Agenda Item 7

December 11, 2012

Public Hearing

MEMORANDUM

December

7,

2012

TO:

FROM:

SUBJECT:

County Council

Robert H. Drummer, Senior Legislative Attorney

~

J

f'\

Persons with Disabilities

Public Hearing:

Bill 32-12, Personnel

- Noncompetitive Appointment

Regulations

Bill 32-12, Personnel - Regulations - Persons with Disabilities - Noncompetitive

Appointment, sponsored by Councilmember Andrews, Council Vice-President Rice, Council

President Navarro, Councilmembers Leventhal, Ervin, Floreen, EIrich, Berliner, and Riemer,

was introduced on November 13,2012. A Government Operations and Fiscal Policy Committee

worksession is tentatively scheduled for January 17.

Bill 32-12 would require the County Executive to adopt regulations permitting the

noncompetitive appointment of a qualified person with a severe developmental, physical, or

psychological disability to a County merit position. On November 6, 2012, the voters approved

an amendment to Section 401 of the County Charter to allow the County to operate a program

within the merit system to recruit and select qualified individuals with severe physical and

mental disabilities on a noncompetitive basis. This Bill would implement the Council's authority

under this new amendment to Section 401 ofthe County Charter.

The Bill would authorize a program that is similar to the noncompetitive appointment of

a person with a disability to a merit position in the Federal Civil Service under Schedule A.

Under Schedule A, a Federal agency may hire a qualified person with a disability directly

without advertising the position and without competition. Although the person would be hired in

the excepted service, the person may be converted to permanent competitive status after

successfully completing the probationary period. An EEOC fact sheet on Schedule A for Human

Resources professionals is at ©7-10. Schedule A hiring is for the initial appointment to a

Federal position. Once the person is hired, the person is expected to meet the same standards as

other Federal employees and must compete for promotions on his or her performance and merit.

See the email from Donna

R.

Walton, Ed.D, Disability Program Manager for the EEOC at ©11.

Bill 46-09, enacted on February 2, 2010, created a preference for a qualified person with

a disability who applies for a County merit position under the normal competitive process. Bill

46-09 was enacted to help reduce the high unemployment and underemployment rate for persons

with a disability in the County. Bill 32-12 would create additional opportunities for a person

with a severe disability to secure an initial appointment to County employment through a

noncompetitive process.



This packet contains:

Bill 32-12

Legislative Request Report

EEOC Fact Sheet

Walton Email dated November 7,2012

F:\LAW\BILLS\1232 Personnel-Regulations-Persons With Disabilities\Public Hearing Memo.Doc

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Bill No.

32-12

Concerning: Personnel - Regulations ­

Persons

with

Disabilities

Noncompetitive Appointment

Revised: November 9,2012 Draft NO.2

Introduced:

November 13. 2012

Expires:

May 13. 2014

Enacted: _ _ _ _ _ _ _ _ __

Executive: _ _ _ _ _ _ _ _ __

Effective: _ _ _ _ _ _ _ _ __

Sunset Date:

-'-!.No~n..:.::e'__

_ _ _ _ __

Ch. _ _, Laws of Mont. Co. _ _ __

COUNTY COUNCIL

FOR MONTGOMERY

COUNTY, MARYLAND

By: Councilmember Andrews, Cmll1cil Vice-President Rice, Council President Navarro,

Councilmembers Leventhal, Ervin, Floreen, EIrich, Berliner, and Riemer

AN

ACT to:

(1)

(2)

(3)

establish a program,

as

authorized by the County Charter, permitting the

noncompetitive appointment of certain qualified persons with severe disabilities who

apply for a County merit position;

require the Executive to adopt regulations permitting the noncompetitive

appointment of certain qualified persons with severe disabilities who apply for a

County merit position; and

generally amend the merit system law concerning hiring persons with disabilities.

By amending

Montgomery County Code

Chapter

33,

Personnel and Human Resources

Section 33-7

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:



Bill 32-12

1

Sec.

1.

Short Title.

This Act may be cited as the "Expanded Hiring of Persons with Disabilities Act."

Sec. 2. Section 33-7 is amended as follows:

33-7. County executive and merit system protection board responsibilities.

2

3

4

5

*

(1)

Findings.

(A)

*

*

6

7

8

9

(d)

[Hiring preference] Special hiring rules for persons with disabilities.

Persons with disabilities are a largely untapped resource

for outstanding candidates for County employment.

10

11

12

(B)

There are many County residents with severe disabilities,

including Wounded Warriors treated in the County at the

Walter Reed National Military Medical Center.

13

14

15

[(B)]

.cg

Persons with disabilities suffer from a high

unemployment and underemployment rate in the County

due in part to unfounded myths, fears and stereotypes

associated with many disabilities.

[(C)] (D)

[A] Special hiring [preference] rules for persons

16

17

18

19

with disabilities [is] are necessary to remedy past

discrimination resulting from these unfounded myths,

fears, and stereotypes and to enable the County to be

~

20

21

model employer of qualified persons with severe

disabilities.

22

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ili1

Special hiring rules for qualified persons with severe

disabilities would permit the County to hire highly

productive interns with severe disabilities into merit

system positions.

25

26

F:\~\BILLS\1232

Personnel-Regulations-Persons With Disabilities\BiII5.Doc

!2J­



BILL

32-12

27

28

(E)

The Charter permits the County to operate

~

program

within the merit system to recruit and select qualified

individuals with severe physical and mental disabilities

on

~

noncompetitive basis.

(2)

The Executive must adopt by personnel regulation, under

Method (1), standards for establishing and maintaining (a

preference] special rules for the initial appointment of a

qualified person with a disability into a merit system position.

These standards must:

(A)

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31

32

33

34

35

36

define a person with a disability eligible for (the] a

competitive appointment with

~

preference as:

(i)

a person with medical proof of a developmental

disability, a severe physical disability, or a

psychiatric disability; or

(ii)

a veteran rated by the Department of Veterans

Affairs with a compensable service-connected

disability of 30 percent or more;

37

38

39

40

41

42

43

44

45

46

(B)

define

~

person with

~

severe disability eligible for

~

noncompetitive appointment as

person with medical

proof of

~

severe developmental, physical, or psychiatric

disability; and

(Q

47

48

49

require medical certification of a qualifying disabilitY(;L

ill

Competitive appointment.

!A}

50

51

52

The regulation must establish and maintain

~

preference

~

for the initial appointment of

~

qualified person with

disability into

~

merit system position under the

53

following order of preference;

F:\LAw\BILLS\1232 Personnel-Regulations-Persons With Disabilities\BiIl5.Doc

-&



BILL

32-12

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(i)

an employee who is unable to perfonn the

employee's job because of a disability or injury

under the ADA;

(ii) an employee subject to reduction-in-force;

(iii) an employee who was granted a temporary

disability

retirement

under

the

Employees

Retirement System or an initial or temporary

disability benefit of any type under the Retirement

Savings Plan or the Guaranteed Retirement Income

Plan but is no longer eligible for such a temporary

disability retirement or benefit;

(iv) a veteran with a disability;

(v) an equal preference for a veteran without a

disability and a non- veteran with a disability[;

and] .:.

[(D)]

(ill

The regulation must only apply the preference to a

person who is among the highest rating category in a

nonnal competitive process.

ill

Noncompetitive appointment. The regulation must establish

and maintain standards for the noncompetitive appointment of

f!

qualified person with

f!

severe disability to

f!

position in the

merit system. The standards must:

®

pennit the noncompetitive appointment of

f!

qualified

person with

f!

severe disability without advertising the

position;

(ill

require medical certification of disability;

F:\LA\V\BILLS\1232 Personnel-Regulations-Persons With Disabilities\BiII5'ooc

-cD



BILL

32-12

80

81

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87

©

(D)

apply only to the initial appointment of

f!

qualified person

with

f!

severe disability to

f!

merit system position; and

reqUIre

the

person to

successfully

complete

the

appropriate probationary period for the position.

*

Approved:

*

*

Nancy Navarro, President, County Council

Date

88

89

Approved:

Isiah Leggett, County Executive

Date

90

This is a correct copy o/Council action.

91

Linda M. Lauer, Clerk of the Council

Date

92

F:ILAw\B1LLSI1232 Personnel-Regulations-Persons With Disabilities\Bill 5,Ooc

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LEGISLATIVE REQUEST REPORT

Personnel

DESCRIPTION:

Bill 32-12

Regulations

-

Persons with Disabilities

-

Noncompetitive Appointment

Bill 32-12 would require the County Executive to adopt regulations

permitting the noncompetitive appointment of a qualified person with

a severe developmental, physical, or psychological disability to a

County merit position. The Bill would implement the Council's

authority under a new amendment to Section 401 of the County

Charter.

Persons with a disability suffer from a high rate of unemployment

and underemployment.

To increase opportunities for persons with a disability to secure

County employment.

Human Resources, County Attorney

To be requested.

To be requested.

To be requested.

The Bill would create a hiring program similar to the Federal

government's Schedule A program.

Robert H. Drummer, Senior Legislative Attorney, 240-777-7895

To be researched.

PROBLEM:

GOALS AND

OBJECTIVES:

COORDINATION:

FISCAL IMP ACT:

ECONOMIC

IMPACT:

EVALUATION:

EXPERIENCE

ELSEWHERE:

SOURCE OF

INFORMATION:

APPLICATION

WITHIN

MUNICIP ALITIES:

PENALTIES:

Not applicable.

f:\law\bills\1232 personnel-regulations-persons with disabilities\lrr.doc



u.

S.

Equal Employment Opportunity

Commission

The

ABCs

of SCHEDULE A

For the Human Resources Professional

How to Hire Using the Schedule A Appointing Authority

TABLE OF CONTENTS

Introduction

Easy How To Steps

Freguently Asked Questions

Resources

• Recruitment / Hiring

• Accommodations

INTRODUCTION

Human Resources / Human Capital (HR) professionals know first hand how lengthy and somewhat tedious the

federal hiring process can be. Diligent efforts by HR to assist a 'customer' - whether that customer is a federal

manager with a vacancy or an applicant looking for a position - are not always enough to get things done

quickly. As noted by the Merit Systems Protection Board in its report entitled Reforming Federal Hiring -- Beyond

Faster and Cheaper (September 2006), it takes an average of 102 days to complete all of the steps in the

competitive hiring process, from making the request to making the appointment. No one delights in the prospect

of spending three plus months trying to fill a position. Further, HR professionals know that plenty of promising

candidates are lost because they can not wait months for a hiring decision.

Over the years, the Office of Personnel Management (OPM) has introduced different hiring authorities to assist

in streamlining the hiring process. One such hiring authority is Schedule A. Schedule A is an Excepted Service

appointing authority which may be used to hire individuals with disabilities.

Schedule A hiring can be quick and efficient, as long as all parties know what is required. This quick reference

guide seeks to provide HR professionals with the tools needed to process Schedule A appointments. Using the

Schedule A appointing authority, found at 5 CFR

§

213.3102(u), qualified candidates who meet OPM's

guidelines can be hired non-competitively ­

• without the typical recruitment headaches;

• without posting and publicizing the position: and

• without going through the certificate process.

How? By following the Easy How-To Steps detailed in the next section.

EASY HOW TO STEPS

1. Typically, once a prospective candidate has been identified, HR will be approached by a hiring manager, a

Selective Placement Coordinator (SPC), or a Disability Program Manager (DPM), for help in getting the

candidate on board. The SPCIDPM and hiring manager should have already worked together to identify the

essential functions of the position in question. Doing so ensures that prospective candidates have the

requisite knowledge, skills and abilities to successfully perform in the position. HR professionals should

inquire as to whether this step has occurred. Occasionally HR will initially be approached by an applicant

directly. Prospective employees might, for example, identify a desired position within the agency from a

vacancy announcement. Where this occurs, HR personnel should put the applicant in touch with the DPM

and/or SPC. In either situation, you, as the HR professional. should verify the determination that the

proposed candidate has the requisite knowledge, skills and abilities to perform the essential functions of the

. position in question.

(j)



2. Next, HR professionals will consult with the manager and/or the SPC/DPM to decide what type of

appointment is to be offered. The types of appointments available under Schedule A include:

a. temporary appointments (Refer to 5 CFR

§

213.104 for the definition and restrictions on temporary

appointments in the excepted service);l

b. time-limited appointments (Refer to 5 CFR

§

213.104 for the definition of time-limited appointment), when

the duties of the position do not require it to be filled on a permanent basis; and

c. permanent appointments.

Although the appointment will be in the excepted service, the intent underlying Schedule A is to permit

individuals with disabilities to obtain competitive status in the civil service. This is obtained through

conversion to the competitive service rather than remaining in the excepted service.

3. Once an appointment type is determined, a conditional offer of employment should be extended to the

candidate. Agencies should make clear that the offer is contingent upon receipt of Schedule A qualifying

documentation from the candidate,

i.e.,

proof of

disability.~

Often, the SPC/DPM will have already collected

this documentation, so as to speed the process along. Importantly, the hiring manager should not be

involved in the disability documentation process, as medical documentation must be kept strictly

confidential.

4. At this point in the process, the SPC/DPM should already be engaged in discussions with the candidate

about possible reasonable accommodations that might be needed on the job. (Further information on the role

of the SPC/DPM is covered in a separate quick-reference guide.) Nonetheless, once an offer has been

accepted, and prior to the entry-on-duty date being finalized, HR should contact the selectee to verify

whether accommodation needs have been addressed. Where the need has not been addressed, you should

follow your agency's approved policy for handling reasonable accommodation requests. Further, you should

work with the SPC/DPM and the new employee's manager, where necessary, to ensure that the

accommodation is in place when the new employee comes on board.

5. In coding the Standard Form 52, Request for Personnel Action, and/or the Standard Form 50, Notification of

Personnel Action, review Chapter 11 of the Guide to Processing Personnel Actions. In most situations, you

will utilize Nature of Action Codes 170, 171, 190, 570, 571, or 590. For additional information, the Guide is

available online at http://www.oprn.gov/feddatafgppa/gppa.asp.

That's it!

Seem easy? It is! No more three, six, or nine month wait! And Schedule A is always an option, even when the

competitive process has already begun

I

been used first. HR professionals are constantly called on to provide

advice and hiring options to managers. So, when a manager is not pleased with the candidates on a certificate

they receive, recommend Schedule A as an alternative option. Provide the hiring manager with resumes,

etc.,

of

Schedule A candidates received from your agency's SPC/DPM or other resource (including those that come in

with other applicants under a current vacancy announcement). When utilized properly, Schedule A offers federal

agencies maximum flexibility and efficiency in meeting critical hiring needs. Moreover, hiring talented applicants

with disabilities helps your agency, and the federal government overall, to meet the requirements of the

Rehabilitation Act to hire and advance people with disabilities.

The Federal Government - Opportunities for All!

FREQUENTLY ASKED QUESTIONS

Q.

What is Schedule A?

A. Schedule A is an appointing authority, or hiring authority. It is an Excepted Service appointment for persons

with disabilities. The regulations guiding the Excepted Service - Appointment of Persons with Disabilities,

Career, and Career-Conditional Appointments - are found in the Code of Federal Regulations (CFR). The

citation is 5 CFR

§

213.3102(u).

Q.

Why should agencies consider using this hiring authority?

A. Agencies should use this hiring authority for a number of good reasons:

• Individuals with disabilities are an untapped source of excellent applicants;

• No public notice is required. In fact, many of the usual HR-related stumbling blocks are avoided, which could

result in significantly reducing the time necessary to hire a well-qualified candidate;

• Doing so can support an agency's Career Patterns initiative. Technological advances and growing emphasis

on tele-work may dovetail with the needs of many applicants with disabilities; and

• AgenCies don't have to clear 'surplus employee' lists prior to using Schedule A.

Q.

What about accommodations? Aren't they expensive and a hassle?



A. No! More often than not, providing accommodations is simple and usually free! Moreover, agencies are not

alone in trying to work through accommodation requests. There are several resources available, some of which

are listed herein - just check the Resources page! And remember, just as we all need assistance at some point

in the work place, accommodations may be needed by an individual with a disability. You want all employees to

be at their best at work, and accommodations playa role in reaching that goal. Providing accommodations does

not have to be a difficult, expensive or time consuming process.

Q.

Is this appointment to a permanent position?

A. It can be. Agencies may self-determine what type of placement to make, based on the needs of the position,

as well as the qualification level of the candidate. Under the Schedule A appointing authority, a hiring agency

may make a temporary appointment, a time-limited appointment when the duties of the position do not require it

to be filled on a permanent basis, or a permanent appointment. Agencies are strongly encouraged to make

permanent appointments unless there is a compelling reason to do otherwise.

Q.

What about a probationary period?

A. Depending on the type of appointment, probationary periods typically last up to two years. Schedule A

candidates should be held to the same performance standards as all other employees. Once the employee's

accommodation needs, if any, have been met, then you should expect no more or less from a Schedule A

employee than you would from any other employee. Once the probationary period has been successfully

completed, employees should be converted to permanent competitive status.

RESOURCES

RECRUITMENT

I

HIRING

EARN - The Employer Assistance & Recruiting Network (EARN) is a free service that connects employers

looking for quality employees with skilled job candidates. EARN provides recruiting services, as well as

employer success stories. Moreover, if you need to make the business case for hiring people with disabilities,

EARN can provide you with the information you need! Further information can be found at

http://earnworks.com/.

WRP - The Workforce Recruitment Program (WRP) is a recruitment and referral program that connects federal

sector employers nationwide with highly motivated postsecondary students and recent graduates with disabilities

who are eager to prove their abilities in the workplace through summer or permanent jobs. Students represent

all majors, and range from college freshmen to graduate students and law students. A searchable database is

available through the WRP website. WRP is ready to help you fill your summer or permanent hiring needs!

Further information can be found at http://wrp.gov.

For Veterans with Disabilities - There are numerous organizations and agencies that exist to assist veterans

with disabilities find and maintain employment. The following is a sample of useful resources to keep handy:

• The Department of Labor's (DOL) Veterans Employment & Training Service

http://www.dol.gov/vets/l.velcome.htm I

• Hire Heroes httQ:llw",J';v.hireheroesusa.orql

• Wounded Warriors Project http://www.woundedwarrlorproject.org

Advocacy Groups - There are several different advocacy groups that also serve as excellent resources for

recruiting and hiring individuals with disabilities. The following is a sampling of those resources:

• American Association of People with Disabilities http://www.aaod-dc.org!

• National Council on Independent Living

httQ:!!~VW\.'/.ncil.orgl

• Council of State Administrators of Vocational Rehabilitation http://www.rehabnetwork.org/

• Deaf and Hard of Hearing in Government httg:f1dhhig.org/

• American Council of the Blind http://www.acb.org/

Federal Resources - There are numerous federal programs designed to meet the needs of people with

disabilities in finding employment. The following is a non-exhaustive list of programs/resources:

• The Office of Personnel Management's "Disability Site" http://www.oRrn.gov/disabilitv/

• DOL's Office of Disability Employment Policy hUQ:ilwli'lw.dol.gov/QdeR/

• Also check out the federal government's one-stop web site for people with disabilities, their families,

employers, veterans and service members, workforce professionals and many others. www.Disabilit){lnhgov

ACCOMMODATIONS

CAP - Within the federal government there is a wonderful program housed within the Department of Defense.

The Computer/Electronic Accommodations Program (CAP) provides assistive technology and services to people

with disabilities throughout the federal government FREE OF CHARGE! That means you can tap this resource

(j)



for help in accommodating an employee with a disability. CAP will do the needs assessment, buy the needed

technology, train the employee on how to use it, and follow up with updates. All you have to do is ask! (Note:

Before contacting CAP directly, check with the RAC, as they may already have a relationship with CAP.) Further

information can be found at httQ:I/www.tricare.milicap/.

JAN

- The Job Accommodation Network (JAN) represents the most comprehensive resource for job

accommodations available, and is a terrific and easy-to-use resource. This free consulting service is designed to

increase the employability of people with disabilities. JAN provides individualized worksite accommodation

solutions, as well as information on job accommodations and related subjects for employers and people with

disabilities. Additional information can be found at http://wwv''.lan.wvu.edu/.

U.S. Equal Employment Opportunity Commission

1-800-669-4000

f

TTY 1-800-669-6820

www.eeoc.gov

Under the new 5 CFR

§

213.3102(u) appointing authority, a hiring agency may, in addition to the temporary

appointments

identified in the question above, make:

1) A time-limited appointment of an individual who provides proof of disability and certification of

job readiness, when the duties of the position do not require it to be filled on a permanent basis.

2) A permanent appointment of an individual who provides proof of disability and certification of

job readiness.

Proof of a disability(ies) is required for appointments under 5 CFR

§

213.3102(u). Proof of disability is the term

used to define any number of documents which attest to the fact that the candidate does indeed have a

disability. The documentation can take many acceptable forms, so agencies should be flexible. Agencies may

accept as proof of disability simple documentation from a licensed medical professional

(e.g.,

a physician or

other medical professional duly certified by a State, the District of Columbia, or a U.S. territory, to practice

medicine); a licensed vocational rehabilitation specialist (I.e., State or private); or any Federal agency, State

agency, or an agency of the District of Columbia or a U.S. territory that issues or provides disability benefits.

Documentation need only certify that the applicant has a disability which is long-term and/or permanent in

nature.



Drummer, Bob

From:

Sent:

To:

DONNA WALTON [DONNA.WAL TON@EEOC.GOV]

Wednesday, November 07,20125:25 PM

Drummer, Bob

Subject: Re: Schedule A hiring

Mr. Drummer,

Schedule A is a hiring authority. The regulations guiding the Excepted Service Appointment of

Persons with Disabilities and Career and Career Conditional Appointment are found in the Code of

Federal Regulations (CFR). The citation is 5 CFR §213.3102(u). Essentially, once the

probationary period has been successfully completed employees should be converted to permanent

competitive status, and employees should be promoted on their performance and merit, not simply

because they are a Schedule A hire.

I hope this addresses your question.

Dr. Walton

Donna R. Walton, Ed.D

Disability Program Manager

Equal Opportunity Employment

Commission

Office of Human Resources

Room4NW16L

131 M Street, NE Washington, DC 20507

202 663-4339

"Excellence must be the result of caring more than what other people think is wise; risking more

than what other people think is safe; dreaming more than what other people think is practical, but

moreover is expecting more than what other people think is possible."

- V. Lombardi

»> "Drummer, Bob" <Bob.Drummer@montgomerycountymd.gov>

11/7/20124:57

PM »>

Ms. Walton,

Thank you for speaking with me this afternoon. As I explained in our telephone conversation, the Montgomery County

Council is considering legislation that would create a noncompetitive hiring authority for persons with a disability into a

County merit position. I am trying to find out if Schedule A hiring applies only to a person's initial hiring into the Federal

Civil Service or if it is also used to promote a person with a disability who was originally hired under Schedule A into a

higher vacant position later on in his or her career.

Although you told me that you understand Schedule A to be only for initial hiring into the Federal government, you told

me that you would confirm your understanding and get back to me. Thanks again for your assistance.

fRok.tt

3t.

:i>'ttUtI.tIWt

Senior Legislative Attorney

Montgomery County Council

100 Maryland Ave

Rockville, MD 20850

240-777-7895

@