Agenda Item 21
April 20, 2010
Public Hearing
MEMORANDUM
TO:
County Council
FROM:
SUBJECT:
Robert H. Drummer, Senior Legislative
Attome~
Public Hearing:
Expedited Bil112-1O, Human Rights - Equal Employment
Opportunity Program
Expedited Bill 12-10, Human Rights
Equal Employment Opportunity Program,
sponsored by the Council President at the request of the County Executive, was introduced on
March 23,2010. A Health and Human Services Committee worksession is tentatively scheduled
for April 28 at 9:30 a.m.
Bill 12-10 would transfer the County's equal employment opportunity program (EEO)
from the Office of Human Resources to the Office of Human Rights. The EEO program in
Human Resources consists of 3 employees - the EEO Compliance and Diversity Manager and 2
Human Resources Specialists. All 3 of these employees would be transferred to the Office of
Human Rights. The EEO program currently:
1. investigates external complaints filed by County employees with the EEOC, the
Maryland Commission on Human Relations, and the County Office of Human Rights;
2. investigates and manages internal EEO complaints filed by County employees;
3. trains County employees on EEO issues;
4. tracks and prepares County EEO reports required under Federal laws;
5. tracks statistical data on the diversity of the County's workforce; and
6. operates diversity management programs for County employees.
The 3 employees transferred to Human Rights would continue to perform all of the duties
listed above except for the investigation of external complaints filed by County employees. The
County Attorney's Office would assume responsibility for these functions. Human Resources
would transfer $30,000 to $40,000 from its budget to the County Attorney's Office to pay for
additional attorney time to handle external complaints. The Executive Branch responses to
questions from Council staff explaining the goals and details of this proposed transfer is at ©9­
12.
This packet contains:
Expedited Bill 12-10
Legislative Request Report
Memo from County Executive
Executive Branch Responses to Council staff questions
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Expedited Bill No.
12-10
Conceming: Human Rights - Equal
Employment Opportunity Program
Revised: 3-22-10
Draft No. _1_
Introduced:
March 23. 2010
Expires:
September 23. 2011
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-!...l!N~on~e~
_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the Request ofthe County Executive
AN EXPEDITED ACT
to:
(1)
transfer the County's equal employment opportunity program from the Office of
Human Resources to the Office of Human Rights; and
(2)
generally amend County laws relating to Executive Branch administration and
human rights.
By amending
Montgomery County Code
Chapter 2, Administration
Section 2-641, Functions
Chapter 27, Human Rights and Civil Liberties
Section 27-4, Office of Human Rights
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deleted.from existing law by original bill.
Added by amendment.
Deleted.from 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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EXPEDITED BILL
No.
12-10
1
Sec.
1.
Sections 2-641 and 27-4 is amended as follows:
2-641. Functions.
The Office of Human Resources has the following functions:
(a)
Under the administration of the Chief Administrative Officer,
supervise the County merit system in accordance with the County
Charter[,] and local, state.,. and federallaws[, rules] and regulation.
(b) Assist all
appointing authorities
in
[the
implementation ot]
2
3
4
5
6
7
8
implementing merit system [charter] provisions and [the] personnel
regulations [of the county executive].
(c)
Assist the County Executive in [the development and administration
ot] developing and administering a career service and [in the
administration ot] a comprehensive management personnel program.
(d) Provide cooperative personnel services to political subdivisions of
[Montgomery] the County or agencies supported in whole or in part
by County taxes [levied by the county council] and [to] the
(Montgomery County] Revenue Authority.
(
e)
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Perform related duties as assigned.
[Develop and administer the equal employment opportunity program,
unless this responsibility is transferred to the office of the chief
administrative officer in accordance with the termination provision of
chapter 1, section 5 of the 1981 Laws of Montgomery County.
(f)
(g)]
Administer the County employee complaint/grievance procedures.
27-4. Office of Human Rights.
24
25
26
* *
(b) (1)
*
The Commission
The County Executive may assign additional staff to assist the
Commission in carrying out this Article.
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EXPEDITED BILL
No. 12-10
27
28
may, with the approval of the County Executive, engage the
services of volunteer workers and volunteer consultants, who,
subject to [appropriations] appropriation, may be reimbursed
for out-of-pocket expenses incurred in performing volunteer
services. Services of an individual as a volunteer worker or
consultant must not be considered as [service of] employment
in any County or state merit system [of the county or state].
(2)
If the Commission and the County Attorney [determine] agree
that a representational conflict exists [within] in the County
Attorney's office, [then] the County Attorney may employ
special legal counsel to represent the
[consultation with] consulting the
by] if the County Council approves.
(3)
The
Director
may
receive
sworn
complaints
alleging
Commission~
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after
Comrnission~
[and approval
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discrimination that violates this chapter.
(4)
Before a complaint is certified to the Commission under
Sections 27-7 (f)(2) or (g)(4), the Director may investigate,
resolve, or conciliate the complaint.
(5)
The Director may issue regulations under method (2) to [carry
out] perform the responsibilities of the Director and the Office
of Human Rights under this Article.
(6)
The Director must [carry out] perform any other [duties
described] duty specified in this Chapter.
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ill
The Director must develop and administer the County's equal
employment opportunity program.
*
*
*
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EXPEDITED BILL
No. 12-10
53
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Sec. 2. Transition.
After Section 1 of this Act takes effect, the Director of the Office of Human
Resources and the Director of the Office of Human Rights must cooperate to ensure
that the equal employment opportunity officer
in
the Office of Human Rights first
processes each complaint filed under the County's equal employment opportunity
program. Any reference in this context in any County regulation to the Office of
Human Resources Director or Office of Human Resources staff must be treated as
referring to the Office of Human Rights Director and the Office of Human Rights
staff, respectively.
Sec. 3. Expedited Effective Date.
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The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date when it becomes
law.
Approved:
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Nancy Floreen, I:'reSl04ent., County Council
Date
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Approved:
Isiah Leggett, County Executive
Date
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This is a correct copy ofCouncil action.
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77
Linda M. Lauer, Clerk ofthe Council
Date
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LEGISLATIVE REQUEST REPORT
Expedited Bill 12-10
Human Rights
-
Equal Employment Opportunity Program
DESCRIPTION:
This Bill would transfer the County's equal employment opportunity
program from the Office of Human Resources to the Office of Human
Rights.
Current fiscal challenges require the County consolidate resources when
possible.
This transfer would take advantage of existing staff resources to reduce
costs and leverage the efforts of County staff to produce better outcomes
for the community.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
Office of Management and Budget; Department of Finance; Office of
Human Rights
FISCAL IMPACT:
To be requested.
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCES OF
INFORMATION:
Joseph Beach, Director of Management and Budget
Kathleen Boucher, Assistant Chief Administrative Officer
Marc Hansen, Acting County Attorney
To be requested.
Subject to the general oversight of the County Executive and the County
Council.
APPLICATION
Applies only to County government.
WITHIN
MUNICIPALITIES:
PENALTIES:
N/A
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OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20850
lsiah Leggett
County Executive
MEMORANDUM
March 18, 2010
TO:
FROM:
SUBJECT:
Nancy Floreen, Council President
Isjah Leggett, County
ExecutjVe~~
/-)
!. ;
FY 2011 Budget Reconciliation and Financing Act
I am attaching for Council's consideration a Budget Reconciliation and Financing
Act (BRF A) which makes changes to the County Code that are necessary to reconcile my
recommended FY 2011 operating budget with projected FY 2011 revenues. This bill will help
the County address its current fiscal challenges by increasing the amount of revenue available to
maintain and enhance core government programs and services. I am also attaching a Legislative
Request Report for the bill. A Fiscal Impact Statement will be transmitted to Council soon.
The BRF A consists of five primary components. First, it increases the energy tax
rates. Second, it temporarily redirects the portion of recordation tax revenues that are currently
reserved for County Government capital projects and rental assistance programs to the general
fund for general purposes. Third, it allows revenues generated by the Water Quality Protection
Charge to be used to pay debt service on bonds that fund stonnwater management infrastructure
projects. Fourth, it transfers responsibility for administering equal employment opportunity
programs from the Office of Human Resources to the Office of Human Rights. Fifth, it
authorizes the Fire and Rescue Service to impose an Emergency Medical Services (EMS)
Transport Fee.
As the Council knows, the County's energy tax is actually a tax on fuel oil,
natural gas, and electric utility providers which is passed on to all utility customers. Because the
energy tax is a broad-based tax, its impact on families is reduced by the fact that
it
is paid by
businesses and households, and all levels of government, including federal agencies located in
the County (that currently do not pay any other major County tax). Additionally, the energy tax
is a consumption tax based on energy usage. It is not based on the overall size of the utility bill
or the cost per unit of energy used as billed to the consumer. Therefore, the amount of the tax
can be lessened by reduced energy usage. Based on existing usage patterns for the average
homeowner, my recommended FY 2011 budget assumes an average increase in the energy tax of
approximately $2.90 per month. I have also recommended additional funding in the Health and
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Nancy Floreen, Council President
March 18,2010
Page 2
Human Services budget for the County's Energy Assistance Program to minimize the impact to
low-income households.
My recommended FYll budget contains several efforts to restructure County
Government to improve responsiveness and efficiency. One of these changes is the transfer of
the Equal Employment Opportunity program from the Office of Human Resources to the Office
of Human Rights. This shift takes advantage of existing staff resources to reduce costs and
leverage the efforts of County staff to produce better outcomes for the community. This bill
modifies the County code provisions relating to the responsibilities of the Office of Human
Resources and Office of Human Rights to reflect this change.
The EMS Transport Fee is needed to fund fire and rescue services in the County.
Without this fee, emergency response to residents will be impaired. EMS Transport Fees are
widely employed throughout the nation and by local governments throughout the Washington
region. These jurisdictions have not experienced any indication that people decline to use
emergency transports as a result of the imposition of an ambulance fee. By creating a prepaid
fund for uninsured County residents, the legislation that I am transmitting imposes a fee only on
County residents with health insurance which covers EMS Transports. This arrangement more
equitably distributes the economic burden of providing EMS transport services in the County
between residents and nonresidents. The legislation provides for a hardship waiver for
nonresidents who fall below 300 percent of federal poverty guidelines.
To provide the Council with a complete picture of the EMS Transport Fee
program created by this bill, I am attaching a copy of the proposed Executive Regulation to
implement the fee. This proposed regulation will be published in the April 2010 County Register
and submitted to Council after the 30-day public comment period ends on April 30.
Finally, I note that the BRFA is consistent with
Bill
31-09, Consideration of
Bills - One Subject (enacted on September 29, 2009), which requires that a bill "contain only
one subj ect matter".' As noted in the Council staff packet for Bill 31-09, that bill was intended to
adopt the "one subject rule" of the Maryland Constitution; which requires all1aws enacted by the
General Assembly to contain only one subject. The Maryland Attorney General has repeatedly
concluded that budget reconciliation and financing bills do not conflict with the one subject rule.
For example, in 2005, the Attorney General noted that "[f]or the past fourteen years, 15 budget
reconciliation, budget reconciliation and financing acts or variations thereof, have been used to
balance budgets, raise revenue, make fund transfers, redistribute funds, cut mandated
appropriations and authorize or mandate appropriations.,,1 The Attorney General concluded that
all of those bills were consistent with the one subject rule because the provisions of the bills were
"clearly germane to the single subject of financing State and local government".
See Panitz v.
Comptroller a/the Treasury,
247 Md. 501 (1967) (Omnibus supplemental appropriation bill
comprised a single subject for purposes of § 29 of
Art
III of the State Constitution even though
I
See May 19,2005 memorandum from Attorney General J. Joseph Curran, Jr. to Governor Robert Ehrlich regarding
House Bill 147 (2005).
(j)
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Nancy Floreen, Council President
March 18,2010
Page 3
the bill combined such diverse elements as police aid to local government; teacher salaries and
pensions; and general unrestricted grants to local government).
Attachments (3)
cc:
Joseph Adler, Director, Office of Human Resources
Jennifer Barrett, Director, Finance Department
Joseph Beach, Director, OMB
Kathleen Boucher, ACAO
Richard Bowers, Fire Chief, MCFRS
Marc Hansen, Acting County Attorney
Robert Hoyt, Director, DEP
Richard Y. Nelson, Jr., Director, DHCA
James Stowe, Director, Office of Human Rights
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Questions for OHR concerning BillI2-l0
1.
What is the purpose of transferring the Equal Employment Opportunity Program?
(EEO) from OHR to HRC?
The purpose for transferring the EEO functions from OHR to HRC is to organize
similar work functions and work tasks responsibilities into one department. Both
HRC and the EEO Compliance Unit have, as a core business function,
responsibility for investigating complaints of discrimination, outreach and
training/education of discrimination laws. Many of the separate functions ofHRC
and EEO will remain with each entity including regulatory or mandated functions.
Further, as a result of the County's overall budget reductions, HRC was required
to undergo significant budget reductions which resulted in the abolishment of two
positions and loss of one additional position. The current budgetary actions,
coupled with the loss of positions due to last fiscal year's reduction of force and a
loss of 5 investigators in the last 24 months has negatively impacted HRC's
ability to deliver of key services to County residents. This transfer would reverse
that trend and greatly reduce the overall impact on these critical services to our
community.
Additionally, HRC would obtain additional and significant expertise in
compliance, training, diversity management, diversity-related programming, case
management and resolution of complaints to further enhance the existing
functions of HRC and allow more extensive outreach and community relations
efforts in the agency.
2.
Please list the current functions performed by the EEO team in OHR.
Please see attached document.
3.
Which of these functions would no longer be performed by the EEO team after is
transferred to HRC?
The EEO Compliance Unit would no longer investigate and file responses on
behalf of county government as a respondent to external complaints filed by
employees, alleging discriminatory employment practices, against County
departments and agencies. The external complaints are formal complaints filed
with the U.S. EEOC, the Maryland Commission on Human Relations and the
Montgomery County Office of Human Rights
4.
Who would be responsible for each function that the EEO team would no longer
performs after the transfer?
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The response to complaints filed with external compliance agencies (EEOC,
Maryland Commission on Human Relations and Office of Human Rights) by an
employee against the County will be investigated and prepared by the County
Attorney's Office. Out of the OHR EEO resources being transferred to HRC
$30,000-$40,000 will be transferred to the County Attorney to absorb this
function.
5.
How many positions would be transferred to HRC from OHR? What are the
position titles and grades for each position to be transferred to HRC? What would
be the new position title and grade for each transferred position in HRC?
There would be a total of (1) Manager (EEO Compliance and Diversity Manager),
(2) Human Resources Specialists. The EEO Officer is at the MLS II level and the
2 Human Resource Specialists are at the pay grade 25 level.
The MLS II would remain at the same level. The (2) Human Resource Specialists
will functions as Investigator III level employees at their current pay grade 25.
6.
How many positions would be abolished as a result of this transfer? Are these
positions currently filled? What is the job title and grade for each position?
HRC will abolish 3 positions. This includes 2 currently filled positions and 1
vacancy. The two positions are both Program Manager Is' at a pay grade 23 level
and the vacant position is an Investigator III position at the pay grade 25 leveL
7.
How do you anticipate that this transfer of responsibility would improve
efficiency?
HRC would obtain additional and significant expertise in compliance, training,
diversity management, diversity-related programming, case management and
resolution of complaints to further enhance the existing functions of HRC and
allow more extensive outreach and community relations efforts in the agency.
Additional staff may result in additional revenue via the increase of EEOC
contracts and training sessions offered to public and private employers at a
reasonable cost to those entities.
The increase of training expertise will allow HRC to expand training and
education opportunity relating to discrimination in employment, housing and
public accommodation to the community we serve, at no additional cost to county
government.
8.
How do you anticipate that this transfer of responsibility would improve
responsiveness?
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HRC is experiencing an increase in complaint filed due to the economy. This
increase has resulted in increased case inventory for each investigator. The
transfer of additional experienced investigators to HRC would allow a more
equitable distribution of cases with more investigators in the unit and would result
in shorter time frames for case closures. The transfer would immediately improve
HRC's complaint processing time frames of both internal and external
discrimination by providing additional trained investigators to the compliance
section in HRC.
The increased complaint case load would be more equitably distributed to more
investigators in the pool also resulting in shorter time frames for case closures.
Additionally, HRC may implement an interim mediation process for all HRC
complaints served upon the County to increase the number of cases resolved
amicably and without the time required to conduct full and, at times, lengthy
investigations.
9.
Please explain any other projected cost savings due to this transfer?
The immediate cost savings will be $472,000 abolishment of 3 positions and
operational costs assumed in HRC's FYIl. In addition, this consolidation will
result in savings realized in creating office space and other related resources
within the Executive Office Building after the proposed transfer.
10.
Please provide the following information for FY09 and FYI 0 to date:
a. number of transactions- 151
b. external EEO complaints filed; 28
c. internal transactions-I 23
d. total case load
(#
of cases at start of year and
#
of new cases filed during the
year);
new
cases
All of the aforementioned transactions were received in FY 09
e. number of transactions completed-
f. number of cases resolved; 97
g. the average time needed to resolve a case; and
h. disposition of cases:
1.
#
of cases finding probable cause, 9
ii.
#
of cases finding no probable cause 41,
iii.
#
of cases settled without a finding. 7
IV.
#
of administrative closures 40
v.
#
of open cases 47
12 are open with compliance agencies
How many cases do you expect each investigator to carry at one time and how
many is each investigator expected to close each year?
11.
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In HRC, Investigators are required to carry a case load between 40-50 cases and
are expected to close 30-40 cases per year.
In EEO, the team handles about 150 transaction on an annual basis with a staff of 3
full-time merit system employees. (investigator and manager included)
12.
What portion of time does your team spend performing?
a. investigations;
b. workplace education; and
c. outreach (programming only)
13.
75
15
10
What, if any, feedback have you received from the Unions on this proposal?
While the matter has not been discussed with the Union, it does not impact any of
their members. The HRC employees are both unrepresented.
However, the Union will gain 2 members because the Investigator from OHR are
non-represented and will be represented once transferred to HRC. The two
abolished position included two supervisors/managers (non-MLS) who are not
represented by the union. This action, abolishment of 2 managers, instead of
union members is a favorable action for the union.
14.
Are there other Counties that have moved their EEO program to their Human
Rights Commission (or equivalent agency created to investigate equal
employment complaints by private sector employees)? If so, which Counties?
Yes. Currently Fairfax County, Howard County, Prince George's County and the
District of Columbia all insure compliance with local, state and federal laws and
investigates and adjudicate both internal EEO and external complaints
in
their
Human Rights Department/Agency. In each instance, the legal department
defends the County in their capacity in filing responses/submissions to external
compliance agencies (such as the EEOC). The consolidation, of external
compliance agencies and internal EEO units, is an increasing pattern across the
country in other communities.
@