Montgomery County v. Fraternal Order of Police, Montgomery County Lodge 35, Inc.

GREENE, J. The Fraternal Order of Police, Montgomery County Lodge 35, Inc. (“FOP” or “Appellee”) filed a grievance under the “Maintenance of Standards” provision of its collective bargaining agreement (“CBA” or “Agreement”) with Montgomery County (“County” or “Appellant”) following the County’s unilateral decision to discontinue a long-standing practice of allowing shop stewards to sit in on disciplinary interrogations for training purposes. The County filed a motion to dismiss the grievance, arguing that arbitration of the issue was preempted by the Law Enforcement Officers’ Bill of Rights, Maryland Code (2003, 2011 RepLVoL), §§ 3-101-113 of the Public Safety Article (“LEOBR”). 1 The arbitrator determined that the grievance was not preempted and denied the motion to dismiss. The County then filed a petition to vacate the “arbitration award” in the Circuit Court for Montgomery County. The Circuit Court affirmed the arbitrator’s decision and granted summary judgment on behalf of the FOP.

We affirm the judgment of the Circuit Court that the LEOBR is not implicated by the steward training grievance and, therefore, does not preempt its arbitration under the CBA. ⁵⁶⁵ I. On August 11, 2009, the FOP 2 filed a grievance with an arbitrator pursuant to its CBA with the County, alleging that the County violated the Agreement when it unilaterally terminated a 20-year old practice of allowing shop stewards in-training to attend disciplinary interrogations conducted by the Police Department’s Internal Affairs Division. 3 The CBA provides for dispute resolution, including the arbitration of grievances, and defines a grievance as “a dispute or disagreement as to the interpretation or application of the terms and conditions of [the] Agreement.” While the Agreement does not expressly mention the training of shop stewards, the FOP argued that the previous policy amounted to a “past practice” and was thereby incorporated into the Agreement and preserved under the “Maintenance of Standards/Retention of Benefits and Conditions” provision. The County filed a motion to dismiss the grievance, arguing that the LEOBR governs the presence of individuals during an interrogation and that, save for two exceptions, 4 the statute preempts collective ⁵⁶⁶ bargaining and arbitration on matters relating to the “subject and material” of the LEOBR. See § 3-102(b) of the Public Safety Article. The County argued that the proper procedure for asserting the denial of an officer’s rights under the LEOBR was an application for a show cause order in the circuit court.

See § 3-105 of the Public Safety Article. The FOP filed in opposition and argued that the grievance had “nothing to do with the LEOBR” because the issue involved the union’s right to train its employees and did “not deal with the procedural guarantees regarding the right of a police officer to representation at an interrogation.” The arbitrator agreed with the FOP and ruled that the grievance was not preempted, stating: [T]he grievance is not barred by the specific provisions of the LEOBR, and shall not be dismissed. The subject matter of the grievance goes to a practice affecting the rights of the FOP and its stewards; and not to the discipline of a law enforcement officer, procedural safeguard for that officer, or the procedures of a hearing board under the LEOBR. The arbitrator made clear that he had only determined whether the grievance was preempted or otherwise barred by the LEOBR and did not reach the question of arbitrability or the merits of “whether there is a practice that binds the County.” On September 20, 2010, the County filed, in the Circuit Court for Montgomery County, a “Petition to Vacate Arbitration Award” pursuant to the Maryland Uniform Arbitration Act. 5 See Md.Code (1973, 2006 Repl.

Vol.) § 3-224 of the Courts and Judicial Proceedings Article. In its petition, the County argued that the “award” should be vacated because the LEOBR preempted collective bargaining and arbitration of the issue, and therefore the arbitrator exceeded his powers in asserting jurisdiction over the underlying dispute. ⁵⁶⁷ See § 3-224(b)(3) of the Public Safety Article (“The court shall vacate an award if ... (3) The arbitrators exceeded their powers[.]”). The FOP filed a motion for summary judgment, arguing that the arbitrator’s decision should be confirmed.

The County filed a cross-motion for summary judgment. Following a hearing, the Circuit Court judge granted the FOP’s motion for summary judgment and denied the County’s cross-motion, ruling: [Tjhis really doesn’t have anything to do with the rights of a police officer subject to possible discipline. It does have everything to do with [the] training of union employees.... I think that it promotes the implementation of [the] LEOBR....

It’s not contradictory to it, nor is it preempted by [the] LEOBR.... This is really just whether or not somebody who is present here to train as a future participant in the proceeding is precluded from doing so simply because of the existence of an exclusive statutory disciplinary scheme which is set up under [the] LEOBR. And I just don’t think that that contradicts [the] LEOBR in any way. I think it’s consistent with it, its consonant with it, if anything....

I believe that the arbitrator has the ability to, without contradicting [the] LEOBR, and without being in violation of the collective bargaining agreement, to consider the arbitrability of this issue. The County then noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, we issued a writ of certiorari, on our initiative. Montgomery Cnty. v. Fraternal Order of Police Lodge 35, 424 Md. 291 , 35 A.3d 488 (2012).

We now address the following question: Does the express preemption provision of the LEOBR preclude arbitration of [the] FOP’s grievance regarding the number of representatives it may have present during the disciplinary interrogation of a police officer? We answer that question in the negative, and therefore affirm the judgment of the Circuit Court. The LEOBR is not ⁵⁶⁸ implicated under the facts and does not preempt arbitration of the underlying dispute. 6 II. Preliminarily, we take this opportunity to clarify the procedural issue raised by the trial judge when, in confirming the determination of the arbitrator, he noted confusion as to whether a petition to “vacate” was the “correct terminology,” under the circumstances.

Indeed, by filing a petition to vacate the “arbitration award,” the County suggested that an award was, in fact, made by the arbitrator. It used language throughout the petition that referred to the arbitrator’s denial of its dispositive motion as an “award,” despite its preliminary nature and the fact that arbitration on the merits had not taken place. Appellant apparently relied on Montgomery County v. Fraternal Order of Police Montgomery County Lodge 35, Inc., 147 Md.App. 659 , 810 A.2d 519 (2002) (“Lodge 35”) as the blueprint for pursuing this procedural error. In that case the FOP requested arbitration, and the County, rather than petitioning the circuit court for a stay of arbitration, filed a motion to dismiss before the arbitrator, arguing that the particular dispute was not arbitrable.

After the arbitrator denied the motion to dismiss, the County filed a “petition to vacate arbitration award” in the circuit court. The circuit court affirmed the determination of arbitrability, which was then appealed. On appeal, the intermediate appellate court stated that although the arbitrator issued a preliminary decision rather than a final award, “[njevertheless, the parties have not argued that an arbitrator has to render a final award before a petition to vacate a preliminary decision can be filed, and we are not aware of any authority compelling that conclusion.” Lodge 35, 147 Md.App. at 666 , 810 A.2d at 523 . The interme ⁵⁶⁹ diate appellate court then continued to evaluate whether the arbitrator exceeded his powers and whether the “award” should be “vacated” under the Arbitration Act, Maryland Code § 3-224 of the Courts and Judicial Proceedings Article.

The reasoning of the intermediate appellate court in Lodge 35 is incorrect because it is clear, pursuant to our case law, that a petition to vacate an arbitration award requires an actual award, ie., a final decision by an arbitrator on the merits. See Messersmith, Inc. v. Barclay Townhouse, 313 Md. 652, 663 , 547 A.2d 1048, 1053 (1988) (noting that Md.Code § 3-208 and § 3-224 of the Courts and Judicial Proceedings Article are “mechanisms though which a court (based upon its independent assessment of the evidence thereby concluding that no agreement to arbitrate exists) is authorized to either stay an arbitration proceeding, under § 3-208, or invalidate it after the fact, under § 3-224(b)(5).” (emphasis added)); Brewster v. Woodhaven Bldg. & Dev., Inc., 360 Md. 602, 620 , 759 A.2d 738, 753-54 (2000) (noting that § 3-224 is one of three sections of the Arbitration Act which “permit parties who have been through arbitration to file certain post-award petitions in the Circuit Court ...” (Wiiner, J., dissenting on other grounds)); Stauffer Constr. Co. v. Bd. of Educ., 54 Md.App. 658, 664 , 460 A.2d 609, 612 (1983) (“When such an [arbitration] agreement exists, or is alleged to exist, the courts are generally enjoined by the statute from interfering with the arbitration process. Indeed, the court’s jurisdiction [before arbitration is completed] may properly be invoked in but two limited contexts — to compel arbitration or to stay it.”); Martin Domke, Domke on Commercial Arbitration, § 39:6 at 15-16 (3rd ed. 2012) (“Before an [arbitration] award is ripe for review, it must be ‘definite and final,’ ” and resolve the parties’ dispute, (footnote omitted)).

Despite filing an incorrect motion, however, we treat the County’s “petition to vacate arbitration award,” in the present case, as a motion to stay arbitration. See Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 496-497 , 693 A.2d 757, 767 (1997) (noting that the “nature of [an] ⁵⁷⁰ action” is determined by the substance of the action, and not the caption or style of a filing). Under the Arbitration Act: “If a party denies [the] existence of the arbitration agreement, he may petition a court to stay commenced or threatened arbitration proceedings.” Md.Code § 3-208 of the Courts and Judicial Proceedings Article (emphasis added). As the intermediate appellate court noted in Barclay Townhouse Associates v. Stephen L. Messersmith, Inc., 67 Md.App. 493 , 508 A.2d 507 (1986), based on § 3-208, “[i]t is clear the Legislature intended for the courts to determine the existence of the threshold agreement to arbitrate.” Barclay Townhouse Assocs., 67 Md.App. at 497-98 , 508 A.2d at 509-10 , aff'd, 313 Md. 652 , 547 A.2d 1048 (1988).

The Circuit Court judge in the instant case engaged in the analysis necessary to rule on a motion to stay arbitration under § 3-208(c) when he considered whether the parties had agreed to arbitrate the particular dispute. Therefore, when the judge confirmed the decision of the arbitrator, he effectively denied the motion to stay and ordered arbitration. That decision was subject to immediate appeal. See Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 270-271 , 983 A.2d 138, 150 (2009) (“[A]n order denying a petition to stay arbitration and thereby compelling arbitration was immediately appealable ... because [it] ... put the parties ‘out of court.’” (discussing Town of Chesapeake Beach v. Pessoa Constr.

Co., Inc., 330 Md. 744, 750-54 , 625 A.2d 1014, 1017-20 (1993))); Horsey v. Horsey, 329 Md. 392, 401-06 , 620 A.2d 305, 310-12 (1993) (holding that a trial court’s order directing the parties to submit their dispute to arbitration was a final and appealable judgment); Brewster, 360 Md. at 630-31 , 759 A.2d at 753 (“[I]f the court determines [under § 3-208] that an agreement to arbitrate exists, it must order arbitration. Such an order is immediately appealable, because it exhausts the court’s jurisdiction.” (Wilner, J., dissenting on other grounds)). 7 ⁵⁷¹ III. The parties in the instant case disagree on the appropriate standard of review. The FOP contends that we should review the Circuit Court’s grant of its motion for summary judgment for legal error.

Appellant, on the other hand, argues that our review of the judge’s decision should be de novo, and cites Lodge 35, 147 Md.App. 659 , 810 A.2d 519 for this proposition. That case cited this Court’s opinion in Messersmith, Inc. v. Barclay Townhouse, 313 Md. 652 , 547 A.2d 1048 (1988), to suggest that, when confronted with a petition to either stay arbitration or vacate an award, “a reviewing court engages in a de novo review, including an independent assessment of the evidence,” Lodge 35, 147 Md.App. at 669 , 810 A.2d at 525 (citations omitted), and continued, “[ajccordingly, we conduct a de novo review in determining whether the parties’ dispute is arbitrable.” Id. This Court in Messersmith Inc., however, was discussing a circuit court’s standard of review when it said that “a court (based upon its independent assessment of the evidence thereby concluding that no agreement to arbitrate exists) is authorized to either stay an arbitration proceeding, under § 3-208, or invalidate it after the fact, under § 3-224(b)(5) [of the Courts and Judicial Proceedings Article].” Messersmith, Inc., 313 Md. at 663 , 547 A.2d at 1053 . When it comes to appellate procedure, however, the standard of review in either this Court or the Court of Special Appeals is determined by the circuit court’s disposition of the matter.

Indeed, in Messersmith, Inc., the trial court was faced with cross-motions for summary judgment, and therefore, on appeal, this Court and the intermediate appellate court reviewed the trial court’s holding for legal error. See Barclay Townhouse v. Messersmith, Inc., 67 Md.App. 493 , 508 A.2d 507 (1986) (holding that it was legally incorrect for a circuit court, in ruling on a petition to vacate an arbitration award, to defer to an arbitrator’s determination of arbitrability unless it was “completely irrational.”), aff'd, 313 Md. at 659 , 547 A.2d at 1051 (“[Wjhile the completely irrational standard of review may or may not represent the proper approach when ⁵⁷² the arbitral jurisdiction is unquestioned, when the arbitrators’ very authority to adjudicate the dispute is challenged, such obedience to the arbitrators’ assertion of jurisdiction is clearly inapt.” (footnote and citations omitted)). In the instant case, the Circuit Court properly conducted a de novo review of the arbitrator’s determination of LEOBR preemption and granted summary judgment on the matter. See Md. Rule 2-501.

Therefore, we review that court’s disposition for legal error. See Messing v. Bank of Am., N.A., 373 Md. 672, 684 , 821 A.2d 22, 28 (2003) (“The standard of review of a trial court’s grant of a motion for summary judgment on the law is ... whether the trial court’s legal conclusions were legally correct.” (citations omitted)). IY. The primary issue before us, whether the LEOBR preempts collective bargaining and arbitration under the facts presented, is essentially one of statutory interpretation.

As we recently reiterated in Dep’t of Human Resources v. Hayward, 426 Md. 638 , 45 A.3d 224 (2012): It is a well-settled principle that the primary objective of statutory interpretation is “to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). The first step in this inquiry is to examine the plain language of the statute, and “[i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204, 1206-07 (1994). Thus, “where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent.” Montgomery County Dept. of Social Services v. L.D., 349 Md. 239, 264 , 707 A.2d 1331, 1343 (1998). Furthermore, “[wjords may not be added to, or removed from, an unambiguous statute in order to give it a meaning not reflected ⁵⁷³ by the words the Legislature chose to use.... ” Smack v. Dept. of Health and Mental Hygiene, 378 Md. 298, 305 , 835 A.2d 1175, 1179 (2003) (citation omitted).

Hayward, 426 Md. at 649-50 , 45 A.3d at 231 . See Fraternal Order of Police, Montgomery Cnty. Lodge No. 35 v. Mehrling, 343 Md. 155, 180 , 680 A.2d 1052, 1065 (1996) (noting, in construing the LEOBR, that “[statutes are to be interpreted in light of the goal, aim, or purpose for which they were enacted. Moreover, when a part of a statutory scheme, the meaning of a particular statute must be sought within the context of that entire scheme; it should not be construed in isolation.” (citations omitted)).

With these cannons of statutory interpretation in mind, we now turn to the statute at issue. A. The Law Enforcement Officers’ Bill of Rights, Maryland Code (2003, 2011 RepLVol.) §§ 3-101-113 of the Public Safety Article, was enacted in 1974 with the primary purpose of “guarantee[ing] certain procedural safeguards to law enforcement officers during any investigation or interrogation that could lead to disciplinary action, demotion, or dismissal.” Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 122 , 797 A.2d 770, 778-79 (2002) (quotation and citations omitted); DiGrazia v. Cnty. Exec. for Montgomery Cnty., 288 Md. 437, 452 , 418 A.2d 1191, 1200 (1980) (“The legislative scheme of the LEOBR is simply this: any law-enforcement officer covered by the Act is entitled to its protections during any inquiry into his conduct which could lead to the imposition of a disciplinary sanction.”); Ocean City Police Dep’t v. Marshall, 158 Md.App. 115, 123 , 854 A.2d 299, 304 (2004) (noting that the purpose of the LEOBR is “to guarantee enforcement officers certain procedural safeguards during any [disciplinary] investigation and subsequent hearing .... “ (quotation omitted)).

The LEOBR states that “[t]he investigation or interrogation by a law enforcement agency of a law enforcement officer ... shall be conducted in accordance with this section.” § 3-104(a) of the Public Safety Article (emphasis added). Thus, the statute provides “the officer’s exclusive ⁵⁷⁴ remedy in matters of departmental discipline.” Coleman, 369 Md. at 122 , 797 A.2d at 779 (citations omitted); accord Moats v. City of Hagerstown, 324 Md. 519, 526 , 597 A.2d 972, 975 (1991) (“The language and history of the Law Enforcement Officers’ Bill of Rights demonstrates an intent to establish an exclusive