The Frederick County Council — despite pleas from one of its members to amend the law — approved legislation adding binding arbitration and collective bargaining language, along with other aspects, to county law in a 6-1 vote Tuesday.
Before the council voted down his three proposed amendments, Councilman Kai Hagen (D) said he had “tremendous heartburn ... no pun intended” about his colleagues not choosing to amend Councilman Jessica Fitzwater’s (D) bill. He was the lone yes vote on those amendments and the lone no vote on Fitzwater’s legislation.
Fitzwater introduced the legislation last month after she, county officials and leaders of the International Association of Firefighters Local 3666 (IAFF 3666) met in a work group multiple times last year.
Its goal was to add language to county code involving binding arbitration and collective bargaining, among other areas. That was in response to a ballot issue in the 2018 midterm election — known as Question D — which asked the county to implement those changes. It passed with more than 70 percent of the vote.
The council heard from several members of IAFF 3666 and other supporters last week, who were concerned about Fitzwater’s bill before Hagen’s amendments were introduced. They argued that prior case law in the state and the strong public support of Question D show that county officials must implement any third-party arbitrator’s decision into the county budget process.
That again was the focus of several who spoke Tuesday night, including IAFF 3666 President Stephen Jones and Ken Berman, an attorney in Frederick speaking in support of the union.
Berman pointed to Atkinson v. Anne Arundel County, a case decided in the state’s Court of Appeals in 2016. That case decided neutral arbitrators’ decisions must be funded in the county budget process.
That has been a main point of disagreement between the county’s legal staff and IAFF 3666 — whether that case applies to Question D and Frederick County’s charter.
Berman said in an interview that the charter amendment in Question D and the issues raised in Anne Arundel County are similar, and he was disappointed in the council’s decision.
“I really do think we have a 200-year history of stare decisis in the United States, whereby we live by precedence of the court,” Berman said, alluding to the importance of the Atkinson decision. “And they [the council] seem to have basically decided not to do that.”
Jones said after the meeting he would confer with his union’s attorneys, but added he would not rule out a lawsuit challenging the county’s decision.
He added he didn’t have a timetable on when that decision would be made.
Before each member voted on Fitzwater’s bill, they took the time to explain their decision.
Councilman Steve McKay (R) said IAFF 3666 drafted a “sloppy” charter amendment and he did not want to pass Hagen’s amendments, as they would conflict with charter language.
“I can’t wave the problem away and vote yes for the amendment that conflicts with the language in the charter,” McKay said.
But Hagen disagreed with McKay, especially regarding the charter amendment and its impact on the budget process. He agreed with most of Fitzwater’s bill, but could not vote yes based on language related to the budget process.
“This is not about whether or not you voted for [Question D] or for it. ... This is about having the vote be what it was,” Hagen said. “This is about implementing the charter language in the intent, spirit and letter of the law.”
But council leadership disagreed, including council Vice President Michael Blue (R). Blue said he trusted county legal staff’s interpretation of Question D and its implementation.
“As much as intent and spirit of the law should be taken into account, it doesn’t really hold up in court,” Blue said. “The letter of the law is what is so important to us.”
Fitzwater said her work implements the change required due to Question D and the charter, and noted the legislation does do many things to assist IAFF 3666’s members, including expanding collective bargaining and other improvements.
“To me, to say that this bill denies our firefighters a seat at the table or a voice in their professional safety ... is just not accurate, given what the bill does,” Fitzwater said.
She said after the meeting, like some of her colleagues before the vote, that litigation is possible. But she added she would need more information about what that would look like before addressing specific aspects of the legislation.
“I had to use what was actually in our charter,” Fitzwater said of her drafting of the bill. “So I was working off of the language that was actually put into our charter as a result of the 2018 elections, and that’s what I had to use in order to draft the bill.”
It’s unclear when any possible lawsuit might be filed. The bill heads to County Executive Jan Gardner’s (D) desk. According to the charter, she has 10 business days to sign or veto it. With her signature, the bill would become law in 60 days, the charter states.