Griffith v. Wakefield

RODOWSKY, Judge,

dissenting.

I respectfully dissent. The subject amendment is charter material. It alters the form and structure of government in Baltimore County in a most fundamental way. Under certain circumstances it takes fiscal power away from the County Executive and from the County Council and vests that power in arbitrators.

Baltimore County’s Charter embodies an executive budget system. A scheme of compulsory arbitration for one or more classes of county employees is at loggerheads with an executive budget system. By making the policy decision *391that compulsory arbitration should apply to the wages and other conditions of employment of county firefighters, when such issues remain unresolved through collective bargaining, the people of Baltimore County in essence have limited the power of their County Executive to propose appropriations for the fire department. Under the amendment a board of arbitration can decide some of the components of the fire department budget which the County Executive must, in turn, submit to the legislative branch. In this aspect of the budget process arbitrators substitute for the County Executive. Similarly, power of the County Council to reduce appropriations contained in the executive budget is in part taken away because appropriations required to implement a decision of arbitrators cannot be reduced. This is bedrock charter material. Accordingly the County Council could not, absent charter authorization, adopt by ordinance a system of compulsory arbitration for labor relations with county employees. That is the teaching of Maryland Cl. Emp. Ass’n v. Anderson, 281 Md. 496, 380 A.2d 1032 (1977).

The majority opinion does not conflict with the above conclusions. We are, however, told by the majority that the subject amendment is invalid, not because it fails to contain some charter material, but because it is too detailed. It is said invalidity lies in placing in the charter all of the steps necessary to create a functioning compulsory arbitration system, with the result that no judgments remain to be made by the County Council concerning implementation. The principle controlling the majority’s decision seems to be that the people of a home rule county, whose charter permits its amendment by initiative, may initiate amendments which enable council implementation, but may not, by initiative amendments which are self-executing, reallocate power over county finances. The holding in Cheeks v. Cedlair Corp., 287 Md. 595, 415 A.2d 255 (1980) does not go so far.

Once the subject amendment is recognized as reallocating fiscal power, the matters of detail which the majority criticizes become, in my view, an integral part of the charter material. If governmental power is taken from the execu*392tive and from the legislature, in order for it to be exercised by someone else, that someone else must be identified. When the someone else is to be a board of arbitration, it is appropriate to define how the particular individuals who will act as arbitrators are to be selected from time to time. Because the arbitrators are intended to exercise the power only as occasion requires, and not to hold office for a term, the method for identifying them becomes detailed. In principle, however, the mechanism for selecting arbitrators is no different than a charter provision specifying that a given county official is to be appointed by the county executive with the approval of the county council.

Specific time limits are also included in the subject amendment. These serve a twofold purpose going to this change in the form and structure of government. First, the reallocated part of Baltimore County’s fiscal power can be utilized by the arbitrators only under certain conditions and within certain time constraints. These are limitations on the exercise of the granted power. Simply because the provisions are unusual, they do not become different in character from, for example, a charter provision fixing a maximum on the number of days per year when the county council may sit to enact ordinances. Secondly, the time limits insure that the arbitrators function consistently with the timetable applicable to the preparation and adoption of the balance of the budget as it is processed through the traditional executive budget system.

There is a further limitation on the exercise by the arbitrators of this transferred portion of fiscal power. They are effectively prohibited from creating their own package of wages and other conditions of employment, because they must choose either the last proposal of management or the last proposal of labor. This is obviously further to expedite the process.

It is acknowledged by the majority that the people of a charter county may, by charter amendment initiative, partially scrap the executive budget system by opting for the *393principle of compulsory arbitration of labor disputes with county employees. Given that premise, I find nothing in the Home Rule Amendment which then prohibits those voters from also specifying the who, when and how of integrating into the county budget those appropriations which originate from that newly created power source.

By writing separately, I intimate no views on the due process and equal protection arguments.

Judge COLE authorizes me to state that he joins in the views of this dissenting opinion.