*1 disbarment. view his admitted acts the discipli- rules nary violated, he concedes those acts he has demon- strated that he is fit to not retain the privilege practice law. It is clear that the here is proper disbarment, sanction I and would that sanction. impose
v.
Donald K. WAKEFIELD et al. 159, Sept. Term,
No. 1982. of Appeals
Court of Maryland.
Feb. 1984. 5,1984. Denied March Motion for Reconsideration *2 Jr., H. Cunningham, and Eugene R. Bruce Alderman & Mindel, Aumiller Clarke White, J. and (Robert Towson brief), for Hill, Towson, appellants. on the Silberman, and M. Gibbs, David Cohen, Jeffrey H. George Goldstein, F. D.C., Daniel Kaiser, Washington, and Bredhoff Frater- for The Md. State Baltimore, appellees amicus curiae District of Columbia Police, The Md. and nal State Order Ass’n. Fighters Professional Fire Baltimore, Blum, Berman, (Jerome Baltimore Gordon S. Firefighters Baltimore for brief), appellee, on the 1311. Ass’n, Local ELDRIDGE, MURPHY, C.J., SMITH, and before
Argued COUCH, JJ. DAVIDSON, and COLE, RODOWSKY ELDRIDGE, Judge. aof validity case is over the in this
The controversy resolution requiring charter amendment Baltimore County fire fighters, involving county-employed of labor disputes, us is The issue before specific arbitration. through “charter amendment constitutes proper the charter whether as Constitution Maryland Art. XI-A material” under A.2d 287 Md. 415 v. Corp., in Cheeks Cedlair construed (1980). 255 to the an amendment 1982, petitions proposing
In July to the Board were submitted Charter which, after for Baltimore County of Elections Supervisors laws, with all applicable complied that the finding petitions amendment for submission certified the to be in the election general the voters of Baltimore on November 1982. The add a new proposal held was to V, to Article as well as to amend 709 and 706(a), § §§ 715 of Article VII of the Baltimore Charter.
The proposed new stated that if language county-em- fighters fire had not reached a written contract ployed with Baltimore agreement March 1 of County by any year, either was entitled to demand arbitration a board party arbitration, with the decision of that board final being and binding both set out the upon parties. proposal selection procedures appointment the three member board, the board’s powers, to be followed procedures board, and the factors to be taken into account by board in its making award. The amendment stat- ed that a decision of the board rendered iii accordance with and set forth in powers procedures the amendment “shall be final and binding” upon union, *3 with no appeal permitted. the amendment mandat- Finally, ed that the County’s budget submitted Exec- utive to the Council include funds any necessary effectuate the award of the board and that this funding “shall not be decreased or deleted” the council.
Before the November 1982 election, Edward A. Griffith and Griffith, L. Joyce residents and of Baltimore taxpayers filed suit in the County, Circuit Court for Baltimore County against the members of the Board of of Elec- Supervisors tions. The on their own plaintiffs, behalf and “on behalf of all other taxpayers, situated,” inter similarly alleged, alia, that the proposed charter amendment would “unlawfully initiate new legislation not authorized Article XI-A of by” the Maryland Constitution and “that the terms of the pro- charter posed amendment are patently local and legislation not charter material.” The plaintiffs also asserted that the amendment violated the due and process equal protection of guarantees the Fourteenth Amendment and of 24 Article Declaration of Maryland Rights, that the proposed amendment granted right arbitration to one class of only The municipal employees. plaintiffs sought relief and an re- declaratory injunction the defendants from
straining placing amendment on the ballot for the November 1982 general election.
Thereafter, the Baltimore Association County Firefighters intervened in the as an additional defendant. proceeding court, The circuit with the consent of all parties, postponed further in the case until after the charter any proceedings amendment had been voted in the election. upon general 2, 1982, On November the voters of Baltimore County ap- the charter amendment. proved then moved for and the plaintiffs summary judgment, cross-moved firefighters defendant-intervenor association 13, 1983, for On the circuit summary judgment. January judg- court the association’s motion for granted summary ment, that the charter amendment did not violate holding Article XI-A The court Constitution. Maryland further did not have to raise standing held plaintiffs the due and issues. The process equal protection plaintiffs and, took an to the Court of before appeal Special Appeals, court, further in that filed a any proceedings they petition for a writ which we of certiorari granted. Constitution,
Article XI-A of the adopted by Maryland 2, 1915, voters on November provided significant choosing self-determination for counties degree political home rule status. of Article XI-A sets forth Section which, if for the of a procedures preparation electorate, “shall adopted properly presented *4 . . to the subject become the law of said . County, only Constitution and Public General Laws of this State.” Sec- tion 3 charter under 1 “shall requires any adopted § elective in which shall be provide legislative an body of said . . . and that vested the law-making power County” “shall have full to enact local power such council county The laws” for the to be followed county. procedures charter and the effect thereof are spelled a amending county XI-A. out in 5 and 6 of Article §§
385
In Cheeks v. Cedlair
595,
287 Md.
Corp., supra,
A.2d
255, this Court held invalid a citizen-initiated
proposal
amend the Charter of Baltimore
on the
that the
City
ground
proposed amendment dealt with
matter
subject
beyond
permissible
of a charter
scope
as set forth in Article XI-A.1
charter
amendment would have created a
tenant-landlord commission and
“in
prescribed
de-
lengthy
tail, the
and
powers
duties of the
Commission administer-
ing
of rent
system
control.”
“Absent an intention to
a
a
permit
contrary usage,
charter amendment within the context of Art. XI-A is
limited in
necessarily
substance to
the form or
amending
structure of government
established
initially
by adoption
of the
A
amendment,
charter.
charter
therefore, differs
in its fundamental character from a simple legislative
enactment.
Its content cannot transcend its limited office
and be made to serve or function as a vehicle through
which to
local
adopt
legislation.”
Applying
to the
principle
Cheeks,
facts of
the Court
found the proposed rent-control amendment to be “essential-
ly legislative
character” in that it
an exer-
“constitute^)
Although
amendment,
1.
Cheeks
City
involved
a Baltimore
treated,
City
along
counties,
with the
as an Article XI-A
jurisdiction,
municipality governed by
rather than as a
Article XI-E
example,
XI-A,
language
the Constitution.
For
of Article
5§
begins:
any
adopted by
City
“Amendments to
of Baltimore or
by any provisions
of this State under the
of this Article
may
proposed by
Mayor
be
a resolution of the
of Baltimore
City
City
Baltimore,
County,
Council of the
or the Council of the
petition signed by
or
registered
not
less than
20%
City
County.”
voters of the
or
Cheeks,
See
597-601,
The proposed strikes, that actions and other job its is “to purpose prevent that the disruptions might impede protection public to achieve health, welfare.” order safety general end, mandates that “if the certified the amendment (the) or employee organization organizations representing fire and the have not reached a written fighters” contract on “terms and conditions of agreement employ- to a ment” the first in March of submission by day any year, board of is the of either upon request arbitration mandatory forth, detail, The amendment sets in minute the party. function and of the board. The board composition, powers to be of three members. One member is to be composed Executive and one is be appointed by appoint- ed fire both of these fighters organization; certified members must be selected “within four days request for arbitration.” The third member is to be selected members, two chosen also within four from previously days, a list of candidates furnished the American Arbitration are Association. In the event two arbitrators arbitrator, unable to on the choice of third agree American Association is to select the third arbi- Arbitration trator, who “shall act as chairman” of the board of arbitra- 2. 287 at 255. Md. 415 A.2d
tion. The board is to the arbitration begin proceedings within seven after the selection of the chairman and to days make its decision “within fifteen after the commence- days ment of the arbitration the chairman proceedings,” although extend this time The board is may requirement. granted oaths, “the to of compel administer the attendance witnesses, and the of evidence require production by subpoe- na.” The amendment also delineates the factors to be considered the board in its award.3 by making
Under the amendment each must party provide the board with “a detailed itemization of the last proposal made” that at by the These party prior negotiations. pro- posals be amended either at to may time by party any prior the close of the board’s at which time the board is hearings, to “order of the last the implementation proposal of one of respective parties.”
The decision of the board of arbitration is to be “final and binding upon the Baltimore County Executive and the Balti- more County Council.” The amendment provides that the decision of the board “shall constitute a mandate to the Executive with to such County matters which can be respect remedied him.” The by Executive administratively must include “in the current expense budget submitted the Council” funds required to be any expended by 544(d) 3. New § states: “(d) identify major The Board of Arbitration shall the issues dispute, positions parties review the of all and shall take into normally consideration those factors which are utilized in the wages bargain- determination of and other benefits in the collective ing process. include, These factors shall but shall not be limited to, following: benefits, wages, working hours and other employees performing juris- conditions of similar services in other Maryland, political states, dictions in in other subdivisions in other sector; private special performed and in the nature of the work by fighters, including employment, physical the fire hazards of requirements, qualifications, skills, job training educational assignments placed upon employees shift and the demands such as compared data; employees; living to other cost and the finan- County, cial condition of Baltimore which shall include a consider- ation of both available financial resources and the sources additional financial resources.” decreased and these funds “shall not be the board’s decision ... shall not be (and) or deleted Council ” .... Any Council subject prior approval legislative matter the board which “require(s) decided shall be enacted within forty- action for ... implementation of the arbitration decision.” five the date days following amendment, arbitration feature of the way, officials invoked, would divest the elected at the it is point an agree- discretion in reaching of Baltimore any conditions” benefits, working ment hours and wages, on “the of the fire fighters. whole, it the Baltimore viewed as a is clear
When
*7
to,
it, alter the
is not intended
nor does
amendment
County
government.
“form or structure” of the Baltimore County
a
is the
of
Instead, the core of the amendment
imposition
a
concerning
arbitration
binding
of
comprehensive system
Cheeks,
As in
the
single group
county employees.
“essentially
in Baltimore
is
County
amendment proposed
character;” it is a
complete
specifically
in
legislative
the
Cheeks,
present
as in
Again
detailed
scheme.
legislative
electorate,
the
the
through
whereby
case
situation
presents
the
to circumvent
charter amendment
is
process,
attempting
local
This is impermis-
local
and enact
law.
legislative body
XI-A of the
Constitution
Maryland
sible under Article
“shall have
which,
3,
mandates that the
Council
County
§
laws of said . .. County.”
full
to enact local
Cheeks,
the case at bar from
to
attempting
distinguish
County
the
and in
arguing
fire-
material,” the defendant
amendment is
“charter
proper
Ass’n v.
on Maryland
Emp.
association relies
Cl.
fighters
reliance
A.2d 1032
This
Anderson,
(1977).
281 Md.
we held invalid an ordinance
In Anderson
misplaced.
mandated
Council which
enacted
the Harford County
by
and bene-
board on wages
that a decision of an arbitration
the
We
county.
be binding upon
fits for county employees
authority
lacked the
held that the Harford
Council
County
a board of
function to
legislative
to
delegate
essentially
authorization
state
arbitrators,
by
public
at least absent
Court in Anderson
law or the
general
charter.
county
(281
512-513,
thus stated
Md. at
If the Baltimore proposed charter amendment County had authorized merely the Baltimore to Council enact a County system arbitration with binding regard to the compensa- tion of Baltimore if, and County employees, to that pursuant authorization, the Baltimore County Council had exercised
its discretion enact an ordinance containing provisions similar to those in the amendment now us, before the present case would be from distinguishable Cheeks. Under those circumstances, we would be required to decide the question which was but not decid- “assume[d]” ed in Anderson. In the case, present however, the proposed charter amendment did not authorize the Council to enact arbitration legislation county employees. It did not authorize decisions any constitutional legislative Instead, body. under the the charter proposal, itself would contain all of the law on the and the subject, Baltimore Council would be of all decision- deprived making authority concerning subject. in the Nothing Anderson case supports XI-A, under Art. validity, such a charter provision. i of our light that holding
amendment is invalid under Art. XI-A of the Maryland Constitution, it is for us reach the unnecessary petition- ers’ due process equal protection arguments.
JUDGMENT OF THE CIRCUIT COURT FOR BALTI- MORE COUNTY REVERSED, AND CASE REMANDED TO THAT COURT WITH ENTER A DIRECTIONS TO JUDGMENT CONSISTENT WITH THIS OPINION. RE- SPONDENT BALTIMORE COUNTY FIREFIGHTERS AS- SOCIATION, LOCAL TO PAY COSTS.
RODOWSKY, Judge, dissenting.
I
dissent. The
respectfully
subject amendment is charter
material.
It alters the form and structure
government
Baltimore
in a most
fundamental
cer-
way. Under
tain
it
circumstances
takes fiscal power
from the
away
Executive and from
Council and vests
arbitrators.
Charter
County’s
embodies an executive budget
A scheme of
system.
compulsory arbitration for one or
more classes of county
is at
an
employees
loggerheads with
*9
executive budget
system. By making
decision
policy
arbitration should
to the
compulsory
wages
apply
other conditions of
when
employment
county firefighters,
such issues remain unresolved through
bargaining,
collective
of Baltimore
in
people
essence have limited
County
power of their
Executive to
propose appropriations
for the fire
Under the
a board of
department.
amendment
arbitration
decide some
can
of the
of the fire
components
must,
which the
in
department budget
Executive
turn, submit to the legislative branch. In this
of the
aspect
arbitrators
budget
substitute for the
Execu-
process
tive.
of the
power
Council to reduce
Similarly,
appropriations contained
the executive
is in part
budget
taken
because appropriations
away
required
implement
decision of arbitrators cannot be reduced. This is bedrock
charter
not,
material.
Accordingly
Council could
absent
authorization,
charter
ordinance a
adopt by
system
arbitration for
compulsory
labor relations with
em-
county
That is the
ployees.
Cl.
Ass’n v.
teaching
Emp.
Maryland
Anderson,
281 Md.
The
does not conflict with the above
majority opinion
are, however,
conclusions. We
told
that the
by majority
subject
invalid,
amendment is
not because it fails to contain
some
material,
but because it is too detailed.
It is
said
lies in
in the charter all of the
invalidity
placing
steps
to create a
necessary
arbitration
functioning compulsory
with the result
system,
that no
remain to
judgments
be
made
County Council concerning implementation.
to be
principle controlling
decision seems
majority’s
that the
of a home
people
rule
whose charter
county,
per-
mits its amendment
initiative,
initiate amendments
may
which enable council implementation,
not,
but
initia-
may
tive amendments which are
reallocate
self-executing,
power
over
finances. The
holding
Cheeks v. Cedlair
Corp., 287 Md.
tive exercised and from the order for it to be legislature, else, someone that someone else must be identified. by arbitration, the else is to be a of it is When someone board to define how the individuals who will particular appropriate time. act as arbitrators are be selected from time to Because the arbitrators are intended to exercise the power term, as occasion and not to hold office for a only requires, the for them becomes detailed. identifying prin- method however, the mechanism for arbitrators is no ciple, selecting that a given different than a charter provision specifying the executive official is to be county appointed by county with the of the council. county approval the subject time limits are also included in
Specific amendment. These serve a twofold to this purpose going First, in the form and structure of the change government. reallocated fiscal can be of part County’s utilized the arbitrators under certain conditions and only within certain time constraints. on These are limitations the exercise of the because the granted power. Simply unusual, are do provisions not become different they from, character for a charter example, provision fixing maximum the number of the on when days per year county council to enact ordinances. the time sit may Secondly, limits insure that the arbitrators function with consistently to the timetable of applicable preparation adoption as it budget balance is processed through traditional executive budget system.
There is a further limitation on the exercise the arbi- trators of this transferred of fiscal are portion They power. from their of prohibited creating own effectively package and other conditions of because wages employment, they must choose either the last or the proposal management last This is labor. further to proposal obviously expedite the process.
It is that the of a acknowledged majority people initiative, amendment county may, by par- the executive tially budget scrap system by opting principle arbitration of labor compulsory with disputes employees. Given that I find premise, in the nothing Home Rule Amendment which then prohibits those voters from also who, specifying when and how of integrating into the those county budget appropriations which originate from that newly created power source.
By writing I intimate no views separately, on the due process and equal protection arguments.
Judge COLE authorizes me to state that he joins *11 views of this dissenting opinion.