Prince George's County v. Fraternal Order of Police

MEREDITH, J. This appeal arises from an arbitration award entered pursuant to the collective bargaining agreement between appellant, Prince George’s County, and appellee, the Fraternal Order of Police, Prince George’s County, Lodge 89 (“FOP 89”). After the Chief of Police of Prince George’s County issued a memorandum announcing that he would make decisions regarding promotions in the police department using a “Rule of 3” (that is, the chief would choose from the top three ranked candidates, rather than promote the top-ranked candidate as his predecessors had done), FOP 89 filed a grievance under the terms of the collective bargaining agreement. The grievance was denied and the matter proceeded to arbitration, despite the County’s assertion that the matter was not subject to mandatory arbitration. The arbitrator found that appellant had violated the collective bargaining agreement by instituting the “Rule of 3,” and ordered that promotions of eligible police officers be made on the basis of rank alone.

The County appealed to the Circuit Court for Prince George’s County, which affirmed the arbitrator’s decision. ²⁹⁹ Appellant presents three questions for our review. As set forth in appellant’s brief, those questions are: (1) Did the arbitrator exceed his authority in determining the grievance to be arbitrable? (2) Did the arbitration award contain a palpable mistake of law or fact? (3) Did the arbitration award contain a mistake so gross as to work a manifest injustice?

We answer all three of these questions in the negative. We conclude, however, that this appeal must be dismissed on the ground of mootness. Although moot, this appeal presents issues important to the public interest and worthy of a discussion of the merits, for the purpose of guidance in future litigation which is likely to arise on the same issues. Facts and Procedural History On April 21, 2004, Melvin High, the Chief of Police for Prince George’s County, issued a memorandum titled “Selection Criteria for Promotions, Beginning with the April 25, 2004 Promotional Examination.” The memorandum, distributed to all sworn personnel of the police department, detailed changes regarding the method of granting promotions.

Specifically, the memorandum explained that the Chief would begin making promotion decisions using a “Rule of 3.” In contrast with the long-standing policy of promoting officers eligible for promotion on the basis of ranking alone, under the “Rule of 3,” the Chief would consider a number of variables in deciding which of the three top-ranked candidates on the eligibility list to promote. The memorandum listed twenty-three factors that could be considered by the Chief, including past job performance, commendations, the complexity of the officer’s past assignments, disciplinary actions or conduct unbecoming an officer, education, and the needs of the department. The Chief explained the “Rule of 3” as follows: Pursuant to the “Rule of 3,” the promotion eligibility list will continue to be established by a combination of scores on the written examination and the Assessment Center. The writ ³⁰⁰ ten examination and Assessment Center results will continue to be assigned numbers, which will be ordered, in number rank, to create an eligibility list.

The test scores will be listed, in descending order, in accordance with Sec. 16-162(d) (“Order of Names on Promotional Register”). The three candidates scoring the highest test scores on the promotional examination will qualify for further consideration for promotion. The top three candidates will be evaluated, considering his or her actual work performance, contributions to the department and the Prince George’s County community. The “Rule of 3” will not change any portion of the written examination or the Assessment Center examination.

Officers should not change their plans for taking the examination or modify their preparation for the examination as a result of the “Rule of 3.” Preparation for promotion, under the “Rule of 3,” includes performing well on the promotional examination, as well as providing your best service to the community during your career as a police officer. This should be the goal and practice of every officer on this department. On April 26, 2004, FOP 89 filed a grievance, claiming that the “Rule of 3” violated the collective bargaining agreement between appellant and FOP 89. Specifically, FOP 89 cited Article 4, § 4.04 of the collective bargaining agreement, which reads, in relevant part: Acting Pay Pending Promotions: All vacancies caused by permanent departure from the Department — retirement, discharge, or promotion — will be filled within ninety (90) days of the vacancy or within ninety (90) days of the establishment of an eligibility list, whichever occurs later, or the first person on the eligibility list (or subsequent persons depending on the number of vacancies) will be paid as if he, she or they had been promoted from the ninety-first (91st) day on.

If the eligibility list is not established until more than ninety (90) days after the vacancy, then all vacancies ³⁰¹ will be filled (or the appropriate person(s) on the eligibility list will be paid acting pay) upon establishment of the eligibility list. The Department has the authority to eliminate the position during the ninety (90) day period; but if the position is restored, the first person on the promotion list (or subsequent persons depending on the number of vacancies) will be paid as if he, she or they had been promoted from the ninety-first (91st) day on. Upon the establishment of an eligibility list, the County will provide to the FOP a list of the names of officers, in order of finish but without scores, on each final eligibility list. The Department and FOP 89 agree to continue the past practice governing the relationship between the disciplinary process and promotional process.

An otherwise eligible candidate for promotion who is under investigation that could lead to serious disciplinary action (defined as discharge from employment^] suspension from employment without pay or benefits, or demotion in rank) shall have his or her promotion held in abeyance pending the final outcome of the investigation and the imposition of any serious disciplinary action. During that period, the next candidate on the eligibility list will be offered the acting position as a temporary position and will be entitled to acting pay under Section 4.04. If this candidate refuses the transfer to acting position, the Department will not be required to offer the acting position to the next candidate on the eligibility list and contractual obligations will be satisfied so long as another officer is given the acting position and acting pay. Once the final outcome of the investigation and disciplinary action is known and the first candidate is deemed qualified for promotion, he or she will be promoted retroactive to the date that he or she would otherwise have been entitled to the promotion had an investigation had [sic] not been commenced or continued.

The promoted candidate will assume the vacancy and the next candidate, who temporarily assumed the vacancy in an acting role, will be returned to his or her previously held position, if at all feasible, or to the most similarly situated position available in the Department. ³⁰² On July 23, 2004, FOP 89 presented its grievance at a hearing before the Labor Commissioner. The Labor Commissioner denied the grievance, and FOP 89 subsequently filed a request for arbitration pursuant to Article 20, § 20.05(B) of the collective bargaining agreement, which provides: “Grievances arising as a result of disputes concerning the meaning, interpretation or application of this Agreement ... or of a claimed violation, misinterpretation or misapplication of the rules or regulations issued by the police department affecting the terms and conditions of employment, shall be subject to ... arbitration.” An arbitration hearing was held on November 23, 2004. There exists no ..transcript of the arbitration hearing. On March 14, 2005, the arbitrator issued an opinion and award in favor of FOP 89.

The award read: After carefully considering the evidence presented and all of the arguments raised in the post-hearing briefs, I find that: 1. The Employer violated the Collective Bargaining Agreement by adopting a “Rule of 3” under which the Chief of Police may cho[o]se to promote a candidate ranked lower on the promotion eligibility list over a candidate who is ranked higher; 2. Promotions shall be in order of ranking on the eligibility list; 3. If prior to the date of this Opinion and Award, promotions were made of employees that were not in rank order on the eligibility list, then those employees who ranked at the top of the eligibility list shall be promoted retroactive to the date of the out-of-order promotions and they shall be made whole, including back pay. 4.

The grievance is sustained. On April 13, 2005, appellant filed a petition to vacate the arbitration award in the Circuit Court for Prince George’s County. After a hearing, the circuit court entered an order and opinion affirming the decision of the arbitrator. Appellant filed a timely notice of appeal. ³⁰³ I. Mootness Although not raised by either party, we must initially address the potential mootness of the issues raised in this case.

At oral argument, after counsel for appellant indicated that the collective bargaining agreement at issue had expired in 2005, this Court inquired of counsel whether the case was now moot, on the ground that no live controversy exists. The Court of Appeals has explained: “Generally, appellate courts do not decide academic or moot questions. A question is moot if, at the time it is before the Court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Attorney Gen. v. Anne Arundel Co. School Bus Contractors Assn., Inc., 286 Md. 324, 327 , 407 A.2d 749 (1979). The Court of Appeals has recently made clear that, when moot questions are raised on appeal, this Court should dismiss the appeal on the ground of mootness.

Cottman v. State, 395 Md. 729 , 912 A.2d 620 (2006), slip. op. at 14. There are, however, exceptions to the general rule that appellate courts will not decide moot questions. In Cottman , the Court of Appeals recognized that “[tjhere is a public benefit derived from published opinions, which is the reason appellate courts are sometimes willing to decide moot questions where it appears that there are important issues of public interest raised which merit an expression of our views for the guidance of courts and litigants in the future.” Id. at 15 (Internal quotes and citations omitted.) This Court may reach the merits of a moot question “where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest.... ” Albert S. v. Dept. of Health, 166 Md.App. 726, 744 , 891 A.2d 402 (2006) (quoting Lloyd v. Bd. of Supervisors of Elections, 206 Md. 36, 43 , 111 A.2d 379 (1954)). In Lloyd , the Court of Appeals listed the circumstances under which Maryland appellate courts may decide moot issues: [I]f the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to ³⁰⁴ recur frequently, and its recurrence will involve a relationship between the government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision, then the Court may find justification for deciding the issues raised by a question which has become moot, particularly if all of these factors concur with sufficient weight. 206 Md. at 43 , 111 A.2d 379 .

At oral argument, counsel for both parties indicated that the collective bargaining agreements between the County and FOP 89 are renegotiated every two years. In the course of the most recent renegotiation, FOP 89 attempted to have Article 4, § 4.04 clarified as setting forth a “Rule of 1” for the purposes of deciding which officers receive promotions. The County would not agree to this term, and the language of § 4.04 in the new agreement remains unchanged from the time FOP 89 filed the grievance underlying this appeal. The impasse with regard to the interpretation and implications of § 4.04, and whether a “Rule of 3” is permissible, is likely to continue.

Furthermore, because of the frequency with which the County and FOP 89 renegotiate their collective bargaining agreement, a similar dispute in the future would also likely evade appellate review on the ground of mootness, because the agreement at issue would likely have expired by the time the case reached this Court. Finally, this case involves the relationship between a county government and its employees, and as such, is an important matter of public concern. Because “all these factors concur with sufficient weight,” we “find justification for deciding the issues raised.” Id.

II

Arbitrability of the Dispute As a threshold matter, appellant contends that the arbitrator exceeded his authority by finding the dispute to be arbitrable under Article 20, § 20.05(B) of the collective bargaining agreement. Appellant argues that the dispute caused by the institution of the “Rule of 3” does not qualify as a grievance “arising as a result of disputes concerning the meaning, inter ³⁰⁵ pretation or application of this [collective bargaining] Agreement.” In response, FOP 89 argues that the fact that the phrase “Rule of 1” is not specifically included in the provisions of the collective bargaining agreement that address promotional procedures does not mean that the dispute does not concern the interpretation of the collective bargaining agreement. We agree that FOP 89’s assertion that the “Rule of 3” is in violation of the collective bargaining agreement raises an arbitrable controversy because there is a “disputef ] concerning the meaning, interpretation or application of [the collective bargaining] Agreement.” Arbitration is “a matter of contract.” Gold Coast Mall, Inc. v. Larmar Corporation, 298 Md. 96, 103 , 468 A.2d 91 (1983) (citations omitted). If there is no agreement to submit to arbitration, courts cannot compel parties to do so.

Id. When an arbitration award is “attacked for lack of jurisdiction” on the ground that the parties did not agree to arbitrate the issue at hand, we must review de novo the arbitrator’s decision as to arbitrability. Stephen L. Messersmith, Inc. v. Barclay Townhouse Associates, 313 Md. 652, 664 , 547 A.2d 1048 (1988). Such review includes an “independent assessment of the evidence.” Montgomery County v. FOP, 147 Md.App. 659, 669 , 810 A.2d 519 (2002).

Here, there is no dispute that an arbitration agreement existed between the parties. The dispute arises from whether that arbitration agreement encompasses the particular issue underlying FOP 89’s grievance. Appellant argued before the arbitrator, and maintains on appeal, that the arbitrator never had jurisdiction to hear FOP 89’s grievance, because the alleged “Rule of 1” was not a matter of interpretation of the collective bargaining agreement and therefore fell outside the scope of the arbitration clause. When considering whether a dispute falls within the scope of an arbitration clause, a court must find “reliable evidence from the language actually employed in the contract that the parties intended the disputed issue to be the subject of arbitration, the intent of the parties being the controlling ³⁰⁶ factor.” Id. at 667 , 810 A.2d 519 (quoting NRT Mid-Atlantic, Inc. v. Innovative Properties, Inc., 144 Md.App. 268 , 280, 797 A.2d 824 (2002)) (citations omitted).

In reviewing the arbitration clause, however, we must remain mindful that “the Supreme Court has made it clear that arbitration is a favored remedy, and in reviewing any arbitration clause a court is to order arbitration unless ‘it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” Mayor v. Baltimore Fire Fighters, 93 Md.App. 604, 610 , 613 A.2d 1023 (1992) (quoting AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 650 , 106 S.Ct. 1415 , 89 L.Ed.2d 648 (1986)). In Gold Coast Mall, supra, in the context of a motion to compel arbitration, the Court of Appeals articulated the role of Maryland courts in determining whether an arbitration clause grants an arbitrator initial jurisdiction over the issue of arbitrability. . Like the parties in this case, the parties in Gold Coast Mall had a contract that contained an arbitration clause. 298 Md. at 100 , 468 A.2d 91 . The arbitration clause provided that “disputes arising under the agreement be submitted to arbitration,” but did not specify which party bore the responsibility of initiating arbitration.

Id. Rather than submitting the eventual dispute to arbitration, the plaintiff went directly to the circuit court and filed a suit for declaratory judgment. Id. In response, the defendant filed a petition to compel arbitration.

Id. In holding that the arbitrator should initially have had jurisdiction to determine whether the dispute was arbitrable, and that the circuit court should have compelled arbitration, the Court of Appeals explained: Where the language of the arbitration clause is clear, and it is plain that the dispute sought to be arbitrated falls within the scope of the arbitration clause, arbitration should be compelled. If it is apparent, on the other hand, that the issue sought to be arbitrated lies beyond the scope of the arbitration clause, the opposing party should not be compelled to arbitration, since there is no agreement to arbitrate. Where there is a broad arbitration clause, calling for ³⁰⁷ the arbitration of any and all disputes arising out of the contract, all issues are arbitrable unless expressly and specifically excluded.

A problem is created for the court when the language of the arbitration clause is unclear as to whether the subject matter of the dispute falls within the scope of the arbitration agreement. Courts that have considered this problem have recognized that under such circumstances the question of substantive arbitrability initially should be left to the decision of the arbitrator, not the courts. 298 Md. at 104-05 , 468 A.2d 91 (citations omitted). Under this paradigm, appellant’s contention that the arbitrator lacked jurisdiction must fail. We find the arbitration clause contained in Article 20, § 20.05(B) of the collective bargaining agreement to be quite clear.

It requires arbitration for all disagreements “arising as a result of disputes concerning the meaning, interpretation or application of this Agreement.” The present dispute arose, in part at least, from appellant’s interpretation of Article 4, § 4.04 of the collective bargaining agreement as requiring the Department to provide acting pay to the individual at the top of the eligibility list, but not requiring the Department to actually promote the individual at the top of the eligibility list. Similarly, FOP 89’s contention that the collective bargaining agreement precluded adoption of a “Rule of 8” was a dispute concerning the application of the agreement, and therefore, within the scope of the arbitration clause. The current police chiefs interpretation of the collective bargaining agreement clearly differs from the interpretations of prior police chiefs. At the arbitration hearing, a former chief of police testified that he had, on occasion, wanted to promote an officer not at the top of the eligibility list, but