County pension dispute hinges on public notice

February 03, 1994|By John Rivera | John Rivera,Sun Staff Writer

Lawyers for Anne Arundel County and a taxpayers group squared off before a Circuit Court judge yesterday, arguing whether the County Council gave taxpayers sufficient notice before increasing pension benefits for elected and appointed officials.

Robert C. Schaeffer and his Anne Arundel Taxpayers Association (AATA) want to see the increase struck down because changes made by the 1989 law left the county's pension fund with $14 million less than it needed to remain solvent.

The group is seeking to have the law declared invalid on technical grounds, arguing that the County Council did not advertise the bill for the two weeks as it believes state law requires.

Council Vice Chairwoman Maureen Lamb, an Annapolis Democrat, has introduced a bill that would take the matter a step further. In addition to invalidating the 1989 law, Ms. Lamb's bill would have officials who collected the increased benefits pay them back to the county, plus 4 percent interest.

A public hearing on Ms. Lamb's bill has been set for Feb. 22, when it may be voted on.

Attorneys for both sides yesterday tried to persuade Judge Eugene M. Lerner to rule on the dispute himself, without going to trial. If Judge Lerner denies both motions for summary judgment, the suit will go to trial March 14.

At issue is a provision of the state constitution requiring that notice of legislative action on a proposed bill be made "once a week for two consecutive weeks" in a newspaper prior to enactment.

David A. Plymyer, deputy county attorney, told Judge Lerner that by advertising the bill three times in two successive weeks -- on May 8, May 10 and May 15, the day the council voted on it -- the county fulfilled the notification requirement. He rejected the notion that the council was trying to hurry the bill through so nobody would notice.

"It was voted on at a normal legislative day. And there was nothing secretive about this particular action," he said.

"In this particular case, it seems to me about everybody agrees this was a bad piece of legislation," Mr. Plymyer said. "But the remedy at this point is not a judicial one. It's in the County Council, where it belongs."

But AATA attorney John R. Greiber Jr. repeated what he said was a simple point: Two weeks means 14 days, and the county only allowed seven days between the first advertisement of the bill and its passage by the council.

"What we're talking about is the cornerstone of our legal system, which is notice and the opportunity to be heard," Mr. Greiber said.

Mr. Greiber argued that the May 8 advertisement was invalid because the number of the bill, 36-89, was not printed in the correct place. A corrected version of the bill was published May 10.

Mr. Plymyer countered that the law does not require the publication of the bill's number.

Because the first advertisement was invalid, Mr. Greiber argued, and someone easily could have missed the May 10 correction, the notice on May 15, the day of the council meeting, left little preparation time for a taxpayer who wanted to testify.

Mr. Greiber noted that the Capital, the newspaper in which the bill was advertised, must be delivered by 5 p.m. Because the council meeting started at 7:40 p.m., a taxpayer theoretically only had 2 hours and 40 minutes to read the paper, get a copy of the bill and prepare to testify before the council.

"That is absolutely outrageous. It flies in the face of common sense and it strains credibility beyond the breaking point," Mr. Greiber said.

"Clearly, if the legislature had wanted to say once in each of two weeks, it would have said once in each of two weeks," Mr. Greiber said. "If you're going to err, the legislature is going to err on the side of notice."

In addition to arguing against Mr. Greiber's contentions, Mr. Plymyer contended that the AATA has exceeded the three-year statute of limitations for civil suits involving contracts.

Mr. Greiber countered that, because a law is at issue, the statute of limitations should be 12 years.

Mr. Greiber added that the AATA did not realize there had been "an injury" requiring legal action until an audit revealed last year that the pension fund was in financial trouble.

Avery Aisenstark, attorney for former Recreation and Parks Director Joseph McCann, told Judge Lerner that many people made crucial decisions, such as whether to work for Anne Arundel County or to retire, based on the pension as established in 1989.

"This is not just an ordinance. This is a vested contract right," Mr. Aisenstark said. "What we have here is people who have relied in good faith on that contract."

Mr. McCann, who retired in April 1992 after 22 years of county service, said in an affidavit that he would suffer great hardship if the law were overturned.

He receives a pension of $46,200 a year, 55 percent of his final salary of $84,500. Voiding the 1989 pension enhancement would reduce his pension by $8,175 per year.

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