emphasis added.) The County further argued that “retirees” are not “employees,” and therefore FOP was not empowered to file a class grievance on behalf of retirees.

The County asserted: Section 1.2 of the FY 2007 MOU states that “the term ‘employee’ shall mean all sworn personnel up to and including the rank of Lieutenant of the Police Department.” The award on its face relates to the rights of retirees. Since ⁶¹² retirees by definition are not “employees” covered by the MOU, FOP did not have the contractual right to file a class grievance on behalf of retirees as set forth in Section 8.4 of the MOU, .... The County also contended that the “Award involves mistakes so gross as to constitute manifest injustice,” and that the award “contains mistakes of law and fact which are apparent on the face of the Award.” The County requested that the circuit court vacate the arbitration award and remand the matter back to the Arbitrator with instructions to deny the FOP’s grievance. On March 13, 2009, the County filed a Motion for Summary Judgment in which it presented arguments asserting the above points.

On April 3, 2009, FOP filed an opposition to the County’s motion for summary judgment, along with FOP’s own cross-motion for summary judgment. On August 28, 2009, the Circuit Court for Baltimore County denied both the County’s motion for summary judgment and FOP’s cross-motion, and the motions judge explained that “[tjhere are too many questions that need to be asked for summary judgment to be granted in this case.” Both parties filed motions for reconsideration, and by order of court filed October 21, 2009, the motions for reconsideration were denied. On May 24, 2010, motions for summary judgment were again heard by the Circuit Court for Baltimore County. On August 17, 2010, the court filed a memorandum opinion and order denying the County’s motion for summary judgment and granting the motion for summary judgment filed by FOP.

Because several of the issues addressed in the circuit court’s grant of summary judgment to FOP have been argued in this Court once again in the County’s present appeal, we will reproduce here portions of the circuit court’s August 17, 2010, opinion and order in favor of FOP, which, as noted above, has been previously affirmed by the Court of Appeals. First, the circuit court found that the grievance was timely and the award was arbitrable. The circuit court stated: “Here, unlike the facts presented in [Barclay Townhouse ⁶¹³ Associates v. Stephen L. Messersmith, Inc., 67 Md.App. 493 , 508 A.2d 507 (1986), a case cited by the County in support of its argument that the determination of the existence of an agreement to arbitrate is made by the court rather than the arbitrator], there was a written agreement between the County and the FOP to arbitrate any grievance filed under the MOU. [FN 24 OMITTED]” Accordingly, the court found the FOP’s claim properly subject to binding arbitration: Applying the principles established in Nolde and Litton , the Court finds that the grievance was arbitrable, despite the fact that the MOU had expired prior to its filing. The FY 2007 MOU clearly stated: “The health insurance subsidy in place at the time of retirement shall remain in effect until the retiree becomes eligible for Medicare.” [FN 41 OMITTED] The clear, unambiguous language of the agreement creates a promise to retirees that the subsidy in place when they retire will remain the same until they become eligible for Medicare.

As such, the retirees at issue have a vested right to the maintenance of that subsidy until they become Medicare eligible. As the Court noted above, each MOU since FY 1996 has contained similar language. Additionally, the FY 1996 agreement retroactively included those officers that had retired between 1992 and 1995. Consequently, the officers that retired while these agreements were in place obtained the vested right.

Therefore, the FOP’s grievance, alleging that the County’s action of increasing the subsidy splits after the agreement had terminated infringed on the vested right to maintain the prior split, arose under the contract as defined by Litton . As a result, Arbitrator Bloch had proper jurisdiction to arbitrate the grievance. (Emphasis in circuit court’s opinion.) As noted, the circuit court specifically addressed, and rejected, the County’s assertion that the grievance was not timely filed: The County contends that Arbitrator Bloch should have dismissed the grievance for being untimely. The FOP’s grievance was related to the FY 2007 MOU, which expired ⁶¹⁴ on June 30, 2007.

Section 8.2 of the MOU required a grievance to be filed “within ten (10) workdays of the event giving rise to the grievance, or within ten (10) workdays following the time when the employee should have reasonably gained knowledge of its occurrence.” [FN 42 OMITTED] Here, the County contends that the event giving rise to the grievance occurred on March 12, 2007 when the FOP rejected the terms negotiated by the HCRC for the FY 2008 MOU. The County further argues that because the FOP was claiming a vested right in the FY 2007 MOU, the grievance had to arise, at the latest, on the date the MOU expired — June 30, 2007. The FOP didn’t file its grievance until September 14, 2007, which was more than ten workdays after the MOU had expired. As a result, argues the County, Arbitrator Bloch should have dismissed the grievance as untimely.

The Court disagrees. The question of whether a grievance is timely filed is for the arbitrator. [FN 43 OMITTED] The Court finds no error with Arbitrator Bloch’s award in relation to the timeliness of the grievance. Even though the FY 2007 MOU expired on June 30, 2007, the actual infringement of the vested right contained within the agreement, and [which] was the subject of the grievance, did not occur until the County implemented changes to the health insurance subsidy splits on September 1, 2007. It was at that point the effected [sic] retirees became subject to increased subsidy splits, which gave rise to the grievance.

The FOP filed its grievance on September 14th, which was within ten workdays of the event giving rise to the grievance, as required under the MOU. Therefore, Arbitrator Bloch did not err by not dismissing the grievance as untimely. The court also rejected the County’s argument that retirees are not “employees” entitled to bring a grievance — an argument that the County has renewed in this appeal: The County contends that the FOP’s filing does not constitute a grievance because, under the terms of the MOU, the FOP may only file a grievance on behalf of employees. [FN 44 OMITTED] Section 1.2 of the MOU ⁶¹⁵ defines employees to “mean all sworn personnel up to an[d] including the rank of Lieutenant of the Police Department.” The County argues that since the FOP’s grievance was filed on behalf of retirees who, by the terms of the MOU, are not employees, the FOP did not have a contractual right to file a class grievance on their behalf. The County cites to Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co. | ( 404 U.S. 157 , 92 S.Ct. 383 , 30 L.Ed.2d 341 (1971) ] to support its contention. [FN 45 OMITTED] In Allied, the Supreme Court held that retirees are not employees within the meaning of § 8(a)(5) of [the] National Labor Relations Act and could not be included in the collective bargaining unit. [FN 46 OMITTED] At issue in the case was whether the employer had committed an unfair labor practice by making unilateral changes to retiree benefits instead of bargaining for those changes with the union.

This is very different from the issue presented by the County in this present case. In United Steelworkers of America v. Canron, Inc. [ ( 580 F.2d 77 (3rd Cir.1978) ], the Court of Appeals for the Third Circuit was presented with a situation similar to this Court. In Canron, the union argued that the collective bargaining agreement obligated the employer to arbitrate a dispute over retiree benefits. [FNs 47 & 48 OMITTED] The employer countered that under Allied, the union lacked standing to sue on behalf of retirees. [FN 49 OMITTED] The Third Circuit rejected the employer’s contentions, reasoning that if the employer had contractually agreed to continue making premium payments for retirees, “then under accepted contract principles the union has a legitimate interest in protecting the rights of the retirees and is entitled to seek enforcement of the applicable contract provisions.” [FN 50 OMITTED] Specifically addressing the holding in Allied,, the Third Circuit stated: Even though retirement benefits of former employees already retired are not a mandatory subject of collective bargaining, “it does not naturally follow, as the company implies, that a union loses all interest in the fate of its ⁶¹⁶ members once they retire.” We therefore hold that the plaintiff union has standing to represent the retirees in seeking arbitration under its labor contract with Canron. [FN 51 OMITTED] The Third Circuit’s reasoning with regard to Allied is reinforced by the Eighth Circuit’s decision in Anderson v. Alpha Portland Industries, Inc. [ ( 752 F.2d 1293 (8th Cir. 1985) ] [FN 52 OMITTED] In Anderson , retired employees sued their former employer in federal district court after the employer announced it was terminating insurance benefits for retirees. [FN 53 OMITTED] The District Court entered summary judgment in favor of the employer on the basis that the retirees had not exhausted the grievance procedures referenced in the insurance agreement and contained in the collective bargaining agreement. [FN 54 OMITTED] In reversing the District Court, the Eighth Circuit rejected the employer’s contentions that case law, including Canron, required retirees to proceed through the union in order to pursue their disputes. [FN 55 OMITTED] However, the Court noted, Canron does provide “that a union has standing to assert retirees’ rights under a collective bargaining agreement to which it is a party if it chooses and that an employer may not refuse to arbitrate its contractual obligations with the union.” [FN 56 OMITTED] [ (Emphasis in original.) ] Here, it is clear that the FOP is a party to the FY 2007 MOU and that it has chosen to assert the rights of its retired members. As a result, the County may not refuse to arbitrate with the FOP over its contractual obligations to retirees.

Based on the foregoing law, this Court finds that Arbitrator Bloch did not err in arbitrating the grievance made on behalf of retirees. The County also maintained that the arbitrator’s finding that the retirees’ rights to the subsidy split in place at the time of their retirement was vested was manifest error requiring vacation of the arbitration award, but the circuit court rejected this argument and explained: ⁶¹⁷ The County stridently maintains that Arbitrator Bloch’s finding of a vested right to the health insurance subsidy in place at the time of an officer’s retirement was an error so gross as to work a manifest injustice. The County contends that the letter of [the] County Administrator [ ] regarding the Retirement Incentive Program in 1991 made clear the County’s intention that health care subsidies for retirees could go up or down depending on future labor negotiations. [FN 57 OMITTED] In light of this fact, the County argues, retiree health insurance subsidies are not vested rights and the language in Section 7.3(c) of the 1997 MOU can in no way be interpreted as providing such. Here, Arbitrator Bloch concluded that the language contained in Section 7.3(c) was unequivocal and subject to only one interpretation — that the County made a binding promise to retirees that the subsidy split in effect at the time of their retirement would remain unchanged.

Arbitrator Bloch’s conclusion is awarded a great deal of deference by this Court. [FN 60 OMITTED] ... Based on the foregoing facts and applicable law, the Court finds that Arbitrator Bloch did not commit manifest error, as alleged by the County, in concluding that the MOU created a vested right. Finally, the County made arguments related to its contentions that the arbitration award disregarded the negotiations of the Healthcare Review Committee, and that the award otherwise contravenes County budget procedures. These arguments are renewed in the present appeal.

We will quote here the circuit court’s ruling relative to these arguments: Lastly, the County contends that Arbitrator Bloch exceeded his authority by effectively rewriting the health care subsidy provisions negotiated by the HCRC on behalf of the FOP for the FY 2008 MOU and by ordering the County to maintain the 85/15 subsidy split for officers that retired after February 1, 1992 and before July 1, 2007. ⁶¹⁸ Specifically, the County argues that Arbitrator Bloch exceeded his authority as set forth [at] Section 8.3, Step 4 of the FY 2007 MOU. That section provides: The arbitrator shall have no authority to add to, detract from, alter, amend or modify any provision of this Memorandum of Understanding or any rules or regulations of any agency of the County, or establish or alter any wage rate or wage structure. [FN 62 OMITTED] The County further asserts that the Award was contrary to the Budgetary and Fiscal Procedures set forth in the Baltimore County Charter and the Baltimore County Code, which state the County Executive and County Council are responsible for enacting a budget and appropriating funds needed to run the County, including health care subsidies. Arbitrator Bloch’s Award, the County argues, usurped these powers by ordering the County to maintain and fund the 85/15 subsidy split. The FOP counters that Arbitrator Bloch’s Award concerned only the interpretation and enforcement of compensation terms that were previously set, and as such, does not usurp either the legislative or executive power of the County.

The FOP points to the distinction between grievance arbitration, which uses a neutral third party to resolve a dispute over the interpretation of an existing contract, and interest arbitration, which uses a neutral third party to set the terms of a new contract. Under the prevailing case law, argues the FOP, grievance arbitration does not involve the delegation of legislative authority because the arbitrator is acting in [a] judicial capacity rather than a legislative one. [FN 63 OMITTED] “The authority to interpret an existing contract, therefore, does not constitute legislative authority, and the nondelegation principle is not implicated in grievance arbitration.” [FN 64 OMITTED] The Court agrees with the FOP’s position. The County and the FOP agreed to submit “any dispute concerning the application or interpretation of the terms of [the FY 2007] Memorandum of Understanding” to binding arbitration. [FN 65 OMITTED] The grievance submitted to Arbitrator ⁶¹⁹ Bloch concerned the interpretation of Section 7.3(c), a contract term that had already existed and had been bargained for by the parties. In resolving the grievance, Arbitrator Bloch did no more than what was required of him — to interpret the disputed contract language in accordance with the facts presented and applicable law.

Therefore, the Court finds that Arbitrator Bloch did not exceed his authority i[n] reaching his Award. (Emphasis added.) On August 19, 2010, the County noted its appeal of the circuit court’s grant of summary judgment in favor of FOP and the denial of the County’s own motion for summary judgment. In an unreported opinion filed on December 8, 2011, this Court reversed the circuit court. We held that FOP had not been entitled to summary judgment in its favor as a matter of law, and that the County had demonstrated its entitlement to summary judgment.

Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4 (No. 1428, September Term, 2010). In our opinion, we noted that, in the County’s brief, it had presented us with nine questions (which are strikingly similar to five of the questions raised by the County in the present appeal): 1. Whether the arbitrator lacked jurisdiction to arbitrate the grievance and whether the grievance was arbitrable, because the FY 2007 MOU had expired? 2. Whether the grievance was moot due to the expiration of the FY 2007 MOU? 3.

Whether the grievance was timely filed? 4. Whether the FOP’s late filing constituted a valid grievance since by definition “retirees” are not “employees” entitled to bring a class grievance? 5. Whether the Arbitrator had the authority to rescind and rewrite the language negotiated by the Health Care Review Committee, FOP’s health care benefit bargaining agent? 6. Whether there was a “vested right” to future health insurance benefits and subsidies prescribed in the ex ⁶²⁰ pired FY 2007 MOU, based on the evidence, longstanding practice and applicable law, and whether it was manifest error for the Arbitrator to conclude so by relying on cases that interpret the NLRA? 7.

Whether the Arbitrator’s own comments demonstrated the manifestly unjust and grossly mistaken nature of his award? 8. Whether the County clearly intended that health care subsidies would be negotiated annually and could “go up and down”? 9. Whether, contrary to law and public policy, the Arbitrator’s Award usurped the power of the Baltimore County Executive and the Baltimore County Council to enact a budget which provides for health insurance and health insurance subsidies pursuant to the terms negotiated by the HCRC, FOP Lodge’s bargaining agent? In the footnote in which this Court recited the County’s nine questions presented in that previous appeal, we said: “For the reasons stated in our opinion, we cannot provide a certain answer to the County’s first question.

Instead, we hold that the circuit court erred when it upheld the arbitration award and we leave the remaining questions to be resolved in a future arbitration or civil proceeding, if this litigation continues.” The mandate of this Court was: “Judgments Reversed. Case remanded to the Circuit Court for Baltimore County ■with instructions to enter judgment in favor of [the County]. Costs to be paid by [FOP].” But FOP’s petition for writ of certiorari was granted by the Court of Appeals. It appears that no cross-petition or conditional cross-petition was filed by the County.

On November 19, 2012, the Court of Appeals reversed this Court’s judgment in favor of the County, and reinstated the judgment of the circuit court. The Court of Appeals ruled: We agree with the Circuit Court’s decision to leave undisturbed the arbitrator’s findings in this case. The fact that the MOU has expired does not mean the County had no duty to arbitrate disputes arising out of that MOU. ⁶²¹ A dispute may be arbitrable after the expiration of the underlying agreement, if the agreement contained a broad arbitration clause and the rights that are the subject of the dispute accrued or vested during the life of the agreement. The MOU’s arbitration clause was broad.

It did not exclude grievances arising after the expiration of the MOU but pertained to “[a]ny dispute concerning the application or interpretation” of the MOU. The arbitrator found that FOP’s grievance was arbitrable even after the MOU’s expiration because — based on the arbitrator’s reading of the MOU’s health-insurance clause — retirees’ rights to an 85/15 health-insurance premium split had vested at the time of their retirement. The Circuit Court was legally correct in granting summary judgment in FOP’s favor after subjecting the arbitrator’s findings to a deferential standard of review. Thus, we reverse the judgment of the Court of Special Appeals.

FOP Lodge No. 4 supra, 429 Md. at 564-65 , 57 A.3d 425 (emphasis added). The mandate of the Court of Appeals was not to remand to this Court so that all nine questions presented by the County in its 2011 appeal to this Court could be answered; instead, the mandate ordered a remand to this Court “with directions to affirm the judgment of the Circuit Court for Baltimore County” (emphasis added), with costs in both this Court and the Court of Appeals to be paid by the County. The County filed a motion for reconsideration in the Court of Appeals on December 7, 2012. In that motion, the County asserted: 1) the FOP was bound by the negotiations of the Healthcare Review Committee (HCRC), which agreed to the reduction in the subsidy split (a reduction to which FOP expressly did not agree); and 2) “[c]onsistent with many prior decisions of this Court, this case should be remanded to the Court of Special Appeals for consideration of all undecided appellate issues.” As to this last point, the County specifically asserted the following: ⁶²² Of great practical consequence to the County, there has been no review of the following issue which was raised by the County in its Brief in the CSA: Contrary to law and public policy, the arbitrator’s award usurps the power of the Baltimore County Executive and the Baltimore County Council to enact a budget which provides for health insurance and health insurance subsidies pursuant to the terms negotiated by the HCRC, FOP Lodge 4’s bargaining agent.

(Baltimore County’s CSA Brief at 34). The Arbitrator in this case had no power or authority to order the County Executive and the County Council to fund a split different from the negotiated split enacted into law as part of the FY 2008, 2009, 2010, 2011 and 2012 budgets, to order the County Executive and County Council to reset the split at 85/15 in any future budgets, or to “make whole” affected retirees for increased premium amounts not budgeted by the County Executive and County Council. If this Court’s decision is allowed to stand, and this matter is remanded to the CSA with directions to affirm the judgment of the Circuit Court for Baltimore County, the Arbitrator’s affirmed award will be unenforceable, since there have been no funds appropriated through the executive budget process to afford the relief capriciously dictated by the Arbitrator. (Emphasis added.) On January 18, 2013, the Court of Appeals denied the County’s motion for reconsideration. 429 Md. 533 , 57 A.3d 425 .

The mandate of the Court of Appeals issued the same day, and, as noted above, it directed this Court to affirm the judgment of the Circuit Court for Baltimore County. It did not direct this Court to consider further any other “undecided appellate issues.” On March 5, 2013, FOP filed in the circuit court a petition for award of costs and disbursements, seeking $130,691.90 in costs and disbursements, including attorneys’ fees. The peti ⁶²³ tion was supported by billing records and an affidavit of trial counsel. On April 5, 2013, FOP filed in the circuit court a “motion to enforce this court’s judgment and for an order to show cause.” The motion asserted that the County “refuses to comply with this Court’s judgment by providing the required relief.” FOP further asserted that the County’s refusal was “without any justification and accomplishes nothing other than to further delay resolution of this matter and gratuitously increase the parties’ expenses by unnecessarily prolonging litigation.” In support of the requested relief, the motion stated: . ..

Notwithstanding the issuance of the mandate by the Maryland Court of Appeals and the order by the Court of Special Appeals vacating its earlier decision, the County refuses to provide the required relief. First, the County has refused to rescind its reduction of the retiree health care subsidy in effect at the time of each officer’s retirement. Stated differently, the County continues to overcharge retirees for health insurance. Second, the County refuses to make those retirees whole for the amounts that the County improperly charged to them.

In this regard, the County has previously provided the FOP with a chart showing the amounts by which the County had charged each retiree above the rates in effect at the time of retirement. That chart, which is attached as Exhibit 3, shows that for overcharges through May of 2011, the County owes the retirees collectively $572,887.10, plus appropriate interest. The County has also refused to provide the data to calculate the amounts by which the County has overcharged retirees from May 2011 through the present. ... In an effort to bring this longstanding litigation to a close without further delay or expense to either party, since the issuance of the Court of Appeals decision in November of 2012, FOP’s counsel has made many attempts to discuss with the County the County’s provision of the required relief to the affected retirees.

On each occasion, the attor ⁶²⁴ ney for the County has stated simply that the County is continuing to consider its options. At no point, however, has the County offered any explanation as to why it was not providing the relief required by this Court’s order and judgment, as affirmed by the Maryland Court of Appeals, or a timeline by which it would provide the required relief. Accordingly, in order to resolve this matter without further litigation, on March 20, 2013, the FOP sent the County Attorney correspondence requesting that the County promptly take the following steps: 1. Effective April 1, 2013, the County must provide each affected retiree with the retiree health subsidy in place at the time of his or her retirement. 2.

The County must issue payment to the affected retirees in the amounts identified in [Exhibit 3] by Friday, March 29, 2013. 3. In order to determine the additional amount that the County owes the affected retirees, by March 26, 2013, the County must update the attached chart [Exhibit 3] through March 31, 2013 (or later if the County fails to change the retiree health subsidy provided to the affected officers by that date) and provide the FOP with a copy of the entire chart in Microsoft Excel format. 4. The County agrees that it is required to pay pre- and post-judgment interest at the legal rate. ... The County simply ignored this correspondence and continues to refuse to provide any of the relief required by this Court’s judgment. [FN 1 OMITTED] ...

On April 23, 2013, the County filed a response to FOP’s motion to enforce the judgment. In its response, the County failed to refute FOP’s contention that the County was refusing to comply with the court’s order which confirmed the arbitration award. Instead, the County continued to dispute the validity of the arbitration award, and asserted once again that it was “contrary to the very clear requirements as stated in the Budgetary and Fiscal Procedures set forth in Article VII ⁶²⁵ of the Baltimore County Charter and in § 10-1-113 of the Baltimore County Code.” The County argued that — despite the circuit court’s previous ruling which was affirmed by the Court of Appeals — under the Baltimore County Code, Charter, and controlling case law, the Arbitrator had no power or authority to order the County Executive and County Council to fund a split different from the negotiated split enacted into law as part of the FY 2008, 2009, 2010, 2011, 2012, and 2013 budgets, to order the County Executive and County Council to reset the split at 85/15 in any future budgets, or to “make whole” affected retirees for increased premium amounts not budgeted by the County Executive and County Council. The County further argued that the circuit court lacked the “power or authority” to enforce the arbitration award.

The County also asserted: that “any rescission and resetting of the health care subsidy split would violate the agreement FOP’s bargaining agent, the Health Care Review Committee, made with the County”; that the circuit court’s August 10, 2010, order granting summary judgment in favor of FOP did not constitute “an enforceable judgment against the County for a sum certain”; that the arbitrator lacked the authority “to rescind and rewrite the language negotiated by the Health Care Review Committee, FOP’s bargaining agent”; that “FOP never proved and the Arbitrator never determined the amount which would ‘make whole affected retirees’ or any liquidated sum that could be reduced to a judgment against the County”; that the “separation of powers doctrine prohibits this Court from ordering the County Executive and the County Council to appropriate funds, long after the Budgets for FY 2008-2013 have been enacted”; and finally, that “[ejnforcement of the Award at this stage of the proceedings would violate the County’s statutory right to have the [nine] issues it raised in the Court of Special Appeals [in the 2011 appeal] adjudicated.” On May 17, 2013, the circuit court held a hearing on FOP’s motion to enforce. At the hearing, counsel for the County indicated that the County was still pressing the arguments it ⁶²⁶ had raised in the first appeal. The application of the law of the case doctrine to the County’s public-policy argument is supported by the following colloquy: [BY THE COUNTY]: Thank you, Your Honor. Before I discuss the seven arguments I presented in our response to the Motion to Enforce, I would like to characterize those seven arguments as essentially one argument which I did not articulate in specific terms but it is the public policy exception to the enforcement of an arbitration award and, in effect, our arguments, our seven arguments are asking this Court to find that as a matter of public policy as expressed in the Batimore County Charter and the Baltimore County Code, this matter is not enforceable.

Now, there’s two parts to this procedure. One is our Complaint to Vacate the Award. [FOP’s counsel] has conveniently ignored the fact that the Court of Special Appeals reversed this Court and said that your decision was wrong. Now, is it wrong for us to believe an arbitrator’s award is beyond his powers to then file a Complaint to vacate that award with this Court. This Court agreed with the arbitrator, then file an appeal to the Court of Special Appeals, which agreed with us.

So there is at least some debate here about the issues, legal issues. So up to the point where the Court of Special Appeals affirmed us, the case would have been in our favor. Of course, then I had to go through the Court of Appeals and, unfortunately, the Court of Special Appeals did not address the nine legal issues we raised, which we’re entitled to have addressed under the Court[s] and Judicial Proceedings Article in a direct appeal to that Court and if the Court will recall— [BY THE COURT]: But you made, you made that argument to the high, to the highest Court of this, of this State. [BY THE COUNTY]: I did, I argue, I did make the argument, I said— [BY THE COURT]: And they rejected it, right? ⁶²⁷ [BY THE COUNTY]: Well, they did but the legal issues have not been decided, Your Honor. Where does that leave us? [BY THE COURT]: It leaves you with a Court of Appeals opinion. [BY THE COUNTY]: And the Court of Appeals opinion, to be quite frank with you, was rendered to, to that Court, to uphold a principle] concerning vesting.

That’s all they were interested in. That was their agenda. Why? I don’t know.

They didn’t want to hear anything else. They didn’t want to hear the fact that the bargaining agent for FOP and all of the unions sat down, negotiated with the County and agreed to this reduction. Simple contract law. They’re your agent, you agreed to it, the principal is bound.

So if there’s any bad faith in this case, it’s the bad faith of the FOP. To sit, to agree that the health care agent is bargaining for them, they reach an agreement with the County and then FOP wants to pull the rug out from under the whole thing. [BY THE COURT]: Well, that’s why the whole thing was litigated. [BY THE COUNTY]: That’s correct. [BY THE COURT]: And you have a Court of Appeals opinion. [BY THE COUNTY]: But my, my point of bringing it up is we sat across the table with them and bargained with the health care bargaining agent and reached an agreement which now they want, they have nullified. [BY THE COURT]: Well, I mean, you don’t suggest that this whole issue has to be re-litigated? [BY THE COUNTY]: No, I’m saying at this point, well, as far as I’m concerned, the nine issues remain unaddressed. The Court of Special Appeals said that the arbitrator did not address the County’s argument that the arbitration clause itself had expired. The Court [of Special Appeals] determined that this omission was a palpable mistake and the award should have been vacated.

According to the ⁶²⁸ Court of Special Appeals reversed the judgments of the Circuit Court granting FOP’s Motion for Summary Judgment and denying the County’s Motion for Summary Judgment which should have been granted. And the Court [of Special Appeals], in its footnote, first footnote in the case, listed the nine issues. [BY THE COURT]: All right. [BY THE COUNTY]: And indicated that those are, would only be addressed necessarily in any future litigation. [BY THE COURT]: Well, that’s the Court of Special Appeals. [BY THE COUNTY]: That’s correct. [BY THE COURT]: The Court of Appeals is saying something different. [BY THE COUNTY]: Well, the Court of Appeals never ruled on this issue. All they did was— [BY THE COURT]: And the Court of Appeals is saying the Court of Special Appeals doesn’t need to. [BY THE COUNTY]: They reversed the Court of Special Appeals and remanded it directly back to this Court for entry of judgment. [BY THE COURT]: Well, no, they remanded it to the Court of Special Appeals. [BY THE COUNTY]: To have it remanded back here. [BY THE COURT]: Right. [BY THE COUNTY]: For entry of judgment— [BY THE COURT]: They didn’t tell the Court of Special Appeals to address those issues. [BY THE COUNTY]: No, they did not. That was what we were requesting— [BY THE COURT]: So what right do I have, what power do I have to do that? [BY THE COUNTY]: You do not have that power.

I’m just bringing it up as a matter of fairness. We had been ⁶²⁹ denied the opportunity in a direct appeal to have our issues decided.... (Emphasis added.) In a later colloquy, the County attempted to explain why its current arguments about the unenforceability of the award were not exhausted: [BY THE COURT]: So if, if, I guess I’m confused because if the, if the issue is that because there’s no appropriation made, tough luck, I guess basically, why did the County ever file to vacate the arbitration award? Why did you just, why didn’t you just say it’s not appropriated, we don’t need to worry about it. [BY THE COUNTY]: Because we felt that there were very sound legal arguments to be made as to why that arbitration award was erroneous.

And, again— [BY THE COURT]: But if it’s not appropriated, why waste five years? Why not just say, it’s not appropriated, we don’t have to pay it? [BY THE COUNTY]: Well, as the matter moved forward, because there was no appropriation, because the health care agent, the health care review committee, the bargaining agent, had reached an agreement and under the budgetary process, that was the number that then became part of the budget submission that was passed by the Council and that has occurred each successive year. Now, why was it done? Because we felt like the, why did we appeal, why did we seek to vacate?

Because we, we— [BY THE COURT]: Yeah, I mean, if it’s not appropriated. [BY THE COUNTY]: — thought it was wrong. We thought it was wrong and, it was legally wrong and we felt like we would win on that basis. [BY THE COURT]: So win or lose, this was another argument you were, the County had that it was going to pull out of its back pocket at some time? [BY THE COUNTY]: No, this was not pulled out of the back pocket, Your Honor. It was, it was— ⁶³⁰ [BY THE COURT]: Well, you’re, you’re saying it wasn’t appropriated so we don’t have to pay it. Why not just say, okay, the award is the award and we just don’t have to pay it because it’s not appropriated? [BY THE COUNTY]: That’s what we’re saying now. [BY THE COURT]: I know you’re saying that now. [BY THE COUNTY]: Now that they’re trying to enforce it. [BY THE COURT]: So why’d you wait five years? [BY THE COUNTY]: Because it was not at the position where it would be enforced.

Now, it’s trying to, that’s point. [BY THE COURT]: Okay. [BY THE COUNTY]: The public policy does not allow its enforcement. We were trying to attack the legal basis, that, we were trying to attack the award as legally unsound for the reasons which have never been decided by any Court. Now that it’s being enforced or attempted to be enforced, we’re saying public policy bars its enforcement. (Emphasis added.) The circuit court took the matter under advisement, and allowed the County to file a supplemental memorandum in support of its public policy argument.

On August 14, 2013, the circuit court issued a memorandum opinion and order granting FOP’s motion to enforce. This order was docketed on August 28, 2013. The circuit court’s opinion took note of all the arguments presented by the County, and concluded that the law of the case doctrine barred any further consideration of the arguments about the enforceability of the award. The circuit court ordered the County to take the following actions within twenty days: 1) “provide each affected retiree with the retiree health subsidy in place at the time of his or her retirement”; 2) “issue payment in the amount of’ $572,887.10, “plus appropriate interest, which is the amount referenced in the chart previously prepared by [the County] and provided to [FOP] in ⁶³¹ May of 2011, attached as Exhibit 3 to [FOP’s] Motion to Enforce,” and “issue payments directly to each affected retiree in the proportions set forth in the chart prepared by [the County]”; and 3) update the previously-referenced damages chart with “information sufficient for [FOP] to calculate a sum certain judgment to which it is entitled, including any appropriate pre[-] and post[-]judgment interest,” and provide FOP with a copy of the updated damages chart.

On September 6, 2013, the County filed a motion to alter or amend the judgment pursuant to Maryland Rule 2-534. On October 9, 2013, FOP filed its response. On October 15, 2013, the court conducted a hearing on the County’s motion. At the hearing, the County continued to raise issues regarding the timeliness of the initial grievance and whether or not retirees were entitled to pursue a grievance.

The County again pointed to the nine issues it had previously raised in its first appeal to this Court, and the County also renewed its public policy arguments about the County’s failure to make an appropriation to pay the amounts ordered by the Arbitrator. At one point during the hearing, counsel for the County seemed to disavow the reliability of the damages chart which had been previously provided by the County: [BY THE COURT1: Does the, does the County dispute the numbers on this chart? [BY THE COUNTY]: To be honest with you, I don’t know ■what the numbers really mean and I haven’t sorted through them. I don’t know, at this point, who prepared them. I haven’t been able to track it down.

So, no, I don’t agree with, and I think I need to, I, there has to be an opportunity for us— [BY THE COURT]: This is, this is the document, as I recall, that the County supplied to the FOP? [BY THE COUNTY]: As part of a global settlement discussion of all cases. [BY THE COURT]: I understand that, but is there any, is there any dispute as to anything on that chart? ⁶³² [BY THE COUNTY]: I dispute it because I don’t know what it says and I don’t know how it was arrived at. [BY THE COURT]: Have you, have you had a chance to review it? [BY THE COUNTY]: I have reviewed it. [BY THE COURT]: You have? [BY THE COUNTY]: Yes. [BY THE COURT]: So having reviewed it, is there anything that you dispute on it? [BY THE COUNTY]: Excuse us, Your Honor. Basically, there, the numbers are unsubstantiated in any manner which would, could relate to evidence that a judgment could be based on, Your Honor. [BY THE COURT]: I’m just asking if you dispute anything on it? [BY THE COUNTY]: I dispute them, yes, I do. [BY THE COURT]: You dispute, you don’t know how the County created it, prepared it and transferred it to the opposing party in good faith negotiations for a global settlement, you dispute what’s on there, is that what you’re telling this Court? [BY THE COUNTY]: I personally don’t know what it says or who prepared it, therefore, I have to dispute it. [BY THE COURT]: Okay. All right. [BY THE COUNTY]: And it’s not substantiated in terms of a piece of evidence that you put somebody on the stand and say, Mr. Jones— [BY THE COURT]: I, I, I understand your evidentiary point. My question is, this document that the County prepared and presented to the FOP, does the County dispute what’s on the County’s document? [BY THE COUNTY]: I can’t speak for the County because I can only speak for myself. [BY THE COURT]: You’re, you’re representing the County. ⁶³³ [BY THE COUNTY]: My investigation of it revealed that I couldn’t identify who had prepared it.

Without that, talking to that person, I have to dispute it. [BY THE COURT]: Okay. But as of this point in time, which has been, I don’t know when you turned the document over, it’s been several years though, right? Two thousand eleven? [BY THE COUNTY]: Yes, it’s been a while. [BY THE COURT]: All right. So it’s been about two, over two years.

Has anything come to your attention, to the County’s attention, to, to bring into dispute anything on that document? [BY THE COUNTY]: No, because it never came up. The settlement negotiations ended and that was the end of that. There was not a settlement reached and, therefore, the document became irrelevant. [BY THE COURT]: All right. Have you reviewed it since the Court’s Order back in, several months ago? [BY THE COUNTY]: Your Honor’s Order? [BY THE COURT]: Urn hm.

Have you reviewed the document? [BY THE COUNTY]: No, I haven’t really, I’ve looked at it but I haven’t reviewed it. I’m not— [BY THE COURT]: Has anything, is there anything to dispute now about that document? [BY THE COUNTY]: Yes, the whole thing. [BY THE COURT]: Okay. [BY THE COUNTY]: On both substantive, it’s unsubstantiated and on evidentiary grounds. I think Your Honor— [BY THE COURT]: What substantively is incorrect on it? [BY THE COUNTY]: It has, the document hasn’t been substantiated by the testimony of a witness who can say— [BY THE COURT]: What, what facts on the document are in dispute? ⁶³⁴ [BY THE COUNTY]: Well, I wouldn’t know that until I have a witness on the witness stand to know what’s in dispute and be able to either not prove it or prove it. [BY THE COURT]: All right. [BY THE COUNTY]: I’m not trying to play a game, Your Honor. I, I just, you know, this is a document that was prepared for settlement discussion.

Now, it’s providing the basis for a, I guess, a half million or a million and a half dollar judgment. [BY THE COURT]: Well, I guess I can understand if there’s a dispute as to the amount or the, or the facts on that document, there’s a bona fide dispute about that, then you need an evidentiary hearing. [BY THE COUNTY]: I can’t, I can’t, as I stand here say— [BY THE COURT]: But if there’s no, if there’s no dispute, then there’s no need for a hearing. [BY THE COUNTY]: There’s— [BY THE COURT]: If you’re disputing— [BY THE COUNTY]: Yes, I’m disputing— [BY THE COURT]: If you, as the representative for the County, is disputing the document that the County prepared, I’d like to know what, what is it about that document that the County prepared that the County disputes. [BY THE COUNTY]: I’m not sure if the numbers are accurate. [BY THE COURT]: Okay. [BY THE COUNTY]: But either way, I don’t think it’s a document that Your Honor can use because it’s part of a settlement discussion under the Rules of Evidence. In any event, and, and it shows that rather than using a document that was part of a settlement discussion, there needs to be a hearing where somebody proves something. [BY THE COURT]: So, so you’re saying the County entered into a settlement discussion without vetting the ⁶³⁵ document that’s being used as the basis for that negotiation? [BY THE COUNTY]: I have no idea. I wasn’t part of that. In response to the County’s refusal to admit the reliability of the document that it had previously prepared and provided to the FOP, the court permitted a brief period of discovery for the purpose of ascertaining the damages amount, and the court scheduled a damages hearing for January 28, 2014.

As part of its order of November 5, 2013, the court stayed paragraphs 3 and 4 of its order of August 28, 2013; in other words, it stayed the part of the order requiring the County to pay $572,887.10, “plus appropriate interest,” and to update the damages chart within 20 days. On November 8, 2013, the County noted an appeal to this Court of the November 5, 2013, order. It also filed a motion for a stay pending appeal, which was denied by the circuit court in a memorandum opinion and order filed on December 15, 2013. The County then made application to this Court for a stay pending appeal, and that was denied on December 26, 2013.

A damages hearing was held on February 6, 2014. Admitted in evidence as FOP’s Exhibit 1 was an updated chart, provided by the County, showing that the updated damages amount through the end of January 2014 was $1,413,120.81. That balance was growing by approximately $28,000 per month for every month the County refused to comply with the court’s previous orders to reset the subsidies and “make whole” the retirees. FOP produced an expert economist who testified as to pre- and post-judgment interest, which, at the time of the damages hearing, was “a little over $219,000 in total” and growing by “approximately $7,000 to $8,000 of interest each month.”