Montgomery County v. Fraternal Order of Police

DEBORAH S. EYLER, J. Montgomery County (“the County”); Isiah Leggett, the County Executive; and Patrick Lacefield, the Director of the County’s Office of Public Information (“OPI”), challenge a declaratory judgment entered by the Circuit Court for Montgomery County ruling that they acted without authority and contrary to law by using County funds to campaign for the passage of a local ballot question. The Fraternal Order of Police, Montgomery County, Lodge 35, Inc. (“the FOP”), and two police officer members, Michael Kane and Mario Mastran- ²⁸² gelo, 1 cross-appeal from the court’s denial of their claims for monetary relief. We hold that the County acted within its powers and not illegally by spending County funds to campaign in favor of the particular ballot issue; and that Leggett and Lacefield did not violate any laws. Accordingly, we shall reverse the judgment of the circuit court.

Our resolution of the appeal necessarily resolves the cross-appeal. FACTS AND PROCEEDINGS The Montgomery County Code establishes the eolléctive bargaining rights of County employees, including Montgomery County Police Department (“MCPD”) officers below the rank of lieutenant. See Montgomery County Code (“Code”) (2004), §§ 33-75-33-85. Prior to the events central to this case, one such collective bargaining right held by these police officers was the right to engage in “effects bargaining.” “Effects bargaining” is collective bargaining about the effects of certain decisions that are reserved to the discretion of the County Executive, such as budget allocations and changes in the organizational structure of County agencies.

Fraternal Order of Police Lodge 35 v. Montgomery Cnty., 436 Md. 1, 5 , 80 A.3d 686 (2013). On July 19, 2011, the Montgomery County Council unanimously passed Bill 18-11, amending the Code to eliminate effects bargaining for MCPD police officers below the rank of lieutenant. Leggett signed Bill 18-11 into law on August 1, 2011. Unhappy with the bill, the FOP, as the exclusive bargaining representative for the affected MCPD police officers, petitioned the bill to referendum.

Its petition was certified by the Montgomery County Board of Elections on November 18, 2011. As a result, Bill 18-11 was suspended from taking effect “until thirty days after its approval by a ²⁸³ majority of the registered voters voting thereon.” Montgomery County Charter (“the Charter”) § 115. 2 The referendum on Bill 18-11 was designated to appear on the November 6, 2012 General Election ballot as “Question B.” The ballot question asked: “Shall the Act to modify the scope of collective bargaining with police employees to permit the exercise of certain management rights without first bargaining the effects of those rights on police employees become law?” A “Yes” vote would approve Bill 18-11 and allow it to take effect. Early in the summer of 2012, the FOP launched a campaign against Question B. In August of 2012, Leggett, acting in his capacity as County Executive, decided that the County would mount its own campaign to encourage the electorate to vote “Yes” on Question B. Leggett directed Lacefield, as Director of the OPI, 3 to coordinate the Question B campaign and authorized him to spend up to $200,000 in funds appropriated for OPPs fiscal year 2018 budget for that purpose. OPI is an office in the executive branch of the County government.

See Code, § lA-201(a). Its responsibilities include “[s]erv[ing] as a focal point for communications with citizens and community organizations”; “[e]stablish[ing] and maintain[ing] a public information program”; and “[cjarryfing] out related matters as may be assigned.” Code § 2-64H. Lacefield obtained legal advice from the County Attorney about the propriety of the County’s using funds from OPI’s ²⁸⁴ budget for the Question B campaign. In a “Memorandum” dated September 19, 2012, and entitled “Government Speech-Effects Bargaining Referendum,” the County Attorney reiterated prior oral advice he had given Lacefield on that matter.

He opined that a County-funded campaign to advocate for a “Yes” vote on Question B would be “legal and appropriate” because the County is “entitled to engage in speech supporting and explaining its policies, including speech that advocates support of a ballot measure.” The County Attorney also advised that state and local prohibitions against County employees’ engaging in “political activity” during work hours are directed toward “partisan political activity,” ie., actions taken for or against a candidate or a slate of candidates associated with a particular political party, and do not apply to activities in support of a ballot measure. 4 In the Question B campaign, Lacefield used excerpts from the record of the County Council hearings on Bill 18-11, particularly the testimony of the Chief of Police and MCPD lieutenants espousing that effects bargaining was harming the operation of the MCPD, to create advocacy material, such as mailers, posters, flyers, yard signs, bumper stickers, and advertising for County buses. He also spoke with some of the MCPD managers about their views on effects bargaining. A “fact sheet” prepared by OPI about Question B provides a useful summary of the County’s position. It states that effects bargaining means that the Chief of Police must bargain with the FOP on “the effects of any and all management decisions” and that this interferes with his ability to run the MCPD in the most “efficient and productive way.” (Emphasis in original.) The “fact sheet” notes that the County’s police force is the only one in Maryland with the right to effects bargaining and that no other County employees have this ²⁸⁵ right in their union contracts.

It emphasizes that eliminating effects bargaining is not an attack on unions and that the FOP will remain entitled to bargain on wages, benefits, hours, working conditions, and leave. It gives examples of how effects bargaining was hampering the Chief of Police in his management of the MCPD, including that a proposed new “Use of Force” policy had been sent to the FOP for approval in June 2008 but remained pending years later. In mid-September of 2012, the County began featuring a “Vote for Question B” graphic on the homepage of its website. Visitors who clicked on that graphic were directed to a separate page that gave additional information advocating for the passage of Question B. In addition, the County included advocacy materials on Question B in its electronic newsletter, “the Paperless Airplane,” which was disseminated to about 125,000 County residents five times between September 14, 2012, and election day.

By mid-October of 2012, the County had installed on the interiors and exteriors of all County-operated Ride-On buses signs emblazoned with some version of the following statement: “Who Do You Think Should Run the County Police? The Police Chief or Union Leaders? Vote FOR Question B.” The signs were marked with the County seal and “Montgomery County Office of Public Information.” 5 The County also expended OPI funds on a mailing campaign urging recipients to “Vote for Question B.” It hired an outside consulting firm to design the two mailers, identify target recipients, and obtain mailing lists. It paid the firm $13,095.

In the week before the election, the County sent the two mass ²⁸⁶ mailings to more than 163,000 County households, at a cost of over $90,000. Aside from the outside consulting firm, most of the work on the County’s campaign in favor of Question B was performed by County employees. OPI staff designed signs, bumper stickers, t-shirts, and flyers. Employees in the County Department of General Services (“DGS”) distributed signs and posters to County facilities, including libraries and recreation centers.

Leggett personally reached out to local Democratic and Republican party officials, speaking to the Democratic Party Ballot Question Advisory Committee, the Democratic Central Committee, and the Republican Central Committee. Both parties supported passage of Question B. In all, the County spent $122,350.17 in OPI funds on the Question B campaign. This sum exceeded 10% of OPI’s budget for fiscal year 2013. During the campaign, the FOP challenged the County’s right to spend public funds on a political campaign and argued that the County was making false and misleading statements about effects bargaining.

On September 20, 2012, it filed a complaint with the County Inspector General. The Inspector General did not respond until November 8, 2012, two days after the election. He advised the FOP that the County’s activities were consistent with the legal advice it had received from the County Attorney and were taken in good faith. With respect to the allegation that the County’s campaign was misleading, the Inspector General advised that his office had reviewed the complained of statements and had found all of them to be reasonable.

In the meantime, on October 17, 2012, the FOP filed a complaint about the County’s activities with the Office of the State Prosecutor. By letter of October 22, 2012, the State Prosecutor advised Leggett and the County Council that his office had received a complaint that the County was expending public funds and using County employees to push for passage of Question B; that this conduct might be a violation of state ²⁸⁷ campaign finance laws; and that his office would be opening an investigation into these activities to determine if any criminal violations had occurred. The County Attorney immediately responded to the State Prosecutor’s letter, explaining his opinion that the County was not subject to state election laws governing campaign finance activity. Thereafter, the State Prosecutor closed his investigation and asked the Office of the Attorney General to render an opinion on the legality of the County’s campaign.

No such opinion was issued. The day before the election, the FOP filed the instant action against the County, Leggett, and Lacefield. It alleged generally that the County had spent public funds to campaign for the passage of Question B; had directed certain of its employees to participate in the campaign during work hours; had hired outside individuals to distribute campaign materials; and that all these activities could “greatly diminish the likelihood that Question B [would] be defeated.” The FOP claimed that approval of Question B, which would result in Bill 18-11 taking effect, might “reasonably [cause the FOP to] sustain pecuniary losses due to increased and protracted litigation over whether disputed issues with the County are mandatory subjects of bargaining or effects on employees of the employer’s exercise of an employer right.” The FOP further alleged that the County’s use of public funds to campaign for passage of Question B was “ultra vires and without any authority of law” because it was not a proper governmental function; the County was neither expressly nor impliedly authorized by the Home Rule Amendment or the Express Powers Act to advocate on a ballot question; the expenditures should have been made through a “ballot issue committee” registered with the State Board of Elections (“State Board”), pursuant to Md. Code (2003, 2010 Repl. Yol., 2012 Supp.), sections 1 — 101(f) and 13-202 of the Election Law Article (“EL”); and the County had not registered any such committee.

It alleged, moreover, that the County had no authority to direct County employees to work on the campaign ²⁸⁸ and, in fact, those employees are prohibited by State and local law from engaging in political activity while on the job. The FOP sought a judgment declaring that the County was acting illegally; holding Leggett and Lacefield personally liable for the “wrongful and illegal expenditure of public funds”; ordering Leggett and Lacefield to reimburse the County, with interest, for the wrongful expenditures; and awarding it attorneys’ fees and costs. On November 6, 2012, the voters in Montgomery County approved Question B by a margin of 58.05% to 41.95%. Bill 18-11 became law as a result.

Thereafter, the FOP amended its complaint to reiterate its prior allegations and set forth ten counts. 6 In Counts 1 through 6, it sought declaratory and injunctive relief against Leggett and Lacefield (Counts 1, 2, and 3) and the County (Counts 4, 5, and 6). It alleged that Leggett and Lacefield were a “political committee” within the meaning of the Election Law Article and that they had failed to comply with the requirements imposed upon political committees in the campaign finance title of that article. It sought a declaration that Leggett and Lacefield had violated those laws and directing them to comply with them (Count 1). It claimed that Leggett and Lacefield had engaged in “electioneering and campaign activities” during work hours in violation of Md. Code (1957, 2011 Repl.

Vol.), section 13-105 of Article 24 (Count 2); and in ■violation of sections 405, 406, and 408 of the Charter, section 19A-14 of the Code, and section 3-8 of the County personnel regulations (“MCPR”) (Count 3). The FOP again alleged that the County had no legal authority to engage in electioneering and campaign activities, and sought a declaration to that effect (Count 4). It also sought a declaration that the County, through Leggett and Lacefield, ²⁸⁹ illegally engaged in electioneering and campaign activities in violation of the campaign finance title of the Election Law Article (Count 5) and in violation of the above-referenced provisions of the Charter, the Code, and the MCPR (Count 6). In the remaining counts, the FOP sought damages.

It alleged in Counts 7 and 8 that Leggett and Lacefield had engaged in “misconduct in office” in violation of Article 6 of the Maryland Declaration of Rights, and that their actions to promote the passage of Question B were taken with willful and reckless disregard for the law and amounted to malfeasance. The FOP asked the court to find that these actions were illegal, order Leggett and Lacefield to personally “pay ... and reimburse[ ] [the County] for the cost of all electioneering and campaign activity” relative to Question B, and order an accounting. In Count 9, captioned “Taxpayer Cause,” the FOP alleged that Leggett and Lacefield had engaged in illegal electioneering activity with “tax-derived funds” and by doing so had caused an increase in the FOP’s taxes. In Count 10, the FOP sought damages against the County, Leggett, and Lacefield for violation of its state constitutional rights.

Finally, the FOP made a general request for attorneys’ fees and costs. The County, Leggett, and Lacefield moved to dismiss the amended complaint, arguing, among other reasons, that the FOP lacked standing and that its action was barred by the doctrine of laches. They also moved for summary judgment. The FOP filed a cross-motion for summary judgment.

The motions were denied and the case was tried to the court for nine days, from February 18 to February 28, 2014. Most of the testimony and other evidence concerned the nature of the County’s campaign in favor of Question B. On March 21, 2014, the court issued a memorandum opinion and order. In its “Findings of Fact,” it found that the County, Leggett, and Lacefield had “engaged in electioneering and conducted a political campaign” advocating for the passage of Question B and had spent at least $122,000 on that campaign. The court found that the campaign had used ²⁹⁰ County employees from OPI and DGS and other departments.

The court summarized the campaign activities as follows: [T]he County’s political campaign included two targeted mass mailings during the week before the election; advertising on County Ride-On buses; advocacy on the County’s website; hiring a political consultant; hiring individuals to disseminate campaign material at the polls during early voting and on Election Day; using County employees, while on the clock, to design and produce campaign material and to disseminate posters, flyers and yard signs; and using County email lists to disseminate campaign materials to voters. The court found that Leggett “subjectively believed, in good faith, that effects bargaining was deleterious to the efficient operations of the police force” and that all of the County’s statements about Question B and effects bargaining were “true” or made without an intent to mislead. It further found that, “as a direct consequence of the County’s campaign activities on Question B, the FOP incurred expenses over and above the expenditures that it otherwise would have spent to promote voter disapproval of Question B.” It did not quantify how much more the FOP had spent than it otherwise would have spent, finding only that the FOP had spent a total of $169,619 on its campaign against Question B. 7 In its “Conclusions of Law,” the court opined that the FOP had standing to bring suit because it had “suffered some special damage, ‘differing in character and kind from that suffered by the general public’ as a result of the repeal of effects bargaining” (quoting Weinberg v. Kracke, 189 Md. 275, 280 , 55 A.2d 797 (1947) (footnote omitted)), and that the County had not made a showing of unreasonable delay or prejudice sufficient to support its laches defense. Turning to the merits of the FOP’s claims, the court analyzed the right to referendum under state law, concluding that ²⁹¹ a ballot question arising from a referendum petition does not differ in any significant respect from “any another contested, partisan election.” It rejected the County’s argument that under the “government speech doctrine” it was entitled to speak on topics of public importance to its function and role as a government and that Question B was such a topic.

The court concluded that that doctrine shields state and local governments from First Amendment challenges to their use of a public forum to advocate for policies supported by the government but is not a source of power for the “unlimited unregulated spending of public funds by a governmental entity to influence a contested election.” Emphasizing that, as a charter county, the County derives its power from the State, the court concluded that, although the County has “inherent power” to “appropriate funds for any public purpose,” “[ejngaging in political electioneering simply is not ‘essential or indispensable’ to running a municipal government.” (quoting River Walk Apartments, LLC v. Twigg, 396 Md. 527, 543 , 914 A.2d 770 (2007)). The court concluded that the County lacks inherent power to engage in a political campaign, and is not granted such power by the Express Powers Act; therefore it has no power to engage in a political campaign, and its doing so was ultra vires. The court analyzed out-of-state cases, most of which were decided in the 1970s and 1980s, and found they supported its legal conclusions. These cases, some of which we shall discuss later in this opinion, hold in broad terms that it is not an appropriate municipal function for a local government to weigh in on one side of a contested ballot measure.

They distinguish between government communications designed to inform the public about government policies and programs and government communications that “proselytize and try to influence the outcome of an election contest.” The court found that, in the instant case, the County’s Question B campaign was not “informational,” but was “partisan and political.” The court determined that Leggett and Lacefield were subject to the campaign finance and reporting laws in Title 13 ²⁹² of the Election Law Article, opining that these laws apply to the “campaign activities of all persons, regardless of their office.” It found that Leggett and Lacefield were a “political committee,” as that term is defined in EL section l-lOl(gg), and that they had failed to register with the State Board or to otherwise comply with the campaign finance reporting requirements in the EL Article. Finally, the court found that Leggett and Lacefield improperly directed County employees to participate in the campaign for Question B during work hours, in violation of section 13-105 of Article 24, the Charter, the Code, and the MCPR. The court declined to award monetary relief, stating: [Counts 7, 8, 9 and 10] have as a common element the notion that Leggett and Lacefield committed wrongdoing under color of their office and should personally be held to account in some form of monetary relief. Assuming, without deciding, that these claims have validity, the court nonetheless declines to require either defendant to personally pay any form of monetary award.

In the court’s view, they are entitled to at least “qualified immunity” to the extent the plaintiffs seeks to hold them personally liable. The conduct of both individual defendants involved performance of discretionary duties and did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” [Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982).] This is a case of first impression. “If the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” [Id.] (Footnotes omitted.) On these bases, the court dismissed, with prejudice, Counts 7, 8, 9, and 10. It directed the parties to submit a draft order to that effect and a draft declaratory judgment. On April 1, 2014, the court entered its “Declaratory Judgment.” As relevant here, it “Ordered, Adjudged, Decreed, ²⁹³ and Declared” that Leggett and Lacefield were a “political committee” that was required to comply with the campaign finance and reporting requirements of the Election Law Article, but failed to do so (Count 1); that Leggett and Lacefield caused County employees to participate in political activities during work hours in violation of section 13-105 of Article 24 (Count 2) and in violation of the Charter, the Code, and the MCPR (Count 3); that the County had no legal authority to engage in electioneering and that its Question B campaign was ultra vires (Count 4); and that the County was not subject to Title 13 of the EL Article (Count 5), but was subject to and violated the Charter, the Code, and the MCPR (Count 6).

The court ordered the County to pay the costs of the action. The court entered a separate “Order” dismissing Counts 7, 8, 9, and 10, with prejudice. The County, Leggett, and Lacefield noted a timely appeal, presenting the following questions for review, which we have reordered and rephrased: I. Did the trial court err in ruling that the FOP had standing to sue?

II

Did the trial court err in ruling that the FOP’s suit was not barred by the doctrine of laches?

III

Did the trial court err in ruling that the County’s campaign on Question B was ultra vires and illegal?

IV

Did the trial court err in ruling that Leggett and Lacefield violated Title 13 of the EL Article? V. Did the trial court err in ruling that the County, Leggett, and Lacefield violated state and local laws by directing County employees to participate in campaign activities during working hours?

VI

Did the trial court err in ruling that the prerequisites to maintaining a suit under EL section 12-202 were not applicable to the FOP’s suit and therefore did not need to be satisfied? The FOP noted a timely cross-appeal. It presents four questions for review, which we have combined and rephrased ²⁹⁴ as one: Did the trial court err by dismissing Counts 7, 8, 9, and 10 of the amended complaint in which it sought monetary damages and attorneys’ fees? 8 We shall include additional facts as pertinent to the issues. STANDARD OF REVIEW Our review of a judgment in a case that was tried to the court is governed by Rule 8-131(c).

We “review the case on both the law and the evidence” and “will not set aside the judgment of the trial court on the evidence unless clearly erroneous” with “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). “The deference shown to the trial court’s factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions.” Griffin v. Bierman, 403 Md. 186, 195 , 941 A.2d 475 (2008) (quoting Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879 (2004)). ‘We review de novo the circuit court’s application of the law to the undisputed facts before it.” PNC Bank, Nat’l Ass’n v. Braddock Props., 215 Md.App. 315, 322 , 81 A.3d 501 (2013). DISCUSSION APPEAL I. Standing The County, Leggett, and Laeefield contend the circuit court erred in denying their motion to dismiss the amended complaint for lack of standing. They assert that “[a] plaintiff has no standing to challenge a county’s actions as illegal where the complaint amounts to nothing more than an abstract, generalized interest in the county’s compliance in the law, ²⁹⁵ which is shared by all members of the general public.” They emphasize that the FOP’s claim is that the County, through Leggett and Lacefield, illegally advocated for the passage of a ballot question, and that this challenge was “not dependant [sic] upon the substance of the ballot question.” With respect to Counts 2, 3, and 6, the County makes the additional argument that the FOP lacks standing to sue for violations of state and local laws that protect government employees from being made to engage in political activity.

The FOP responds that it has standing because it is the exclusive bargaining representative for the MCPD and passage of Question B resulted in the loss of a significant bargaining right and was a direct injury to it and its members. The FOP maintains that it owed its members a fiduciary duty to advocate on their behalf against Bill 18-11 and Question B, and, as a result of the County’s ultra 'vires campaign, it spent significantly more money than it otherwise would have spent on its opposition campaign. According to the FOP, both these injuries were different in character and kind than that suffered by the general public and gave it standing to sue for declaratory and monetary relief. With respect to Counts 2, 3, and 6, the FOP asserts that the County’s unlawful use of County employees to carry out its campaign likewise caused it the same pecuniary harm, and therefore it has standing to sue for violation of those laws as well.

The prerequisites for standing in a declaratory judgment action are no different than in any civil action. See Comm. for Responsible Dev. on 25th Street v. Mayor & City Council of Baltimore, 137 Md.App. 60, 72 , 767 A.2d 906 (2001). “Generally, whether a party has standing to sue depends on whether that party has an actual, real and justiciable interest susceptible of protection through litigation.” Mayor and City Council of Ocean City v. Purnells Jarvis, Ltd., 86 Md.App. 390, 403 , 586 A.2d 816 (1991) (citing 1A C.J.S. Actions § 60(a) (1985)). A person has “standing in the sense that [he or she] is entitled to invoke the judicial process in a particular instance.” Adams [v. Manown ], 328 ²⁹⁶ Md. [463,] 480 [ (1992) ], 615 A.2d 611 . Standing to obtain declaratory relief is important because a declaratory judgment action “calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts.” Aetna Life Ins.

Co. v. Haworth, 300 U.S. 227, 242 , 57 S.Ct. 461 , 81 L.Ed. 617 (1937). Howard v. Montgomery Mut. Ins. Co., 145 Md.App. 549, 556 , 805 A.2d 1167 (2002).

In reliance upon Kendall v. Howard County, 431 Md. 590 , 66 A.3d 684 (2013), the County argues that the FOP’s suit “seeks to redress what is claimed to be a public wrong” and therefore the FOP “must ... demonstrate that [it] suffered some special damage from such wrong differing in character and kind from that suffered by the general public.” 431 Md. at 593 , 66 A.3d 684 (quoting Weinberg, 189 Md. at 280 , 55 A.2d 797 ). In Kendall , two Howard County residents filed suit against that county seeking a declaratory judgment that a “laundry list” of resolutions, ordinances, zoning decisions, and administrative actions violated the Howard County Charter. Id. at 604 , 66 A.3d 684 . The plaintiffs sought a declaration that those resolutions and ordinances, all of which concerned land use or zoning, were void ab initio, and also sought to enjoin Howard County from enforcing them.

The plaintiffs’ core argument was that Howard County had taken action administratively, rather than legislatively, and in doing so had deprived them of their right to petition those acts to referendum. Howard County moved to dismiss the complaint for lack of standing. The plaintiffs responded that the Howard County charter grants to “the people,” i.e., residents of Howard County, the right to referendum and therefore any Howard County resident has standing to sue to redress a violation of the charter impairing that right. The circuit court dismissed the complaint and this Court affirmed on appeal.

See Kendall v. Howard Cnty., 204 Md.App. 440, 453 , 41 A.3d 727 (2012). The Court of Appeals granted a petition for writ of certiora-ri and affirmed. It explained that to have standing the ²⁹⁷ plaintiffs had to allege that they had suffered some “special damage” arising from Howard County’s allegedly unlawful actions. They could have done so in one of two ways.

First, because the allegedly unlawful enactments all pertained to land use or zoning, they could have shown “property owner standing” as owners of property in close proximity to properties affected by the enactments. Second, if the allegedly illegal acts had the potential to cause them pecuniary harm or an increase in their taxes, they could have shown “taxpayer standing.” The plaintiffs did neither. They did not allege that they owned property in proximity to affected land or that they suffered pecuniary harm as taxpayers. In fact, as to the latter, they “expressly eschewed any reliance on taxpayer standing.” Id. at 607, 66 A.3d 684 .

The Court rejected the plaintiffs’ arguments that they had standing under the Howard County charter independent of any “special damage” sustained and because Howard County’s allegedly wrongful acts infringed on their right to vote. The County asserts that, like in Kendall, the FOP seeks to redress a “public wrong,” i.e., the County’s use of public funds to campaign in favor of a ballot question, and that it has not satisfied the special damage requirement because its claims focus on the illegal process, not the outcome, ie., the passage of Question B and the elimination of effects bargaining for MCPD officers below the rank of lieutenant. In other words, because the FOP’s claims of illegality do not depend upon the substance of Question B, its grievance is too generalized to create standing. In response, the FOP relies upon two cases in which the Court of Appeals has held that a union had standing to challenge allegedly unlawful government action that had the potential to diminish the bargaining power of the union’s members.

In Baltimore Teachers Union v. Board of Education, 379 Md. 192 , 840 A.2d 728 (2004), the Court held that the Baltimore Teachers Union had standing to sue the State Board of Education for declaratory and injunctive relief related to the Board’s efforts to enter into a contract with a private corporation to operate certain public schools in Baltimore ²⁹⁸ City. The Court emphasized that the union was the “designated collective bargaining agent” for all employees of the Baltimore City school system and owed its members a fiduciary duty to advocate on their behalf. Id. at 199 , 840 A.2d 728 . If the actions it challenged in its lawsuit had come to fruition, that would have had the effect of diminishing the union’s bargaining power by permitting certain public schools to operate outside of the labor agreement.

The Court held that this was a harm to the union that was sufficient to give it standing to sue to prevent the Board of Education from going forward with the contract. In Patterson Park Public Charter School, Inc. v. Baltimore Teachers Union, 399 Md. 174 , 923 A.2d 60 (2007), the Court held that the Baltimore Teachers Union had standing to intervene in an administrative action concerning the right of certain charter schools to obtain waivers of a state law requiring that all charter school employees be public school employees with the right to collective bargaining. Recognizing that the union had a fiduciary obligation to advocate against the waivers on behalf of its members, and that the effect of the grant of waivers would be the reduction in the size of the union’s bargaining unit, the court held that the union had a “sufficient interest in the proceedings to satisfy standing requirements.” Id. at 208 , 923 A.2d 60 . We conclude that in light of the FOP’s fiduciary obligation to its members to advocate against Question B, the passage of which would diminish their collective bargaining rights, the County’s campaign in support of Question B negatively affected the FOP in a way that differed in character and kind from any harm suffered by members of the public generally.

The County, as the manager of the MCPD, and the FOP, as the bargaining representative of the officers, were the interested parties in the debate over effects bargaining. The County entered into the debate because it knew that the FOP intended to campaign against Question B and it wanted to offer an opposing viewpoint. Unlike in Kendall, in which the plaintiffs asserted a generalized harm arising from Howard County’s allegedly unlawful actions, here the FOP alleged (and proved) ²⁹⁹ that it expended more money on its campaign opposing Question B than it otherwise would have spent had the County not entered into the debate. The additional expense was a type of harm that differed in character and kind than that suffered by the public in general.

This is equally so with respect to Counts 2, 3, and 6, all of which alleged violations of State and local laws prohibiting County employees from engaging in “political activity” during work hours. The FOP was not required to show that its members were made to engage in political activity in violation of those laws if it sufficiently alleged that it was harmed by the violation of those laws. The County’s use of its own employees to design, print, and distribute its campaign materials was a benefit to its campaign no different in character than the County’s expenditure of OPPs budget on its campaign. For all of these reasons, the FOP’s interest in the outcome of Question B, which necessitated its entry into the public debate on that ballot measure, gave it a special interest in the lawfulness, vel non, of the County’s campaign, and was sufficient to confer standing.

II

Laches The County, Leggett, and Lacefield contend the circuit court erred in ruling that the FOP’s suit was not barred by the doctrine of laches. Under the authority of Ross v. State Board of Elections, 387 Md. 649 , 876 A.2d 692 (2005), they argue that the FOP was required to file its action expeditiously once it was aware of any conduct it believed to be in violation of the election laws, but did not file suit until more than a month after it learned that the County was using public funds on the Question B campaign. They argue that this delay was unjustified and prejudicial to them and mandated dismissal of the amended complaint. The FOP responds that Ross is inapposite because, unlike the plaintiff in that case, it (the FOP) did not seek to overturn the election result.

Consequently, its claims against the ³⁰⁰ County and the individual defendants are not subject to the general rule that claims relative to an election must be brought “expeditiously”; and, in any event, the County did not show any prejudice flowing from any delay in filing suit. The plaintiff in Ross was the Green Party candidate for a seat on the Baltimore City Council. The Democratic Party candidate, Paula Branch, filed her certificate of candidacy with the State Board more than a year before the election. Two campaign finance entities registered with the State Board to raise funds on her behalf.

During the year and a half before the election, both of those entities “repeatedly failed to file the campaign finance reports” required by EL section 13-304 and the State Board served show cause notices on them as a result. 387 Md. at 654 , 876 A.2d 692 . Twenty days before the election, The Baltimore Sun ran an article mentioning that Branch’s campaign finance entities were deficient in their filings and that Ross was “raising it as an issue in the campaign.” Id. at 655 , 876 A.2d 692 . Under EL section 13-332, the failure to file campaign finance reports could have disqualified Branch as a candidate for office. Eleven days before the election, Ross’s campaign contacted the State Board and asked it to discuss the issue of Branch’s possible disqualification at its next meeting, scheduled to take place four days later, which was exactly one week before the election.

The State Board took up the issue at the meeting but “declined to rule.” Id. Branch won the election by a margin of 79.79% to 12.22%. Three days later, Ross filed in the circuit court a petition for immediate injunctive and declaratory relief, naming the State Board and Branch as defendants. Among other things, he sought an injunction to prevent Branch from being sworn into office and a declaration that Branch was ineligible as a candidate, that the results of the election were void, and that a new election was required to be held.

The circuit court granted summary judgment in favor of the State Board and Branch, concluding that Ross was required to file suit within three days after the ballot was certified, pursuant to EL section 9-209. ³⁰¹ The Court of Appeals affirmed, but on the alternative basis that Ross’s claims were barred by laches. As relevant here, the Court determined that Ross’s claims were not governed by EL section 9-209, but were governed by EL section 12-202, which “provides for a ten-day ‘window’ for seeking judicial redress for an act or omission that violates the Election Law Article and has or would change the outcome of the election once the registered voter knows of it.” Id. at 667-68 , 876 A.2d 692 (emphasis added). The Court held that because Ross knew, no later than the date of The Baltimore Sun article, that the campaign finance entities associated with Branch had failed to file required campaign finance reports, but did not file his complaint until more than ten days later, his complaint was barred by laches. 9 The Court emphasized that the defense of laches applies when there is an “ ‘unreasonable and unjustifiable delay’ ” in bringing an action and the delay prejudices the defendant. Id. at 669 , 876 A.2d 692 .

In a purely equitable action, a “ ‘lapse of time shorter than the period of limitations may be sufficient to invoke the doctrine.’ ” Id. (quoting Buxton v. Buxton, 363 Md. 634, 645 , 770 A.2d 152 (2001)). The Court was persuaded by the reasoning of numerous federal court decisions holding that, when a plaintiff’s claim arises from the election law, it must be brought expeditiously so as to allow for a pre-election adjudication whenever possible. It concluded that Ross had opted to take a “ ‘wait and see’ ” approach, thereby prejudicing Branch, who had relied on her certification by the State Board, and, importantly, prejudicing the voters who had elected Branch by an overwhelming majority.

On this basis, the Court held that Ross’s action was barred because he could have and should have filed it prior to the election. ³⁰² We return to the case at bar. The circuit court found that the County did not make a showing of “unreasonable delay and prejudice.” This finding was neither clearly erroneous nor contrary to law. The FOP filed complaints with the Office of the State Prosecutor and the County Inspector General as soon as it became aware of the County’s Question B campaign. After both of those avenues proved unsuccessful, the FOP sought declaratory and monetary relief premised on its claim that the County’s campaign was illegally financed, causing harm to its members.

The FOP did not seek to undo the passage of Question B, however. The pre-election adjudication in Ross was essential to prevent prejudice to the allegedly ineligible candidate and to the voters who elected her. Here, in contrast, the central issue of the legality, vel non, of the use of public funds on a ballot issue campaign was susceptible of adjudication post-election without prejudice to the County or Leggett or Lacefield. Moreover, this is not a purely equitable action, as the FOP sought monetary damages.

The circuit court did not err in denying the motion to dismiss on the basis of laches.

III

The County: Ultra Vires/Illegal Acts As noted, the trial court ruled that the powers the County derived from the State do not include the power to engage in a political campaign on a contested ballot issue; therefore its doing so was ultra vires and illegal. It concluded that while the County has the power to spend properly appropriated funds, it only may do so for purposes “ ‘essential or indispensable’ to running a municipal government,” and that a campaign on a ballot measure is neither. The court made a related determination that the County is not subject to the campaign finance laws in the Election Law Article and this shows that the General Assembly intended that local governments would not have any role whatsoever in election politics. The County asserts that under the government speech doctrine it has the right to advocate about a non-partisan issue ³⁰³ affecting governance, and that its ability to efficiently manage its police force is quintessential government speech.

It maintains that it has the implied and inherent power to appropriate funds and to use those funds — here, money in OPI’s annual budget — for a governmental purpose, and that advocacy in favor of Question B was undertaken for a governmental purpose. Thus, it properly used OPI funds for a governmental purpose, and, absent an express prohibition against its use of the funds in that manner, it had the power to do so. It argues that the negative implication the court drew from the absence of campaign finance laws governing the County does not comport with basic tenets of statutory construction. The FOP responds that the County’s authority to act in any area must be derived from a power enumerated in the Express Powers Act; and because that Act does not authorize a charter county to campaign on a contested ballot issue, the County’s actions were ultra vires.

It maintains that, even if the County has the implied power to appropriate funds and use them to promote its governmental