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Judge throws out ex-employees suit against Harford over landfill outsourcing

A Harford County judge has dismissed a lawsuit brought by two former county employees who sought to block the county's shift of its landfill and other solid waste operations to an outside contractor, the quasi-public Maryland Environmental Service.

Circuit Court Judge Angela Eaves ruled in an opinion released Sept. 18 that the plaintiffs, David Cupp and Jonathan Magness, had failed to demonstrate there was "a genuine dispute of material fact" in their claim against the county, nor had they exhausted all administrative remedies under county grievance procedures.

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Eaves issued a summary judgment in favor of the county, her opinion noting "both Plaintiffs applied for and are now employed by MES."

"At best, Plaintiffs have posited conclusory statements without demonstrating any evidentiary support," the judge wrote. "Maryland courts have long held that conclusory statements, conjecture or speculation by the non-moving will not defeat a summary judgment."

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John E. Kelly, the attorney representing the plaintiffs, said Monday he will file a "motion to reconsider" with the Circuit Court, asking Eaves to take another look at the case.

"My clients and myself disagree on the basis of the opinion by the judge," Kelly said.

Eaves had earlier declined to grant an injunction blocking the county from turning the operations of its Division of Environmental Services over to the MES, an independent agency of the state government.

MES received what the county administration said is a $4.7 million intergovernmental contract to run the division for the remainder of this fiscal year.

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The agreement took effect on Aug. 29 and eliminated 46 county positions, including those of Cupp, a weighmaster, and Magness, a laborer, who worked at the landfill in Street, which was part of the outsourcing.

"We agree with the judge's decision that this was an outsourcing of operations and not a reduction in force, and that the county followed all applicable laws and regulations," county government spokesperson Cindy Mumby said Tuesday.

"This case was never about our authority to subcontract for services, which we undertook with MES for improvements in both efficiency and customer service, while maintaining ownership and oversight of facilities and policy control over operations," she continued. "We are also pleased that all employees affected by the outsourcing who sought other employment were offered jobs, either by MES or by the county (to fill critical-need openings arising from our earlier retirement incentive), including the two employees who brought this case."

The suit claimed the county was required to follow procedures for a reduction in force as outlined in the county's personnel procedures and its contract with the plaintiff's union, the American Federation of State, County and Municipal Employees. Under those procedures, the judge noted, affected employees would be entitled to "recall rights" that prohibit the county from hiring any new employees until those being displaced have been offered other positions for which they may qualify.

The county, however, said the outsourcing was not a reduction in force and that the affected employees would have the opportunity to apply for vacant positions elsewhere in the government, as well as to be considered for employment by MES.

Eaves noted that after the union filed grievances on behalf of all its members over the outsourcing, the two sides reached a "settlement agreement" on July 6.

"As part of the settlement agreement, the County agreed that while the vacant positions would still be open [to] the general public that they would give preference to qualified 'internal candidates,'" the judge wrote. "Additionally, the County agreed that any displaced employees would be permitted to continue to apply for 'internal positions' for a period of one year following the displacement. In return, the Local Union had to withdraw their grievances and agree not to bring any other related actions."

Eaves also noted the two plaintiffs had applied for a combined total of five positions with the county but "until recently" none with MES, for which they now work at the landfill. They also filed two grievances, on Aug. 14 and Sept. 2, which the judge said "mirror the issues that are currently before the court."

The judge examined the only time the county used a reduction in force procedure, in 2009, when budgets were cut by order of the County Council and positions were eliminated as a result, which she found consistent with the personnel law. The plaintiffs' union, by its grievances, initially claimed the MES outsourcing constituted a RIF, even though no "curtailment in funds" was involved as the personnel law states, the judge said.

When the county and the union reached their settlement agreement, Eaves' opinion continued, they agreed that there was an outsourcing in accordance with another section of county law permitting "removal of county functions" when "in [its] sole judgment...that [the County function] can be done more economically or expeditiously otherwise."

Aegis staff member David Anderson contributed to this article.

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