- The Enterprise
- The Recorder
Attorneys on behalf of the Calvert County Government and the Calvert County Fraternal Order of Police Lodge 109 presented arguments during a motion’s hearing Wednesday morning about a civil injunction, filed by the FOP and three sheriff’s deputies, seeking annual salary merit step increases for the past four fiscal years.
The attorney representing the county government filed a motion to dismiss the case, which was the basis for Wednesday’s hearing in Calvert County Circuit Court.
The complaint for declaratory and injunctive relief and for writ of mandamus was filed Oct. 10 for all deputies of the Calvert County Sheriff’s Office seeking the step increases, which are earned through longevity and satisfactory job performance, for fiscal years 2010, 2011, 2012 and 2013, that they claim have been unlawfully denied them. The civil suit also seeks to require the county to grant annual salary increases at the beginning of each fiscal year for all deputies who have received an annual performance evaluation that indicates a rating of at least satisfactory, according to court documents.
Because deputies have been denied annual step increases, they are at least four steps lower on the pay plans or salary scales than they would be had the county not violated county code, the suit alleges, adding that deputies have “suffered from reductions in their salary” by as much as 9 percent of base pay.
Attorney Victoria M. Shearer, of Karpinski, Colaresi and Karp, P.A., who represented the county government, said in the civil injunction the FOP is claiming deputies are entitled to step increases based on the section titled “step increases” of the county ordinance code titled “pay and adjustments.” That section of the code reads: “Subject to the availability of funds and the terms of the pay scale, the Board of County Commissioners grants step increases once per fiscal year” to certain employees, including merit employees, who “shall be granted a step increase at the beginning of the fiscal year” if they “have received a satisfactory or better performance evaluation.”
The language of the code implies that employees will be eligible for, not guaranteed or mandated to receive, step increases, Shearer said. Under Maryland law, she said, commissioners are not authorized to mandate step increases and never contracted to do so with that ordinance.
The plaintiffs assert that the language, “subject to the availability of funds,” mandates a step increase, which is incorrect, she said, and it is for the commissioners to decide when the funds are available. She said the plaintiffs’ arguments ignore the language of the statute of the ordinance, that the plaintiffs’ interpretation of the code “surrenders” the authority of the commissioners to make legislative decisions and would make the ordinance invalid under Maryland law.
The “plaintiffs’ arguments are creative,” Shearer said, but are incorrect as there is nothing mandatory in the statutory language of the code “whatsoever.”
Shearer said the complainant “incorrectly” alleges that the county hasn’t complied with the rules of the code by refusing to provide the merit steps “as required” because funds were available to do so.
According to a press release issued by the FOP last October, for fiscal 2013, the county government projected a fund balance of $66.5 million and part of the fund balance is in an unreserved and undesignated funds account that is not restricted, committed or assigned to any use. In fiscal 2010, the fund had a balance of $17.6 million, which, over the last four years, has increased by $14 million to $31.6 million, the press release states. Thus, from these fund balances, the county had the funds available to provide deputies with step increases each year, court documents allege.
Attorney Abigail V. Carter, of Bredhoff and Kaiser, P.L.L.C., who represented the FOP, said the county created a code that would allow it to annually look at whether employees were eligible to be compensated and, if they were, would receive step increases every year subject to availability of funds.
Once the budgetary process was complete, there was “nothing to indicate funds weren’t available,” Carter said. Carter said she is not challenging the county commissioners’ budgeting skills, but if there is money left over after the budgeting process is done, step increases should be given because the county’s “own ordinance requires them to” do so.
In the code, the phrase “subject to availability of funds” is a predicate, Carter said, and once that predicate is met, the step increases will happen. Carter asserted that the predicate was, in fact, met based on the county’s past budgets and steps should have been given.
Shearer said it’s up to the commissioners, not the court, to determine if funds are available. She said the court could not accept the plaintiffs’ argument without “invalidating” the ordinance.
Carter disagreed, stating, “It’s an exercise of discretion” by the county commissioners.
Retired Prince George’s County Circuit Court Judge Graydon McKee said he needed to further review evidence and would make a ruling as to whether to dismiss the case at a later date.