Photo above by FaderUri on Flickr Creative Commons License
By Richard J. Douglas
Last week, a court in Maryland (that’s right: Maryland) published an opinion which could become an epitaph for public sector unions in the Old Line State.
In 2013, Prince George’s County asked Maryland’s Court of Special Appeals (a step below our state’s highest court) to decide which of two competing considerations enjoys higher dignity: “public policy” or a union contract. The court chose public policy, opening a Pandora’s Box for public sector unions which may be hard to close.
What happened that led to the suit
The case in question (Prince George’s County, Maryland/Prince George’s County Police Department vs. Prince George’s County Police Civilian Employees Association et al., No. 1198, September 2, 2014) involved a civilian employee of the Prince George’s County Police. The employee was called into the stationhouse for a chat about a missing police firearm. The chat became a lengthy grilling about the lost weapon. The employee, a union member, apparently knew nothing about the weapon, but ultimately was charged with impersonating a police officer and fired.
The union demanded arbitration, relying on a union contract clause which entitled the employee to the presence of a union representative during disciplinary proceedings. The arbitrator ordered the employee’s reinstatement. Prince George’s County argued that a criminal investigation is not a disciplinary proceeding within the meaning of the contract, and so the representation clause did not apply. A lower court agreed with the arbitrator and affirmed the reinstatement order.
Prince George’s County appealed, and on Sept. 2, the Court of Special Appeals found that Maryland “public policy” cut in favor of the County argument that union contract equities are outweighed by the state interest in detecting and investigating crime.
Public policy rules
In its opinion, the Court of Special Appeals called the Prince George’s County dispute a “case of first impression.” In other words, Maryland courts have not previously been asked to decide such a case – something not terribly difficult to believe in reputedly “union-friendly” Maryland. Thus, the appellate court followed the lead of Illinois and New York to reach the conclusion that in Maryland, too, public policy interests in detecting and investigating crime are superior to a union contract.
The concept of “public policy” is hard to pin down. The General Assembly is entitled to — and sometimes does — assert legislatively that “the public policy of Maryland is thus-and-so,” but apparently has not spoken on the issue in this case.
“Public policy” may be discerned from judicial opinions and case law where the legislature is silent. But the Court of Special Appeals apparently could find no firm guidance in Maryland jurisprudence about how to resolve the Prince George’s County case, so the court wrote its own guidance. Now we must determine where the guidance leaves us.
Serious implications for public sector unions
I believe the Court’s opinion has serious implications for public sector unions in Maryland. It creates a potent new tool for state, county, and local governments: namely, a public policy escape hatch from public sector union contracts.
The Prince George’s County opinion will probably give birth to a new line of Maryland appellate rulings expanding the definition of “public policy” and setting aside protections afforded by public sector union contracts. Henceforth, unions and public employers will find themselves sparring over whether a given employer/employee interaction is within the scope of a union contract, or a “public policy” interaction outside contract boundaries. Guess which alternative managers will favor?
The Court of Special Appeals has ruled that “detection and investigation of criminal activity” constitutes a public policy escape hatch from a union contract. This ruling begs new questions: don’t Marylanders also have strong “public policy” interests in effective teaching, better fire prevention, and more economical transportation infrastructure?
I predict that additional “public policy” escape hatches from public sector union contracts will be fashioned by the courts in camps far beyond policing.
Could also impact private contracts
Although the facts leading to the Prince George’s County opinion dealt only with public employees and a public sector union contract, I think it is fair to wonder what effect the Sept. 2 opinion could have on relations between private employers and union workers. The pedigrees of Maryland public policy concepts may not always include a government function. Contracts between private parties (i.e., a private company and a union) are also voidable when they offend public policy.
It will be interesting to see whether the Prince George’s County Police Civilian Employee’s union appeals the Sept. 2 decision to the Maryland Court of Appeals. Although many union members may disagree, Maryland is perceived as generally friendly to public sector unions representing, teachers, police, firefighters and other public employees. But for these unions, there is nothing friendly about the outcome of this case.
With the stroke of a pen, the Maryland Court of Special Appeals has endowed state, county, and local governments in Maryland with new power over public sector unions which Wisconsin Governor Scott Walker would recognize. Perhaps even envy.
Richard J. Douglas is a College Park lawyer and Iraq veteran who ran for U.S. Senate in 2012. He can be reached at firstname.lastname@example.org