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.").