ELKTON — County Executive Alan McCarthy has days to decide whether to allow the council the power to sign off on adjustments to a trust fund for the county volunteer firefighters’ pension-like plan, or to issue the first veto in Cecil County history.
The firefighter’s Volunteer Length of Service Award Program (VLOSAP) was turned into a trust fund Tuesday night, but with amendments that restrict the county executive’s power to change the trust agreement itself. In the original legislation, the trust agreement could only be amended through executive order provided that two-thirds of the trustees approve it.
But the council passed amendments that requires any trust language changes to also be approved through a council vote, despite County Attorney Jason Allison’s warning that this overreaches the legislative branch’s powers.
“[The Charter] assures that there is a separation of powers. The executive doesn’t write laws, and the council does not implement and administer them,” Allison said Tuesday morning. “The trust agreement itself is not an ordinance. To approve or disapprove … an amendment of the trust would be a violation of the charter’s non-interference provision.”
McCarthy is “considering the next steps” to ensure that the council complied with any applicable laws, according to a prepared statement issued by County Director of Administration Al Wein.
Under the county charter enacted in 2012, McCarthy has 10 business days to veto the bill as amended and return it to the council, and the clock started on Wednesday. McCarthy could also allow the bill to go into law without his signature come June 17.
McCarthy should come to a decision by June 13, according to the press statement.
If he does veto the bill, the council appears confident that its decision will stand since the amendments had four votes this week, suggesting it could overturn the veto. Under the county’s charter, the council can override a veto with at least four of the five council votes.
“He has the right to [veto]. And we have a right to vote on it again,” Council Vice President Jackie Gregory said during the work session.
The showdown over the VLOSAP trust fund language is the first glimpse of behind-the-scenes disagreement over council authority. Weeks ago, the council had hired a second attorney to help it interpret where some of the powers lie, since much of the charter outlines the authority to the “county,” but doesn’t specify whether that refers to the executive branch, legislative branch or both.
The McCarthy administration rejected the council’s suggestion to give it the ability to approve or reject any VLOSAP trust changes, but conceded to allow one council representative to serve as a voting member of the board of trustees.
However, the council’s legal counsel advised them to not become a voting member of the board of trustees, since it would be improper to vote on the trust’s management when it approves its funding in the first place.
So instead, the council amended the proposal to allow a non-voting council member on the board of trustees and give itself power to oversee broad changes to the fund.
After another review Tuesday, both council attorneys John Downs and Victor R. Jackson believe that since the trust is established through legislation, the council is well within its bounds to amend it.
Another amendment allows the council to terminate the trust, lessening the county executive’s power to unilaterally end it. When the VLOSAP trust is terminated, the trustees will continue to run it until all firefighters received their entitled pay and all expenses are paid off.
A sixth amendment, which was not introduced to the council until the final vote Tuesday night, also negates the county executive’s ability to remove the ex-officio council representative from the board.
The council took a roll call vote on each amendment Tuesday night. Councilman Al Miller cast the sole dissenting vote on the two amendments that empower the council to make trust agreement changes.
“Once again, we’re getting too deep in the weeds of running policy,” he said Tuesday morning.
Miller was comfortable having a voting member on the board of trustees, and saw demoting that representative as an ex-officio as “giving up power.”
“What we’re doing is we’re not giving up power. We’d have a vote on all changes made by that board. What we’re doing is trying to follow the charter,” Gregory responded.
Allison issued a final warning to the council, saying that they were not bonded to assume legal or financial responsibilities of the county and that it would be “bare naked” if it came to litigation.
If the council did override McCarthy’s veto, Allison later said that the county executive could take the issue to court to declare the VLOSAP bill “ultra vires,” or beyond the council’s legal authority.
McCarthy seemed surprised at the change of tide Wednesday morning, and did not want to solve the matter with a courtroom battle.
“I would hope our legal counsel can solve this issue together,” he told the Whig. “At first, the council wanted a board of trustees member, next thing, this had taken a life of its own.”
When asked whether he thought this spelled the end of a united front of the executive and legislative branches, he said he did not “know of any acrimony.”
“My door, Al Wein’s and Jason Allison’s door is always open. I thought we had gotten along well,” McCarthy said. “I don’t know why they felt the need to hire additional legal counsel.”
In his eyes, the roles of the administration and the council member is clearly defined in the charter.
“The executive’s role is to govern the county in a proper, orderly and responsible way, and the council’s role is to approve legislation. I think this is pretty clear,” McCarthy said.