2021 | Government

Report says it’s ‘impossible’ for public to decipher county’s contract with police union

Oversight report highlights dispute over what documents are to be followed

A contract between Montgomery County and its police union is largely inscrutable to anyone not involved in the negotiations, a report released Tuesday says.

“A third-party who wishes to read and understand the CBA will encounter several obstacles that combine to make the document unclear, uncertain, and opaque,” the report by the council’s Office of Legislative Oversight (OLO) says, referring to a collective bargaining agreement.

The report says a third-party reader is someone “other than those most directly involved in negotiation of the CBA.”

A third party includes the County Council, which is not directly involved in negotiations, but must approve many elements of the bargaining agreements reached between the county executive’s office and the union, including funding and changes needed to local statutes.

The contract was so unclear at the time of the report, even the parties on the contract don’t agree which documents are to be included, although Chief Administrative Officer Rich Madaleno wrote in a subsequent response that that discrepancy has been fixed.

“… It is impossible for a third-party reader to identify the terms and provisions of the collective bargaining agreement between the County and [Fraternal Order of Police] Lodge 35 because the parties do not agree on the primary document,” OLO senior legislative analysts Leslie Rubin and Aron Trombka wrote in the report.

“In addition, while the County and the FOP agree that certain side letters and [memoranda of agreement] are in effect, they do not agree on the current status/effect of all side letters and MOAs. This disagreement adds to the inability of a third-party to know or understand all the provisions that make up the collective bargaining agreement,”

In a Jan. 8 response to OLO, Madaleno wrote: “The draft report notes that the County and the Fraternal Order of Police … have been unable to agree upon a unified collective bargaining agreement. This is no longer accurate.”

He added that the county’s Office of Labor Relations and the FOP “have been engaged in a year-long project to reconcile those differences and have agreed to a single version of the collective bargaining agreement.” That document is now available on the county’s website.

OLO noted that, when it submitted the report for review by the county executive’s office in December, “the parties did not have a signed collective bargaining agreement and had not had a signed agreement for many years.”

This situation dates back to before current County Executive Marc Elrich took office, the report indicated, adding, “OLO was told by representatives both in the Executive Branch and from the FOP that the County Government and the FOP have not had a signed collective bargaining agreement for over a decade.”

But, even with the county executive’s office recent steps to address the matter, OLO found that a major problem remains — several hundred pages of appendices and side letters, as well as memoranda of agreement considered part of the collective bargaining agreement. These are currently inaccessible either online or through other means.

“The CBA table of contents lists 22 appendices; only one of these appendices is available online,” the report said. “The CBA references dozens of supplementary documents referred to as ‘side letters’ or ‘MOAs’ [memoranda of agreement]. None of these documents are available to the public online.”

The OLO examined copies of these documents — largely furnished by the county executive’s office — and found “multiple provisions … that appear to be inconsistent with existing County laws, regulations and policies.”

In addition, the report — in seeking a complete look at details of the police bargaining agreement — identified several provisions of which council members were said to have been previously unaware.

The County Council is scheduled to discuss findings of the OLO report on Feb. 2.

The union, Fraternal Order of Police Lodge 35, sharply criticized the OLO finding.

In an eight-page statement attached to the end of the OLO report, Torrie Cooke, president of FOP Lodge 35, blasted the study as containing “far too many errors, omissions and inaccuracies to address in this response.”

Relations between the council and the county’s labor unions have been strained, following the decision by a council majority last spring to reject raises negotiated between Elrich and the unions as the COVID-19 pandemic took hold.

The rejected raise levels, along with several provisions involving health premium costs and pensions, are examples of the out-of-date language that remains in the bargaining agreement.

However, there is no finding in the OLO report that FOP members are receiving wages or benefits to which they are not entitled.

Nonetheless, the OLO report cautioned, “These items do not accurately portray current conditions and so could lead a third-party reader to misconstrue certain elements of the CBA.”

Cooke wrote in the FOP response: “The Council’s use of the Office of Legislative Oversight to intrude upon the County Executive and FOP Lodge 35 undermines the [Police Labor Relations Act’s] stated policy to promote a harmonious peaceful relationship between police employees and the County government, and will most certainly upset the balance of interests between the parties.”

The council adopted the Police Labor Relations Act almost 40 years ago, following a 1980 county public referendum approving collective bargaining for police officers.

Madaleno’s memorandum responding to the report was conciliatory, saying the county executive’s office agreed with five OLO recommendations.

They included proposals to make all documents supplemental to the bargaining agreement “readily accessible” online and to require the county executive to annually notify the council of “all modifications and amendments” to the bargaining agreement and the supplementary documents.

But while OLO suggested that the Police Labor Relations Act be amended to incorporate these changes, Madaleno rejected that approach — noting Elrich’s appointment in 2019 of a chief labor relations officer to head a stand-alone Office of Labor Relations.

“In the short time since these changes have been made, we have worked diligently to modernize the County’s approach to labor relations by implementing new, more collaborative bargaining strategies and resolving long standing projects — including the reconciliation of the collective bargaining agreement that is the subject of this draft report,” Madaleno wrote.

He contended that such efforts “should be permitted to germinate without wholesale and potentially divisive changes to the County’s labor relations law.”

While the OLO report on the county’s bargaining agreement with the FOP was authorized by the entire council, the report was first proposed by at-large Council Member Hans Riemer, who has pushed legislation making changes to the current disciplinary process for police officers.

In a phone interview, Riemer said that, in requesting the report, he was “focused really on police reform issues and trying to understand what’s in the contract. There are some problematic provisions.”

One issue Riemer cited involved a move by Elrich — in negotiating the current contract with the FOP — to make several changes contingent on the police receiving wage increases. One of these involved a new policy on the use of Tasers.

When the council rejected the wage increases, a less restrictive policy on Tasers — dating back nearly two decades — was left in place, rather than implementing a more restrictive policy arrived at last year.

“Why the executive would have [made] a crucial reform to ensure there isn’t abuse of force contingent on pay raises is unacceptable,” said Riemer, a leading council critic of Elrich.

Council members were informed that several provisions of the contract were contingent on the raise increases before they voted to reject the increases last spring. But they were unaware that the new policy on use of Tasers would be affected.

Also uncovered in the OLO review was an appendix to the bargaining agreement that sets the blood-alcohol level at which an on-duty police officer is considered “under the influence” at 0.10 — 25 percent higher than the current 0.08 for drivers in Maryland.

It is unclear from available documentation when these terms were agreed upon, although the appendix in question appears to go back at least a decade.

The purview of the OLO report did not include the current bargaining agreements covering county firefighters or general county government workers.

However, the agreements covering both of the other bargaining units, as well as relevant supplemental documents, are currently available online, indicating that the transparency problems identified in the FOP contract do not appear to be widespread in other current bargaining agreements.