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MTA v. MTA POLICE
21 A.3d 1098 (2011)
Court of Appeals of Maryland.
June 20, 2011.
Without more, the Agreement concludes that the take-home vehicle program "will be essentially the program outlined in the [N]otebook prepared by the MdTA[], in conformance with all laws and regulations." The referenced Notebook was approximately 400 pages in length. According to the FOP's complaint, "[o]n 20 April 2006, the [MdTA] Board held a meeting where the members unanimously approved the plan to implement, over a three[-]year period, a police vehicle take[-]home program for sworn [MdTA] police personnel in exchange for withdrawal of [the] bills...." The governing body of the MdTA "consists of" the Secretary of the Transportation Department as ex officio chairman and eight other members appointed by the Governor. Maryland Code (2001, 2008 Repl.Vol., 2009 Supp.), Transportation Article ("Transp."), § 4-202(a)-(b). For its part under the Agreement, the FOP entreated successfully Delegate Steven DeBoy, Jr. and Senator John Gianetti, Jr., the bills' respective sponsors, to withdraw their collective bargaining bills. According to the FOP, thereafter, the MdTA "undertook steps to implement the [THV] program," "includ[ing] ordering an initial 25 cars, which the MdTA successfully purchased and delivered, and marketing the [THV] program to prospective recruits as an incentive for joining the MdTA force." The FOP noted several benefits from the adoption of the THV program, including that it would lead to an increased police street-presence. The briefs filed with this Court, the content of oral argument, and a review of the Notebook, however, make clear that the primary value of the THV program was as a non-monetary benefit for new and current officers. In 2006, Governor O'Malley was victorious in the gubernatorial election. A few months after his administration assumed control of the Executive Branch, a newly-configured MdTA Board voted to discontinue the MdTA take-home vehicle program. On 29 June 2007, a day after that vote, the FOP filed a complaint in the Circuit Court for Baltimore County for breach of contract and promissory estoppel.3 Over the course of the proceedings in the trial court, the FOP amended its
complaint twice, without material change impacting the issues before us now. The MdTA filed a motion to dismiss, asserting that (1) the Agreement was unenforceable as too indefinite and (2) against public policy.4 Under the "public policy" contention, the MdTA posited that the Agreement is void as violative of (a) legislative ethics, (b) delegated powers and sovereign immunity, (c) procurement laws, and (d) collective bargaining laws. Moreover, the MdTA averred that promissory estoppel may not be maintained against a State agency, and, alternatively, the FOP neither satisfied the elements of promissory estoppel nor overcame the same barriers (i.e., indefiniteness and public policy) that rendered the Agreement unenforceable otherwise. The FOP responded that the Agreement was clear and definite and that it did not run counter to public policy. The FOP attempted also to distinguish cases the MdTA cited for the proposition that an action for promissory estoppel may not lie against a State agency or unit. According to the FOP, reliance, in this case, was not only reasonable, but also carried consequences. The Circuit Court agreed ultimately with the MdTA. In granting the MdTA's motion to dismiss, the Circuit Court stated that: It is up to [Executive] Secretary Kittleman to make sure that what she's doing on behalf of the Maryland Department of Transportation is lawful and legal. And in this case, it's not even close.... It appears to be some sort of executive hubris that ["]I'm the Secretary—I can do whatever I want to do. I'm not subject to the laws of the State like everyone else in the State government...."
1. The Agreement is reproduced as an Appendix to this opinion.
2. It was not until the 2010 legislative session that the General Assembly enacted legislation authorizing the MdTA to bargain collectively with its employees. See Chapter 704 of the Acts of 2010.
3. Besides the FOP, eleven individual police officers joined the complaint as plaintiffs. They included Antwan Boykin, Yancy Anthony, Kevin Hoak, Daniel Smith, Carl Pelton, Tom Shepke, Joseph Dugan, James Schuler, Stephen Kolackovsky, Ernest Wright, and Edgar Caraballo. Some of these plaintiffs alleged that, but for the take-home vehicle program, they would have "retired substantially earlier, or ... accepted employment with other police agencies offering take-home cars or other `competitive benefits'...." Md. Transp. Auth. Police Lodge # 34 of FOP, Inc. v. Md. Transp. Auth., 195 Md.App. 124, 147, 5 A.3d 1174, 1187 (2010). Several officers complained also that, but for the THV program, they would not have accepted assignments at a remote bridge station. Id. We shall refer collectively to the plaintiffs/Respondents as "the FOP."
4. The FOP named as defendants the State of Maryland, the MdTA, the MdTA Board (which is not a legal entity independent of the MdTA), the MdTA Executive Secretary, the MdTA Chairman, and nine individual current and former MdTA members. This latter group included Susan Affleck Bauer, Louise Hoblitzell, Carolyn Peoples, Carol Rieg, Walter Woodford, the Rev. Dr. William Calhoun, Sr., Isaac Marks, and Michael Whitson; the former MdTA member was John Norris, Jr. We shall refer collectively to the defendants/Petitioners as "the MdTA."
5. In opposing the MdTA's motion to dismiss, the FOP submitted various exhibits, which the Circuit Court considered. As such, the MdTA's motion to dismiss was treated as a motion for summary judgment. See Maryland Rule 2-322(c) ("If, on a motion to dismiss... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....").
6. The trial court's disposition of the promissory estoppel claim is not before us in this appeal.
7. The FOP argues at the threshold that the Agreement was not a collective bargaining agreement, and, therefore, is not subject to Title 3 of Maryland Code (1993, 2009 Repl. Vol., 2010 Supp.), State Personnel and Pensions or relevant caselaw. Instead, the FOP posits that this was a simple contract between an agency and a group of its employees, i.e., the FOP. After all, at the time of contract formation, the FOP did not have the right to bargain collectively. At oral argument, the FOP elaborated that this was not a collective bargaining agreement because the FOP was not the exclusive representative of all MdTA police officers for collective bargaining purposes.
This position, however, amounts to saying that a group of employees in an organization may bypass the collective bargaining laws so long as the group does not possess the exclusive right to bargain collectively. In other words, the group of employees may achieve the results of a collective bargaining agreement—that is, enter into an agreement regarding wages, etc. that affects all relevant employees in an agency—while avoiding all hurdles that confront a certified collective bargaining agent. See Md. Transp. Auth., 195 Md.App. at 202-03, 5 A.3d at 1220 (stating that "the Agreement ... lacks many hallmarks of collective bargaining agreement," including the fact that "the Agreement does not recognize the Lodge as the exclusive bargaining representative of the officers"). This is not, and has never been, the law.
A group of employees may argue, on behalf of all the employees of the organization, that some action should be taken; however, entering into a binding contract regarding arbitration or wages, hours, and other terms and conditions of employment is a separate matter. To enter into such an agreement, i.e., to delegate further legislatively-delegated powers, the agency must be so authorized by the Legislature.
8. See e.g., Md.Code (2001, 2008 Repl.Vol., 2009 Supp.), Transportation Article ("Transp."), § 4-205(c) ("[T]he Authority may make any contract or agreement necessary or incidental to the exercise of its powers and performance of its duties." (emphasis added)).
9. When this Court asked the FOP at oral argument whether "there's [any] ... legislative oversight of [the MdTA]," its counsel responded, "not much."
10. As an original matter, the delegation of legislative powers invokes the principle of separation of powers. Article 8 of the Maryland Declaration of Rights provides that the "Legislative, Executive, and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." We have held that there are certain powers which the Legislature may not delegate, such as the power to enact legislation. Benson v. State, 389 Md. 615, 641, 887 A.2d 525, 540 (2005). Although the present case involves the extent to which an agency may delegate further these powers (or, in a sense, limit voluntarily its control over the exercise of these powers), we are mindful of, but need not address, possible constitutional implications. See Christ v. Md. Dep't of Nat. Res., 335 Md. 427, 441, 644 A.2d 34, 40 (1994) ("Under our cases, delegations of legislative power to executive branch agencies or officials ordinarily do not violate the constitutional separation of powers requirement as long as guidelines or safeguards, sufficient under the circumstances, are contained in the pertinent statute or statutes.").
11. While this case was pending before the Court of Special Appeals, the General Assembly enacted legislation authorizing collective bargaining between the MdTA and its employees. See Chapter 704 of the Acts of 2010. Presumably, the General Assembly would not have passed such legislation had it believed, like the Court of Special Appeals, that the MdTA possessed truly plenary power over its own affairs, including the power to bargain with the collected whole of its workforce. See Robey v. State, 397 Md. 449, 457, 918 A.2d 499, 504 (2007) (gleaning "further substantiation for our reading of [a statutory provision] from a revision of [that statutory provision] that occurred subsequent to the imposition of... restitution order [at issue]"); Nesbit v. Gov't Employees Ins. Co., 382 Md. 65, 78, 854 A.2d 879, 886-87 (2004) ("Earlier and subsequent legislation can be consulted to determine legislative intent." (citation omitted)).
12. On this score, we part ways with the Court of Special Appeals, which recognized the MdTA as a State government agency separate and distinct from the rest. We are cognizant that the MdTA enjoys broad discretion over its budget, as the revenues generated from tolls or bonds remain with the agency and are not transferred to the General Fund. Therefore, as the intermediate appellate court's rationale went, the MdTA entered into an agreement that was enforceable only against it, not the State.
Without addressing the constitutionality of such a funding structure, see Wyatt v. State Roads Commission, 175 Md. 258, 1 A.2d 619 (1938), we disagree with this position to the extent that the MdTA, despite its relative independence, remains a State agency and not a private, non-governmental entity. Indeed, its actions are taken "on behalf" of the Maryland Department of Transportation and, therefore, the State wrote large. See Transp., § 4-204 ("Acting on behalf of the Department [of Transportation], the [MdTA] has those powers and duties relating to supervision[, etc.]...."). Whether the General Assembly may access (without subsequent legislative revision) the funds on which the MdTA draws to support an action does not make the action itself any less "governmental." (We note also that, despite its independence, there seems to be some fluidity between the MdTA and the General Fund, as fiscal year 2012 will see "a one-time $100 million transfer to the [G]eneral [F]und ... from the [MdTA] for the Inter-County Connector." See DEP'T OF LEGISLATIVE SERV., FISCAL BRIEFING 31 (2011)).
In any event, the rule requiring prior legislative authorization is concerned not just with what entity incurs the immediate budgetary impact of a collective bargaining agreement. See Md. Transp. Auth., 195 Md.App. at 204, 5 A.3d at 1220 (stating that this multi-year, multi-million dollar agreement, regardless of current agency inlays and outlays, "presents no danger of any party, other than the MdTA itself, controlling the ... purse strings"). But see DEP'T OF LEGISLATIVE SERV., ANALYSIS OF MARYLAND EXECUTIVE BUDGET 2 (2011) ("[T]he MdTA has transition[ed] from a cash-rich agency to a highly leveraged one[, a fact which] provides significant fiscal challenges both now and in the future...."). The overarching concern is whether the agency is delegating authority entrusted to it by the Legislature, without prior authorization to do so. Such unapproved delegations, like those in the present case, violate the intent of the Legislature as codified in existing, controlling law. See Transp., § 4-205(d) ("[T]he [MdTA] may... fix the compensation of ... any other agents and employees...."). Moreover, they involve material policy choices, regarding the rights of employees and the State, that are within the province of the Legislature. See Transp. §§ 3-301 and 3-302.
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