Pay up, Kamenetz [Editorial]

Our view: Whether he’s right or wrong on the merits, the Baltimore County executive needs to stop fighting a judgment on retiree health care

Baltimore County Circuit Judge Michael J. Finifter knows how to get County Executive Kevin Kamenetz‘s attention. A year and a half after Maryland’s highest court upheld an arbitrator’s decision that Baltimore County had overcharged a group of police department retirees for their health insurance benefits and owed them recompense, the county still has not paid and is working its hardest to avoid ever doing so. Now Mr. Finifter has threatened to hold Mr. Kamenetz in contempt and to throw him and two other top officials in jail.

That’s a little extreme and of questionable legality, in that Mr. Kamenetz, County Administrative Officer Fred Homan and Finance Director Keith Dorsey aren’t actually named in the lawsuit. Nonetheless, it’s time for someone to bring the Kamenetz administration to its senses.

Mr. Kamenetz says he’s fighting for a higher principle and that paying the judgment would be a policy disaster for the county and its taxpayers. Maybe he’s right, and maybe he’s wrong. But the Court of Appeals has ruled, and his attempts to get another shot at relitigating the issues in the case are looking increasingly desperate. In the meantime, the tab for the county to pay is growing every day through interest charges. It’s time for the executive to recognize the inevitable.

The issues at hand are a bit convoluted, but the story goes like this:

In 2007, Baltimore County negotiated with its employee unions, including the Fraternal Order of Police, to have workers and retirees pay for a larger share of their health benefits than they had before. It did so through the Health Care Review Committee (HCRC), a decades-old entity that, among other virtues, has produced uniformity in the health benefits among different groups of county workers and retirees. Previously, the county had picked up 85 percent of the tab for health benefits, but the new agreement gradually shifted that to 80 percent.

The FOP filed a grievance on behalf of those officers who retired between 1992 and 2007, arguing that the memorandums of understanding they had in place during those years guaranteed them an 85 percent subsidy from the time of their retirement until they became eligible for Medicare. The union took the matter to arbitration and won.

The county appealed that decision to circuit court, arguing that the matter never should have gone to arbitration. The requirement that contract disputes be settled by an arbitrator expired along with those contracts, the county argued. Moreover, the county contended that the HCRC had the authority to retroactively change retirees health benefits. The circuit court disagreed, ruling in favor of the union. The Court of Special Appeals reversed that, ruling the county’s way. But Maryland’s highest court, the Court of Appeals, ruled unanimously in favor of the union in November 2012.

The reasoning is a bit technical, but it boils down to two things. First, the Supreme Court has held that under certain circumstances, a binding arbitration clause can outlive the contract of which it’s a part. In this case, the Court of Appeals concluded, the arbitration clause remained alive because the dispute related to an action taken after the contract expired that affected a vested right under that contract — in this case, the payment split for retiree health care. And second, under Maryland law, courts give broad deference to arbitrators in the interpretation of contracts and in determining the merits of complaints.

The court, rather pointedly, did not address the county’s contentions about the HCRC, and now Mr. Kamenetz is pinning his hopes for reversal on getting a second shot at that argument. He intends to appeal Mr. Finifter’s order that the county pay on technical grounds dealing with the annual budget cycle and the division of powers between the executive and council when it comes to appropriations. Then, assuming a series of appeals, he would like to re-argue the point about the powers of the HCRC.

He says that’s a fight worth fighting because, as he sees it, the issue is bigger than the FOP retirees. At this point, the county owes the 439 FOP retirees — initially, it was 442, but three have died while this dispute has dragged on — $1.4 million to reimburse them for seven years of over-charging, plus $200,000 in interest. As those retirees become eligible for Medicare, this issue goes away. However, Mr. Kamenetz says some of the other unions had similar clauses in their contracts prior to 2007, and out of fairness, he would feel obligated to give them the same deal as the police retirees. The cost then goes to $14 million. Moreover, he says he worries that accepting the judgment would make it impossible in the future for the county to change the terms of retirees’ health benefits.

Perhaps Mr. Kamenetz is right on the broader policy question, perhaps he’s not. But that is, for better or worse, beside the point. The Court of Appeals was unanimously unimpressed with the county’s argument the first time around. Even presuming he finds a way to battle back there, what makes him think he’ll be more persuasive the second time around? More likely, the justices will be just as annoyed to see him back as Mr. Finifter is with his tactics now. And what will the county get out of it? A higher bill for interest payments and a lot of wasted time by its lawyers. It’s time for the county to pay up.


Judge orders Kamenetz to appear in court in police union dispute

A Baltimore County judge has warned County Executive Kevin Kamenetz and two other county officials they could face jail time or other penalties for refusing to pay more than $1 million to police retirees despite a court order to do so.

In an unusual order, Circuit Judge Michael J. Finifter directed Kamenetz, county administrative officer Fred Homan and budget and finance director Keith Dorsey to appear before him June 26 to show why the court “should not hold each in contempt and/or impose sanctions, including incarceration.”

The Baltimore County Fraternal Order of Police is asking that all three be held in contempt of court in the long-running dispute.

Referring to the county executive, FOP President Cole Weston said, “It’s extremely unfortunate that an elected official who also is an attorney, who practices law, would take a position to disregard the courts and somehow feel he’s above it.”

Kamenetz administration officials say the union’s call for contempt charges amounts to grandstanding and have previously called the FOP’s legal tactics “a publicity stunt.”

“The FOP continues to believe that their retirees should have more generous benefits than everyone else,” Kamenetz chief of staff Don Mohler said in a statement.

The case centers on county subsidies for the health benefits of more than 400 police retirees. Union leaders say the county violated their contract in 2007 when it shifted more health care costs to officers who retired between 1992 and 2007. The police union filed for arbitration and won. Since then, the case has been appealed all the way to the Maryland Court of Appeals, the state’s highest court, which in 2012 also ruled in the union’s favor.

The county still has not paid the retirees.

Baltimore attorney Steven D. Silverman, a civil and criminal lawyer and legal observer who is not involved in the case, called the judge’s April 14 order highly unusual, saying it looks like Finifter “is using this option as a last resort to try to enforce the judgment.”

“It’s clear that in the court’s mind the buck stops at the county executive’s office,” Silverman said. “There has to be accountability in government, and in the court’s mind, the accountability starts and ends with the executive.”

The county contends that its Health Care Review Committee, which is made up of union officials and others, negotiated the cost shift.

“This case stems from the FOP refusing to abide by an agreement their representative made along with all of the other county labor unions,” Mohler said. “As for the grandstanding tactics of the FOP, you can’t be held in contempt for refusing to do something that is illegal.”

FOP officials say the union never agreed to the shift for employees who retired under the old contract, and they note that courts have sided with them.

“If the Maryland Court of Appeals has issued instructions or a mandate on how to proceed in a certain situation and the judge follows that mandate, the judge is going to take very seriously enforcing our highest court’s orders,” Silverman said. “The judge will certainly get the attention of the Baltimore County government.”

County officials declined to say whether Kamenetz, Homan and Dorsey planned to appear in court in June, saying county attorneys are reviewing the situation.

Silverman said if Kamenetz and the other officials don’t show up, Finifter could issue a bench warrant for their arrests.

Last year, police union leaders said the county owed each retiree about $1,300 to $1,900. The union previously sought about $573,000 in total reimbursements for the retired officers.

However, amid the court fight, interest on the amount the county owes to the retirees is growing, and the judgment against the county now totals more than $1.6 million because of legal fees, interest and the amount that the retirees are continuing to overpay.

Weston said county taxpayers could have saved “a tremendous amount” of money had the county not fought previous court decisions.

“Our focus is on this group of retirees that the county had a contractual obligation with,” he said. “They served this county …The disrespect here is clear — it’s not only to this group of employees, but it’s disrespectful to the entire judicial system, up to and including Maryland’s highest court.”

alisonk@baltsun.com

By Alison Knezevich, The Baltimore Sun

 

Baltimore County Circuit Court Judge Finifter issues a Show Cause Order for Baltimore County Executive Kevin Kamenetz

Baltimore County Circuit Court Judge Finifter has issued a “Show Cause Order” for Baltimore County Executive Kevin Kamenetz, County Administrative Officer Fred Homan and Director of the Budget Office Keith Dorsey to appear before the Court on June 26, 2014 @ 9:30am to show cause why the Court should not hold each in contempt and/or impose sanctions, including incarceration.

The order stems from the County’s refusal to obey a Court Order issued by Judge Finifter on March 6, 2014 directing the County to pay $1,413,120.81 to a group of retirees who retired between February 1, 1992 and June 30, 2007 were overcharged for healthcare since July 1, 2007.  Judge Finifter issued an Amended Judgment on April 17, 2014 adding an additional $213,446.47 in pre- judgment interest for a new total of $1,626,567.28.  The County will now have to pay a hefty 10% post judgment interest rate on the balance going forward until the retirees are reimbursed.

Show Cause Order

Judge Finifter Increases Judgment in Retiree Subsidy Case to Include an Additional $200K

On April 17, 2014 Judge Finifter ruled on FOP Lodge #4′s motion to reconsider his judgment in the retiree subsidy case.  He issued an amended judgment and awarded prejudgment interest in the amount of $213,446.47.  This will increase the original award to an amended total of $1,626,567.28.

Judgment has now been entered in the case. Going forward interest will accrue at a post-judgment interest rate of 10%.

When this case began in 2008 the County’s reimbursement owed to the affected retirees was approximately $500,000.00.  It has now grown to over three times that amount and will have an accelerated cost with the reimbursement and interest growing monthly.

The County continues to be defiant and ignore the order of the Court.  A petition was filed by the FOP for contempt.  No Court date has been set.

Please call or e-mail County Executive Kevin Kamenetz at 410-887-2450 or e-mail him at Kevin@baltimorecountymd.gov  and/or call or e-mail County Administrative Officer Fred Homan at 410-887-2460 or e-mail him at fhoman@baltimorecountymd.gov. Tell them to pay as directed by the court and stop wasting taxpayer dollars on a case that has concluded.

Read the amended judgment below

Amended Judgment

The FOP Obtains Legislation to Ensure the Fair Treatment of Officers

 

Today two important pieces of legislation affecting the lives and careers of Maryland law enforcement officers were signed into law by the Governor.  Senate Bill 436 – Exclusion of Evidence, sponsored by Senator Frosh, adds a provision to section 3-105 of the LEOBR.  The new provision, paragraph (C) allows a judge to exclude any evidence obtained in violation of any right granted by the LEOBR. 

The second, House Bill 598 – Disclosures- Punitive Action, sponsored by Delegate Dumais, adds a new section, 3-106.1 to the LEOBR.  This section provides a protection for officers who, for one reason or another, may have to have a disclosure made by the State’s Attorney to the defense to comply with Maryland disclosure rules.  In some jurisdictions, Chiefs and Sheriffs have terminated officers simply because a disclosure had to be made by the State’s Attorney.  This would occur even if the officer was found “not sustained” by Internal Affairs or “not guilty by a hearing board.  This addition to the LEOBR would prevent a Chief or Sheriff from taking punitive action in those instances.

Both Laws take effect on October1, 2014

FOP Lodge #4 files a Petition for Contempt Against County Executive Kamenetz for Disregarding a Court Order

On Friday March 28, 2014 the Baltimore County Fraternal Order of Police Lodge #4 filed a Petition for an Order of Constructive Civil Contempt against Baltimore County, Maryland, County Executive Kevin Kamenetz, Director of the Office of Budget and Finance, Keith Dorsey and County Administrative Officer, Fred Homan.

Unfortunately, the FOP was compelled to file this contempt petition because these three (3) Baltimore County officials have refused to comply with the Baltimore County Circuit Court order issued by Judge Finifter, requiring the County to reset the health care subsidy split for the affected retirees and pay the order of judgment of $1,413,120.81 within the twenty (20) days.

This case was first brought before Arbitrator Richard Bloch in 2008, who, after a hearing, ruled the County was in violation and an issued an award ordering the County to restore the affected retirees to the property subsidy and to make them “whole”.  The County appealed the decision to the Baltimore County Circuit Court and lost.  The Circuit Court upheld the arbitrator’s decision.  The County continued to appeal and eventually the case was heard by Maryland’s highest Court, the Maryland Court of Appeals who, after a hearing, ruled for the retirees in 2012.  The County filed a motion to reconsider with the Court which was denied.

The legal arguments for the case have now concluded.  The case has proceeded through the entire legal process and has been decided by Maryland’s highest Court.  The County has “overcharged” the approximately 400 affected retirees and must restore the subsidy and reimburse each of them for the amounts as directed by the Court.  The Circuit Court has issued orders on November 5, 2013 and March 6, 2014 directing the County Officials to comply and they continue to disregard the orders. This intransigence to the rule of law has no place in the Maryland Judicial System.  Citizens expect more from their elected County Executive and those who are appointed by him to Department Head positions and confirmed by County Council.

It’s time for Baltimore County Executive Kamenetz to realize that although he may not agree with the decision of Maryland’s highest court, the decision is now the “Law of the Case” and is final.  His options have narrowed to a point where now the only responsible thing to do would be to comply with the Courts Order and put this issue to rest.

Read the petition below:

Petition for Contempt 3-28

Exhibit 1

Exhibit 2

Man shot by police in Parkville, after charging with a knife, dies

Oakleigh Elementary School had been placed on alert status

By Colin Campbell and Sean Welsh, The Baltimore Sun

7:45 AM EDT, March 19, 2014

Baltimore County police fatally shot a man after he charged at officers with a knife Tuesday afternoon in Parkville, they said.

Early Wednesday morning, police announced the man had died and identified him as Ryan Charles Deitrich, 21, who lived in the same block where he was shot.

Officers who were called to check on the well-being of a man in the 8600 block of Oakleigh Road arrived shortly after 1 p.m. to find him outside his home, police said.

Deitrich threatened officers with a knife and charged, police said. At least one officer shot him multiple times, police said.

A tactical team responded to the residence following the shooting. All officers involved in the incident are to be placed on administrative duty, police said.

The Baltimore County Fire Department transported the man to a local hospital with life-threatening injuries.

Oakleigh Elementary School, which is a block from the scene, was on temporary “alert status,” according to Baltimore County Public Schools spokesman Charlie Herndon. He said “alert status” typically involves keeping children off playgrounds and from walking home after school.

The school was no longer on alert status at its 3:10 p.m. dismissal, and students who typically walk home were being released to parents at the school.

Yale Cohen, who lives a few houses away, said he heard yelling and saw an officer with a gun pointed up the street when he opened his front door.

“He was pointing his gun at somebody … I couldn’t see because my tree was in the way,” Cohen said.

Cohen said the officer yelled “drop it,” several times, then crouched and fired.

He estimated he heard around 10 shots. An emergency medical team treated Deitrich lying in the street for about 15 minutes, while tactical units searched the house to make sure no one else was inside.

“It’s freaky,” Cohen said. “This never happens around here.”

Baltimore Sun reporter Carrie Wells contributed to this report.

cmcampbell@baltsun.com

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Memorial shirts are now available at the Lodge office

Baltimore County Fraternal Order of Police Lodge #4 now has new memorial shirts available at the Lodge.  They are available in a cotton blend $15, and an athletic fabric $20.  Proceeds will be used to offset the expenses for a bus to the National Memorial Service on May 15, 2014.  All shirts are in navy blue.  Sizes are limited.

Memorial Shirt (Back)

Memorial Shirt (Front)

Baltimore County Circuit Court Judge Orders Baltimore County to Pay Back Retirees

On March 4, 2014 Baltimore County Circuit Court Judge Finifter issued a decision ordering Baltimore County to pay back $1,413,120.81 to approximately 400 police retirees for overcharges in health care since July 1 , 2007.  The decision stems from a hearing held on February 6, 2014 in which evidence was presented supporting the amount of overcharges. In the order, Judge Finifter refers back to a prior order in which he issued on August 28, 2013 that gave the County 20 days to comply by restoring the retirees to  the proper subsidy split and to reimburse each retiree.

This case originates from a grievance which was filed by the Fraternal Order of Police Lodge #4 in September 2007.  The case was heard by an arbitrator in July 2008.  The arbitrator ruled in favor of the FOP.  The County challenged the arbitrator’s decision and the case eventually ended up being heard in April 2012 by the states highest court, The Maryland Court of Appeals.  The Court issued a decision in favor of the FOP in November 2012.

The County has since been contesting the amount owed to the retirees which is what led to the March 4, 2014 decision.

Judge Finifter’s Decision in Retiree subsidy case

FOP Legislation in the 2014 Session of the Maryland General Assembly

Below are some of the legislation the FOP is working on this session in Annapolis.  For a complete list of the legislation the FOP  has taken a position on or is monitoring please check the Maryland State FOP website.

Senate Bill 436 Exclusion of Evidence at a Hearing Board (Cross filed with HB 599)

Senate Bill 686 Prosecutorial Disclosures – Punitive Action (Cross filed with HB598)

House Bill 919 Carrying of Weapons by Retired Law Enforcement Officer on School Property

 

Scholarship Opportunity from the National FOP

Scholarship Opportunities for Children of FOP

My name is Erin Wills, and I am the current chair of the NCBAR Young Lawyer’s Division (YLD) Scholarship committee. Each year, our committee awards college scholarships to children of police officers who have been permanently disabled or killed in the line of duty.  We have about $20k to give out this year, and would love to help as many families as we can. The application can be accessed online: Click Here


Scholarship applications are due April 1, 2014.

 

 

FOP Members Speak in Front of the House Appropriations Committee for the Rights of Officers

On Tuesday February 18, 2014 members of the Fraternal Order of Police from across the state speak in favor of House Bill 598. This bill seeks to establish a process in which officers can have a venue to appeal any job action taken by a chief of police solely because the officer was placed on a “Brady” list.

The FOP speaks on the bill at the 2:18 mark.

Following the FOP, the  representatives from the Maryland Chiefs speak against the bill.

Everyone should listen carefully.

http://mgahouse.maryland.gov/house/play/3cf7a9f1-d1ce-4b7e-8004-71c3029399c4/?catalog/03e481c7-8a42-4438-a7da-93ff74bdaa4c