PSIMFP Item I
October 4, 20 I 0
Worksession
MEMORANDUM
TO:
FROM:
Public SafetylManagement and Fiscal Policy Committee
Robert
H.
Drummer, Senior Legislative Attorney
/rv
~
Total
SUBJECT:
Worksession:
Bill 45-10, Personnel - Disability Retirement - Eligibility
and Partial Incapacity
Expedited Bill 45-10, Personnel - Disability Retirement Eligibility - Total and Partial
Incapacity, sponsored by Council members Trachtenberg, Andrews, Berliner, and Council Vice
President Ervin, was introduced on July 27,2010. A public hearing was held on September 28,
2010.
Background
Bill 45-10 would create a two-tier service-connected disability retirement system for all
County employees identical to the current system for fire and rescue employees. Employees
eligible for a service-connected disability retirement benefit would receive either a partial
incapacity benefit of at least 52 Y:!% of final earnings or a total incapacity benefit of at least 70%
of final earnings. The current system for all employees, except fire and rescue employees,
provides a service-connected disability retirement benefit of at least 66
%%
of final earnings for
both partial and total incapacity.
An employee would be eligible for a total incapacity benefit if the employee was unable
to perfonn any substantial gainful activity because of an impainnent that is unlikely to resolve in
the next 12 months and may be pennanent. An employee would be eligible for a partial
incapacity benefit if the impainnent prevents the employee from perfonning one or more of the
essential functions of the employee's position, but does not prevent the employee from
perfonning any other substantial gainful activity.
The Council enacted amendments to the disability retirement system in Bill 37-08 on
May 12, 2009. One of the amendments in the Bill as introduced, but not enacted, was to extend
the two-tier system for service-connected disability benefits to all public safety employees. At
the Council's request last year, the Office of Human Resources provided infonnation on the
County's experience with this two-tier system for fire and rescue employees. As of May 2009,
only 10 of the 67 fire and rescue employees who received a service-connected disability
retirement since the two-tier system began in 2000 were awarded the higher 70% benefit.
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Therefore, 85% of the awards were at the lower 52 \12% level. The County's actuary, Mercer,
estimated the annual savings to the County's retirement contribution for extending the two-tier
system to Group F (Police) to be more than $1.5 million based upon an assumption that 60% of
the disability retirements would be at the lower level. A copy of Mercer's January 2009 letter is
at 17-21. If the Group G (Fire and Rescue) experience is carried over to all employees; the
actuary estimated the annual savings would be more than $2.7 million.
The Bill would also prohibit the award of a service-connected disability pension to an
employee who "has committed an offense that would justify removal for cause." This provision
was also included in Bill 37-08, as introduced, but not enacted in the final version of the BilL
Public Hearing
Eleven witnesses testified at the September 28 public hearing. Mark Zifcak, President of
the Fraternal Order of Police, Montgomery County Lodge 35 (FOP), opposed the Bill. See ©26­
30. Mr. Zifcak argued that the disability retirement system for police officers is fair and that any
changes should be made through collective bargaining. Trang Nguyen (©32), Kristina Venable,
Doug Soskin (©38), and Doug Gross (©40) testified as individuals opposed to the Bill.
Peggy Dennis, on behalf of the Montgomery County Civic Federation, and Joan Fidler
(©33), on behalf of the Montgomery County Taxpayers League, supported the Bill as a fiscally
responsible, yet fair, change to the County's disability retirement system. Dr. Marc Leffer, a
board certified occupational medicine physician, (©34-37) supported the Bill as a step in the
right direction to establishing a best practice system. Dr. Leffer testified that a one-tier disability
retirement system does not accurately deal with the varying nature of disability. Dr. Leffer
suggested that the County add a wellness program to prevent injuries similar to the program he
helped set up for Howard County in order to reduce disability retirements. Tom Wellington
(©31), Dwight Cramer (©39), and Robin Ficker testified as individuals supporting the Bill.
Issues
1.
Is the effective date of the
Bill
create a substantial impairment of contract benefits in
violation of the Contracts Clause of the United States Constitution?
The Office of the County Attorney (OCA) provided a bill review memorandum dated
September 17. See ©22-25. The OCA raises concern about the effective date of the Bill. The
OCA believes that the Bill's creation of a partial disability benefit may be struck down as a
substantial impairment of a contract in violation of the Contracts Clause of the United States
Constitution. The OCA recommends avoiding this issue by amending the effective date of the
Bill to apply to injuries sustained after the effective date of the Bill and after the terms of the
current collective bargaining agreements with the FOP and MCGEO expire. The OCA opinion
acknowledges that this question is unsettled and advises that delaying the effective date would be
the most conservative approach.
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Council staff disagrees with some of these conclusions.
In
Robert
T.
Foley Co.
v.
WS.S.C,
283 Md. 140, 151-152 (1978), the Maryland Court of Appeals set the framework to
determine if government action unconstitutionally impairs contractual obligations:
Consideration of a claim that particular governmental action invalidly impairs
contractual obligations involves several steps.
See United States Trust Co.
v.
New
Jersey,
431 U.S. 1, 17-21,97S.Ct.1505,52L.Ed.2d92(l977). First, it must be
determined whether a contract existed.
If
that hurdle is successfully cleared by
the claimant, a court next must decide whether an obligation under that contract
was changed. Finally, if the second question is answered in the affirmative, the
issue becomes whether the change unconstitutionally impairs the contract
obligation, '[fJor it is not every modification of a contractual promise that impairs
the obligation of contract under federal law ....
In
Bd of Trustees.
v.
Mayor
&
City Council ofBaltimore City,
317 Md. 72, 100 (1989),
the Maryland Court of Appeals held that "under Maryland law, pension plans create contractual
duties toward persons with
vested
rights under the plans."
(emphasis added)
As to when an
employee's right to a disability pension vests, the Maryland courts have held that a public
employee's right to a disability pension does not vest until the employee satisfies the conditions
necessary to receive the benefit. This would include the injury, a determination that the
employee is no longer able to perform the duties of the position, and an application for benefits.
See
Davis
v.
City ofAnnapolis,
98 Md. App. 707 (1994);
Saxton
v.
Bd of Trustees of the Fire
and Police Employees Retirement System ofthe City ofBaltimore,
266 Md. 690 (1972). As the
OCA opinion points out, the decisions in
Davis
and
Saxton
both rely on the date of injury as the
time of vesting. However, neither case raised the issue of whether an employee must satisfy
other conditions for a disability pension before vesting.
It
is, therefore, difficult to predict how a
Court would rule on this issue.
Even if an employee's rights have vested at the time of injury, every modification of a
contract does not result in an unconstitutional impairment. The legislative body always retains
the right to make reasonable modifications to vested rights for an important public purpose. In
this case, the sustainability of the retirement system is an important public purpose.
I
In addition,
the Bill creates a lower partial incapacity benefit, but also raises the minimum benefit for total
incapaci ty.
The OCA also raised a concern that the collective bargaining agreements may create a
contractual bar to implementing the
Bill
during the terms of the existing agreements. The OCA
argued that the Council's ratification of the collective bargaining agreements containing
provisions where the union and the Executive agreed to submit legislation to the Council
establishing the current disability retirement system created a contractual right that is subject to
the Contracts Clause. Although the OCA agreed that a reviewing Court may find the reforms in
the
Bill
to be reasonable and necessary, and therefore a permissible impairment of the collective
bargaining contracts, they recommend avoiding the issue by amending the efIective date of the
The OCA opinion does not predict whether a Court would find that the creation of a partial disability benefit is a
reasonable modification to a vested right for an important public purpose.
I
3
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Bill to coincide with the end of the current collective bargaining agreements. The MCGEO
agreement expires in 2011 and the FOP agreement expires in 2012.
Council staff disagrees with this analysis because it misconstrues the role of the Council
in the collective bargaining process. The Council did not generally ratify these collective
bargaining agreements. Under each agreement, the union and the Executive agreed to submit
proposed legislation to the Council, which was ultimately enacted. All disability rights are
created by the law, not the collective bargaining agreement. The enactment of a disability law by
the Council in the 1990's cannot prevent the current Council from exercising its plenary
legislative authority to amend that law.
Council staff recommendation:
amend the Bill to
apply to cases where the disability occurs on or after the date the Act takes effect.
Amend lines
369-371
asJollows:
Sec. 3. Effective Date.
The amendments to County Code Chapter 33 made in Section 1 of this
Act apply to any [[application for]] disability [[retirement filed]]
this Act takes effect.
on or after the date
2. Should an applicant who commits an offense that would justify dismissal be prohibited
from receiving a service-connected disability retirement pension?
Current law does not bar an applicant from receiving a service-connected disability
retirement pension after committing an offense that would otherwise justify dismissal. This
recently happened when 3 police officers who committed criminal acts that would have justified
dismissal received service-connected disability retirement pensions in lieu of dismissal? A local
newspaper recently reported that a County firefighter applied for, and received, a service­
connected disability retirement 3 years ago after being convicted of sexually assaulting a female
subordinate.
3
Bill 37-08 would prohibit the award of a service-connected disability retirement
pension if an applicant commits an offense that would justify dismissal. This provision was
recommended by the Executive's internal work group.
The County Attorney's Bill review memorandum questions how this provision could be
applied under the current system. The decision would be made by the Disability Review Panel
and ultimately the Chief Administrative Officer (CAO) under the current system. The County
would have to produce evidence sufficient to prove that the employee had committed an offense
that would have justified dismissal.
An
employee could appeal the CAO's decision to the
appropriate arbitration panel.
A service-connected disability retirement pension is a substitute for an employee's future
earnings that are no longer possible due to disability.
It
makes little sense to pay an employee
for future lost earnings that the employee would not have received due to a disciplinary
Inspector General described one of these cases in his report at pages 4-5. The report is available at
http://www .montgomerycountymd. gov/contentli ns pectorg/disabfinal interim090908. pdf.
3
See the
Examiner
article at ©41-42.
2
The
4
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termination for misconduct on the job. Council staff recommendation: approve the provision
in the Bill as drafted.
3. Should the disability retirement system distinguish between partial and total disability?
Before 2001, County law allowed a disability benefit for partial incapacity of 6% of final
earnings for each 10% of permanent disability, with a minimum benefit of 25%. Bill 25-01
eliminated this partial disability pension as part of collective bargaining agreements with the
FOP and MCGEO. Bill 37-08 would create a new disability benefit for partial incapacity,
similar to the partial benefit which currently applies to fire fighters. See definitions of partial
and total incapacity on lines 255-261 at ©11 and lines 275-278 at ©12. The partial incapacity
benefit for service connected injuries would be at least 52 Y2% of final earnings. The benefit for
total incapacity would be raised to 70% to match the benefit for fire fighters. The Retirement
Plan actuary estimated the annual savings from this provision to be between $1 million and $2.8
million, depending on the assumptions used and the amortization rate. The actuary's report is at
©17-21.
This policy change was recommended by the Council's consultant, Managed Care
Advisors, the Executive's internal work group, and the doctor who spoke at the public hearing,
Marc LeffeL Partial incapacity would require a finding that the employee could not perform 1 or
more essential functions of the position. Total incapacity would require a showing that the
employee is unable to engage in substantial gainful activity. The well-recognized Social
Security disability standards would be used to determine total incapacity, as the current law
already requires for fire fighters.
Partial incapacity status assumes that the employee is capable of substantial gainful
employment. Service connected disability retirement pensions are designed to be an income
replacement for employees who can no longer work due to an on the job injury.
52Y2%
of final
earnings in nontaxable income, plus the ability to earn outside income to make up the difference,
would satisfY the income replacement goal. The annual savings from this change could approach
$3 million. See the Mercer Actuary Letter at ©17-21. Is paying all disabled employees for a
total incapacity a reasonable allocation of the County's scarce resources?
Disability retirement benefits are subject to collective bargaining. The FOP President,
Marc Zifcak, argued strongly at the public hearing that the Council should wait for the parties to
bargain changes to the system. In 2009, the Executive and the FOP were in the process of
bargaining over changes to the disability retirement system. The Council amended Bill 37-08 to
make only the changes in the system that had already been agreed to by both the Executive and
the FOP. The Executive sought a two-tier system during bargaining in 2009 and 2010, but no
agreement was reached. Since that time, the Executive and the FOP negotiated an amended
agreement submitted to the Council in May 2010 and an out-of-cycle agreement submitted in
July 2010. Neither agreement contained any changes to the disability retirement system. In the
give-and-take world of collective bargaining, it is unlikely that the parties will negotiate a
reasonable two-tier disability retirement system during the County's current economic downturn.
Council staff recommendation: approve the creation of a partial incapacity disability retirement
and a total incapacity disability retirement as proposed in the Bill.
5
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This packet contains:
Expedited Bill 45-10
Legislative Request Report
Mercer January 2009 letter
County Attorney Bill Review Memorandum
Public Hearing Testimony
Marc Zifcak
Thomas Wellington
Trang Nguyen
Joan Fidler
Marc Leffer, MD
Doug Soskin
Dwight Cramer
Douglas Gross
DC Examiner Article
Fiscal Impact Statement
Circle #
1
16
17
22
26
31
32
33
34
38
39
40
41
43
F:\LAW\BILLS\I045 Disability Total Incapacity, Partiallncapacity\PS-MFP Memo.Doc
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Bill No. _4 5-1...,0"--_ _-----:::-:----::­
.........
Concerning: Personnel - Disability
Retirement - Eligibility - Total and
Partial Incapacity
Revised: July 28. 2010 Draft No. _6__
Introduced:
July 27, 2010
Expires:
January 27,2012
Enacted: _ _ _ _ _ _ _ _ __
Executive:
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: -'-:N""o"'-'n;:::.e---:-----:_ _ __
Ch. _ , Laws of Mont. Co. _ _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Trachtenberg, Andrews, Berliner, and Council Vice President Ervin
AN
ACT to:
(1)
(2)
(3)
(4)
create a partial incapacity disability retirement benefit for certain employees;
create a total incapacity disability retirement benefit for certain employees;
prohibit an employee who commits certain offenses from receiving a service
connected disability retirement benefit; and
generally amend County law regarding disability retirement.
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-43, 33-128, 33-129, and 33-131
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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BILL
No.4S-10
1
Sec. 1.
follows:
33-43.
Sections 33-43, 33-128, 33-129, and 33-131 are amended as
2
3
4
Disability retirement.
*
following meanings:
*
*
5
6
7
(b)
Definitions.
In this Section, the following words and phrases have the
*
*
*
8
9
10
11
Partial incapacity
means
9:
member's inability to perform one or more
essential functions of the position the member holds because of
impairment that;
12
13
14
15
ill
ill
ill
is unlikely to resolve in the next 12 months;
may be permanent; and
does not prevent the member from performing any other
substantial gainful activity.
*
*
*
16
17
18
19
Total Incapacity
means the member's inability to perform substantial
gainful activity because of an impairment that;
ill
ill
(f)
is unlikely to resolve in the next 12 months; and
may be permanent.
20
21
*
*
*
Service-connected disability retirement.
(l)
A member may be retired on a service-connected disability
22
23
retirement if:
(A) the member is totally or partially incapacitated [for duty
or partially and permanently incapacitated for duty] as
the natural and proximate result of an accident occurring,
24
25
26
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BILL
No.4S-10
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or an occupational disease incurred or condition
aggravated.1 while in the actual performance of duty;
(B) the incapacity is not due to the member's willful
negligence;
(C) the incapacity is likely to be permanent; [and]
(D) the member is unable to perform the duties of either:
(i)
the occupational classification to which the
member was assigned [at the time] when the
disability occurred; or
(ii) a position of comparable status [within1 in the
same department for which the member is
qualified~
28
29
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34
35
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37
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40
and[.]
(E) the member has not committed an offense that would
justifY removal for cause.
(E)
F or an accidental injury that does not cause mental
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42
43
44
45
impairment, the member must:
(i)
[reports] report the claimed accidental injury as
soon as practicable, but no later than one year after
the applicant knew or should have known that the
injury is likely to be disabling; or
(ii) [submits]
submit
a
claim
for
Workers'
46
47
48
49
50
51
52
Compensation benefits for the accidental Injury
that is not dismissed as untimely.
[(F)]
(Q}
The time periods for reporting in subparagraphs (i)
and (ii) do not begin while the member is unable to report
because of incapacitating injuries.
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No.45-10
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[(G)] (H)
For an accidental injury that occurs after July 1,
2009, the member must apply for disability benefits:
(i)
within one year after separation from County
service or before July 1, 2010, whichever is later;
and
(ii)
if the applicant is a member of Group F, within 5
years after the date of the accident causing the
impairment or before July 1, 2014, whichever is
later, unless the member is in a chronic incapacity
duty assignment.
*
(i)
(1)
*
*
Amount ofpension at service-connected disability retirement.
Total incapacity.
The County must pay a member [, other than
a Group G member,] who retires on service-connected
disability retirement with total incapacity an annual pension
calculated under Section 33-42(b)(1), [subject to the following
exceptions] except that:
(A) the County must substitute final earnmgs for average
final earnings; and
(B) the pension must be at least [66
2/3
percent] 70% of the
member's final earnings.
(2) [The County must pay a Group G member who retires on a
service-connected disability retirement an annual pension
calculated under Section 33-42(b)(1), except that the County
must substitute final earnings for average final earnings.
However, if this] If the benefit calculation under Section 33­
42(b)(1) is greater than any other benefit under this subsection,
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No.45-1 0
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the County must pay a Group G member who retires on a
service-connected disability retirement between June 26, 2002,
and June 30, 2007, a pension based on the member's average
final earnings if that member's average final earnings result in a
greater benefit than final earnings.
(3)
[The County must pay a Group G member who retires on a
service-connected disability retirement an annual pension
calculated under Section 33-42(b)(l), but the benefit must be at
least 70 percent of final earnings if the Chief Administrative
Officer finds, based on a recommendation from the Disability
Review Panel, that] The Disability Review Panel must
recommend
~
finding of total incapacity if the member's
service-connected disability is severe enough to meet the Social
Security Administration's requirements for disability, meaning
that the member is unable to engage in any substantial gainful
activity because of a medically determinable physical or mental
impairment that can be expected to end in death or has lasted,
or can be expected to last, for a continuous period of at least 12
months.
The member does not have to qualify for Social
Security disability benefits to be eligible for benefits under this
subsection.
(A)
The Panel must base its determination of whether [or not]
an individual is able to engage in any substantial gainful
activity on an assessment from an independent vocational
expert that considers the member's age, education, work
expenence, transferable skills, and residual functional
capacity.
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No.4S-10
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(B)
The Panel must determine the member's residual
functional capacity and provide this information to the
independent vocational expert.
(C)
A Panel determination that the member's servlce­
connected disability is severe enough to be considered a
disability by the Social Security Administration is not a
recommendation that the member is entitled to, or should
be granted, a disability benefit by the Social Security
Administration.
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(D)
If a member has already been granted disability benefits
by the [U.S.] Social Security Administration when the
member applies for a service-connected disability
pension, the County must pay the member a pension of at
least 70% [percent] if the Disability Review Panel finds
that the award of disability benefits from the Social
Security Administration was based primarily on the same
medically determinable physical or mental impairment
on which the Disability Review Panel awards the
member a service-connected disability benefit.
(4)
The County must pay a [Group G] member who retires with
partial incapacity on a service-connected disability retirement
an annual pension calculated under Section 33-42(b)(1), but the
benefit must be at least
52Y2
% [percent] of final earnings if the
Chief Administrative Officer finds, based on a recommendation
from the Disability Review Panel, that:
(A)
the member meets the standards to receive a servlce­
connected disability benefit under subsection
(f);
and
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(B)
the member is not eligible to receive a benefit for total
incapacity under subsection (i)(3).
(5)
(A)
The County must increase the partial incapacity service­
connected disability pension benefit of a [Group G]
member calculated under Section 33-42(b)( I), from a
benefit of at least 52 Y2 % [percent] to a benefit of at least
70 % [percent], if:
(i)
the [U.S.] Social Security Administration awards
disability benefits to the member;
(ii)
the member submits all relevant information about
the award of disability benefits from the Social
Security Administration to the Disability Review
Panel within 60 days after the member receives the
award;
(iii)
the Disability Review Panel finds that the award of
disability benefits
from
the
Social
Security
Administration was based primarily on the same
medically
determinable
physical
or
mental
impairment on which the Disability Review Panel
originally
awarded
the
member
a
servlce­
connected disability benefit; and
[(a)] (iv) the member applies for disability benefits with
the Social Security Administration within 90 days
after the [date on which the] Chief Administrative
Officer notified the member that the [amount of
the] service-connected disability pension benefit
would be calculated [under Section 33-42(b)(1),
@)
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No.45-10
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but at least 52 Y2 percent; or] as
!!
partial
incapacity.
[(b)
the Chief Administrative Officer awards a service­
connected disability pension benefit calculated
under Section (b)(1), but at least 52 Y2 percent to
the
member between March
1,
2000,
and
December 1, 2003, and the member applies for
disability
benefits
with
the
Social
Security
Administration no later than February 29, 2004.]
(B)
[For] If a member [who] qualifies for an increased
pension benefit under [subsection (5)] subparagraph (A)
[above], the County must increase the member's service­
connected pension retroactively to the date [on which]
when the pension began.
*
(7)
*
*
The County must pay a Group F member who retires on a
service-connected disability retirement on or after June 26,
2002, an annual pension calculated under subsection
(i)
(1) or
subsection
ill
ffi.
However, if [the]
!!
greater benefit results
from the calculation under Section 33-42(b)(1), the County
must pay a Group F member a pension based on the member's
average final earnings if that member's average final earnings
result in a greater benefit than final earnings.
0)
Adjustment or cessation ofdisability pension payments.
(1)
If a member receiving service-connected disability penSIOn
payments reaches the first day of the month [following1 after
the member's normal retirement date, the amount of pension
@
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No.45-10
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then payable must not be less than the amount that would have
been payable under [the provisions of] Section 33-4S(c)[,] if the
member had terminated service
[on]
when the [date] disability
pension [commenced] began and had not elected a return of
member contributions with credited interest.
(2)
(A)
The Chief Administrative Officer may reduce the amount
of the disability pension payments of a member retired
with total incapacity who:
(i)
(ii)
has not reached the normal retirement date; and
is engaged in, or is able to engage in, an
occupation that pays more than the difference
between the disability pension payments and the
current maximum earnings of the occupational
classification from
disabled.
which the
member was
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(B)
If a member other than a Group F member meets the
criteria in subparagraph (A), the Chief Administrative
Officer may reduce the member's disability pension
payments until the disability pension payments plus the
amount that the employee earned or is able to earn equals
the maximum earnings of the occupational class from
which the member was disabled.
204
205
206
207
208
209
210
211
*
(3)
*
*
If the earnmgs capacity of a disability retiree with
£!
total
incapacity changes, the Chief Administrative Officer may
change the amount of the disability retirement pension.
[F
or
the purpose of] In this subsection, "disability pension" is the
F:\LAw\BILLS\1045 Disability - Total Incapacity, Partiallncapacity\BiII6.Doc
212
213
214
tv
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BILL
No.45-10
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216
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227
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229
230
231
232
233
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235
236
237
238
239
240
241
amount of pension payable without election of a pension
payment option.
(A) For a disability retiree other than a group F member, the
Chief Administrative Officer must ensure that the amount
of the revised pension does not exceed:
(i)
the original disability retirement pension plus cost­
of-living increases; or
(ii) an amount that, when added to the amount the
member earns or IS able to earn, equals the
maXImum
earnmgs
of
the
occupational
member was
classification from
disabled.
which the
(B) For a Group F member who receIves a non-servIce
connected disability pension, the Chief Administrative
Officer must ensure that the amount of the revised
pension must not exceed:
(i)
the original disability retirement pension plus cost­
of-living increases; or
(ii) an amount that, when added to the amount that the
member earns or is able to earn, equals 120 percent
of the maximum earnings of the occupational
classification from
disabled.
(4)
~
which the member was
~
A member who receives
disability retirement pension for
total incapacity must submit to the Chief Administrative Officer
lIT
May 30 of each year
~
£QQY
of that portion of the member's
federal income tax return which shows the member's income.
§
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BILL
No.4S-10
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
If a member [receiving] who receIves disability pension
payments [fails or refuses to] does not supply the Chief
Administrative
Officer
[whatever]
any
information
[is
determined necessary] the Chief Administrative Officer needs
to [make a decision on] decide the amount of retirement pay
legally due, the Chief Administrative Officer must suspend the
member's pension payments [must be discontinued] until the
member submits the [requested] needed information.
*
33-128. Definitions.
*
*
In this Division, the following words and phrases have the following
meanings:
*
*
*
Partial incapacity
means
£!
member's inability to perform one or more
essential functions of the position the member holds because of
impairment that;
ill
ill
ill
is unlikely to resolve in the next 12 months;
may be permanent; and
does not prevent the member from performing any other
substantial gainful activity.
*
*
*
Residual functional capacity
means what the individual can still do,
despite the individual's impairment. The County must give the tenn
residual functional capacity the same meaning as the term is given by
the Social Security Administration.
Substantial gainful activity
means a level of productive work that
requires significant physical or mental duties, or a combination of
@
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BILL N0.45-10
269
270
271
272
273
274
275
both, performed for payor profit on a
full-
time or part-time basis.
An
individual is able to perform a substantial level of work if the
individual
is able to earn more than the
Social
Security
Administration's current monthly earnings limit for a disabled person.
The County must give the term substantial gainful activity the same
meaning as the term is given by the Social Security Administration.
Total Incapacity
means the member's inability to perform substantial
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
gainful activity because of an impairment that;
ill
ill
is unlikely to resolve in the next
12.
months; and
may be permanent.
33-129. Disability benefits.
*
(f)
*
*
~
The Disability Review Panel must recommend
fmding of total
incapacity if the member's service-connected disability is severe
enough to meet the Social Security Administration's requirements for
disability, meaning that the member is unable to engage in any
substantial gainful activity because of
~
medically determinable
physical or mental impairment that can be expected to end in death or
has lasted, or can be expected to last, for
£!
continuous period of at
least 12 months. The member does not have to qualify for Social
Security disability benefits to be eligible for benefits under this
subsection.
(l)
The Panel must base its determination of whether an individual
is able to engage
in
any substantial gainful activity on an
assessment from an independent vocational expert that
considers the member's
~
education, work expenence,
transferable skills, and residual functional capacity.
@
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BILL
N0.45-10
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
ill
The Panel must detennine the member's residual functional
capacity and provide this infonnation to the independent
vocational expert.
ill
A Panel detennination that the member's service-connected
disability is severe enough to be considered
f!:
disability
Qy
the
Social Security Administration is not
f!:
recommendation that
the member is entitled
!Q."
or should be granted,
f!:
disability
benefit
Qy
the Social Security Administration.
(±)
If
f!:
member has already been granted disability benefits
Qy
the
Social Security Administration when the member applies for
~
service-connected disability pension, the County must give the
member
f!:
total incapacity benefit if the Disability Review Panel
finds that the award of disability benefits from the Social
Security Administration was based primarily on the same
medically detenninable physical or mental impainnent on
which the Disability Review Panel awards the member a
service-connected disability benefit.
(g)
311
312
313
The Disability Review Panel must recommend
f!:
finding of partial
incapacity if:
314
315
316
317
318
319
320
321
322
ill
ill
(hl
the member meets the standards to receive
f!:
service-connected
disability benefit; and
the member is not eligible to receIve a benefit for total
incapacity under subsection
ill:.
The County must increase the partial incapacity service-connected
disability pension benefit of
f!:
member to
f!:
total incapacity benefit if:
ill
the Social Security Administration awards disability benefits to
the member;
@
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BILL
No.45-1 0
323
324
325
326
327
328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
ill
the member submits all relevant information about the award of
disability benefits from the Social Security Administration to
the Disability Review Panel within 60 days after the member
receives the award;
ill
the Disability Review Panel finds that the award of disability
benefits from the Social Security Administration was based
primarily on the same medically determinable physical or
mental impairment on which the Disability Review Panel
originally awarded the member
benefit; and
~
service-connected disability
ill
the member applies for disability benefits with the Social
Security Administration within 90 days after the Chief
Administrative Officer notified the member that the service­
connected disability pension benefit would be calculated as
partial incapacity.
~
ill
If
~
member qualifies for an increased pension benefit under
subsection
(h1
the County must increase the member's service­
connected pension retroactively to the date when the pension
began.
ill
Role ofthe Disability Review Panel.
(1)
The Disability Review Panel must consider an application for
disability benefits to determine if the applicant is eligible for
disability benefits under subsection (a), (b), (c), (d),
[or]
(e)~
{t1
(g1
or
(hl.
The Panel may consider any information or material
submitted by the applicant, the certified representative, or the
County. Within 60 days after the application is filed, the Panel
must meet in person.:!.
Qy
telephone conference, or
Qy
video
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e
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BILL
No.45-1 0
350
351
352
353
354
355
356
357
358
359
360
361
362
363
364
365
366
367
368
369
370
371
372
conference, to review all evidence submitted to the Panel.
[An
action by the Panel under this Section requires a majority vote of
3) A Panel must include either
2.
or
d
members. At least
2.
members must vote in favor of g decision to take any action
under this Section.
*
33-131. Amount of benefits.
*
*
(a)
Service-connected disability.
The annual amount of service-connected
disability payments payable for total incapacity equals [66 2/3
percent] 70% of the employee's final earnings, less any reductions
provided in section 33-134. The annual amount of service-connected
disability payments payable for partial incapacity equals 52Y2 % of the
employee's final earnings.
*
Sec. 2.
*
*
Implementation.
Notwithstanding any other provision of law,
including §33-80(a)(7) and §33-107(a)(7), the implementation of any amendment
to County Code Chapter 33 in Section 1 of this Act concerning disability
retirement is not subject to collective bargaining with a certified representative of
employees in any bargaining unit
Sec. 3.
Effective Date.
The amendments to County Code Chapter 33
made in Section 1 of this Act apply to any application for disability retirement filed
on or after the date this Act takes effect.
Approved:
373
374
Nancy Floreen, President, County Council
Date
@
F:\LAW\BILLS\1045 Disability - Total Incapacity, Partiallncapacity\BiII6.Doc
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LEGISLA'"IVE REQUEST REPORT
Bill4S-10
Personnel - Disability Retirement Eligibility - Total and Partial Incapacity
DESCRIPTION:
The Bill would create a two-tier service-connected disability
retirement system for most employees consisting of a partial
incapacity disability retirement benefit and a total incapacity
disability retirement benefit. The Bill would also prohibit an
employee who commits certain offenses from receiving a service
connected disability retirement benefit, and generally amend County
law regarding disability retirement.
The current system provides the same service-connected disability
retirement benefit for both partial and total incapacity for all
employees except fire and rescue employees. This Bill would create
the same two-tier system that fire employees have for all others. The
Bill would also eliminate the right to a service-connected disability
benefit for an employee who has committed an offense that would
justify removal for cause.
To provide a two-tier service-connected disability retirement system
for all employees and to prevent an employee from avoiding a
termination for cause by applying for a service-connected disability
retirement benefit.
Office of Human Resources, County Attorney
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney
NA
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
NA
f:\law\bills\1045 disability - total incapacity, partial incapacity\lrr.doc
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Aquil Ahmed, ASA, EA, MAAA
Worldwide Partner
MERCER
!
~
MARSH
MERCER
KROLL
OLIVER WYMAN
GUY CARPENTER
1255 23rd Street, NW, Suite 500
Washington, DC 20037
202331 5200 Fax 202 296 0909
www.mercer.com
January 9, 2009
Ms. Belinda Fulco
Office of Human Resources
Montgomery County Government
101 Monroe Street, Seventh Floor
Rockville, MD 20850-2589
Via E lectronic Mail
Subject:
New Legislation Proposal on Disability Provisions for ERS
Dear Belinda:
This letter summarizes cost estimates for proposed disability provisions affecting group
F, G and H of the Montgomery County Employees' Retirement System (ERS).
A
E,
The estimates are based on the July 1,2008 actuarial valuation data. The actuarial
assumptions and methods are the same as those used in our July 1, 2008 actuarial
valuation report unless otherwise noted. Actual costs will depend on the actual data and
experience of the plan. The benefit changes are assumed to apply only to active ERS
members, not to retirees or terminated vested members. We have prOjected all costs from
the July 1, 2008 valuation date to an assumed effective date of July 1, 2009 using standard
actuarial approximation techniques. By cost, we mean the increase in Normal Cost and an
amortization of any changes in unfunded liability. Cost will change over time as experience
develops.
Any pay increases due to an increase in covered positions that result in 2009 valuation pay
exceeding the 2008 valuation pay by more than 4% will result in the County's FY2010 or
FY2011 costs exceeding those implied by the figures shown below.
Description of Proposed Plan Provision Changes
• The service-connected disability retirement benefit amount for groups A, E, F, G and H
is:
1. For total incapacity: The greater of the accrued benefit or 70% of final earnings.
2. For all other disability, the greater of the accrued benefit or 52.5% of final
earnings. If the member meets the definition of Social Security disability, the
minimum benefit is 70% of final earnings.
A new approval board will be created by the County to review all disability claims.
Consulting. Outsourcing. Investments.
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MERCER
I
_~
-;
MARSH
MERCER
KROll
OLIVER
WYMAN
GUY CARPENTER
Page 2
January 9, 2009
Ms. Belinda Fulco
Montgomery County Government
• The non-service-connected disability retirement benefit amount and other plan
provisions are the same as described in our July 1, 2008 valuation.
Actuarial Assumptions
Assumption used are as follows:
The disability rates described in the July 1, 2008 valuation report have decreased by 2%
to reflect the anticipated change in disability rates due to the new disability approval
process.
For groups E and F, 90% of disabilities are still assumed to be service-connected.
However 63% of disabilities are assumed to collect the 52.5% benefit, and 27% are
assumed to take the 70% benefit.
For groups A and H, 45% of disabilities are still assumed to be service-connected.
However 22.5% of disabilities are assumed to collect the 52.5% benefit, and 22.5% are
assumed to take the 70% benefit.
For group G, 93% of disabilities are still assumed to be service-connected. And 62% of
disabilities are assumed to collect the 52.5% benefit, 26% are assumed to take the 70%
benefit and 5% are assumed to take another job (valued by reducing the disability
decrement by 5%).
All other assumptions are the same as those used in the July 1, 2008 valuation.
Per your request, we also estimated the impact on groups E and F based on the
following assumptions:
-
Scenario 1- 60% of disabilities would receive the 52.5% benefit and 30% would
receive the 70% benefit.
Scenario 2- 30% of disabilities would receive the 52.5% benefit and 60% would
receive the 70% benefit.
-
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MERCER
[
._~
~l
MARSH MERCER KROll
GUY CARPENTER OLIVER WYMAN
Page 3
January 9, 2009
Ms. Belinda Fulco
Montgomery County Government
Estimated Costs of Proposed Changes
Annual Sa\{ings using 40-year
amortizat
:.:io.;:...n~
_ _ _ ._____________
.
For represented and non­
represented members
For represented
members
A
$0
Gr()~pE
<:?~()~p~_______
...........~{~~£j!99Q)
. . . . . . . . . . __
Jt!!.£>~~,9Q91
... ___
~
$J~Q_~!OOO)
.______ _
. . . . ______
~$(1 !5~4,000)
_____ .. ___ _
-~~-()~p<:?---
_____
~______
. ___
......~(£j~-'qQ91_
........_________. __.. _!!(£j!,999J.. . . . .___ __ . . . __
<:?r()~p_ti!(! 2~~90Q)
............ .
..____~(1?_~,QOO
L .
~UQr~~p~
. _._._ ........ - . - - - - -.....-...-
~???1_,9992_~____._
.._________________
~?'-???!QqQL
______
Numbers may not add up due to rounding.
Annual Savings using 30-year amortization
For represented and non­
represented members
For represented
members
Decrease in Actuarial Accrued Liability
For represented and non­
represented members
For represented
members
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MERCER
,~
"']
MARSH MERCER KROll
GUY CARPENTER OLIVER WYMAN
Page 4
January 9, 2009
Ms. Belinda Fulco
Montgomery County Government
Scenario 1 - 60% of disabilities receive the 52.5% benefit and 30% of disabilities
receive the 70% benefit
Annual savings based on 40-year or 30-year amortization
For represented and non­
represented members
For represented
members only
amortization
",§,~~-':l,P.."!="""~~""",,,,
GroupF
""""__
"",_",_""~~~g";PQQL
_ _ _
~,,
__,, , , ___,,,,_,,__
~~_,,_ $(75~!"QQO)
,______,,__
$(1,493,000)
$(1,437,000)
$(2,380,000) ___"'____'"
_~"~E9.l1£~
___
""~
______
~""_",,,,_,,,,,,
__
,,~(?,
615,PQQ1,,_________
amortization
Group E
Group F
..
"",,.._.
__
._
..
_
...
All groups
~
Scenario 2 - 30% of disabilities receive the 52.5% benefit and 60% of disabilities
receive the 70% benefit
Annual savings based on 40-year or 30-year amortization
For represented and non­
represented members
For represented
members only
40-yr amortization
amortization
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MERCER
Ij
I_~
MARSH MERCER KROLL
GUY CARPENTER OLIVER WYMAN
Page 5
January
9, 2009
Ms. Belinda Fulco
Montgomery County Government
Scenario 1 and 2- Decrease in Actuarial Accrued Liability
for represented and non-
represented members
for represented
members only
Scenario 1
60%
of disabilities receive the
52.5%
benefit and
30%
of disabilities receive
the
70%
benefit
Scenario 2
- - - - -
..
''.~_
----~--
..
"'''""""""""""""""""""" ••••••••• '''''' ••
••_
.................................................................."mm"""".,.""
_ _ ,•• _ ••_ .......-._••••••
mH _ _ _ _
30%
of disabilities receive the
52.5%
benefit and
60%
of disabilities receive
the
70%
benefit
~
•••• _ _ _
••••••••••• _"_._._ ••••• _ _ _ _ _ ...
_~
....___.... _ _ ••••••••
~'''~
~_m'
•••••••••• _ _ __
_
~~~~p§_
.................... . . . . .___.. . . .._.._
J(~!i60,
oQ2t___. ... . . . . . .____._ .
_..._J{~!~~5,
og.2!_
.
.._..
§~~~P~.
. . . . . . ................."
....J(~,~E5?!.oqq)
................... _ _
..
. .
~J!9E~I~P~
____ ...._.._________.. __ .
Other Considerations
.__
~{3,849,000)
.........___ ._. .
____
$(9,
q39,O_g_q2~
_____________.____
$(?c~_07!29gt
__.. , ___._ . . _
........
. . ._ . . . .".. . .
Please let me know if you have any questions or need any further information. I can be
reached at 202331 5211. I meet the Qualification Standards of the American Academy of
Actuaries to render the actuarial opinion contained in this letter. I am not aware of any direct
or material indirect financial interest or relationship, including investments or other services
that could create a conflict of interest that would impair the objectivity of our work.
Sincerely,
/Jp~ IM~
Aquil Ahmed, ASA, EA, MAAA
Worldwide Partner
Copy:
Wes Girling, Montgomery County Government
Doug Rowe, Mercer
The information contained in this document (including any attachments) is not intended by
Mercer to be used, and it cannot be used, for the purpose of avoiding penalties under the
Internal Revenue Code that may be imposed on the taxpayer.
rlclilmgewas120091disabliity costing\updated new disability proviSions impact. doc
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OFFICE OF THE COUNTY ATIORNEY
Isiah Leggett
County Executive
Marc P. Hansen
Acting County Attorney
MEMORANDUM
TO:
CC:
Kathleen Boucher
Robert Drummer
Wes Girling
Marc Hansen
Edward Lattner
Amy Moskowitz
September 17,2010
Disability Retirement Legislation
THRU:
FROM:
DATE:
RE:
You asked our office to review Bill 45-10. Similar to our review of Bill 37-08, our office has
concerns whether the proposed disability retirement legislation violates the contract clause of the
United States Constitution. Although uncertain, we believe that valid arguments can be made
that the effective date of the legislation substantially impairs the rights participants have under
collective bargaining contracts and under the Montgomery County Code in violation of the
contract clause. A Contract Clause violation can be avoided if the legislation applies to injuries
after the effective date of the legislation and after the expiration of the current collective
bargaining agreements (Le., July 1,2011 for MCGEO and July 1,2012 for FOP). Because IAFF
already has partial disability benefits, the changes do not affect IAFF. A more detailed analysis
of the contract clause largely taken from our January 21, 2009 memorandum on similar changes
to the disability retirement law is set forth below. We also note that the Council's attorneys
disagreed with the January 21, 2009 memorandum.
Another concern regarding the legislation is that a participant will forfeit the right to a service
connected disability if "the member has committed an offense that
would justify removal
for
cause." We are unsure what this phrase means and how it would be implemented and/or
determined. Presumably as the administrator of the retirement system the CAO would make the
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determination but the legislation does not specify who makes the decision and how the
determination is made. In other words, who supplies the proof that the offense committed would
justify removal for cause? The supervisor? A contract arbitrator? The Merit System Protection
Board? A court? The legislation should specify a determinable standard (e.g., conviction by
court; plea or admission of guilt (including probation before judgment); determination by Merit
System Protection Board).
Contract Clause Analysis
Article I, §1O, clause 1 of the United States Constitution provides that "No State shall ... pass any
Law impairing the Obligations of Contracts ... ". Courts have held that this clause does not
prohibit governments from impairing contracts but limits a government's right to do so. A
contract violation occurs only if the government substantially impairs a party's right under the
contract. Legitimate expectations of the parties determine whether the impairment was
substantial. However, a government may substantially impair a contract if reasonable and
necessary to serve a legitimate public purpose. Courts generally defer to the government in
determining the reasonableness and necessity of a particular measure, unless a government seeks
to impair its own contracts. Even where the government acts to impair its own contracts some
degree of deference is appropriate. Reasonableness is determined in light of whether the contract
had "effects that were unforeseen and unintended by the legislature". Necessity means that the
government did not have a less drastic modification available and the government could not
achieve its goals without altering the contractual terms. United States Trust of New York v. New
Jersey, 431 U.S. 1 (1977); Allied Structural Steel Co. v. Spannaus, 438 U.S. 234.
Maryland courts have held that pension plans statutes contain contractual rights between
employees and the government. Although the pension plans constitute contractual benefits,
under certain circumstances governments can modify the terms as long as the changes do not
adversely affect the benefits, or if adversely affected, are replaced with comparable benefits.
City of Frederick v. Quinn, 371 A.2d 724 (1977). In Baltimore Teachers Union v. Mayor and
city Council, 6 F.3d 1012 (4
th
Cir. 1993) the Court noted that Supreme Court provided little
guidance as to what constitutes substantial impairment, but assumes that a substantial
impairment occurs where the right abridged was one that induced the parties to contract in the
first place ... ". In the employment context, the right to a specific pay is a key inducement.
The contract clause prohibits retroactive impairment
Generally a contract clause issue only exists if the legislation operates retroactively to change
existing law and not prospectively. Maryland State Teachers Association, Inc. v. Hughes, 594 F.
Supp. (1984). In addition, reasonable modifications may be made before the occurrence of the
defined contingencies. Davis v. City of Annapolis, 635 A.2d 36 (1994). In Davis, the City
changed its disability law after the appellant's injury occurred. The Court held that the appellant
became vested in the benefit after the occurrence of condition necessary for benefits. The Court
did not discuss contract impairment because the appellant's rights to disability benefits vested
under prior to adoption of the new law. Similarly, Howell v. Anne Arundel County, 14 F. Supp.
2d 752 (D. Md. 1998) recognizes that the contract clause only protects against retroactive
2
101 Monroe Street, Rockville, Maryland
20850-2540·
amy.moskowitzramontgomervcountymd.gov
240-777-6793· TID 240-777-2545· Fax 240-777-6705
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diminution of vested benefits and no contract clause violation occurs when legislation applies
prospectively to non vested plan benefits.
In order for a contract clause violation to occur for a pension plan statute, the legislation must
operate retroactively. The County Code contains the retirement plan which includes disability
retirement provisions and forms a contract. The legislation appears to operate prospectively
because it applies to disabilities filed after the legislation becomes effective. However, as
indicated in Davis and Howell, a right becomes vested after a party satisfies all conditions
necessary to receive the benefits. Therefore, this legislation may have a retroactive effect
because a party may have incurred an injury before the effective date and may file the
application after the legislation's effective date. While Council attorneys note that filing the
application is a condition necessary to receive the benefit, the Maryland courts have clearly
stated that it is the occurrence of the event which is a condition of becoming entitled to the
disability benefit. But a Contract Clause violation can be avoided if the legislation applies to
injuries incurred, rather than applications filed, after the effective date of the legislation.
The collective bargaining agreements
The County Code provides that unions and the County Executive negotiate certain rights,
including retirement and benefits, which includes disability retirement benefits. After a union
and the County Executive reach an agreement, the County Council can reject provisions
requiring legislation and provisions requiring funding. The current collective bargaining
agreements, which are also contracts, provide the right to specific disability retirement benefits
or provide that the parties will submit legislation regarding disability retirement. The agreements
detail what terms the legislation will include. Even after the parties submit the legislation and
the legislation becomes incorporated into the County Code, these disability retirement provisions
remain in the agreements. For example, even though the agreement states that the parties will
submit legislation by July 1, 1999 providing a certain level of benefits, by incorporating the
language into the current contracts, the parties intend that the benefits remain for the terms of the
contracts. By agreeing to the existing legislation, the County Council agrees to these terms with
the collective bargaining agreements becoming contracts of the County.
The collective bargaining agreements have terms lasting until 2011 and 2012, therefore the
legislation alters the terms of the existing contracts. Even though the legislation alters the
contracts, the County Council may do so if the changes do not substantially impair the existing
contract and the reason for the change is necessary and reasonable for the public good. The
change must be due to "effects that were unforeseen and unintended by the legislature" with no
other less drastic modification available and the County Council cannot achieve its goals without
altering the contractual terms.
One can argue that the legislation does not substantially impair the contract because the
legislation provides for an additional benefit, a partial disability. Therefore, more participants
may become entitled to a disability benefit whereas they may not have qualified for a complete
disability. In addition, the legislation does not remove disability retirements, and only alters the
benefits in certain cases. More importantly, the disability retirement benefit differs from a
retirement benefit because a participant only receives a disability benefit upon disability which is
3
lOt Monroe Street, Rockville, Maryland 20850-2540· amv.moskowitz{@.montgomervcountvmq,gQY
240-777-6793· ITD 240-777-2545· Fax 240-777-6705
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an uncertainty and no participant can rely on the existence of a certain or specific disability
retirement benefit which he/she may never become entitled to receive.
One can also argue that the legislation does substantially impair the contracts. First, the unions
specifically bargained these benefits and presumably gave up other rights and benefits. Although
the legislation contains a partial disability, the legislation imposes a stricter standard in order to
receive a permanent disability and therefore becomes likely that a participant may receive a
lesser benefit. The January 2009 letter from the actuary assumes a cost savings because
participants will no longer qualify for a full disability and only qualify for a partial disability.
Data supplied by the Office of Human Resources in May 2009 supported this finding. For
inducement into taking certain jobs (e.g., police officers) participants will argue that they want to
ensure adequate financial protection in case of a disability and relied on the existence of these
benefits.
Because arguments may be made that the effective date of the legislation substantially impairs
the rights participants have under collective bargaining contracts, the next inquiry is whether any
impairment is permissible as a legitimate exercise of power. This turns upon the necessity and
reasonableness of the legislative act.
The necessity and reasonableness of a particular legislative act is a factual inquiry, making
comparison with other cases somewhat problematic. In Baltimore Teachers Union v. Baltimore,
6 F.3d 1012 (4
th
Cir. 1993), cert. denied, 510 U.S. 1141 (1994), the Fourth Circuit reversed the
district court and held that a city salary reduction plan adopted to meet immediate budgetary
shortfalls did not violate the Contract Clause. While the court found that the plan was a
substantial impairment, it concluded that the city's action was reasonable and necessary. The
city's financial integrity was a significant public purpose justifying city action.
It
is not enough to reason, as did the district court, that "the City
could have
shifted the burden from another governmental program," or that "it
could have
raised taxes."
Id.
(emphases added). Were these the proper criteria, no impairment
of a governmental contract could ever survive constitutional scrutiny, for these
courses are always open, no matter how unwise they may be. Our task is rather to
ensure through the "necessity and reasonableness" inquiry that states neither
"consider impairing the obligations of [their] own contracts on a par with other
policy alternatives" or "impose a drastic impairment when an evident and more
moderate course would serve its purposes equally well," United States Trust, 431
U.S. at 30-31,97 S. Ct. at 1522, nor act unreasonably "in light of the surrounding
circumstances,"
id.
at 31, 97 S. Ct. at 1522. Andrews v. Anne Arundel County,
931 F. Supp. 1255, 1262-63 (D. Md. 1996) 931 F. Supp. 1255, 1262-63.
The integrity of the disability retirement system, fiscal or otherwise, is a significant public
purpose justifying governmental action. But, as with significant impairment, it is difficult to
predict whether a court would conclude that this proposed bill is a legitimate exercise of power
under the Contract Clause. The most conservative course of action would be to make the
legislation effective after the term of the current collective bargaining agreements.
4
101 Monroe Street, Rockville, Maryland 20850-2540· !!LDy.moskowitz(wmontgomervcountvmd.gov
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Montgomery County Lodge 35, Inc.
18512 Office Park Drive
Montgomery Village, MD 20886
Phone: (301) 948-4286
Fax: (301) 590-03 17
Statement of Fraternal Order of Police,
Montgomery County Lodge 35, in opposition to
bill 45-10
September 28, 2010
Once again over eleven hundred police officers find their certified representative with
just 180 seconds in a political forum to address the merits of legislation that could
place them and their children in financial jeopardy. That's 0.16 seconds per officer -­
an impossible task.
I remind you that we are not some "special interest" seeking something from the
government. We are Montgomery County police officers, county government
employees. We work for you. We have an employee-employer relationship with
you, not all that different than the one you have with your own well-compensated
staff. Do you consider the CAO a "special interest"? Your council staff director?
The OHR director? We are an important part of government function and mission.
Police officer disability benefits are critically important to police officers, their
families, and the community that relies on them in life and death situations 365 days a
year,
2417
while you sleep and in all sorts of weather and on family holidays.
We do not have time here to give this matter the justice both it and your police
officers deserve. The playing field here is not level. For instance, a 52.5% benefit is
proposed by this legislation, but the origins of the 52.5% figure are not revealed other
than to say that Group G fire employees have that level benefit. Similarly, maybe
someone should ask why Group F police employees are not seeking a 70% benefit.
There has been no discussion of the different criteria that apply to a Group G service­
connected disability versus a Group F service-connected disability.
There has been little interest in changing the disability benefit for police management
who do not have collective bargaining rights, yet the poster boys for the issue are
former well-compensated management assistant police chiefs who went on to other
law enforcement positions before applying for disability benefits.
The bargaining table is where this matter belongs at the appropriate time and where it
can be given due attention by the parties. That is where facts trump politics and
distortions, and biased media hype. (This anti-Collective Bargaining bill is an
unconstitutional attempt to impair a valid, just executed contract.)
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By way of quick example, we repeat what has been ignored by the media and
detractors:
We already have a two-tier system of disability.
The absolute,
unadulterated truth is that all eligible disabled officers get at least tier 1 - 66 2/3
percent. More severely disabled officers receive the tier 1 benefit
plus
the integrated
retirement pension system's tier 2 benefit provided by Social Security.
Only through Collective Bargaining can this critically important issue receive the
attention it deserves and can unintended consequences be avoided. (The issue was
indeed raised by the Executive this year and dropped by the Executive who made the
decision to not take it to arbitration, as was his right.)
For twenty-eight years, FOP Lodge 35 has abided by the spirit and intent of the
collective bargaining law. It served us well until the process was violated by the
County . We want to bargain in an orderly manner according to process, so our
member police officers can serve the community without distraction or disruption.
We do not end run the process, but this legislation is a short-sighted attempt to
tum
back the clock.
It
was through collective bargaining that we voluntarily gave up 4.25% General wage
Adjustments two years in a row.
However, no police officer should ever be forced to hesitate before taking action.
This bill heads in the wrong direction. Our position has been consistent since the
early 1980s. We do not want the County to retire disabled police officers. We want
the County to keep as many service-connected disabled officers as possible
productively employed with dignity and respect in meaningful police officer
positions. That is the intent of our Contract Article 11. We do not want officers
forced out through assignment of degrading work, disrespect, and harassment.
The County cannot have it both ways by forcing officers out then complaining that
they have received a benefit
There is no emergency here. Just last year we agreed to new reporting timeframes
and a five-year disability application deadline. (Bill 37-08.) These new time frames
have not been given a chance to achieve their intended purposes.
Our normal retirement benefit is lower than area jurisdictions. For example, the
normal retirement in Fairfax County is better than the disability benefit for a
Montgomery County officer. The disability benefit for a Fairfax County police
officer forced from his/her position is 66 2/3 percent.
The provision that an employee who "has committed an offense that would justify
removal for cause" has not been bargained and has not been given the consideration
it
demands. Who decides "would justify"? What if an officer is severely injured saving
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demands. Who decides "would justifY"? What if an officer is severely injured saving
lives and is in great pain and, as a direct result of the pain caused by the injury, s/he
abuses drugs and alcohol that leads to other problems that arguably "would justifY
removal for cause," is it the position of this Council that this officer isn't injured?
That
s/he
did not perform admirably resulting in a job-related injury? Or simply that
we need to punish injured officers for not handling their pain the'way the County
Council in an election year thought they should?
There is a lot more to say. I am out of time.
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...
'
9
Disafjl~d
Officers
'M.ay
B~'For.~ed
Out
By KENNETH WEISS .
Joumal 51." Wm",
.,..
.
.
.
,~,' :~,!
"
·,~."I
.
Police officers who can no longer' work on the street because of
dLr:;abilities should be forced to retire early to save the department
money, a top police administrator has recommended.
The recommendation;
in
an
int-ernal memorandum from Major
Frederick Chaney
to
Chief Bernard
D.
Crooke, proposes that nine .
disabled officers be forced
to
seek disability retirement because they
. are holding desk jobs
that
"could be absorbed by civilian personnel
at
a
much lower
cost:~
.
Chaney
said
no on'e
has
been t8.rieted for early retirement and no
decisions have been made because the memo
is
still only a
.
rlllCommendat i o n . .
. "But news of the recommendation - and the list of name5' - has
leaked out
to
the nine officers. who are now worried about losing
their careers.
And
the police union
is
taking
their side.
"They are deciding to clean house lackinlZ any compassion for any
officers involved:' said one eil'hl-year police officer. who was in
Please see
DISABLED, A7
...
------------------------------­
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DiSabled:
Nine
Officers
.
May Be Forced to Retire
,.".....;
.~-
..
"
...
!,wom officer, includinj: the ninE' listed. should
be
From PageA1
7,
jUTE'd in an automobile accident while on duty. , . given jobs of comparable pay elsewhere in the
county government
0)'
referred
to
the retirement
"The\'
~ake
me feellik;
d~ad
wood," said the board, the memo says,
office~,
-who asked to remain anonymous. "They
. Ofc. \\'alter Bader, president of the Fraternal
·make me feel like I'm of no value."
'. -' 'Order of Police. said it isn't fair to ask a career offi·
........
.
Seven of
t.he
nine officers work in desk jobs or cer to give up his career or
take'
Ii
substantial reo
duction in pay by going on disaoilit;v. . .
· hold othertseiientary positions" that do not de­
mand the respOnsibilities of a full-sworn officer,
Bader. who said he has talked to several of the
including having arrest powers. wearing a uni­
targett'd officers. said they fear for their jobs. "To
form, handling a gun and driving a police car,
go
from
$28,000
a year to
$7000
Ii
year (on disabil­
Chaney said.
ity retirement) is Quite a shock," he said.
: ..These....officer-s·
a dea"d end for any
possi~
..It is
a difficult issue,} with no easy answers."
ble upward mobility and they are functioning in
~ajor Cha~,:y
said. "The who,le issue of disability
positions
that
could be absorbed
by
civilian per·
15
ver", sensItive.
..,'
sonnelat a much lower,co:;!,"
his
memo says.
"It-is difficult to place
som~~e ~h~
cannot
pe~­
: The memo includes a
draft
01
a letter to be sent
form the functions of a sworn police officer ..
to
the disabled officers urging them to retire.
Chane\' said.
-....
'
"If
you do
not
apply for disability retirement
But he
Said
he felt it is'profitable:"for the countv
0'
",;thin
thirty
days from the date of
this
letter, the
government to keep long-time officers - even
If
department will institute the necessary proceed­
they are disabled - because of their valuable
.ings," the letter.says. ,''';';'
_~.
experience. .
.,,'
- A
dis<i.bility
pari~l.
comprised of tne three police
'·There are a
numb~r
of officers who have been
department majors, is responsible for reviewing
in
the department for a number of years.
I
don-'t
each
case
and deciding the fate of injured or
dis­
think
it
would be fair to them or to
thi
county gov.
abledofficers. ':,.
..
_..
.!'.
,/.
ernment to
p~ the~ ou~:'
he
said~~~~>. 4~"
_ The memo was sent
to
Crooke
as
a recommend­
Chaney saId the disability panel'relies on doc­
· ed change in policy folJowlng
.a
panel meeting May
20.:
.
<.,......
......
tors' suggestions as to what kind of job:each in­
..l'" •
Chief Crooke
said
through a spokesman that he jured officer is capable
of
handling. _..... .
~
John
H.
Conrad. a Rockville attornev who has
has
sent the memo back
to
his
staff
for additional
handled many disabilt,v cases for county employ­
information.
ee!'>, said
It
is
not unusual for the government to
try
· According
to
the memo, the department's dis­
to force emplo.vees
to
retire early on disability
to
'ability policy signed by Crooke in
1980
"has a ver:v save money.
~liberal
approach jn dealing with officers. The
po­
. lice
disability
panel supports a more strict inter-
He
said the county g-o,:ernment
is
self-insured
pretation in the assignment of police officer!; who and has
to
bear the
full
brunt of workmen's com­
pensation
clann.<;
while
an
employee
is
recuperat.
aT!:'.
medically certified
as havinll a permanent dis­
· llbimg-
injury."
ing.
Conrad said his experience has been that tne ,
, . As it
is
now, disabled officers are found compa­
~rable
jobs within the department.:which they
can
county government
will
try
to
force the emplovee .
rperform with their disability. Or, at their option,. to retire on permanent disabilty because it holds a
'ili~
officers ma.:fbe transferred to 'a comparable
permanent disability retirement policy with AET­
job somewhere else in the county government. ' .
NA
Insurance
Co.
~;
• ".,.
;,0' ." """
~
.,
The
proPo~~d
"strict approach" makes.a
dii..~
Since the county
h~
paid
itS
pi~miums f~r
the'
tinction between
dj~abled
officer'3 who can'per­
disa~ility
retirement
pl~n,
it costs the county
'form
most.of
the dutles of a Bworn, officer. such be­
nothing for
a
person
to
retlre.
.,.,
ing
physically
prepar~d
1.0
arr~t
someone or
£hoot
0: •.
But
if
a 'diSabled wor.ker doesn't immediately r('­
!lr.-
gun;
andQ1~re
.lIenously disabled officers who
tum
to
work;
it costl
thecoUlltymoney
in
work­
:can't:
1*':~
").},
l:\oOI~~,"",.
:h'.
ro"'-' " ;':" ',,,,, :'
~.:
men'"
compensatl·on.
L..
o~
~
to.
~ ~
t
CluineY'ilaid there are.12
?~ficerll wh~ ~
ar. _.
"Whatdtey are'
d~ing
is
ligal
blii--~isf'
im­
!though they have 'some dlSabiltty - contInue to
J8lT,
Co.....:ad
."';d
"If yo u work lor IBMgr dY
~...
... ,
DCU.
~
, rf,
all th d
{ffi
,an were
~pe
onn
e \lues
0
a sworn
0
Icer. .
,
hurt on the job, ou'd get both (long and shon.
These officers, the memo suggests, should be term disability). bUf working for thE' county vou
placed in a position of
com~arable
rank within the may not get bOth. .
•.
depanmen~
or
elsewhe~e'
II'!
the
~ounty
govern­
"What really gallsme
is
when they move in ear.
ment.
If
neIther type of Job
IS
available. then the
Iy,
and not give enough time
to
the injured man or
officer should be referred for retirement. the woman who hasn't gone through the treatment
LO
mem~proposeiJ.
.
~
if
they can be cured and come back
to
work,"
Pohce who cannot perform all the dutiell of a .he said.
. ..
't·:"'
: ": ..: '.
are' at
.
! .
o
0
....~"
,~
.
0
...
#
:;.
.......
o
I:
Ji
,
0
:,.
' .
,.
' _ .
..
',.'.'
.
.....
.....
.
__
.
"if
I
i
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(o(s
September 28,2010
13512 Bonnie Dale Drive
North Potomac, MD 20878
Reference:
Bill 45-10,
Personnel - Disability Retirement - Eligibility - Total and Partial
Incapacity
Good afternoon, President Floreen and members of the counciL
I am Tom Wellington, a resident of the North Potomac Area and speaking for myselftoday.
I would like to repeat my support for Bill 45-10 as presented in earlier testimony. I am in favor
of modification to the present provisions of Montgomery County for police disability. As
presented in earlier testimony, there is an urgent need for "middle ground" in the definition of
disability available to our public servants. Bill 45-10 will allow the county to make a
determination of less than total disability in the cases of retirement provisions for our police
officers. Having an option for determining partial disability will allow a more fair and equitable
determination of disability benefits in these cases. This option will also provide a consistent
definition of partial disability for all Montgomery County Public Safety employees.
In addition, I ask that the Council request the Office of the County Executive to continue review
of the existing cases on the disability rolls to determine \vhether these benefits should be
continued.
Both measures will have a positive effect on reducing the future revenue requirements to be
placed on Montgomery County taxpayers while providing a fair method of compensation for our
dedicated police officers who may be injured in the line of duty.
Thank you for the opportunity to appear today.
Thomas C Wellington.
Tom.welllimrton(@verizon.net
301-351-0311
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Testimony of Trang Nguyen
Opposition of Council Bill No. 45-10 to Reduce Disability Payments for MCPD Officers
Date: September 28, 2010
I am here to today to oppose Council Bill No. 45-10 to reduce disability benefits for the police
officers who patrol our streets and keep us safe. You have denied them extra manpower and
funding for new equipment. You have denied them their increments and cost of living increases.
And now you are going after their disability - to what end? To save another penny so favored
pet projects can be funded for specialty groups that are currently politically favored?
However, what is almost always forgotten and rarely acknowledged in a positive light is that
police officers are the people you expect to instantly respond to your 911 calls for help. They are
the ones that you expect should deal with the criminal element of society. They are the ones
you expect to put their lives on the line to "protect and serve" because they swore an oath when
they accepted the badge and gun.
What is the value of someone who chooses this profession over a private sector job with great
benefits, physical, and financial security? Should consideration be taken for their sacrifices in
exchange for their selfless services? For life of service to our community, what benefits should
they receive if they were to get injured in the line of duty?
Yes-
consideration should be taken
for a group of people who opted for a life of community service over taking a fat salary and a
corner office.
As a tax paying, law abiding citizen of Montgomery County I would rather have my taxes be
used for our police officers then used for the over bloated salaries of County managers and
wasteful projects like funding wooden decks for HUD homes or a nice bathroom for day
laborers.
You should not be looking to cut disability payments to any police officer who has been injured
in service to this community and is therefore unable to continue in his/her chosen profession.
You should not be looking to cut disability benefits of the late Officer Hector Ayala who died
while responding to a call in his district leaving a young wife and four small children under the
age of 4 behind. With such small children, she needs all the financial help to raise them.
You should not be looking to cut the disability payments of former MCPD Officer Don Cox who
nearly died when his cruiser got t boned while he was on patrol and now has to live in constant
pain for the rest of his life.
And why do you care you ask me? My husband is County officer. I worry about his safety and
well being every single time he walks out the front door, and now you are asking me to worry
about his long term welfare and the well being of our family should he get disabled while
performing his duty ..
@
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Testimony before the County Council
on
Bill 45-10,
Personnel-Disability Retirement- Eligibility-Total and Partial Incapacity
September 28,2010
Thank you for the opportunity to testify in support of Bill 45-10 related to disability retirement. I
am Joan Fidler, President of the Montgomery County Taxpayers League and I am here today to
commend Council members Trachtenberg, Andrews and Berliner for sponsoring this bilL You
have shown considerable courage in devising this new two-tier system for disability retirements,
one that I'm sure will not gain you many kudos from the unions. As taxpayers we thank you for
recognizing the fiscal unsustainability of the current system and its drain on the greatly
diminished revenues of Montgomery County.
Let me state, at this juncture, that the problem lies not with County employees (though there have
been several egregious examples of abuse by County public safety personnel), the problem lies
with the current system that invites abuse. Thus from 1985 - 2008, 40 percent of retiring police
officers retired on disability pay. The current system, not the people, needs strengthening. This
new, two-tiered system is a more fair approach to dealing with disabilities incurred by employees
in the discharge of their duties and is an important step in the right direction.
It
distinguishes
between employees suffering total incapacity and thus unable to engage in gainful employment
and those who suffer a temporary incapacity for 12 months. A clearer definition of the two
might be more useful in the implementation of the Bill. The devil, in implementation, will lie, as
usual, in the details.
Many, if not all, of the surrounding jurisdictions, employ a two-tier system for disability
retirements and none of them appear to have lost the ability to either recruit or retain highly
qualified personnel. Fairfax County, yes in a right-to-work state, has a handful of disability
retirements. Howard County has had no disability retirements of its public safety personnel in
the last 12 months. Both Fairfax and Howard counties exercise substantial follow through.
There are many positives in Bill 45-10. To name two: (1) retirees receiving disability-related
pensions must, on an annual basis, send a copy of their federal tax return to the Chief
Administrative Officer in the absence of which the pension payments are suspended. (2) the
Disability Review Panel must rely on the assessment of an independent vocational expert to
base a determination regarding "substantial gainful activity".
A few recommendations from the Taxpayers League: (1) the definitions of total and partial
incapacity should be more sharply delineated, and (2) annual reviews of the status of those
receiving disability pensions should be conducted by medical personnel independent of both
management and labor.
The Taxpayers League supports Bill 45-10.
Thank you.
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MARC LEFFER, M.D., M.P.H.
23 Latimore Way
Owings Mills, MD 21117
SSN: xxx-xx-2610
Home: (410) 363-4844
Cell: (410) 215-8151
e-mail: mleffer@comcast.net
EDUCATION
University of Pennsylvania, Philadelphia P A
Fellowship in Occupational Medicine for Working Professionals
August 2007-June 2008
Selected as one of eight fellows from a large pool of working
professionals. Coursework included comprehensive review of cutting
edge theory in all aspects of occupational medicine by leaders of the
business community (including nanotechnology, focus on the healthy
worker and the economics of the workplace, the worker environment,
toxic exposure in the workplace, epidemiology, worker outcomes
research). Also included hands-on media training in front of television
cameras focusing on how to stay on message and use bridging to
accentuate the positives of a company's response to a public health
issue.
Johns Hopkins Bloomberg School of Public Health, Baltimore MD
NIH Post-Doctoral Fellowship, 1990-1992
Fellow in Health Service Research
Johns Hopkins Bloomberg School of Public Health, Baltimore MD
Master of Public Health, 1990-1991
Polyclinic Medical Center, Harrisburg PA
Chief Resident, Family Practice, 1988-1990
Medical University of South Carolina, Charleston SC
Family Practice Residency, 1985-1987
Mount Sinai School of Medicine, New York NY
M.D., 1981-1985
UNDERGRADUATE
EDUCATION
University of Pennsylvania, Philadelphia PA
B.A.,
GeneticslMinor Psychology, 1977-1981 (Phi Beta Kappa)
University ofEdinburgb, Edinburgh Scotland
Exchange Program, 1979-1980
PROFESSIONAL EXPERIENCE
Senior Occupational Medicine Consultant, Federal Occupational Health
STG International, Inc.
November 2009 - Present
Employed by STG International, Inc. under contract to Federal Occupational Health within the U.S.
Department of Health and Human Services. Consult with multiple federal agencies concerning
occupational health policies, including U.S. Food and Drug Administration (FDA), Federal Emergency
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LetTer (page
2)
Management Administration (FEMA); Transportation Security Administration (TSA), Federal Aviation
Administration (FAA), and the Equal Employment Opportunity Commission (EEOC).
Medical Director for Injury Care and Wellness, Division of Government Contracts,
Lockheed Martin Corporation
August - November 20.0.9
Provide administrative services as well as patient care for multiple federal and local government agencies,
including U.S. Drug Enforcement Agency, Defense lntelligence Agency, the Federal Bureau of
Investigation, and Montgomery County, MD fire department.
Medical Director, Bureau of Engraving and Printing, U.S. Department of the Treasury
STG International, Inc.
March - August 20.0.9
Employed by STG International, Inc. under contract to the U.S. Department of the Treasury, Bureau of
Engraving and Printing. Serve as medical director ofthe Bureau of Engraving and Printing (BEP) on-site
occupational health clinic. Provide and supervise occupational health and wellness services to all BEP
employees and contractors, including: yearly medical monitoring examinations of employees; injury care;
supervision of occupational health nurses and other on-site staff; administrative support to BEP, including
assistance in adjudication of workers' compensation claims and arrangement for independent medical
evaluations (IMEs) as necessary, including identification of outside physicians for consultations.
Occupational Medical Director, Concentra Medical Centers
20.0S-March 20.0.9
Columbia MD (200.7-present)
Baltimore, MD (20.05-20.0.7)
Provide medical direction and clinical services for over 150. corporate clients representing thousands of
employees. Provide clinical toxicologic expertise for multiple workplace exposures. I have performed
yearly toxicological screens for hundreds of employees, including evaluation of lead, zinc, protoporphyrin,
arsenic, cadmium, RBC cholinesterase- for organophosphate exposure and mercury. I have performed
numerous walkthroughs in various facilities, encouraging engineering innovations as the ideal way to
minimize toxicological exposures in the work place. Other occupational medical services that I provide
include: the evaluation and treatment of occupational injuries; emergencies; pre-placement physicals; stress
testing; immigration physicals; surveillance for blood borne pathogen exposures; travel consults; dive
physicals; respiratory physicals, including evaluation ofpulmonary function tests; fitness for duty
evaluations; workplace walkthroughs; workplace evaluations; Department of Transportation exams for
commercial drivers licenses. Supervise a staff of 16 employees, including a physician assistant, numerous
part time physicians, an occupational therapist, a radiology technologist, a center administrator, multiple
medical assistants, mUltiple front office staff and sales personnel. Thorough working knowledge of
National Fire Protection Association regulations. Obtained FBI clearance to perform medical evaluations
on FBI employees. Consulted with multiple employers for toxic exposure issues and other public health
issues. Significant achievements:
• Strong professional commitment to concept that healthy employees operating in a culture of
workplace wellness is the key
to
workplace cost containment, while striving for a safe work
environment with objective of zero hazard risks.
• Demonstrated ability to bridge differences and align incentives across diverse constituencies in a
cardiac fitness intervention that I initiated and am in the process of carrying out with the Howard
County Fire Department. Successfully brokered a win-win arrangement among the Howard
County firefighters, their union, the Howard County municipality and corporate Concentra
management.
• Personally developed and carried out a workplace welIness initiative at the Columbia, MD clinic
focused on fast food cessation, paying employees not to eat fast food and documenting a 200
calorie decrease in daily calorie intake among participating employees.
• Personally developed and carried out a workplace pedometer study in two Concentra medical
centers documenting a O.9mile per day difference in distance walked over the course ofthe
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All Opinions Are Local - The Disability Debate Redefined
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The Disability Debate Redefined
By
Marc Leffer
Owings Mills, Md.
RECENT POSTS
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Sister Denise
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As an occupational medicine physician in the Washington area, I
hav~
been following the debate over how to reform MQDtgomE2.!Y CountY.'§..
disability retirement system.
The diagnosis of disability varies from worker to worker and over time.
Any disability "rule" that lumps all injured workers into one category
permanently makes no sense.
Yet a more important question in this debate remains unanswered. The
uproar in Montgomery started because data surfaced showing that 60
percent of police officers who retired between 2004 and 2008 were
collecting disability payments. The question that should have been asked
(and answered) in the first place is: "Is it acceptable to any of the
stakeholder groups in Montgomery County to have 60 percent of police
officers retire as disabled?" I think that the obvious answer is no.
So what needs to be done to reduce this rate of disability?
Over the past two years, I have been working with the Howard County
Fire Department and the FBI office in Baltimore. With the Howard fire
department, I have been involved in a two-year health initiative to
implement the National Fire Protection Association (NFPA) health
standard. The NFPA devised this standard because roughly half of all
firefighter deaths nationwide were the result of heart attacks. The NFPA
set out to change these statistics.
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Because work-related injuries are linked to disability rates, Montgomery
County should try to curtail its disability rate among police officers by
putting a similar health initiative in place. In the Howard County program,
firefighters are responsible for keeping themselves in good
cardiovascular shape and passing a yearly cardiovascular endurance
test. However, the fire department helps by funding a gym in the
firehouse, allowing exercise time during the workday, and providing all
age-based preventive health services free of charge to firefighters.
In this system, all the stakeholder groups have incentives to keep
firefighters healthy. As a result, the Howard County Fire Department
recorded a 40 percent reduction in work-related injuries in the first year
after the initiative was implemented and a 60 percent reduction in work- '
related injuries after the second year. In addition, for every dollar spent
on this program, $4.50 was saved on injury care.
Although a national standard has not yet been completed for police
officers, the FBI's Baltimore field office has applied a similar health
program for its agents. It requires a cardiovascular endurance test and
provides a great workplace gym, as well as work time for exercise.
The stakeholders in Montgomery County -- including police officers, their
union, the county executive and political representatives -- could agree
on a sensible policy to keep police officers healthy. They could also
agree on rules for handling the reduced number of officers with
disabilities on an individual basis. Money could be saved on the disability
retirement program as well as on police department medical costs. The
stakeholders could then focus on what to do with all their vibrant, active
retired police officers.
By Marisa
Katz
I
May
24, 2009; 12:00 AM
ET
Categories: Montgomery County , disability pay
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9/27/2010
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10{
to
To:
From:
Date:
Re:
Montgomery County Council
Doug Soskin
9/28/10
Bill 45-10
Message:
Good Afternoon: My name
is
Doug Soskin and I am a resident of Poolesville Maryland. I
am here
in
support of the Men and Women of the Montgomery County Police
department and I oppose this bill.
We ask our police force to protect and serve. They do so while accepting their role as
police officers has inherent risks that many other professions do not share. These risks can
put our officers in harm's way to ensure our children and neighborhoods remain a
safe place. As a community our goal should be to attract and retain the very best officers.
We can accomplish this with a benefits package that ensures in the event they are injured
protecting our community the community
will
in
turn
do our best to protect them.
We put a lot of trust in our officers. We trust them to keep our children safe, our homes
secure and our communities' crime free. We also trust that they respect their fellow officers
and the community for which they work and do not misuse their roles or their benefits. It
is
this
trust that makes our community unique and one of the nation's best places to live and
work.
My concern with
this
bill
is
it may cause officers to question if they should take some of the
risks we ask of them, or that we lack the trust and respect for the role our police officers
have within our community. For this reason I oppose
this
bill.
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MONTGOMERY COUNTY COUNCIL
Testimony on Bill 45-10
Dwight Cramer
September 28,2010
I am a long time resident of this county, since 1965, and have testified before this Council
before, as well as before various Maryland legislative committees.
In this period of fiscal trauma, it is reasonable that the County Council should
be
looking
for ways to save money. There is one way now under consideration, Bill 45-10, that
would do that. At the same time, the bill would achieve its primary purpose of providing
a fairer system of disability compensation for county employees.
Under bill 45-10, it would be possible to provide the more rational system of disability
benefits to county employees that is eminently fair. The change, to provide a two tier
system of benefits, would hurt no one.
As well defined in the bill, those qualified for partial disability would receive 52
Yz%
of
final
earnings. As the system now works, such employees receive the maximum amount
of 70%, regardless of degree of severity of the disability. This is obviously an unjustified
charge against the county budget as the employee would be able to continue to earn a
salary in certain other capacities. The two tier system used for the fire and rescue
employees shows the way for the enactment of this bilL
It
is only fair that all the county
employees receive comparable disability compensation. Some should not benefit more
than others. At the same time the county could save about $2.7 million. What can be
wrong with that??
Once again, I stress that no one will be hurt if this bill is passed, disabled employees will
receive a fair amount for partial disability, the same as the Fire and Rescue employees,
and the county could save $2.7 million, not an insignificant amount
in
these difficult
times.
(jj)
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Good Afternoon, my name is Douglas Gross and I would like to thank you for this opportunity to speak
to you on this very important topic.
I am speaking as a private citizen but I come with a unique perspective of having represented
law enforcement officers in this community for greater than 20 years with regard to personal injuries,
workers' compensation benefits and more recently with disability retirement benefits. I am concerned
regarding the proposed bill § 45-10 and the rush to which it is sought to be implemented.
As an attorney, I am troubled by the bill's language and use of the phrases "disability,"
"impairment," and "incapacity" seemingly interchangeably as well as the reporting time for
psychological and occupational disease claims which by definition are slow and insidious in nature.
These are terms of
art
and have independent meanings.
But the bigger issue for me as a citizen and an outsider to the process, concerns the manner in
which this is being sought to be implemented. The current SCDR system was arrived at through arms­
length bargaining with a quid pro quo.
The police, through their union, sought to give emphasis to a solid disability retirement
program that would ensure that those law enforcement officers injured in the line of duty would be
financially taken care of and would be able to provide for their families and loved ones should they no
longer be able to work as an officer due to the inherent hazards of their profession. However, those
same officers gave up other important benefits to achieve this. This Council now seeks to unilaterally
void the agreement without the quid pro quo.
What are the unintended consequences of such actions? I know from my experience that the
vast majority of all officers want to continue working and continue to serve the department and this
community. When this bill was raised last year, however, a panic was created so that anyone who
might have been eligible for SCDR was put in fear of their benefits changing, further skewing the
numbers of those officers applying. What are the other unintended consequences.
This is a complex issue on multiple levels and must be considered in relation to the entire
retirement structure. Modifications to the system should be made through collective bargaining and
done so with a scalpel, not a sword.
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~11.~--
e
Xamtner
Local News
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PRINTTHIS
Firefighter who quit after sex assault conviction
draws disability payments
By
Alan Suderman
Examiner Staff Writer
2/16/09
A Montgomery County firefighter who quit the force three years ago after he was convicted of sexually
assaulting a female subordinate is currently receiving tax-free disability payments from the county.
To some county officials, it's another example of a broken disability pension system that needs to stop
approving payments for county workers if they've committed a crime or some other act that would get
them fired.
Public safety unions have opposed those efforts. Union officials say that any of their members who are
hurt on the job ought to be compensated, regardless of future or past transgressions they are accused of
committing.
In August 2005, Aaron Weitzman was a lieutenant in the Montgomery County Fire and Rescue Service
when he locked himself in a bathroom with a female co-worker, lifted up her shirt and started kissing
parts of her body against her will, according to court records. A jury convicted Weitzman in December
2006 of assault. He was sentenced to a year of unsupervised probation.
A month after his conviction, Weitzman quit the fire department with an application pending for service­
related disability pay. In June 2006, he was notified that he had qualified and wou1d receive payment
going back to Jan. 20, 2006, his last day on the job.
Reached by phone, Weitzman confirmed that he was a former Montgomery County firefighter who was
receiving pay for neck and arm injuries, but declined further comment.
Montgomery County Career Fire Fighters Association President John Sparks declined to comment
specifically about Weitzman's case but added: "I don't see a connection between a job status and the
disability retirement process .... They're not intertwined."
A county spokeswoman said Weitzman's final salary when he left county employment was $61,558 a
year, but added the county could not release information about Weitzman's disability pay, including
how much the county is paying him a year and whether he applied for disability payments before or after
he was charged.
.
http://www.printthis.c1ickability.comlpt!cpt?action=cpt&title~ww.dcexaminer.com+%3E.
..
2/17/2009
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Page 2 of2
In a report last September, Montgomery County Inspector General Thomas Dagley highlighted four
former Montgomery County police officers who applied for disability pay either shortly before or
directly after pleading guilty to various crimes, including theft and misconduct in office. The three
officers who received disability pay averaged more than $30,000 each in tax-exempt pensions last year.
Two members of the County Council and County Executive Ike Leggett have said they were working to
change the way the county determined disability benefits to be able to exclude former county workers
who've been fired for intentional wrongdoing. Union officials have promised to oppose those efforts.
Find this article at:
http://www.dcexaminer.comflocalfFirefighter-who-quil-after-sex-assault-conviclion-draws-disability-payments_02_17-39688397.htm.
Check the box to include the list of links referenced in the article.
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2/17/2009
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OFFICE OF MANAGEMENT AND BUDGET
Isiah Leggett
County Executive
Joseph F. Beach
Director
MEMORANDUM
September 24, 2010
TO:
FROM:
SUBJECT:
Nancy Floreen, President, County Council
Joseph F. Beach, Dire ,
Expedited
Bil145- ,
Incapacity
~~~el
~
\"'"
Disability Retirement Eligibility - Total and Partial
The purpose ofthis memorandum is to transmit a fiscal and economic impact statement
to the Council on the subject legislation.
LEGISLATION SUMMARY
This legislation creates for all eligible County employees a two-tiered service connected
disability retirement system identical
to
the system now in place for uniformed Fire and Rescue
Department employees.
It
also prohibits employees who commit certain offenses from receiving a
service connected disability retirement benefit, defines partial and total incapacity, and makes other
changes.
FISCAL.AND ECONOMIC SUMMARY
This legislation provides either a partial incapacity benefit of at least S2Y2% of
final
earnings or
a
total incapacity benefit ofat least
70%
of fmal earnings. The current system provides a
service-connected disability retirement benefit of at least 66%% offmal earnings for partial and
for
total
incapacity for all except unifonned fire and rescue employees.
The fiscal impact ofthis legislation cannot
be
precisely estimated since it depends on
how many disability retirees fall into
each
ofthe two tiers. Mercer, the plan actuary, has provided
estimates ranging from
60%
ofdisabled retirees receiving a benefit for partial incapacity and
30%
receiving a benefit for total incapacity to
30%
receiving partial and
60%
receiving the total incapacity
benefif, resulting in annual savings ranging from $1.0 million to $2.6 million. The decrease in the
actuarial accrued liability ranges from $9.0 million to $21.3 million. Ifmore applicants receive the lower
benefit, the savings will be greater;
if
more applicants receive the higher benefit,
the
savings will be less.
In
addition, actual plan savings
win
change over time as experience develops .
...
.
1
Mercer assumed
in
its
valuation that for Groups E and F,
9()11,4
ofdisabilities are assumed
to
be
service
connected
and covered
by
this legislation; for Groups A
and
H,
45% are assumed to
be
service
connected, and for Group
G,
93%
are
assumed to be service-connected
Office of the Director
101 Monroe Street, 14th Floor· Rockville, Maryland 20850 • 240-777-2800
www.montgomerycolmtymd.gov
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Nancy Floreen, President, County Council
September 24,2010
Page
2
The legislation has no significant economic impact; it affects very few people and the
benefit payments are small relative to the Montgomery County economy as a whole.
The following contributed to and concurred with this analysis; Wes Girling and Belinda
Fulco, Office of Human Resources, Michael Coveyou, Department of Finance, and Lori O'Brien, Office
of Management and Budget.
JFB:
lob
c:
Kathleen Boucher, Assistant Chief Administrative Officer
Dee
Gonzalez, Offices ofthe County Executive
Joseph Adler, Director, Office of Human Resources
Jennifer Barrett, Director, Department of Finance
Wesley Girting, Office of Human Resources
Belinda Fulco, Office of Human Resources
David Platt, Department ofFinance
Michael Coveyou, Department of Finance
Lori O'Brien, Office of Management and Budget
John Cuff, Office of Management and Budget