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Court of Appeals: MdTA’s “Take-Home Vehicle” program unenforceable

The state’s highest court has handed Gov. Martin O’Malley a win in a dispute with the union representing Maryland Transportation Authority police officers, finding that his administration had no duty to continue the “Take-Home Vehicle” program funded in the last year of his predecessor’s term.

The Court of Appeals said Monday that although the transportation agency has a unique set of powers, its 2006 agreement to compensate members of the Maryland Transportation Authority Police Lodge #34 of the Fraternal Order of Police with take-home vehicles was unenforceable.

According to the court, the three-year, $11.5 million program was a trade-off for the union’s agreement to drop its legislative attempts to get collective bargaining rights until at least 2009. (A collective bargaining bill was passed in 2010.)

Shane Schapiro, president of the FOP Lodge #34 said he was “shocked” at the court’s decision.

“Basically, the transportation authority turned their backs on us with this deal,” he said. “It’s very troubling to find that the document wasn’t valid.”

Schapiro said he was unsure of what the FOP would negotiate for once it gets to the bargaining table, but he said he would assume they would want to push for the take-home cars.

“This is a big morale buster for the agency,” he said. “It has been like a cancer festering since the thing was reneged on.”

The Court of Appeals said the agreement, though limited in scope, amounted to a collective bargaining agreement at a time when the MdTA had not been expressly authorized to engage in collective bargaining.

Michael Marshall, the attorney representing the union, said collective bargaining generally would involve a broader abdication of authority by a government, but the court saw things differently.

“The court decided that giving out that discretion when it comes to one item amounted to a collective bargaining agreement. I think it may have precedential value in the future,” said Marshall, an attorney with Baltimore firm Schlachman, Belsky & Weiner P.C. of Baltimore.

The attorney general’s office and the MdTA did not respond to requests for comment.

Then-Gov. Robert L. Ehrlich Jr.’s administration funded the first year of the program, but in 2007, after Gov. Martin O’Malley took office, his newly configured MdTA board declined to continue it.

The union sued the MdTA for breach of contract and promissory estoppel that June, but the case was dismissed by the Baltimore County Circuit Court. Judge Mickey J. Norman said then-Executive Secretary Trent Kittleman should have asked if she had the authority to sign an agreement with the police union.

“I have to lay all the blame…on [Executive] Secretary Kittleman and the [MdTA] Board for just doing something that involves millions of dollars without, it appears to me, ever contacting a lawyer in the attorney general’s office to say ‘can we do this,’” he said at the time of his ruling.

However, the Court of Special Appeals reversed Norman and reinstated the action last year. Its 102-page opinion found that parts of the state code pertaining to the MdTA authorized the agency to negotiate with its employees.

That opinion set the stage for Monday’s decision by the top court.

In an opinion written by Judge Glenn T. Harrell, the Court of Appeals referenced a “well-established rule” that it “rephrased” in a 1982 case, which says: “[A]bsent express legislative authority, a government agency cannot enter into binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees.”

Despite the transportation agency’s “wide array of powers” and “great measure of self-governance and autonomy,” the court said, the legislature had not given it the power to negotiate with its employees when the deal was struck in 2006.

WHAT THE COURT HELD

Case:

Maryland Transportation Authority v. MdTA Police Lodge #34 of the Fraternal Order of Police, No. 131, Sept. Term 2010. Reported. Opinion by Harrell, J. Filed June 20, 2011

Issue:

Was the MdTA authorized to enter into a contract with its police force, giving officers the right to take home vehicles?

Holding:

No; such a contract amounts to a collective bargaining agreement. The legislature must expressly authorize a state agency and its employees to bargain collectively before entering into an agreement concerning wages, hours, pension rights or working conditions for public employees.

Counsel:

Kathleen E. Wherthey for petitioner; Michael Marshall for respondent.

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