GOP cheers ruling against executive order on union vote

Nearly 1,700 of the 5,800 eligible providers voted in the election, with 1,357 voting for unionization and 330 voting against. The order did not affect child care centers.

On Friday, Cecil County Circuit Court Judge Dexter M. Thompson Jr. issued a preliminary injunction barring the O’Malley administration from enforcing the order.

The objective of unionization was not ‘‘wrongful,” Thompson wrote, but should not have been done by an executive order.

‘‘On its face it appears to be a very rational, logical approach to deal with POC providers scattered all over the state and something with which either the executive or legislative branch, or both, should be concerned,” he wrote.

However, Thompson wrote, ‘‘the public interest is best served when representatives and agencies of the state are operating under lawful orders and by lawful means. The public interest is not served when a state agency or unit operates, at least in part, pursuant to an invalid rule or order.”

Thompson found that the executive order did not violate the separation of powers, but that it should have been done under the state’s Administrative Procedure Act.

Thompson had already issued a temporary restraining order on Sept. 24 after the Maryland State Family Child Care Association and others, including Senate Minority Whip Allan H. Kittleman and Del. Michael D. Smigiel Sr. (R-Dist. 36) of Elkton, filed suit against O’Malley (D). Kittleman and Smigiel are members of the Administrative Executive Legislative Review Committee, which would have reviewed O’Malley’s action had it been in the form of a regulation.

‘‘This case is about whether the governor by executive order can choose to do this, something the legislature has clearly not chosen to do so far,” Mark L. Rosenberg, a lawyer for the association, said at a Monday news conference.

Bills allowing the POC providers to unionize have died in General Assembly committees in 2006 and 2007.

The Court of Special Appeals on Oct. 3 granted a stay of the temporary restraining order pending an appeal before the appeals court.

Union representatives said they expect the court will do the same with the preliminary injunction.

“Providers worked together for three years to win the right to vote and form our union to improve child care,” Madie Green, a child care provider in District Heights who helped lead the effort to form a union with SEIU Kids First, said in a statement. ‘‘It's disappointing that a few people are still trying to keep our votes from counting.”

The Attorney General’s Office will request a stay pending appeal of the preliminary injunction, said Raquel Guillory, a spokeswoman.

The executive order is part of a larger trend of ‘‘usurpation of legislative prerogative” by O’Malley, said House Minority Leader Anthony J. O’Donnell (R-Dist. 29C) of Lusby.

‘‘We don’t live in a dictatorship,” said Kittleman (R-Dist. 9) of West Friendship. ‘‘We shouldn’t have the governor rule be fiat.”

On Oct. 1, O’Donnell and House Minority Whip Christopher B. Shank (R-Dist. 2B) of Hagerstown had letters hand-delivered to O’Malley, Senate President Thomas V. Mike Miller Jr. (D-Dist. 27) of Chesapeake Beach and House Speaker Michael E. Busch (D-Dist. 30) of Annapolis.

The letters expressed ‘‘great concern” about O’Malley’s executive orders allowing in-home health care workers and child care providers to unionize and the fact that the O’Malley administration has yet to write lethal injection regulations that would allow the state to resume executions.

O’Malley testified in February in favor of a bill to repeal the death penalty. The bill died in the Senate Judicial Proceedings Committee.

By issuing the orders and failing to issue the death penalty regulations ‘‘the governor continues to make egregious incursions as to the legislative authority as delineated in our constitution,” O’Donnell said.