HHSIED Item 1
January 31, 2013
Worksession
MEMORANDUM
TO:
Health and Human Services Committee
Education Committee
FROM:
SUBJECT:
~MiChael
Faden, Senior Legislative Attorney
Worksession:
Bill 38-12, Capital Improvements Program - Child Care
. Assessment
Bill 38-12, Capital Improvements Program - Child Care Assessment, sponsored by
Council members Riemer, Floreen, and Andrews, Council President Navarro, Councilmember
Ervin, Council Vice-President Rice, and Councilmember Berliner, was introduced on December
4,2012. A public hearing was held on January 22, at which no speakers appeared.
Bill 38-12 would require the Office of Management and Budget to submit child care
facilities impact statements with certain capital projects in the Capital Improvements Program
(CIP) and authorize the Council to require other County departments and agencies to supplement
the impact statements furnished by the Office of Management and Budget. The impact statement
must analyze the feasibility of including a child care facility in the project.
Purpose
The demand for good child care facilities exceeds supply in the County. The
potential for including child care facilities in each County Capital Improvements Program
projects is not routinely assessed. The purpose of the Bill is to assure that the County takes
advantage of all opportunities to include child care facilities in County capital projects.
The County Department of Health and Human Services performs a similar evaluation
when it considers whether to recommend child care facilities in schools undergoing major
renovation or construction as a part of the Child Care in Schools CIP project. This CIP project
encourages child care providers to offer high quality child care in communities where they might
not otherwise be financially able, due to high numbers of subsidy and low-income parents.
Factors the Department reviews include
(1)
poverty rates (as measured by students eligible for
Free and Reduced-Price Meals Service); (2) mobility rates; (3) English for Speakers of Other
Language rates; and (4) the availability of quality (credentialed or accredited) child care in the
community. The analysis required by this Bill could use these or similar criteria, along with
other information that substantiates the need for child care space and services.
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Amendments
1) Local need
and
impact Council member Riemer, lead sponsor, noted at introduction
that the Bill should expressly require an assessment of the local area need for child care in the
area of each capital project. The County Commission on Child Care suggested similar
amendments (see Commission letter, ©9). To do this, insert the following before and on ©2,
line II and renumber the paragraph on line 12:
localneed for child care in the area of the project;
imoact on existing child care programs in the area of the project
ill
2) Timing Council staff recommends inserting after Program, on ©2, line 4: during
facility plarlllin,g. This will more clearly direct OMB when this analysis fits in the CIP
development process. Similarly, Council staff recommends inserting proposed before building
on line 14.
3) Exemptions The County Attorney (see memo, © 10-11) raised questions about the
provision on ©2, lines 20-21, which would let the Council by resolution exempt from the
assessment requirement "a category of capital projects which by their nature do not require child
care analysis". The County Attorney concluded that any exemption must be done by legislation,
rather than Council resolution not signed by the Executive, despite a similar provision in County
Code §31-68(d) (enacted in Bill 8-07, bicycle and pedestrian impact analysis) having been
passed without Executive branch objection. While Council staff doesn't completely accept the
County Attorney's legal analysis, we recommend that this issue be easily resolved by adopting a
version of the amendment the County Attorney suggested, which would let the Executive exempt
classes of projects by a Method
1
regulation that would be subject to Council approval and also
let the Council do so in the capital budget resolution, which goes to the Executive for approval:
!rl
The Council may
lQy1
in the capital budget resolution, and the County Executive
may by Method 1 regulation, exempt from this Section
f!
category of capital
projects which
Qy
their nature do not require child care analysis.
This packet contains:
Bill 38-12
Legislative Request Report
Fiscal and Economic Impact statement
Commission on Child Care letter
County Attorney memo
F:\LAW\B1LLS\1238
elP -
Child Care Assessment\HHS-ED Memo.Doc
Circle
#
1
3
4
9
10
2
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Bill No.
38-12
Concerning: Capital
Improvements
Program -Child Care Assessment
Draft No.
_1_
Revised:
11-28-12
Introduced:
December
4,2012
Expires:
June
4,2014
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: _ _ _ _ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Riemer, Floreen, and Andrews, Council President Navarro, Councilmember
Ervin, Council Vice-President Rice and Councilmember Berliner
AN
ACT
to:
(1)
(2)
require the Office of Management and Budget to submit child care facilities impact
statements with certain capital projects in the Capital Improvements Program;
authorize the Council to require other County departments and agencies to
supplement the impact statements furnished by the Office of Management and
Budget; and
generally amend County law regarding the analysis of capital projects.
(3)
By adding
Montgomery County Code
Chapter 27, Human Rights and Civil Liberties
Section 27-62A, Child care facilities impact statements
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. 38-12
1
2
Sec.
1.
Section 27-62A is added as follows:
27-62A.
{ill
Child
~
facilities impact statements.
3
4
5
6
For each applicable capital project in the Capital Improvements
Program, the Office of Management and Budget must include in or
transmit with the CIP an analysis of:
7
8
ill
ill
(hl
the feasibility of including child care facilities in the project; and
what capital or operating budget modifications, if any, would be
needed to include child care facilities in the project.
9
10
The child care analysis submitted
Qy
OMB should discuss at least the
following issues related to the capital project:
11
12
ill
ill
!£l
compatibility of child care with the underlying project; and
conformity of child care facilities to applicable zoning and land
use plans.
13
14
15
16
17
As used in this section, applicable capital project means any building
project administered
Qy
the Department of General Services or the
Parking Management Division of the Department of Transportation.
@
In performing its analysis, OMB should consult the Department of
Health and Human Services, the Planning Board, and any other County
department or agency with expertise in child care.
18
19
20
21
W
Approved:
The Council may
Qy
resolution exempt from this Section
£!
category of
capital projects which
Qy
their nature do not require child care analysis.
22
23
Nancy Navarro, President, County Council
Date
d)F:IlAW\BILLS\1238 CIP Child Care Assessment\1238
BiII1.Doc
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LEGISLATIVE REQUEST REPORT
Bill 38-12
Capital improvements Program
DESCRIPTION:
Child Care Assessment
Requires the Office of Management and Budget to submit a child
care facilities impact statement with certain capital projects proposed
in the County Capital Improvements Program. The impact statement
must analyze the feasibility of including a child care facility in the
project.
The demand for good child care facilities exceeds supply in the
County. The potential for including child care facilities in each
County Capital Improvements Program projeCts is not routinely
assessed.
To include more child care facilities in County CIP projects where
feasible.
Office of Management and Budget, Department of Housing and
Community Affairs, Department of Transportation, Planning Board,
and the Department of Health and Human Services.
To be requested.
To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905
Applies only to County Capital Improvements Program.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Not applicable
f:\law\bills\1238 cip child care assessment\legislative request report,doc
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Fiscal Impact Statement
Council Bill 38-12, Capital Improvements Program - Child Care Assessment
1. Legislative Summary.
The bill requires the Office of Management and Budget to submit a child care facilities
impact statement with certain capital projects proposed in the County Capital Improvements
Program. The impact statement must analyze the feasibility of including a child care facility
in the project and specify what capital or operating budget modifications would be needed to
include a child care facility.
2. An estimate of changes in County revenues and expenditures regardless of whether
the revenues or expenditures are assumed in the recommended or approved budget.
Includes source of information, assumptions, and methodologies used.
No additional revenue is expected to be generated from this bill. This bill would result in
a three step process: (1) an initial assessment ofprojects; (2) those projects identified in
the initial screening process will move forward into the facility planning phase where a
more detailed assessment of the programmatic feasibility of including a child care facility
will be conducted; and (3) an assessment of the financial feasibility for inclusion of a
child care facility as a component of the project.
Expenditures would relate to the staff time required by each department involved in the
analysis, including Department of General Services (DGS), Department of Health and
Human Services (HHS), Department of Transportation, and the Office of Management
and Budget (OMB). Expenditures would also include an increase in resources available
to the Capital Budget for facility planning to accommodate feasibility assessments. The
following chart depicts the estimated costs:
Table 1: Estimated Costs of Child Care Facility Assessment
Department Activity
Assumptions
Estimated Cost
I. Costs related to analyze
the
feasibility of including a child care facility in the project
DGS staff review of
the feasibility of a
child care facility
• Work with HHS and OMB to provide an
initial assessment of candidate projects for
inclusion of a child care facility.
The $50,000 estimate in the
Facility Planning project includes
both DGS staff and consultant
costs.
• Facility Planning activities:
Development of
Program of Requirements (POR), feasibility
study to include a test fit, traffic study, and
parking study
• Coordinate with consultant and monitor
consultant activities.
• Development of preliminary cost estimates
used by HHS to determine likely gap
financing needs.
Facility Planning elP;
• Assuming an average of five projects in
facility planning per year (based on likely
candidate projects currently
in
the Facility
$10,000 per project; total of an
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Planning PDF).
I
HHS staff review and
assessment ofpublic
facilities for child care
Initial Review Phase:
• Obtain and review information fi'om
DGSIDOT regarding the proposed project to
assess the feasibility and desirability of a
child care facility on the project site.
• Neighborhood and site visit for overall
feasibility.
• Obtain and evaluate neighborhood
demographic infonnation to determine
if
the
location is an area of need for child care
facilities.
• Internal HHS discussions and drafting
recommendations.
OMB staff review the
assessment conducted
by DOS and HHS
This requires :
• Development of a review process
• Coordination ofparticipating departments or
agencies
• Review and analysis ofassessments and
assumptions
• Program of requirements (POR) development
and review to include the child care facility
components.
• Analysis of the complex financing
components that fund child care facility.
DOT, Parking
Management Division
The re-development ofParking Lot District
property does not typically follow the process
explained in paragraph 2 above. Typically a
property is identified as appropriate for re­
development and an RFP is advertised to obtain
private development proposals. The RFP could
contain the requirement to construction child
care facilities within the private development.
but I do not believe the developer can guarantee
that any entity will want to lease the space and
operate such a facility. This legislation does
not make it clear if the County would then
guarantee themselves as the facility operator or
what compensation would be paid to the private
developer. If the development included a
County owned parking garage, the construction
and operation of a child care facility within the
garage could not be paid with Paridng Lot
District funds.
additional $50,000 in the Facility
Planning PDF for each oftbe six
years. (currently
$260,000~
would
• increase to $310,000 per year)
$1,587 per project ($39.67 per
hour @ 40 hours per project)­
Cost assumptions are based on a
Program Manager I position,
Grade 23 @$82,511.
1 FT Management and Budget
Specialist ($126,930 '" IFTE;
including estimate for retirement,
FICA/Medicare, life insurance,
and health insurance); $1,768
hours per year, $126,930 @85%
=$107,891.
No specific MCDOT funding
required. MCDOT will include
coordination with HHS in the
preparation of any property
development RFP. MCDOT
would expect HHS to program
any General Fund funding of any
child care facility to be
constructed. MCDOT would
further expect HHS to justify the
decision to include or not include
a child care facility in any CIP
that may result from the
execution of a General
Development Agreement with a
developer.
S(JUrCiJS; Department o/GeneralServices, Department
0/
Health and Human SeMi/ces, and Office
0/
Management and Budget
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3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
Not applicable. There is not enough specific information to provide real cost estimates.
4. An actuarial analysis through the entire amortization period for each bill that would
affect retiree pension or group insurance costs.
Not applicable.
5. Later actions that may affect future revenue and expenditures if the bill authorizes
future spending.
This Bill does not authorize future spending.
6.
An
estimate of the staff time needed to implement the bill.
• DGS staff time: 32 hours per project; 1.2% of 1 FTE
• HHS activities and staff time for a typical project: 40 hours; .10 of 1 FTE
• OMB staff time: 1,768 hours; 85% of 1 FTE (to encompass all likely candidate CIP
projects)
• DOT staff time: No additional staff required.
7. An explanation of how the addition of new staff responsibilities would affect other
duties.
Per project staff time estimated in #6 above needs to be multiplied by the number of
projects annually submitted for funding to determine the full extent of staff time required.
If additional staffing is not provided for this function, other work will need to
reprioritized.
8. An estimate of costs when an additional appropriation is needed.
See items #2 and 3 above.
9. A description of any variable that could affect revenue
~nd
cost estimates.
The costs for providing the requested analysis will vary based on the number ofprojects
considered along with the level of complexity in each project. Some data are easier to
obtain while others may require longer time and cost more.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
Not applicable.
11.
If
a bill
is
likely to have no fiscal impact, why that is the case.
Not applicable.
12. Other fiscal impacts or comments.
Not applicable.
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13. The following contributed to and concurred with this analysis:
Barbara Andrews, Early Childhood Services, HHS
Patricia Brennan, Legislative Officer, HHS
Lisa Stafford, Budget Team, HHS
Greg Ossont, Deputy Director, Planning and Development, DGS
Angela Dizelos, Central Services Division, DGS
Rick Siebert, Parking Management Division, DOT
Al Roshdieh, Parking Management Division, DOT
Mary Beck, Office of Management and Budget
Pofen Salem, Office of Management and Budget
Date
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Economic bnpact Statement
Council Bill 38-12, Housing - Capital Improvements Program - Child Care Assessment
Background:
Council Bill 38-12 requires the Office of Management and Budget to child care
facilities impact statements for projects administered by the Department of
General Services or the Parking Management Division of the Department of
TranspOltation. The purpose of the bill is to advise the County Council about
which projects should include child care facilities.
1. The sources of information, assumptions. and methodologies used.
Not applicable. The subject legislation requires that the Executive branch advise the
Council on the suitability of including child care facilities in certain County projects.
2. A description of any variable that could affect economic impact statements.
See #3 below.
3. The bill's positive or negative effect,
if
any on employment, spending, saving,
investment, incomes, and property value in the County.
Not applicable. The subject legislation does not have an economic impact because it only
requires that the Executive branch advise the Council on the suitability of including child
care facilities in certain County projects.
4.
If
a bill is likely to have no economic impact, why is that the case?
See #3 above.
5. The following contributed to and concurred with this analysis: David Platt and Mike
Coveyou, Finance.
Date
(
I
(j)
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COMMISSION ON CHILD CARE
January 24, 2013
The Honorable Nancy Navarro
President, Montgomery CDunty CDuncil
100 :Maryland Avenue
Rockville, :Maryland 20850
Dear CDuncil President Navarro,
The CDmm:ission on Child Care is VVTItmg concerning CDunty CDuncil Bill 38-12 - Capital
Improvement Program - Child Care Assessment. The CDmmission thanks the CDunty CDuncil for
its continued efforts to improve child care in this CDunty.
The CDmmission reviewed the proposed legislation and suggests the following additions to Sec.
1.
Section 27-62A (b):
• (3) demand for child care in proximity to the underlying project
• (4) impact to the existing child care programs in proximity to the underlying project
The purpose of these additions is to ensure that the community need for child care and the impact
to existing child care programs in the area of a proposed new development are considered in the
decision to add additional child care in public space. We are happy to provide additional input into
the Child Care Assessment process as
this
bill moves forward and
is
put into practice.
Thank you, again, for your work to provide quality, accessible and affordable child care to
Montgomery CDunty families.
,
7/u#t't.,
/~/P;'O,
LdSw"G
11indy Thiel, Ph.D., LCSW-C
Sincerely,
.
Chair
cc:
Members, Montgomery CDunty CDuncil
The Honorable Isiah Leggett, Montgomery CDunty Executive
Uma Ahluwalia, Director, Montgomery CDunty Department of Health and Human Services
(HHS)
Kate Garvey,
Chief,
Children, Youth and Family Services, HHS
Department of Health and Human Services
7300 Calhoun Place, Suite 700 • Rockville, Maryland 20855 • 240·777-4659, TTY 240-777-1009, FAX 240-777-1342
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OFFICE OF THE COUNTY ATTORNEY
[sial! Leggett
County
ExeClIlivt!
1VIEMORANDU~l
Marc
p,
Hansen
COllnty
Attorney
December 28, 2012
TO:
Mary
Beck
Office of Management
and
Budget
Marc
p,
Hansen
,t;*;{:,<,
County Attorney
l.
VIA:
FROtv'1: Karen
L.
Federman
Henry
dG:.:'v'..(',
j'
,
d
L
tl
t
,A"
~~l""
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('''''~V
j"
Chief. Division of Finance and Procurement
RE:
Bill 38-12, Capital Improvements Program - Child Care
The County Executive's Office
has
requested our comments on Bill 38-12.
memorandum identities
the
legal concerns
that
we see in the Bill.
This
Background
Bill 38-12 proposes
to
amend Chapter 27 ("Human Rights and Civil Liberties")
by
adding § 27-62A. The new section requires
the
Office of lvtanagemcnt and Budget to
transmit
with the CIP an
analysis
of the
feasibility
of including
chad care facilities in appJicabk
capital
projects, along
with what capital or operating
budget modifications
would
be needed to include
child care facilities
in
tbe project. An "applicable capital project" means "'any building project
administered
by
the Department of General Services or the
Parking
Management Division of the
Department of Transportation." The Bill would authorize the County Council to exempt a
category of capital projects from the provision
by
resolution when the analysis is
not
necessary.
Discussion
The
substantive
legal concern derives from Article XI-A of the Maryland Constitution,
which "authorizes counties to adopt home rule
charters
which. , .
function
as 'constitutions'
for
the
counties adopting
them."
Jfontgomery County. Maryland v. Ancho]' Inn Seq(ood Restaurant.
374 Md. 327,331 (2003). As described
by
the Court of Appeals, a charter "is the
organic.
the
-----------------,-,--,----­
1'.1aryland 20850
101 Monroe Street, Third
Rockville,
FlOOf.
240- i77-67()()
(fax) 240-77-670(j •
kar~l1.jedcnnai1-henr);@montgomcrycounl)l1lJ.gov
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Mary Beck. OMB
December 28. 2012
Page
2
fundamental hl\v, establishing basic principles governing relationships between the government
and the people, and among the various governmental branches and bodies."
Cheeks v. Cedlair,
287 Md. 595,607 (1980). The Charter is the local equivalent ofa constitutioll.
The County Charter vests legislative power in the County Council (§ 1(1), and
it
vests
executive power in the County Exccuti ve
201). Legislative enactments m'e subject to
§
208 of
the Charter, which provides that any legislative enactment of the Council must be "delivered" to
the County Executive
"vvho ...
shall approve or disapprove it."
A
legislative enactment makes
law or prescribes
policy.
See Scull v. A1ontgomery Citizens League,
249 Md. 271, 282 (1968):
McQuillin, A1unicipal Corporations,
§ 10:6. A resolution differs from a legislative enactment.
because
it
"denotes something less solemn
or
formal. , . [and] generally speaking, is simply
an
expression of opinion or mind concerning some particular item of business coming within the
legislative body's official cognizance ...."
Inlet Associates v. Assateague House Condominium
Association,
3
J
3 Md. 413, 428 (1988).
The Bill permits the Council, by resolution, to exempt certain undefined projects ii'om
the Bill's requirements.
Determining the
scope of
a 1mv is a
legislative
act.
Under
the
Charter,
a
legislative act must be effected through the enactment of legislation under
§
208 of the Charter.
The Bill
circumvents the legislative process
by
eifectively allowing the Council to amend the
law
by
resolution. The Bill thus violates
§
208 of the Charter. This legal
infirmity
may be
remedied, however,
by amending
the
Bill
to authorize
the
Executive to exempt cl.asses
of
projects that arc not suitable for a child care facility from the ambit of the Bill
by
a Method (1) or
(2)
regulation.
Please contact
liS
if
YOLl
would like to discuss our comments.
cc:
Kathleen Boucher, Assistant Chief Administrative Officer
Michael Faden, Senior Legislative
Atto11ley