Tag Archives: FOP

Elrich’s Police Union Contract

By Adam Pagnucco.

In a June 4 op-ed in the Washington Post and comments reported by WTOP, County Executive Marc Elrich has promised to reform the Montgomery County Police Department (MCPD). According to WTOP, Elrich said MCPD has “an institutional problem” that “starts top down.” He said that he will be submitting a contract to the county council “for reevaluating everything” about MCPD.

If Elrich does intend any serious reforms, he will have to deal with a powerful document that can be invoked in response to them: his own contract with the Fraternal Order of Police (FOP) Lodge 35. The FOP’s contract, which Elrich personally signed, gives the union and individual officers substantial authority to restrict the ability of the chief to run the department, keep employee information confidential, block access to personnel records and mandate the destruction of certain personnel and video records. The contract even obligates the county to help the FOP block answers to public information act requests for videos and data. Many of these kinds of provisions are not unique to Montgomery County. But as the executive who signs union contracts as well as a 12-year member and former chair of the county council’s Public Safety Committee, which oversees the police, Elrich is directly responsible for their implementation here.

Here are some of the provisions of Elrich’s 2019-20 contract with the FOP.

Under certain circumstances, the FOP can force the police chief to bargain over new or changed rules or directives.

Article 61 (Directives and Administrative Procedures) contains a set of procedures that constrain the police chief’s ability to implement new or changed rules or directives. When the chief seeks to implement a new rule or directive or change an existing one, he must notify the FOP. “The primary subject of any new, changed, or amended directives or rules covered by the article shall not include matters currently addressed in the collective bargaining agreement, or matters proposed by the County and rejected by the FOP at the most recent term negotiations, or matters, the primary subject of which, were taken to mediation by the FOP at the most recent term negotiations.”

The FOP may then demand to bargain the proposed rule or directive. If the chief does not agree, the matter goes to the county’s Permanent Umpire who decides if the rule or directive must be bargained. This provision limits the ability of the chief to run his department without the consent of an arbitrator. It could certainly be activated to counter any reform proposals opposed by the union.

If employees are arrested, they must disclose it to their supervisor. However, the disclosure “shall be considered confidential and shall only be shared on a need to know basis.”

Article 15 (Hours and Working Conditions) Section Y contains this language on what happens when an employee is arrested.

Employees shall immediately report, or as soon as practical, to their commander/director or bureau chief, any circumstance where the employee is arrested or becomes a defendant in any criminal proceeding that may result in incarceration, receives an incarcerable traffic citation as defined in the Maryland Transportation Article, has their driver’s license/privilege suspended, revoked, refused or canceled that affects their ability to operate a county vehicle, or is notified that they are the subject of a criminal investigation by any law enforcement agency. If the employee is served with a temporary protective order, temporary ex parte order, or other similar temporary order that impacts the employee’s ability to carry a weapon or to perform their assigned police duties or any permanent protective order, permanent ex parte order or other similar permanent order that impacts the employee’s ability to carry a weapon or to perform their assigned police duties, they shall report the matter (as outlined above) directly to their commander/director or bureau chief to be reviewed to determine if the matter impacts the employee’s ability to perform their assigned police duties. The employee shall provide the commander/director or bureau chief with the information (i.e. date/time/location of the alleged offense, case/docket/tracking number) required for the employer to obtain additional information. All information shall be considered confidential and shall only be shared on a need to know basis. It is recognized that all persons are presumed innocent until proven guilty.

In Maryland, criminal records are public documents accessible through the state’s judiciary website. This language prevents police supervisors from disclosing at least some information that is public record.

Management does not have an unfettered right to access personnel records.

Article 51 (Personnel Files) Section B gives an employee and their authorized representative access to the employee’s personnel file. Additionally, the following individuals can access the file only on a “need to know” basis: the employee’s supervisor, an appointing authority or designee, the county’s Human Resources Director or designee, the county attorney or designee, the Chief Administrative Officer or an Assistant Chief Administrative Officer, and members of a Recommendations Committee when an employee has applied for a position vacancy announcement.

“Need to know” is not further defined in the section other than for the county attorney, when it is defined as “when an employee is in litigation against the County, e.g., Merit System Protection Board, Worker’s Compensation, Disability, Retirement, etc.)” and members of a recommendations committee, when it is defined as “limited to performance evaluations, letters of commendation, awards and training documents for bargaining unit members assigned to Recommendations Committee.” Release of personnel records to anyone else is prohibited without the employee’s signed authorization.

Personnel files are destroyed five years after an employee leaves county employment.

Article 51 (Personnel Files) Section E states the following.

  1. Except as provided below, all records including medical and internal affairs files, pertaining to separated employees shall be destroyed five (5) years after separation, unless the files are the subject of pending litigation. In which case, these files will be destroyed at the conclusion of the litigation.
  2. The County may maintain records necessary to administer employee benefits programs, including health and retirement, a file containing the employee’s name, address, date of birth, social security number, dates of employment, job titles, union and merit status, salary and like information.
  3. Except as required by law, no information may be released from any file without the express written permission of the separated employee.

Section H adds these restrictions.

  1. To the extent not specifically preempted by State law, adverse information concerning an officer’s past performance shall not be admissible in any proceeding unless maintained in strict accordance with this article.
  2. Except as provided in paragraph 1 of this section, only information properly maintained in personnel files as established by this Article may be used in any other process, proceeding, or action.

Elrich’s signature on the FOP’s 2019-20 contract.

Mobile Vehicle System (MVS) recordings may not be used for performance evaluations.

Article 66 (Mobile Vehicle Systems) Section C.7 states, “No recording may be used for the purpose of performance evaluations.” Section C.6 states, “All recordings will be destroyed after 210 days, unless the recording is, or may reasonably become, evidence in any proceeding. A recording will be retained if the FOP provides notice to the Department within 210 days of its potential use in a hearing.”

Management may use MVS recordings for disciplinary purposes under certain circumstances including external complaints, pursuit, collision, uses of force, injury or when management has “reasonable basis to suspect that a recording would show an officer engaged in criminal wrongdoing or serious allegations of misconduct in violation of Department rules and regulations applicable to bargaining unit members.”

Body camera recordings “shall not be routinely reviewed for the express purpose of discovering acts of misconduct or instances of poor performance without cause.”

Article 72 (Body Worn Camera System) Section D.2 states:

BWCS recordings shall not be routinely reviewed for the express purpose of discovering acts of misconduct or instances of poor performance without cause. An employee’s supervisor may use BWCS recordings to address performance when cause exists. Any recording used must be reviewed with the subject employee prior to any documentation of performance. Any documented review will be included in the employee’s supervisory file. The employee shall have the opportunity to respond in writing to the document. The response shall be attached to the supervisor’s document. The employee and the employee’s representative shall be provided access to the referenced recording if requested. Performance evaluation shall not be the sole reason for the employer retaining a recording beyond the agreed upon term.

Section F.1 states, “All BWCS recordings will be destroyed after 210 days, unless the Department deems it necessary to retain the recording for a longer period of time.” Section F.2 states, “An employee may elect to save BWCS recordings for longer than 210 days if the recording was used to support a performance evaluation which resulted in a single category being rated as below requirements.”

Police instructors are prohibited from having sex with trainees. However, they cannot be disciplined for it.

Article 15 (Hours and Working Conditions) Section L prohibits instructors and field training officers (FTOs) from having sex with trainees whom they are instructing. If that happens, the instructors and FTOs are separated from the trainee’s class. However, if the instructor or FTO discloses the relationship to management, “managers and supervisors must maintain the disclosure in confidence” and “no disciplinary action or retaliation must occur as a result of the disclosure.” If the relationship is not disclosed but is otherwise discovered, the more senior officer is involuntarily transferred but “violation of this rule will not result in discipline.” Nothing in the contract prohibits the instructor or FTO from proceeding to train other trainees.

The contract obligates the county to help the FOP block answers to certain public information act requests.

The Maryland Public Information Act (MPIA) is mentioned in three different articles of the contract.

Article 65 pertains to Automatic Vehicle Locators (AVLs) and Portable Radio Locators (PRLs), which are described as “systems that allow the Department to identify the location of police vehicles and portable radios that are equipped with GPS tracking capabilities.” Sections D and E address what happens when MPIA requests are made for AVL and PRL records.

Section D. MPIA. The County agrees that it will deny all Maryland Public Information Act (MPIA) requests for stored AVL/PRL data on the movements and location of vehicles assigned to unit members until and unless a point is reached where court decisions establish that AVL/PRL data is public information subject to release under the MPIA. The County will defend its denials of MPIA requests for stored AVL/PRL data in the trial courts, and will continue to defend these denials in trial courts until and unless court decisions establish that AVL/PRL data is not confidential information. The County may, where appropriate, seek appellate review of court decisions ordering the release of AVL/PRL data, but is not required to do so. If the county chooses not to appeal, the employee shall have the right, as allowed by the Court, to continue the appeal at the employee’s own expense.

Section E. Summonses. The County agrees that it will seek court protection from any subpoena or summons seeking stored AVL/PRL data on the movements and location of vehicles assigned to unit members, except for subpoenas issued by a grand jury, or a State or federal prosecutor. The County will seek protection from subpoenas and summonses in the trial courts, until and unless a point is reached where court decisions establish that AVL/PRL data is not confidential information. The County may, where appropriate, seek appellate review of court decisions ordering the release of AVL/PRL data, but the county is not required to do so. If the county chooses not to appeal, the employee shall have the right, as allowed by the court, to continue the appeal at the employee’s own expense.

And so the contract directs the county to block the public’s access to these records in court.

The second article mentioning the MPIA is Article 66, which pertains to Mobile Vehicle Systems (MVS). Section 3.13 states:

All external requests for copies of recordings, including subpoenas and summonses, will be reviewed by the County Attorney’s Office. The County will notify the FOP of all such requests for MVS recordings/data involving unit members and solicit its opinion before determining whether the request will be granted or denied. If the County determines that a request cannot be denied under the MPIA, it will give the FOP an opportunity to file a reverse MPIA action and will not grant the original request until and unless a court orders that the recording/data be disclosed.

This language may violate state law, which allows for a maximum of 30 days to release information disclosable under the MPIA. Courts have been known to take more than 30 days to make findings in lawsuits.

The third article mentioning the MPIA is Article 72, which pertains to Body Worn Camera Systems (BWCS). Section E states:

  1. Release of BWCS video in absence of a specific request: The County will provide written notice to the FOP prior to the release of any BWCS recording to the public. In the event of an emergency or a bona fide public safety need the County may provide written notice after the release. This does not include release of recordings in connection with litigation, In events where there is no exigency, an employee captured in the recording may object to the use of the recording, in writing, to the Chief of Police (or designee) within two calendar days of receiving the notice of intent to release the recording as to any reason(s) why he or she does not wish the recording to be released. The Chief of Police (or designee) will consider any reason submitted by the employee before proceeding with the release.
  2. The release of recordings of an employee’s death or injury shall not occur absent compelling law enforcement related reasons to release the recording or in situations where the release of those recordings are required by law.
  3. The County shall ensure that all external requests for copies of recordings, including subpoenas and summonses, will be reviewed for compliance with applicable standards, including those imposed by law or by provisions of this Agreement. The County will maintain a log of all MPIA requests for BWCS video that it receives. The County will make this log, the underlying MPIA request, and the requested recording, available to the FOP for inspection. If the FOP objects to the release of any portion of the recording, it must promptly notify the County of its objection(s) and its intent to file a “reverse MPIA” action if the County decides to release the requested recording. The County will promptly notify the FOP of any decision to release the requested recording and the date and time of that release, unless the FOP first serves the County with a “reverse MPIA” action it has filed in a court of competent jurisdiction. The parties will make all reasonable efforts to provide each other with expeditious notice under this section given the relatively short time limits in the MPIA and its overall policy of providing the public with prompt access to public records without unnecessary delay.

In summary, the FOP’s contract requires the county to block public access to automatic vehicle locator and portable radio locator data in court and also requires it to facilitate the FOP’s opposing release of motor vehicle and body camera video in court.

If Elrich is serious about reform, he needs to review his own police union contract to see if its provisions are compatible with change. If he doesn’t, the county council will have to step in.

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Elrich Agrees to Give Unions COVID-19 Differential Pay

By Adam Pagnucco.

County Executive Marc Elrich has reached agreement with the three county employee unions (MCGEO, the fire fighters and the police) to provide additional pay related to the COVID-19 crisis to their members. The additional pay will range up to $10 per hour, is retroactive to March 29 and will last for at least six pay periods. Elrich’s press release appears below.

*****

County and Labor Representatives Reach Agreement on Recognizing the Risks of On-site Employees

For Immediate Release: Friday, April 10, 2020

County Executive Marc Elrich is pleased to announce that the County has completed its negotiations with all three County unions and agreed upon COVID-19 differential pay to recognize the unusual risks employees now face in leaving their homes and delivering vital services to the public. These agreements are significant because the union representatives worked with management during this crisis time to achieve an agreement that ensures that critical services are maintained, employees are taken care of and fiscal realities are addressed. The three unions are the International Association of Fire Fighters, Local 1664; the Fraternal Order of Police, Lodge 35; and, the United Food and Commercial Workers, Local 1994 (MCGEO).

“I appreciate the work and the willingness of our union representatives to join with us in a collaborative approach to bargaining, to achieve an agreement that respects the increased risk for our workers who are continuing to do their jobs and respects our budgetary obligations,” County Executive Elrich said.

This agreement recognizes the increased risk of the work done by our first responders – firefighters and police officers during this pandemic. It also recognizes that other employees are doing work that requires public interaction – and therefore increased risk, including work by corrections officers, bus drivers, nurses, and social workers.

The County Executive noted that under provisions of existing county bargaining agreements (which were negotiated years ago), the unions could have insisted on much larger benefits, but they understood the importance of the ongoing fiscal health of the county. The County Executive also noted the progressive nature of the agreement, which gave dollar, rather than percentage, differential payments.

The County Executive acknowledged that the County has nonprofit partners serving on the front lines of the Corona-19 response and will work with them to find possible ways to help them maintain necessary staffing.

After teams of management, in close coordination with union representatives, identified the critical core services that would need to continue for the next eight weeks, the likely minimum duration of the COVID-19 crisis. This COVID-19 differential pay would apply to those front-facing and back-office onsite employees who are required to come to work to respond to COVID-19 or provide County’s selected critical core services. Those who must work onsite are in the following two categories:

Front Facing Onsite: work that cannot be performed by telework, involves physical interaction with the public and cannot be performed with appropriate social distancing.

Back Office Onsite: work that cannot be performed by telework and does not involve regular physical interaction with the public.
The broad details of the COVID-19 pay differential are as follows:

The differential pay will be uniform for FOP and IAFF members. For MCGEO-represented and GSS employees, the differential will distinguish between front-facing onsite and back office onsite work. The differential pay for all impacted employees are retroactive to March 29, the beginning of the current pay period.

The front-facing onsite employees will receive an additional $10/hr and the back-office onsite will receive $3/hr.

Additionally, this week masks will be distributed to employees who do not have them, and administrative leave will be given to high risk employees who cannot telework and do not feel safe working on site.

The agreements cover six pay periods, which started on March 29, or until the Maryland State of Emergency is lifted. If the State of Emergency is still in effect at the end of the six pay periods, the agreements will be revisited.

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Council Equity Drive Hits the Budget Rocks

The Montgomery County Council has repeatedly focused on racial and gender equity. Supported by the entire Council, Councilmember Nancy Navarro sponsored legislation that requires a racial equity analysis of each piece of legislation. Councilmember Evan Glass sponsored successful legislation this year that bans consideration of salary history in an effort to promote pay equity between male and female county employees.

While these primarily symbolic acts passed easily, the Council flinched from much more meaningful action when it passed the budget this year.

County unions negotiated some stonking good raises with County Executive Marc Elrich this year. Analyses by Adam Pagnucco understandably focused on the politics of the raises for unions that supported Elrich. It’s certainly true that the unions supported Elrich, but the nature of the way that Montgomery negotiates union contracts propelled these raises forward and also merits attention.

Montgomery negotiated first with the Fraternal Order of Police (FOP) and reached agreement without mediation or arbitration. The Firefighters union (IAFF) went next. These negotiations ended up in arbitration, as required by the contract when the two sides cannot agree. The arbitrator mandated generous raises for IAFF employees, which the county executive was contractually obliged to support during the budget process.

The unions aren’t supposed to talk to each other about these negotiations, but what do you think the chances are that doesn’t happen? As a result, there was no way MCGEO, the county employee union, was going to settle for any less. One imagines that the county executive was ill-positioned to talk them down, knowing the results from the previous arbitration (and knowing that MCGEO also knew even though they theoretically did not).

The County Council understandably viewed these raises as budget busters. The increases are well above growth in our relatively stagnant tax revenues. Few county residents have received extra pay increases to make up for anemic wage growth during the economic crisis. I know I didn’t.

The Council chose to sharply reduce the pay increase projected for MCGEO, the county employee unions, which on top of a COLA and step increase had included an additional 3.5% for a step increase that got deferred during the economic crisis. The police union (FOP) received the same deferred step increase, but the council left it untouched.

While MCGEO members have received no deferred step increases, the other county unions have been much more fortunate. Not just FOP and IAFF employees but also MCEA employees (the teachers’ union) have now received two apiece due the actions of this and past councils.

Unlike the membership of the IAFF or FOP, MCGEO is the only union of the three that is both majority female and majority minority. In cutting salaries for MCGEO, the County Council directly eliminated spending that would have done far more to promote racial and gender equity than the more symbolic legislation sponsored by Navarro and Glass.

From budgetary and policy perspectives, the Council choices made sense. The MCGEO raise had the biggest impact on the budget because they represent far more people than FOP and IAFF. Moreover, police and fire protection are core services. My guess is that most county residents would rather see firefighters and police officers receive pay increases than, say, county liquor store employees represented by MCGEO.

It was the right decision. Indeed, one could easily argue that the Council should have cut more from all of the union pay raises because tax revenues have regularly disappointed with the county seemingly facing budgets shortfalls with the predictability of humidity in August.

MCGEO remains an easier target than the sacred cows of education (MCEA) and first responders (FOP and IAFF). However, along with Department of Liquor Control (DLC) employees, MCGEO also represent people like prison guards, sheriffs, social workers, librarians, and snow plow drivers. Many engage in dangerous and difficult work.

Perhaps county councilmembers should spend less time touting how woke they are in the future. When it came to spending hard cash, the Council blinked and reduced the negotiated salaries of the predominantly female and minority union even as it once again protected pay increases for the other two unions. Reality bites.

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SEIU Fuming Over Smith Appointment

A reliable source reports that SEIU is not happy that MCDCC voted to appoint Del. Will Smith over Del. David Moon to the District 20 Senate vacancy caused by Jamie Raskin’s resignation, in order to take up his seat in the U.S. House.

Several members of the Central Committee who voted for Smith plan to seek elected office in 2018, and SEIU is already making noises about wreaking its revenge at that time. Whether this is just talk in the heat of the moment or serious, only time will tell.

The outcome is interesting if only because the current MCDCC was packed with union supporters in the wake of union unhappiness with the Committee’s support for the all-Democratic Council’s position on police bargaining.

However, while SEIU, MCGEO (county employees), UNITE and Mid-Atlantic Laborers supported Moon, the FOP (police) and IAFF (firefighters) supported Smith. Perhaps the outcome only speaks to SEIU and MCGEO’s relative influence compared to FOP and IAFF.

In any case, the group of unions that supported Moon has promised to stick together during the 2018 elections. MCGEO’s efforts to throw its weight around in 2016 were notably ineffective. We’ll see if this new coalition has any more impact.

The bitterness coming from SEIU notably contrasts with the positive tone expressed by Del. Moon and his other supporters today. On his Facebook page, Moon very graciously wrote:

Congratulations to my new Senator and homie William Colonel Smith Jr! Though I campaigned vigorously to represent the activist wing of the party, I know he’ll do a fine job. As I told the Washington Post, this is a proud moment for Montgomery County.

It’s not always easy to write notes like these. However, it was not only the right but also politically smart approach.

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Effects Bargaining and Endorsements

Effects

MCGEO is the Municipal and County Government Employee Organization. FOP is the Fraternal Order of Police. AFL is the MD-DC AFL-CIO. IAFF is the International Association of Fire Fighters. There might be additional endorsements than those recorded here, particularly for the IAFF.

The government employee unions are placing heavy bets behind candidates who favor effects bargaining despite its repudiation by the voters, especially Duchy Trachtenberg and Tom Hucker. In a recent debate, Duchy speculated that the decline in police morale resulting from the removal of effects bargaining had caused crime to increase. Except that crime has declined–as Ike Leggett loves to remind us–which renders the theory untenable.

Ryan Spiegel has positioned himself as extremely pro-labor despite his unwillingness to revisit effects bargaining. And the unions don’t have a pro-effects bargaining choice in District 3. Ryan is clearly their candidate for the Rockville-Gaithersburg district.

In ultra-liberal District 5, Evan Glass has staked out a position as the only candidate opposed to overturning the will of the voters unless it proves to cause problems for voters. Not a bad idea since he was never going to outbid Hucker for union support.

Marc Elrich is the only incumbent councilmember to receive an endorsement from any of these four unions. At-Large Candidate Vivian Malloy is pro-effects bargaining but is not perceived as a viable challenger by these unions.

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MCDCC Part I: Question B

AgainstQuestionB

You just gotta love that we have party central committees in the State of Maryland. Both Republicans and Democrats have them in every county of the State. It all feels so retro-Soviet. Why not Politburos? Or at least Praesidiums?

The Montgomery County Democratic Central Committee is currently not the peaceful backwater that one might expect of a relatively obscure organization of party officials. Instead, it is now the center of what some might call renovation and others a hostile takeover despite the recent announcement of a “unity” slate.

The fracas started with the passage of a bill unanimously by the all-Democratic County Council to eliminate “effects bargaining” with the police union, the Fraternal Order of Police (FOP) designed to give the Police Chief more flexibility and control in the management of police officers. “Effects bargaining” required the Chief to clear all management decisions with the FOP.

The FOP vehemently opposed the changes and petitioned them to referendum in what became known as Question B. While intensely disliking the changes, it was only the latest in what the three non-school related public employee unions (FOP, the Firefighters, and MCGEO) perceived as bad treatment by the County on issues such as disability payments, furloughs and benefits.

MCDCC became involved through its control over the Democratic sample ballot. All precinct officials in the Democratic Party could vote on whether the sample ballot should endorse or oppose the proposal or take no position. At the urging of county councilmembers, the precinct officials voted heavily to endorse the proposal passed unanimously by the County Council.

The Central Committee has the power to change an endorsement of support or opposition by precinct officials to no position by majority vote. Urged on by Chair Gabe Albornoz, (Correction: Gabe was not Chair yet) MCDCC voted to uphold the decision of the County Council and the precinct officials.

The Democratic sample ballot thus endorsed the question. Whether or not it mattered, the voters agreed, voting by 58% in 2012 to keep the law passed by the Council despite vigorous efforts by the FOP and other government employee unions to overturn it.

Needless to say, the unions were NOT happy. More in Part II.

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