Kensington Volunteer Fire Department, Inc. v. Montgomery County

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KENSINGTON VOLUNTEER FIRE 
DEPARTMENT, INC; AUGUSTINE M.
KELLEY; SHAWN ST. CLAIRE;
BETHESDA FIRE DEPARTMENT, INC.;
PAULA MACKEL; CABIN JOHN PARK
VOLUNTEER FIRE DEPARTMENT, INC;
HYATTSTOWN VOLUNTEER FIRE
DEPARTMENT, INC; JANETH MORA,
Plaintiffs-Appellants,
and
STEVEN C. KURTZ; DEBORAH ROKES;
STEPHANIE AYTON,  No. 11-1659
Plaintiffs,
v.
MONTGOMERY COUNTY, MARYLAND;
ISIAH LEGGETT, COUNTY EXECUTIVE;
RICHARD BOWERS, Fire Chief;
JOSEPH ADLER; JOSEPH BEACH,
Defendants-Appellees,
MONTGOMERY COUNTY COUNCIL,
The,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
J. Frederick Motz, Senior District Judge.
(8:11-cv-00273-JFM)
2 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
Argued: March 22, 2012
Decided: June 27, 2012
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion,
in which Judge Duncan and Judge Agee joined.
COUNSEL
ARGUED: Brett Alan Pisciotta, KING & ATTRIDGE,
Rockville, Maryland, for Appellants. Edward Barry Lattner,
COUNTY ATTORNEY’S OFFICE, Rockville, Maryland, for
Appellees. ON BRIEF: John A. King, KING & ATTRIDGE,
Rockville, Maryland, for Appellants. Marc P. Hansen, County
Attorney, Patricia P. Via, Chief, Division of Litigation,
COUNTY ATTORNEY’S OFFICE, Rockville, Maryland, for
Appellees.
OPINION
DIAZ, Circuit Judge:
A group of local volunteer fire and rescue departments
("LFRDs") and several of their former administrative employ-
ees (collectively, "Plaintiffs") brought suit against Montgom-
ery County, Maryland, the County Council, and certain
county officials (collectively, "Defendants") contending that
Defendants eliminated part of Plaintiffs’ funding in retaliation
for Plaintiffs’ opposition to legislation supported by Defen-
dants.
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 3
The district court dismissed Plaintiffs’ complaint, declining
to inquire into Defendants’ alleged illicit motive behind an
otherwise facially valid budgetary enactment, finding that cer-
tain individual defendants were protected by legislative
immunity, and concluding that because the individual Plain-
tiffs were not County employees, they could not bring an abu-
sive discharge claim under state law. We affirm.
I.
A.
The Montgomery County Fire and Rescue Service
("MCFRS") is a "combined and integrated" operation consist-
ing of both County employees and several LFRDs that collec-
tively provide fire, rescue, and emergency medical services.
J.A. 190. Although each LFRD is an independent corporation
under Maryland law, the County traditionally funds adminis-
trative support positions at the LFRDs. Despite this unique
funding relationship, the Montgomery County Code ("Code")
provides that these LFRD administrative personnel are not
employees of the County. Id. 553 ("Employees of local fire
and rescue departments who are paid with tax funds are not
County employees.") (quoting Code § 21-16(a)); see also id.
554 ("Nothing in this Chapter means that employees of the
local fire and rescue departments are County employees,
either on a de jure or de facto basis.") (quoting Code
§ 21–16(c)).
In May 2010, the County Council passed Budget Resolu-
tion 16–373 for fiscal year 2011 ("FY11"). The original bud-
get included $1.58 million for LFRD personnel, including
twenty administrative support positions. The County later
determined, however, that it needed to reduce its projected
budget for FY11. Specifically, the County sought to offset
lost revenue from the anticipated defeat of Bill 13–10—the
proposed "ambulance fee" legislation—that was projected to
generate $14.1 million annually and was included in the origi-
4 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
nal FY11 budget.1 Bill 13–10 encountered fierce opposition,
particularly from the LFRDs. As Plaintiffs describe, the
LFRDs "vehemently, publicly and forcefully advocated
against the ambulance fee through the press and through the
distribution of political literature." Appellants’ Br. 9. Voters
ultimately rejected the bill in a referendum placed on the
November 2010 ballot.
Prior to the referendum vote—but after determining that the
ambulance fee legislation would likely fail—County Execu-
tive Isiah Leggett sent a budget savings plan to the County
Council on October 5, 2010 "to address the potential loss of
revenue" from Bill 13-10’s defeat. J.A. 140. The plan called
for $14.3 million in spending cuts and the elimination of 133
publicly funded positions, affecting the MCFRS and a host of
other agencies. Relevant to this appeal, the plan recommended
in part that the County "discontinue funding 20 LFRD civilian
employees," at a savings of $592,000, offsetting the loss of
personnel by creating five new administrative positions with
the County, id. 143. The plan did not cut funding for non-
volunteer administrative positions within MCFRS.
As a result of the general economic slump, Leggett submit-
ted another savings plan for FY11 in December 2010, propos-
ing additional reductions to close the projected shortfall for
fiscal year 2012. The revised plan called for deeper cuts from
a range of agencies, but no additional reductions to the
LFRDs’ budget.
At a December 14, 2010 County Council session to discuss
the revised plan, Montgomery County Fire Chief Richard
Bowers spoke in support of the proposal and, according to
Plaintiffs, "promoted the impression that the Council’s
choices [for funding priorities] lay between ‘boots on the
ground’ and administrative personnel that readily could be
1
As its name implies, the ambulance fee legislation would have imposed
a fee for ambulance service.
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 5
supplanted by MCFRS operational personnel." Id. 18. Plain-
tiffs also allege that one councilmember appeared to blame
the LFRDs for the ambulance fee’s defeat and stated that he
thought LFRD budgets should be cut even further. Another
councilmember assailed the proposal for imposing a "dispro-
portionate hit on the volunteers." Id. 19 (internal quotations
omitted). Ultimately, in a 5-4 vote, the County Council passed
the revised budget, authorizing reductions of $32,249,170
from the FY11 budget. Of this figure, $592,000—or about 1.8
percent—of the savings stemmed from defunding the twenty
LFRD administrative positions.
Days later, Bowers sent a letter to each LFRD stating that
as of the end of the year, "LFRD employees will no longer be
paid by Montgomery County," and adding that each LFRD
"must immediately determine if the LFRD will retain your
employee or effect a Reduction in Force (RIF)." Id. 63. There-
after, the LFRDs notified the affected employees that they
would be conducting a RIF and terminating the administrative
positions.
B.
Plaintiffs filed a five-count complaint in state court alleging
that Defendants’ decision to eliminate funding for the LFRD
administrative positions was in retaliation for Plaintiffs’ oppo-
sition to the ambulance fee legislation.2 Count 1 sought a dec-
laration that Defendants’ actions were unconstitutional and
illegal and an injunction barring Defendants from defunding
the LFRD positions, now or in the future. Count 2 sought
relief under 42 U.S.C. § 1983, asserting that Defendants, act-
ing under color of state law, violated the First Amendment to
the U.S. Constitution by retaliating against Plaintiffs for their
opposition to the ambulance fee legislation. Count 3 alleged
2
In a subsequent amended complaint, Plaintiffs named additional plain-
tiffs and dismissed the County Council as a defendant, but did not revise
their substantive allegations.
6 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
abusive discharge under Maryland common law. Count 4
alleged violations of the First Amendment and Article 40 of
the Maryland Declaration of Rights. Count 5 sought a writ of
mandamus compelling Defendants to comply with the RIF
requirements in the Montgomery County Personnel Regula-
tions.
After removing the case to federal court, Defendants
moved to dismiss and/or for summary judgment. Finding that
it could resolve the motion without considering matters out-
side of the pleadings, the district court treated Defendants’ fil-
ing as a Rule 12(b)(6) motion to dismiss, and granted it. The
district court found that (1) Plaintiffs could not challenge the
alleged illicit legislative motive behind the County’s facially
valid budget; (2) Defendants Leggett and Bowers were
shielded by legislative immunity because they were acting in
a functionally legislative role on matters related to the County
budget; and (3) Plaintiffs could not bring an abusive discharge
claim under Maryland law because the individual Plaintiffs
were not County employees, "dual or otherwise." Id. 773.
Plaintiffs timely appealed.
II.
We review de novo the district court’s grant of Defendants’
motion to dismiss. See E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). In rul-
ing on a 12(b)(6) motion, a court "must accept as true all of
the factual allegations contained in the complaint" and "draw
all reasonable inferences in favor of the plaintiff." Id. (internal
quotations omitted). In so doing, a court may consider docu-
ments attached to the complaint or the motion to dismiss "so
long as they are integral to the complaint and authentic." Phil-
ips v. Pitt Cnty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009). To survive a 12(b)(6) motion to dismiss, Plaintiffs’
complaint "must contain sufficient facts to state a claim that
is ‘plausible on its face.’ " Kolon, 637 F.3d at 440 (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 7
III.
A.
Plaintiffs first argue that the district court erred in refusing
to inquire into the allegedly unconstitutional motive behind
the County’s budget. The district court’s decision relied on
United States v. O’Brien, 391 U.S. 367, 383 (1968), in which
the Supreme Court declined to "strike down an otherwise con-
stitutional statute on the basis of an alleged illicit legislative
motive."
O’Brien considered a First Amendment challenge to a fed-
eral statute that penalized the destruction of draft cards. Not-
ing that the law did not facially abridge speech, the Court
rejected an argument that the law was nonetheless unconstitu-
tional because its purpose was to suppress free speech. The
Court warned that it was a "hazardous matter" to inquire into
legislative motives because "[w]hat motivates one legislator
to make a speech about a statute is not necessarily what moti-
vates scores of others to enact it, and the stakes are suffi-
ciently high for us to eschew guesswork." Id. at 383-84.
Accordingly, the Court "decline[d] to void [legislation] essen-
tially on the ground that it is unwise legislation which Con-
gress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator
made a ‘wiser’ speech about it." Id. at 384.
We hold that the district court properly dismissed Plain-
tiffs’ First Amendment, Article 40, and § 1983 claims.3 As
Plaintiffs concede, the budget is facially valid. And in alleg-
ing that Defendants retaliated against them by eliminating
3
Article 40 is "co-extensive" with the First Amendment, and is con-
strued in pari materia with it. Newell v. Runnels, 967 A.2d 729, 743 n.11
(Md. 2009). Plaintiffs’ § 1983 claim alleged that because Defendants were
acting under color of state law, the First Amendment violation led to
§ 1983 liability.
8 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
funding for the LFRD administrative positions, Plaintiffs
challenge Defendants’ legislative action. Plaintiffs, however,
rely for support on cases in which the alleged retaliation was
accomplished via executive action. See Gronowski v. Spencer,
424 F.3d 285, 289 (2d Cir. 2005) (claim that the mayor—who
had "ultimate authority over municipal employment deci-
sions"—laid off several employees); Coszalter v. City of
Salem, 320 F.3d 968, 976 (9th Cir. 2003) (claim that plaintiffs
were retaliated against by, among other things, being trans-
ferred to new duties, reprimanded, investigated, and sus-
pended); Cooper v. Johnson, 590 F.2d 559, 560 (4th Cir.
1979) (claim by former deputy sheriff that the sheriff fired
him based on his speech on a topic of public concern).
Moreover, while the budget eliminated some of Plaintiffs’
funding, its effect was not felt by Plaintiffs alone. Specifi-
cally, the initial revised budget savings plan called for $14.3
million in across-the-board reductions and the elimination of
133 publicly funded positions from a number of county agen-
cies. The County’s final budget, incorporating additional cuts,
resulted in over $32 million in savings. Of that total reduction,
only $592,000—or about 1.8 percent of the total
cuts—targeted the twenty LFRD administrative positions.
And, while the budget identifies the LFRD positions by name,
it does so as part of a line-item budget explanation that identi-
fies other specific cuts as well. See J.A. 143-47 (listing, for
example, nine school resource officer positions to be abol-
ished, and four sports academies and an interim library to be
closed).
In trying economic times, and in response to the loss of
$14.1 million in projected revenue following the defeat of the
ambulance fee legislation, the County passed a budget that
called for difficult cuts felt by many. As the district court con-
cluded "there is no doubt that Defendants had the authority to
pass the budget savings plan, and it appears to be a thoroughly
ordinary cost savings measure." Kensington Volunteer Fire
Dept., Inc. v. Montgomery Cnty., 788 F. Supp. 2d 431, 440
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 9
(D. Md. 2011). Confronted with such a facially constitutional
budgetary enactment, O’Brien instructs that we not strike it
down "on the basis of an alleged illicit legislative motive,"
391 U.S. at 383.
B.
Plaintiffs, however, contend that O’Brien does not apply in
the context of a retaliatory discharge claim. As they see it, the
claim itself—requiring Plaintiffs to show that (1) they
engaged in protected activity, and (2) the protected activity
was a substantial or motivating factor in the adverse employ-
ment action—contemplates analysis of Defendants’ motive.
See Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 675
(1996) (outlining test for retaliatory discharge claim). Plain-
tiffs contend that we recognized as much in Berkley v. Com-
mon Council, 63 F.3d 295 (4th Cir. 1995) (en banc) and
Burtnick v. McLean, 76 F.3d 611 (4th Cir. 1996). These cases,
however, do not address the precise question before us.
In Berkley, a group of city employees alleged that "in
enacting the annual budget . . . , [the] Council denied appel-
lants a salary increase [because] appellants had actively sup-
ported a candidate in the prior mayoral election other than the
one favored by a majority of the . . . Council, in violation of
the First Amendment." 63 F.3d at 302. The district court dis-
missed the complaint, as it "would necessarily require an
examination of the Council’s motive for its vote. . . . [which]
runs squarely afoul of the doctrine of legislative immunity."
Id. (internal quotations omitted). We reversed, concluding that
well-established Supreme Court precedent foreclosed "the
possibility of legislative immunity for municipalities." Id.
Burtnick considered a § 1983 challenge brought by a for-
mer employee who alleged that he was improperly terminated
when the city abolished his job. There, the plaintiff’s superior
was a voting member of the board that, as part of its budget
recommendation, eliminated funding for the plaintiff’s job,
10 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
creating another position for which the plaintiff was not con-
sidered. The district court granted summary judgment to the
city, finding that the challenged decision was legislative and
thus covered by legislative immunity. Relying on Berkley, we
reversed. 76 F.3d at 613.
Berkley and Burtnick hold "that a municipality is not
immune from liability under section 1983 for the enactments
and actions of the local legislative body." Berkley, 63 F.3d at
296 (emphasis added); see also Burtnick, 76 F.3d at 612-13
(citing Berkley and reversing district court’s grant of summary
judgment based on legislative immunity). But "whether a
[municipality] is immune from suit is quite a different ques-
tion from whether, after the suit is filed, a court may rely on
alleged improper legislative motives to strike down an other-
wise valid statute." Kensington, 788 F. Supp. 2d at 439-40.
On this point, neither Berkley nor Burtnick undermines
O’Brien.
Moreover, although Berkley and Burtnick addressed bud-
getary enactments, they did so in the context of claims
brought by employees who worked directly for the municipal-
ities alleged to have acted improperly. See Brief of Appellant
at *2, Berkley v. Common Council, 63 F.3d 295, No. 94-1121
(4th Cir. Mar. 11, 1994), 1994 WL 16049631 (noting that
"[a]ll of the plaintiffs in this action are employees of the City
of Charleston," including the city director of human rights, the
assistant personnel director, and the deputy director of parks
and recreation); Burtnick, 76 F.3d at 611 (plaintiff brought
suit against his "former employers"). The individual Plaintiffs
here, however, were not County employees and the budget
approved by the County did not take adverse action directly
against them. And while it is true that the County’s budget
decreased the LFRDs’ funding, the decision to address that
shortfall by terminating the individual Plaintiffs was made by
the LFRDs.
Relying on Umbehr, however, Plaintiffs argue that this dis-
tinction is of no moment. We disagree. In Umbehr, the county
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 11
fulfilled its obligation to dispose of solid waste by contracting
with Umbehr to provide the service. The contract, although
subject to termination by either party, automatically renewed
each year. After years of operating under this contractual
arrangement, and allegedly in retaliation for Umbehr’s criti-
cism of the board of county commissioners, the board termi-
nated the contract. Umbehr filed a retaliatory discharge action
under 42 U.S.C. § 1983. The district court granted the coun-
ty’s motion for summary judgment, finding that Umbehr—as
an independent contractor—was not entitled to the First
Amendment protection guaranteed government employees.
The Tenth Circuit reversed, finding that an independent con-
tractor was protected under the First Amendment from retalia-
tory government action. The Supreme Court affirmed.
Umbehr, however, does not control this case. In the first
place, Umbehr considered a challenge to the termination of a
specific government contract, not a generally applicable bud-
getary enactment. But more importantly, the premise in
Umbehr—that a county terminated an independent contractor
in retaliation for his criticism of county officials—is not one
that plausibly flows from the allegations in Plaintiffs’ com-
plaint. Simply put, Defendants did not terminate the individ-
ual Plaintiffs’ employment. Indeed, under the Code,
Defendants lacked such authority. See J.A. 554 ("Nothing in
this Chapter abrogates the authority of each local fire and res-
cue department over such functions as hiring, promotion, dis-
cipline, and discharge of employees of that department."
(quoting Code § 21-16(c) (emphasis added)). Because the
individual Plaintiffs were not County employees or contrac-
tors and Defendants did not terminate their employment,
Umbehr is inapposite.
In this case, Plaintiffs seek to invalidate an "otherwise con-
stitutional" budgetary enactment based on the alleged illicit
motives of Defendants, O’Brien, 391 U.S. at 383. This, the
district court properly declined to do. We therefore affirm the
12 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
district court’s dismissal of Plaintiffs’ First Amendment, Arti-
cle 40, and § 1983 claims.
IV.
Plaintiffs also challenge the district court’s ruling that
County Executive Leggett and Fire Chief Bowers are shielded
by legislative immunity. Conceding that this immunity "cov-
ers all those properly acting in a legislative capacity, not just
actual officeholders," EEOC v. Wash. Suburban Sanitary
Comm’n, 631 F.3d 174, 181 (4th Cir. 2011), Plaintiffs argue
that because Leggett and Bowers were performing executive
or administrative functions, they are not so entitled. We dis-
agree.
"Local legislators are entitled to absolute immunity from
§ 1983 liability for their legislative activities." Bogan v. Scott-
Harris, 523 U.S. 44, 54 (1998). This immunity extends to "of-
ficials outside the legislative branch . . . when they perform
legislative functions" and attaches to "all actions taken in the
sphere of legitimate legislative activity." Id. at 54-55 (internal
quotations omitted). Determining "[w]hether an act is legisla-
tive turns on the nature of the act, rather than on the motive
or intent of the official performing it." Id. at 54. We explained
the inquiry in Washington Suburban Sanitary Commission:
Legislative acts, the ones for which the immunity
and privilege are granted, typically involve the adop-
tion of prospective, legislative-type rules, rules that
establish a general policy affecting the larger popula-
tion. They also generally bear the outward marks of
public decisionmaking, including the observance of
formal legislative procedures. By contrast, legisla-
tors’ employment and personnel decisions are gener-
ally administrative acts because they most often
affect specific individuals rather than formulate
broad public policy.
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 13
631 F.3d at 184 (internal quotations, citations, and alteration
omitted).
Applying this test, we have no trouble concluding that
enacting a budget is a legislative act. E.g., Bogan, 523 U.S.
at 55 (determining that the "introduction of a budget and sign-
ing into law an ordinance . . . were formally legislative" even
where accomplished by an executive official); Berkley, 63
F.3d at 302 (finding that, in challenging the city’s annual bud-
get, plaintiffs "challenged the [city’s] execution of a core leg-
islative function"); Rateree v. Rockett, 852 F.2d 946, 950 (7th
Cir. 1988) ("[B]udgetmaking is a quintessential legislative
function, reflecting the legislators’ ordering of policy priori-
ties in the face of limited financial resources." (internal quota-
tions omitted)).
We also find that Leggett and Bowers, while not legisla-
tors, have been sued based on their actions associated with the
budgetmaking process. Leggett faces trial for his actions in
proposing and submitting the budget to the County Council,
a task required of him by local law. See J.A. 564 (noting that
the Fire Chief must submit the proposed budget to the County
Executive "for review and submission to the County Council
as required by the County Charter") (quoting Code § 21-
22(c)). Thus, Leggett’s actions were within "the sphere of
legitimate legislative activity," Bogan, 523 U.S. at 54 (inter-
nal quotations omitted), and he is entitled to immunity. And
Bowers is faulted for his allegedly misleading testimony to
the County Council prior to the vote on the budget.
"[S]peaking before a legislative body" is, however, a type of
legislative activity to which absolute immunity applies.
Baraka v. McGreevey, 481 F.3d 187, 196 (3d Cir. 2007)
(finding that "when a governor and a governor’s appointee
advocate bills to the legislature, they act in a legislative
capacity"). Thus, Bowers is also entitled to legislative immu-
nity.
In arguing otherwise, Plaintiffs contend that it was through
their exercise of executive and administrative duties, respec-
14 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
tively, that Leggett and Bowers participated in the budget pro-
cess. In Rateree, plaintiffs similarly argued that a budget that
eliminated jobs was "necessarily administrative since it
involved employment decisions." 852 F.2d at 950. The Sev-
enth Circuit, however, rejected this "backdoor approach," not-
ing that it "would turn every budget decision into an
administrative one." Id.
Leggett and Bowers were tasked with executive and admin-
istrative duties, but they are named as defendants based on
their legislative activity in proposing, submitting, and advo-
cating for a budget. See Wash. Suburban Sanitary Comm’n,
631 F.3d at 184 (explaining that "[l]egislative acts . . . typi-
cally involve the adoption of prospective, legislative-type
rules, rules that establish a general policy affecting the larger
population" (internal quotations, citation, and alterations
omitted)). Legislative immunity includes "officials outside the
legislative branch . . . when they perform legislative func-
tions." Bogan, 523 U.S. at 55. Thus, the district court properly
found that Leggett and Bowers are entitled to legislative
immunity.
V.
Plaintiffs also argue that the district court erred in conclud-
ing that because the individual Plaintiffs were employees of
the LFRDs rather than the County, they are barred from
bringing an abusive discharge claim under Maryland law.
Maryland "recognize[s] a cause of action for abusive dis-
charge by an employer of an at will employee when the moti-
vation for the discharge contravenes some clear mandate of
public policy." Adler v. Am. Standard Corp., 432 A.2d 464,
473 (Md. 1981) (emphasis added).
Plaintiffs contend that dismissal under Rule 12(b)(6) was
improper, as there exists a genuine issue of material fact as to
whether the individual Plaintiffs were dual employees of the
County and the LFRDs. In support, they assert that the indi-
KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY 15
vidual Plaintiffs (1) were paid by the County; (2) received
County benefits; (3) held County job classifications; (4) were
assigned County email addresses; and (5) were managed by
the MCFRS division chief.
These facts, however, do not overcome the express lan-
guage in the Code providing that "[e]mployees of local fire
and rescue departments who are paid with tax funds are not
County employees." J.A. 553 (quoting Code § 21-16(a)). And,
after outlining the personnel services that the County provides
to Plaintiffs, the Code reiterates this principle:
Nothing in this Chapter means that employees of the
local fire and rescue departments are County
employees, either on a de jure or de facto basis.
Nothing in this Chapter abrogates the authority of
each local fire and rescue department over such
functions as hiring, promotion, discipline, and dis-
charge of employees of that department.
Id. 554 (quoting Code § 21-16(c)). Under the plain and
express language of the Code, the individual Plaintiffs are not
County employees.
Nor do we accept the broad definition of "employer" that
Plaintiffs propose. In suggesting a dual employment relation-
ship, Plaintiffs rely on Newell v. Runnels, 967 A.2d 729, 771
(Md. 2009), where the Court of Appeals of Maryland deter-
mined that under the federal Fair Labor Standards Act
("FLSA"), "an employee may have more than one employer
at a given time." The court emphasized that "[t]he statutory
definition of an ‘employer’ [in the FLSA] is broad, encom-
passing entities that act ‘directly or indirectly in the interest’
of an employer with respect to an employee" and that courts
had held that "[t]he term ‘is not limited by the common law
concept of employer, and is to be given an expansive interpre-
tation in order to effectuate the FLSA’s broad remedial pur-
poses." Id. (internal quotations omitted). As the district court
16 KENSINGTON VOLUNTEER FIRE v. MONTGOMERY COUNTY
noted, however, Plaintiffs did not bring a FLSA claim, and
they have not cited a case that suggests that an abusive dis-
charge claim under Maryland law supports a similarly expan-
sive reading of "employer." Thus, we reject Plaintiffs’ dual
employment argument.
Finally, we again emphasize that while the County reduced
the LFRDs’ budget, it was the LFRDs that actually eliminated
the administrative positions and terminated the individual
Plaintiffs. Accordingly, we affirm the district court’s judg-
ment that Plaintiffs are barred from suing Defendants for abu-
sive discharge under Maryland law.4
VI.
For the reasons stated, the judgment of the district court is
AFFIRMED.
4
Plaintiffs’ opening brief does not challenge the district court’s dis-
missal of their claims seeking declaratory, injunctive, and mandamus
relief. Accordingly, we consider these issues waived. IGEN Int’l, Inc. v.
Roche Diagnostics GmbH, 335 F.3d 303, 308 (4th Cir. 2003) ("Failure to
present or argue assignments of error in opening appellate briefs consti-
tutes a waiver of those issues.").