Mayor of Ocean City v. Bunting

KRAUSER, J. An amendment to the Ocean City Charter, proposed by the City Council and passed by referendum vote in 2002, permits “employees” of the Ocean City Police Department to engage in collective bargaining with respect to “the formulation and implementation of personnel policies affecting their employment.” 1 It further directs the Ocean City Council to enact a labor code and, within that code, to address “[t]he manner of establishing units appropriate for collective bargaining.” To comply with this electoral directive, the Council adopted a labor code. But, that code, in establishing collective bargaining units, effectively precludes officers of the rank of lieutenant and higher from participating in those units and thus from engaging in collective bargaining. This preclusion, Ocean City claims, was necessary to prevent an insoluble conflict of interest at the highest levels of the department. Challenging both the legality of that codal provision and the propriety of the assumption underlying it, six members of the Ocean City police force, holding the rank of either lieutenant or captain, filed a “Petition for Mandamus and Complaint for Declaratory Judgment” in the Circuit Court for Worcester County, naming appellants, the Mayor and City Council of Ocean City (collectively “Ocean City”), as defendants.

They requested a declaration that the labor code violates the charter amendment by wrongfully prohibiting officers of their rank and higher from participating with other Ocean City Police Department employees in collective bargaining, as well as a writ of mandamus implementing that declaration. ¹³⁷ In response, Ocean City filed an answer and a counter complaint, requesting a contrary declaration. Denying that request, the circuit court declared the labor code provision in question a violation of the charter amendment, as the officers urged. That decision prompted Ocean City to note this appeal, asking us to undo what the circuit court has done. FACTS The Ocean City Charter originally prohibited all Ocean City employees from engaging in collective bargaining.

But, on October 15, 2002, Ocean City voters approved, by referendum vote, an amendment to the charter, declaring that the provisions of the charter prohibiting collective bargaining “are not applicable to employees of the Ocean City Police Department.” 2 The charter amendment further provides in part: B. In order that employees of the Ocean City Police Department may participate in the formulation and implementation of personnel policies affecting their employment, they shall have the right to organize and bargain collectively through representatives of their choosing, subject to procedural regulations that the Council shall provide by law. The Council shall provide by law a labor code for employees of the Ocean City Police Department which shall include the following: (1) The manner of establishing units appropriate for collective bargaining; (2) The manner of designating or selecting bargaining representatives; and (3) Definitions for remedies for unfair labor practices. The Council is authorized to negotiate through its designated representatives with collective bargaining representatives of police employees....[ 3 ] ¹³⁸ On August 4, 2008, the Mayor and City Council adopted a labor code, as required by the charter amendment. Section 4-1 of that code provides: “Employees shall have the right of self-organization, to form, join, or assist employee organizations, to bargain collectively through representatives of their own choosing on terms and conditions of employment, and shall also have the right to refrain from any or all such activities.” The Council then created “appropriate” collective bargaining units, as directed by the charter amendment. 4 Those units include “employees classified as Police Officer[s] who ha[ve] completed his/her initial entrance level training for certification as a police officer, Police Officer First Class, and Sergeant.” 5 They exclude “Confidential Employees, Supervisory Employees, Casual Employees, Reserve Police, or employees of the Office of the Fire Marshall,” 6 and thus, in effect, bar officers of the rank of lieutenant and above from collective bargaining.

That is because the code defines an “Employee” as “[a] person employed by the Ocean City Police Department who is classified as a Police Officer and who has completed his/her initial entrance level training for certification as a police officer, or Police Officer First Class or Sergeant,” 7 a “Confidential Employee” as “[a] person employed by the Ocean City Police Department who has regular access to privileged information regarding personnel management or labor policies,” 8 and a “Supervisory Employee” as: A person employed by the Ocean City Police Department who has the authority to exercise independent judgment in the interest of the employer to hire, transfer, suspend, ¹³⁹ layoff, recall, promote, discharge, assign, reward other employees, recommend discipline to other employees, or having the responsibility to direct them or adjust their grievances, or effectively to recommend such action if in connection with the foregoing exercise of such authority is not of a routine or clerical nature but requires the use of independent judgment, including police officers of the rank of lieutenant and higher.[ 9 ] By defining “Employees,” “Confidential Employees,” and “Supervisory Employees” as it does, the code effectively precludes high-ranking police officers, that is, lieutenants and above, from engaging in collective bargaining. Challenging that exclusion, a group of six officers of the Ocean City Police Department holding the rank of either lieutenant or captain filed suit against Ocean City, asserting that the charter amendment establishes that “all” persons employed by the Ocean City Police Department are entitled to participate in collective bargaining and that, by defining employee to exclude lieutenants and captains, the Council has violated “the mandate of the voters.” Appellees sought a declaratory judgment to that effect and a writ of mandamus ordering Ocean City to permit them to participate in collective bargaining. Ocean City filed a counter complaint seeking a declaratory judgment that the lieutenants and captains are not entitled to collectively bargain. A trial was held, and the circuit court subsequently ruled in favor of appellees.

The court issued an “Opinion and Order” that stated: [I]t is this 29[th] day of November, 2004, by the Circuit Court for Worcester County, Maryland hereby ORDERED that Plaintiffs’ and Defendants’ Request for Declaratory Relief be and the same hereby is GRANTED; and it [is] further HELD that Chapter 42, Article IV of the Code of the Town of Ocean City Maryland be and the same hereby is INVALID to the extent that it prohibits any employee of ¹⁴⁰ the Ocean City Police Department from collectively bargaining; and it is further ORDERED that the Defendants shall permit Plaintiffs to collectively bargain; and it is further ORDERED that Defendants may designate, through a Labor Code, collective bargaining units that are comprised of exclusive categories of employees. DISCUSSION Ocean City claims that the trial court erred in reading the charter amendment to require that all persons employed by the Ocean City Police Department be permitted to participate in collective bargaining. To persuade us of the merits of its contention, it argues that its restrictive reading of the amendment is supported by the canons of statutory construction and that, in any event, the broader reading proposed by appellee would render the amendment “legislative” in nature and thus unconstitutional. 10 We agree. ¹⁴¹ Charters are subject to the “same canons of statutory construction that apply to the interpretation of statutes.” O’Connor v. Baltimore County, 382 Md. 102, 113 , 854 A.2d 1191 (2004). Just as “the cardinal rule of statutory interpretation is to ascertain the intention of the legislature,” so it is “the cardinal rule” of charter interpretation.

Id. To determine what that intention was, we look first to the language of the amendment. It is, as we have stated in the context of statutory construction, “the primary source of legislative intent.” Id. If the meaning of the amendment is plain and unambiguous, we need look no further.

Unfortunately, that is not the case here. Ambiguity pervades the provision, rendering it both lexically and contextually ambiguous. It does not state, for instance, that “all” employees of the police department shall have the right to collectively bargain, but only that “employees”, in general, shall have that right. While the officers argue that the word “employees” in the context of the provision must refer to “all employees” of the department, Ocean City insists, and we agree, that the very imprecision of this term implies the contrary.

By implication, it leaves to the Council the task of defining its scope by legislation. Moreover, what is only implied by the provision’s general reference to “employees” appears to be conferred by the amendment’s subsequent instruction to the Council to “provide by law a labor code” which shall include, among other things, “[t]he manner of establishing units appropriate for collective bargaining”. Ocean City Charter, § C-1003B(1). By this language, the Council was given the right to determine what constitutes an “appropriate” collective bargaining unit.

And, of course, the corollary of having the right to determine what is an appropriate bargaining unit is the right to deter ¹⁴² mine what is not, which the Council did by restricting bargaining units to officers below the rank of lieutenant. Admittedly, this charter verbiage, by itself, hardly presents a compelling case for permitting Ocean City to exclude high-ranking officers from collective bargaining units; that is, until we apply another canon of construction. That canon requires us to “avoid constructions that are illogical, unreasonable, or inconsistent with common sense.” Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 75 , 854 A.2d 879 (2004).

To read the Charter Amendment, as appellees wish us to do, that is, that all employees of the police department, including the Chief of Police himself, may engage in collective bargaining, is an unreasonable interpretation of the strictures of the amendment. It plainly offends the basic principles of collective bargaining, creating unresolvable conflicts of interest both between Ocean City and its command staff and within the command staff itself. There is no real dispute that the department’s captains and lieutenants were part of its management. At the trial of this matter, the Chief of Police described the responsibilities of these officers as follows: They are the people that direct the day-to-day operations of the police department.

They implement and actually give out the definition of what policies and procedures are in the department. They have the responsibility of directing officers and they haw so many responsibilities; from direction of the employees, to the discipline of employees, to the day-to-day supervision. They are responsible for step increases, evaluations. They make recommendations for promotions.

They make recommendations for demotion. They are supervisors. They’re managers of the police department and each—specifically the captains are managers of each of their divisions and they’re responsible for every aspect of their divisions from budget, the creation of the budget, the implementation of their budget, to moving personnel as they deem fit. ¹⁴³ And the lieutenants are also very inclusive in that. They are instrumental managers in my command staff.

They attend staff meetings and at our staff meetings we go over various policies and procedures and I use those people as counselors to me in all the decisions that I make for the police department. In fact, the Chief stated that she designated a captain and a lieutenant to negotiate on behalf of Ocean City during collective bargaining, in order “to ensure that management rights were maintained during the negotiations.” In sum, not only do these officers have access to confidential information regarding all issues which are likely to be the subjects of collective bargaining, but they provide guidance to the department in such matters. To permit these officers to engage in collective bargaining themselves places them in a hopeless conflict of interest as they perform their duties, and leaves management in a position where it can no longer depend on the faithfulness of those who represent it. The Chief of Police hinted at the enormity of the problem posed by such an interpretation of the amendment when she commented that if the captains and lieutenants were permitted to collectively bargain she “would not have direct control over [her] command staff anymore” because they would instead “be directed by a collective bargaining agreement.” More than half a century ago, the United States Congress recognized the unpalatable consequences that flow from extending collective bargaining rights beyond workers to their supervisors and amended the National Labor Relations Act so that “[t]he term ‘employee’ ” did “not include any individual employed as a supervisor.” 29 U.S.C. § 152 (3).

The Act defines “supervisor” as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such