Unfortunately, the Fourth Circuit just released a decision reversing the District Court judgment regarding the Furlough Lawsuit. The Court has ruled that the Personnel Law provision authorizing furloughs has to be read as part of the collective bargaining agreements, and therefore there was no impairment of the CBAs when the County exercised that authority. I, along with our Labor Counsel, am still in the process of reviewing the decision and discussing what possible alternatives the FOP may have regarding the most recent matter. Regardless of the decision rendered by the United States Court of Appeals for the Fourth Circuit, it is still the opinion of this FOP that the County's implementation of furloughs for First Responders was improper and unnecessary.

Also, all members are invited to attend the regularly scheduled Board of Directors Meeting here at the FOP tomorrow, June 24th, 2010, at 1400 hours. This matter, along with other issues, will be discussed at this meeting.

4th Circuit Court Decision

On May 13th, 2010, the United States Court of Appeals for the Fourth Circuit heard oral arguments regarding the FY2009 Furlough Lawsuit. The case was initially filed in Federal Court on behalf of Fraternal Order of Police Lodge 89, as well as several other County employee labor groups. Judge Alex Williams presided over this case and rendered a decision in favor of FOP Lodge 89. The County then appealed this decision.

The case was argued on the County’s behalf by Former Chief Judge of the Court of Appeals for the Fourth Circuit William “Billy” Wilkins. Bruce Lerner presented oral arguments on behalf of all Plaintiffs named within the lawsuit. Judge Robert King was the Presiding Judge. Judges Andre Maurice Davis and Clarence Arlen Beam completed the panel for this case.

According to those in attendance, the panel of judges asked several insightful questions of both parties in this case. Based on the attendance within the courtroom, there appeared to be a lot of interest in the outcome of this case from others not directly related to the lawsuit. It was stated several times by those in attendance that Bruce Lerner did an exemplary job presenting the facts and addressing the questions asked by the Court.

As always, Bruce Lerner is cautiously optimistic about the outcome of this case and does not expect a decision from the Court for several months. If there are any questions or concerns, please feel free to contact me via email at vince.canales@fop89.org or at 301-952-0882. Thank you for your patience!

AFL-CIO Amicus Brief on FY2009 Furloughs

The following is the County's opening brief for appeals on the 2009 furloughs:
County Brief

The following court document is in reference to the 2009 furloughs:
AMICUS CURIAE BRIEF OF INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION IN SUPPORT OF THE APPELLANT (THE COUNTY) AND REVERSAL OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

The Court finally has issued a final order. It is attached. The County will now appeal (again), and this time the Court of Appeals will set the case for briefing and argument, which will take several months, if not longer.
Final Court Judgement

The following is the latest order from the District Court. The Judge expresses dismay at the County's premature appeal (we have moved to dismiss the appeal in the Fourth Circuit) (see our motion), and gives the parties 10 more days to resolve.

The District Courts Order
Our Motion to Dismiss Appeal

The Union's Opposition to Stay

The County's Motion For Stay

The County filed its Notice of Appeal in the Fourth Circuit today. They have hired new lawyers from Greenville, South Carolina to do the appeal. The lead lawyer is the former Chief Judge of that Court, a Reagan appointee, who retired recently and went into private practice. Copy of Notice of Appeal attached.

FYI, Bredhoff & Kaiser will not be intimidated!

Notice of appeal

Order from Court, also released yesterday

ORDER

For the reasons stated in the foregoing Memorandum Opinion, IT IS this 18th day of August, 2009, by the United States District Court for the District of Maryland, ORDERED:

1. That Defendant’s Motion for Summary Judgment (Paper No. 8 ) and Motion to Dismiss (Paper No. 27) BE, and the same hereby IS, GRANTED as to Count I and Count II of the Unions’ Complaints and IS DENIED as to Count III;

2. That Plaintiffs’ Cross Motions for Summary Judgment as to Count III of the Complaints (Paper Nos. 23 and 33) BE and the same hereby ARE GRANTED and ARE DENIED as to Counts I and II of the Complaints (Paper No. 12 and 33);

3. That the parties consult and discuss the means and manner of refunding any monies owed to Union employees as a result of having complied with the EFP, and, if necessary, submit a joint proposal for the Court’s approval within ten (10) days of the entry of this Order;

4. That the Clerk of the Court CLOSE this case; AND

5. The Clerk of the Court transmit a copy of this Order to all counsel.

/s/
Alexander Williams, Jr.
United States District Judge

WE HAVE WON THE FY 2009 FURLOUGH LAWSUIT

We are extremely pleased to report that the federal district court has ruled that the County acted unconstitutionally when it furloughed County employees for 80 hours during Fiscal Year 2009, and has ordered the parties to meet within 10 days to "consult and discuss the means of refunding any monies owed to Union employees." The decision is a major victory for all of the County's unionized employees, and follows almost a full year of litigation initiated by the coalition of unions -- FOP, IAFF, DSA, PGCOA, and PCEA -- representing all public-safety employees.

"If the Contract Clause is to mean anything," the Court said, "the County cannot consider impairing the obligations of its own contracts on a par with other policy alternatives." The Court concluded as follow: "The Court will not instruct the County how to conduct its fiscal affairs, but the Court believes that the County had several other, more moderate alternatives that would have served its purposes equally well. Perhaps the County could have taken small portions from a variety of sources, or eliminated non-contractual expenditures, or cut the budget of the Community College, or from the beginning heeded the warnings from the SAC and planned its budget to address potential shortfalls, or as it did in years past, balance the budget using monies from the Undesignated Fund Balance. The choice of which revenue-saving measure the County selected is outside the Court’s purview, however the 'menu of alternatives does not include impairing contract rights to obtain forced loans to the [County] from its employees.' Although perhaps politically more difficult, or embarrassing, the Court finds that 'numerous other alternatives' were within the County’s reach."

Although we expect the County to appeal this decision, we are grateful that the Court listened to our arguments, and concluded that last year's furloughs were unjustified and unjustifiable. The County should carefully review the decision, for it appears that the County's furlough plan during fiscal year 2009 was a mistake, and that an appeal would continue to waste the County's time and resources and money on a fruitless undertaking.

Court Decision