Board of County Commissioners v. Milstead

Finan, J., delivered the opinion of the Court. The appellees, Milstead and Pickerall, wear two hats. One, as paid career fireman in the Prince George’s County Department of Fire Protection and the second as officers of volunteer fire companies in that county. They viewed with considerable umbrage Administrative Order No. 1, dated July 2, 1968, issued by the Director of Fire Protection (Director) which in effect prohibited the continuance of their dual capacity.

The appellees persisted in maintaining their dual roles which resulted in their discharge from their county employment as firefighters. On January 7, 1969, they filed a bill for declaratory relief in the circuit court seeking to establish the invalidity of Administrative Order No. 1. The lower court found that the pertinent parts of Administrative Order No. 1 were invalid because they were not based on any reasonable standard. The county then took this appeal.

It should be noted that, although the Merit Board for Prince George’s County has upheld their dismissal, the appellees have been continued in their paid status pending determination by this Court of the validity of Administrative Order No. 1. We disagree with the lower court and are of the opinion that its order should be reversed. The only question before this Court is whether Administrative Order No. 1 violated the basic constitutional standard of reasonableness. The appellees in their brief ⁴⁸⁰ point out that the court below did not question the validity of the ordinance delegating authority to the Director to promulgate rules and regulations relative to the activities of members of the Department in the performance of their duties but rather concerned itself with the reasonableness of the administrative order in question.

As we have already stated we think the reasonableness of the order is the basic issue. We would rest the validity of the ordinance on the clear language of Article 17 of the Code of Public Local Laws of Maryland, as further codified in the Code of Public Laws of Prince George’s County (1963 Ed., 1967 Supp.), which in pertinent part authorizes the Board of County Commissioners to: “Enact any other ordinance for the safeguard of life, health and property and for the promotion of public safety, and moral welfare.” § 18-1(b) (35). Under Section 18-1 (b) (38) the Board of County Commissoners may: “Establish other departments or offices under the County Commissioners and prescribe the functions thereof; and, in addition whenever deemed necessary or desirable, discontinue, reorganize, consolidate, merge, or re-establish any existing or additional office, branch or department under the County Commissioners for more efficient or economical administration of governmental service.” The aforesaid Article 17, under Section 18-1 (b) (37) also provides that the Board of County Commissioners may: “Take over, consolidate, reorganize, merge or establish, with offices or departments under the County Commissioners, the functions, duties and responsibilities of any other governmental ⁴⁸¹ agency, board, commission, upon passage of appropriate legislation transferring function, duties and responsibilities.” (Emphasis supplied.) Pursuant to this authority the County Commissioners enacted General [Resolution No. 25-1968, which, in relevant parts, reads as follows: “SECTION 1. Establishment of Department of Fire Protection; Director, Consolidation of Services. “There is hereby established a Department of Fire Protection with a Director who shall be the chief executive officer thereof.

All fire protection services directly provided by the County are hereby consolidated into, and placed under the direction of such department and its director. “SECTION 2. Director; Duties and Powers “The duties and powers of the Director of the Department of Fire Protection shall be as follows : “a. To administer all fire prevention, suppression and related services provided and financed by the Board of County Commissioners; and to coordinate such activities with the governing bodies of volunteer firemen’s associations, and the various volunteer fire companies with the County, to the end of promoting efficient and amicable relationships between such organizations and their services, and the services financed by the Board of County Commissioners. $ ‡ $ “c. To serve as administrative head of the County financed fire force.

In such capacity, the Director shall promulgate rules and regulations for the government of the members of such force and may issue administrative orders, including but not limited to duty assignments and trans ⁴⁸² fer of personnel within, or between fire companies. In addition, the Director may institute disciplinary action when necessary, consistent with the Merit System Regulations for Prince George’s County. However, the members of the paid force assigned to companies shall be under the command of the chief officers of their respective companies when on duty with the company.” Pursuant to authority vested in him the Director issued Administrative Order No. 1, which among other regulations provides: “5. The volunteer membership of career fire service personnel, including those assigned to the various bureaus, shall be limited as follows: “a.

No career member can hold volunteer membership in the same company where he is employed as a career member. “b. No career member can hold any rank above Sergeant as a volunteer. “c. Only career Sergeants can hold the rank of Sergeant as volunteers. “d. No member of the career service can hold office in or be a director of a volunteer fire company.” The appellee Milstead, at the time that Administrative Order No. 1 was issued, was a paid fire fighter with the rank of private in the career service stationed at Oxon Hill Station and at the same time was Volunteer Deputy Chief of the Boulevard Heights Fire Station.

In January of 1969 he ran for and was elected Volunteer Chief and a member of the Board of Directors of the Boulevard Heights Fire Station, while remaining a private at Oxon Hill. The appellee Pickerall at the time of the issuance of the order was employed as a County paid private in the career service at the Allentown Road Fire Station and, in January of 1969, ran for and was elected Volunteer ⁴⁸³ Deputy Chief at the Oxon Hill Station and a member of its Board of Directors. He continued at the same time to serve as a County paid private of the Allentown Road Station. The appellant contends that the primary reason behind the Director’s Administrative Order No. 1 was that the dual role played by paid career men, also serving as officers in the volunteer system, thwarted the effective administration of both volunteers and paid firemen.

It cited that appellees were in the anomalous position of being paid privates during daylight hours, taking orders from their paid sergeants and volunteer chief at one station and, perhaps later the same night, being a volunteer or deputy chief exercising authority over paid sergeants and other members of the paid career service, as well as volunteers, at the volunteer company with which each was identified. The appellant did not contend that there was any improper action per se involved on behalf of the appellees, other than the violation of the order; however, it did stress that without the proclamation of Administrative Order No. 1, the potential would exist for the generating of personnel problems affecting the morale and efficiency of the department. The lower court, however, in its opinion reached a different conclusion stating : “The single question which is before the Court is whether paragraph 5 and relevant subsections of Administrative Order No. 1 are valid and binding on the members of the paid force. The Court finds that paragraph 5, subsections (b), (c) and (d) were void and of no force and effect from the date of issuance.

The Director clearly exceeded the statutory standards of both Article 17 and General Resolution No. 25-1968. Indeed, the Director violated the basic standard which underlies all administrative action, the standard of reasonableness. An administrative order must be reasonable and consistent with ⁴⁸⁴ the letter and policy of the statute under which it acts. Comptroller v. Rockhill, Inc., 205 Md. 226 (i.e.

A man living in Cheltenham and serving as a volunteer in Upper Marlboro could be a paid employee of Adelphi Station. Under these circumstances the fire companies would be some 20 odd miles apart and the chance of conflict would be entirely too remote to apply this strict ordinance to it.) In the present case the defendants, County Commissioners, could not satisfy the Court, either that the order was reasonable or that it was consistent with enabling law. “Upon persistent inquiry by the Court, the defendants could proffer no reasonable standard for promulgating the subsections in question of Administrative Order No. 1. There is testimony in the record by the defendants that the County Fire Service was in ‘utter chaos’ in the absence of such an order. Yet, when asked by the Court for an instance of this chaos, the defendants were unable to cite a single chaotic event involving these plaintiffs or others similarly situated. “In addition, there was testimony by the defendants that the efficiency of the fire service was seriously impaired and that the plaintiffs were guilty of misconduct.

But when asked by the Court for a single concrete example of inefficiency or misconduct to support their bald allegations, the defense admitted that its examples concerned abstract problems.” However, the record reveals that not only Director Clark was concerned with the dual role problem which he sought to