Agenda Item 4C
April 19, 2016
Introduction
MEMORANDUM
April 14,2016
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative Attorney
KiJ-
SUBJECT:
Introduction:
Bill 16-16, Personnel- Benefits for Domestic Partner of Employee
- Repeal
Bill 16-16, Personnel- Benefits for Domestic Partner of Employee - Repeal, sponsored by
Lead Sponsor Councilmember Leventhal, is scheduled to be introduced on April 19, 2016. A
public hearing is tentatively scheduled for May 3,2016 at 1:30 p.m.
Bill 16-16 would repeal the law requiring the County to provide domestic partner benefits
to eligible County employees.
Background
Bill 28-99, Personnel- Benefits for Employee's Domestic Partner, enacted on November
30, 1999 and signed into law on December 3, 1999, extended health and insurance benefits to a
same-sex domestic partner of an employee. According to the legislative history, sponsors and
supporters of Bill 28-99 argued that the law was needed to correct an inequity in benefits provided
to gay and lesbian County employees, compared to other employees. They argued that it is unfair
to provide benefits for an employee's spouse but not for the partner of an employee in a long-term,
committed, same-sex relationship. This benefits inequity conflicted with the County's
longstanding law and policies against discrimination based on sexual orientation.
I
In
short, Bill
28-99 was a civil rights law that was enacted outside of the collective bargaining process.
Bill 25-0 1, Personnel- Retirement Amendments, extended opposite sex domestic partner
benefits to members of the police bargaining unit on November 1, 2001. Finally, Bill 30-10,
Personnel- Equal Benefits - Fire and Rescue Employees, extended opposite sex domestic partner
benefits to members of the fire and rescue bargaining unit. Each of these laws were enacted at a
time when same-sex marriage was prohibited in Maryland. Maryland began to recognize same­
sex marriage on January 1,2013.
1
The
County first prohlbited discrimination based on sexual orientation
in
1984.
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The legalization of same-sex marriage in Maryland created a new inequity for employers
who provided domestic partner benefits to same-sex couples only. Governor O'Malley resolved
this inequity by eliminating all domestic partner benefits for State employees soon after the State
legalized same-sex marriages. Although Maryland began recognizing same-sex marriages in
2013, many States did not. Last year, the U.S. Supreme Court held that the right to marry is a
fundamental right that must be provided to same-sex couples in
Obergefell
v.
Hodges,
135 S.Ct.
2584 (2015). Speaking for the Court, Justice Kennedy said:
These considerations lead to the conclusion that the right to marry is a fundamental
right inherent in the liberty of the person, and under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment couples of the same-sex may not
be deprived of that right and that liberty. The Court now holds that same-sex
couples may exercise the fundamental right to marry. 135 S.Ct. at 2604-2605.
The
Obergefell
case again changed the legal framework underlying the County's domestic
partner benefits law. Except for members of the police and fire bargaining units, a County
employee with a same-sex domestic partner can obtain health and insurance benefits for a partner
without marriage and an employee with a domestic partner of the opposite sex must
marry
his or
her domestic partner to obtain these benefits. The original purpose ofthe domestic partner benefits
law no longer applies because same-sex couples are guaranteed the right to marry in all States.
Many States have reacted to this change in law by eliminating all domestic partner benefits.
See the
Stateline
article reviewing these reactions at ©8-13. In addition to the State of Maryland,
the Montgomery County Board of Education eliminated all domestic partner benefits for its
employees after same-sex marriage was legalized in Maryland. In contrast to this trend to
eliminate domestic partner benefits, the Executive submitted a Bill to the Council, introduced as
Bill 13-16 on April 12, that would provide opposite sex domestic partner benefits to employees
represented by MCGEO and unrepresented employees. Bill 16-16 would resolve this inequity by
eliminating domestic partner benefits for all County employees. The Bill would permit an
employee or retiree who is receiving or has applied for domestic partner benefits on or before April
19,2016 to continue to receive these benefits.
Lead Sponsor Councilmember Leventhal explained his reasons for introducing this Bill
and related Bill 17-16 repealing the equal benefits law for County contractors in an April 13
memorandum at ©7.
This packet contains:
Bill 16-16
Legislative Request Report
Councilmember Leventhal April 13 Memorandum
Stateline, September 11,2015 .
Circle
#
1
6
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F:\LAW\BILLS\l616 Personnel- Benefits For Domestic Partner - Repeal\Intro Memo.Docx
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Bill No. ----!.1.=. 6--=1.=. 6_ _
-:---=------=----=__
Concerning: Personnel - Benefits for
Domestic Partner of Employee ­
Repeal
Revised: April 14, 2016 Draft No.
L
Introduced: April 19, 2016
Expires:
October 19, 2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: ....!N..:..>o"""n=e_
___=----
Ch. _ _ Laws of Mont. Co. _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Councilmember Leventhal
AN
ACT
to:
(1)
(2)
repeal the law requiring the County to provide domestic partner benefits for certain
employees; and
generally amend the law regarding benefits for domestic partners,
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-22
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. 16-16
1
2
Sec. 1. Section 33-22 is amended as follows:
33-22. [Benefits for Domestic Partner
of EmpJoyee.]
Reserved.
3
4
5
[(a)
Findings and purpose.
The County has a longstanding policy, in law
and practice, against employment discrimination based on sexual
orientation.
The County believes it is unfair to treat employees
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7
8
9
10
11
12
13
differently based solely on whether the employee's partner is legally
recognized as a spouse.
The County finds that many private and public employees provide or
plan to provide benefits for the domestic partners of their employees.
Providing domestic partner benefits will significantly enhance the
County's ability to recruit and retain highly qualified employees and
will promote employee loyalty and workplace diversity.]
[(b)
General rule.
Any benefit the County provides for the spouse
(including ''widow'' or other equivalent term) of a County employee or
the spouse's dependents must be provided, in the same manner and to
the same extent, for the domestic partner ofa County employee and the
partner's dependents, respectively. Benefits provided to an employee's
domestic partner or partner's dependent must include benefits
equivalent to those available for an employee's spouse or spouse's
dependent under the Consolidated Omnibus Budget Reconciliation Act
of 1985 (COBRA), the federal Family and Medical Leave Act, and
other federal laws that apply to County employment benefits.]
[(c)
Requirements for domestic partnership.
To establish a domestic
14
15
16
17
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21
22
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25
partnership, the employee and the employee's partner must either:
(1)
satisfy all of the following requirements:
Repeal\BiII2.Docx
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Bill No. 16-16
26
(A)
be the same sex, unless the employee is a member of the
police bargaining unit or the fire and rescue employee
bargaining unit;
27
28
29
30
(B)
share a close personal relationship and be responsible for
each other's welfare;
31
32
33
(C)
have shared the same legal residence for at least 12
months;
(D)
(E)
be at least 18 years old;
have voluntarily consented to the relationship, without
fraud or duress;
34
35
36
37
38
39
40
41
42
(F)
not be married to, or in a domestic partnership with, any
other person;
(G)
not be related by blood or affmity in a way that would
disqualify them from marriage under State law if the
employee and partner were (or, for members of the police
bargaining unit or the fire and rescue services bargaining
unit, are) opposite sexes;
43
44
45
46
(H)
(I)
be legally competent to contract; and
share sufficient fmancial and legal obligations to satisfy
subsection (d)(2); or
(2)
legally register the domestic partnership, if:
(A)
a domestic partnership registration system exists in the
jurisdiction where the employee resides; and
(B)
the Director ofHuman Resources determines that the legal
requirements for registration are substantially similar to
the requirements of this Section.]
47
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Repeal\BiIJ 2.Docx
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D
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Bill No. 16-16
52
[(d)
Evidence of domestic partnership. The employee must provide, in a
form acceptable to the Office of Human Resources, the following:
53
54
55
56
(1)
either:
(A)
an affidavit signed by both the employee and the
employee's partner under penalty of perjury declaring that
they satisfy the requirements of subsection (c)(1); or
57
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59
(B)
an official copy of the domestic partnership registration
described in subsection (c)(2); and
60
61
(2)
evidence that the employee and partner share items described in
at least
2
of the following subparagraphs:
(A)
a joint housing lease, mortgage, or deed;
joint ownership of a motor vehicle;
a joint checking or credit account;
designation of the partner as a primary beneficiary of the
employee's life insurance, retirement benefits, or residuary
estate under a will; or
(E)
designation of the partner as holding a durable power of
attorney for health care decisions regarding the employee.
62
63
64
65
(B)
(C)
(D)
66
67
68
69
70
This paragraph does not apply to a qualified, registered domestic
partnership under subsection (c )(2).]
[(e)
Termination of domestic partnership. An employee must notify the
Director of Human Resources within 30 days after:
(1)
termination of the domestic partnership by death or dissolution;
or
(2)
any other change in circumstances that disqualifies the
relationship as a domestic partnership under this Section.
71
72
73
74
75
76
77
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Bill No. 16-16
78
When the domestic partnership ends, the Director must terminate or
continue any benefit in the same manner and to the same extent that the
County terminates or continues, respectively, the benefit for a former
spouse in equivalent circumstances (such as dissolution of a partnership
and divorce).]
79
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82
83
84
85
86
87
88
89
[(t)
Application to retirees.
In
this Section, "employee" includes both
active and retired employees.]
Sec. 2. Transition.
The amendments to Section 33-22 made in Section 1 do not apply to an
employee or retiree who is receiving domestic partner benefits or has applied for
domestic partner benefits before April 19, 2016.
90
91
Approved:
92
Nancy Floreen, President, County Council
Date
93
94
Approved:
Isiah Leggett, County Executive
Date
95
This is a correct copy ofCouncil action.
96
Linda M. Lauer, Clerk of the Council
Date
97
Repeal\BiIl 2.Docx
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LEGISLATIVE REQUEST REPORT
Bill 16-16
Personne/- Benefits for Domestic Partner ofEmployee
-
Repeal
DESCRIPTION:
Bill 16-16 would repeal the law requiring the County to provide
domestic partner health and retirement benefits for all County
employees.
The domestic partner benefit law was intended as a civil rights law to
provide a County employee with the right to add a same-sex domestic
partner to the County group health and retirement benefits in an era
when same-sex marriage was not recognized in Maryland. Same-sex
marriage is now recognized in all 50 States pursuant to a recent
decision of the U.S. Supreme Court.
Eliminate domestic partner benefits for County employees.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
Office of Human Resources and Finance
FISCAL IMPACT:
Office of Management and Budget
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
Office of Finance
N/A
Maryland and the MCPS have eliminated domestic partner benefits
for their employees.
SOURCE OF
INFORMATION:
Robert
H.
Drummer, Senior Legislative Attorney
APPLICATION
WITHIN
MUNICIPALITIES:
N/A
PENALTIES:
N/A
F:\LAW\BILLS\1616 Personnel - Benefits For Domestic Partner - Repeal\LRR.Docx
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MONTGOMERY COUNTY COUNCIL
ROCKVlI_LE.
MARYLAND
GEORGE Lf!;VENTHAL
COUNCILMEMBE:J:i
M E M 0 RAN DUM
April 13,2016
Co~ncilmembers
AT-LARGE
TO:
FROM:
George
L.
Lev,nthal
c,/J-­
SUBJECT:,
Bills for
introduction
re.~
domestic partner benefits
Dear
Colleagues,
1
will
be
introducing the two attached
bills
and
welcome your
co-sponsorship.
At
the request ofthe County
Ex~cutive~
legisJation wasintrodu(;ed this week to extend
domestic partner benefits
to
all
county employees.
I
can't go along with this
in 2016.
The
county has provided health benefits
to
members ofthe police union who register as non­
married domestic partners (regardless
of
whether they are straight or gay. or lesbian) since
200i,
and
to
members of the firefighters' union'since
2010.
This bill would expand the benefit
to members
of
MCGE0
1
the Montgomery County Government Employee Organization.
I
strongly support marriage equa'llty, and
it
makes perfect sense to me that when
m~rriage
becam-e legal
in Maryland
fOf
gays and
lesbiansi
former G<:ivernor O·Malley eliminated domestic
partner benefits for
an
state employees, and Montgomery
County
Public Schools eliminated
them for
MCPS
employees. Mr. leggett's
bill,
whi,ch
I
oppose,
goes
In
the opposite direction,
extending health benefits to non-married emproyees
who
live together at an estimated cost
t-o
taxpayers of
$4.8
million
over the
next six
years.
Domestic partner benefits made sense when marriage was tll,egal for gays and lesbians, but
they don't make sense today. We should recognize that times have changed and taxpayers
shouJd not have to continue paying the cost of.an historic artifact. I am strongly .committed to
universa,1 access to health care but this can be achieve<t through other means, including getting
married!
The first of the two bills would repeal domestic partner beneftts for county employees. The
second bill wouJd repeal the law requiring a .county contractor to provide same-sex domestic
partner benefits to
its
employees.
Please let me
~ow
if you
hav~
questions or would like to cQ-Sponsf)r either or both bifls.
STELLA S. WERNER OF'F1CE
BUiLOINQ
100
MAI'IYLA'N
C.
A.vEN UE,
5.TH FL..OOR,
ROCfolVII..d...E, MARYLAND
20850.
2401777-7811
Oft 24on77-7900, TTY 2401777-79
f
4, FAXZ401777-798:9
WWW.MONTGOM£RYCOUNn.l>.!
D,GO~ICOUNCfL.
~ ~I'NTI!O
ON
Rf:~U:J3
.Pl'.P£IIl
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417/2016
After Same-Sex Marriage Ruling. States Reconsider Domestic Partner Benefits
THE
PEW
CHARITABLE
TRUSTS
The Pew Charitable Trusts
I
Research
&
Analysis
I
Stateline
I
After Same-Sex Marriage Ruling, States
Reconsider Domestic Partner Benefits
~'
v
>
v
<
,
STATEliNE
~
,"
,
:z
;
J
1
After Same-Sex Marriage Ruling, States
Reconsider Domestic Partner Benefits
September 11
r
2015
By Rebecca Beitsch
(j)
htt
:!Iwww.
ewtrusts.or
len!
rch..and-anal si
I
sis
lin
lino-states-reconsider-domestic-Clartner-bsne__ _
117
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41712016
After Sama-Sex Marriage Ruling. States Reconsider Domestic Partner Benefits
The U.S. Supreme Court ruling legalizing same-sex marriage has some state and
local governments reconsidering their domestic partner benefits.
Now that the U.S. Supreme Court has legalized same-sex marriage nationwide, some
states that offer health and retirement benefits to their employees' domestic partners
are considering changing those policies, in large part to save money or avoid
discrimination lawsuits.
Before the ruling, 34 percent of state and local governments allowed unmarried same­
sex couples to receive health care benefits, while 28 percent did so for domestic
partners of the opposite sex, according to a study of public sector benefits by the
Bureau of Labor Statistics.
Based on what happened in states that legalized gay marriage on their own, those
numbers are about to dwindle.
Maryland ended domestic partner benefits for state employees, which it offered only to
same-sex couples, just a few months after it legalized same-sex marriage in 2013.
Arizona did the same after its legalization in 2014. Alaska still offers same-sex domestic
partner benefits to the roughly 6,000 state employees it covers, but it is now reviewing
that policy_ The majority of Alaska state employees get their health insurance through
state-funded union health trusts, and the state's largest union, the Alaska State
Employees Association, ended same-sex domestic partner benefits for the more than
8,500 state and municipal employees it covers.
Connecticut and Delaware never offered domestic partner bene'fits to their workers, but
they did allow those in civil unions to add their partners to their health and retirement
plans. The two states scrapped those benefits once same-sex couples could marry.
(j)
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41712016
After Same-Sex Marriage Ruling, States Reconsider Domestic Partner Benefits
Of the 13 states that prohibited same·sex marriage before the SLipreme Court's June·
ruling (Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri,
Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas), only Michigan
offered anything similar to domestic partner benefits, as employees could add to their
plan one adult they were not related to. Matthew Fedorchuk with the Michigan Civil
Service Commission, which oversees state benefits, said the fate of those benefits
could be hashed out in ongoing labor negotiations.
Government workers are likely to see more changes than those in the private sector.
Bruce Elliott, manager of compensation and benefits for the Society for Human
Resource Management (SHRM), cited a survey of 153 companies by Mercer, a health
care advocacy group, which found that although some companies had plans to get rid of
their domestic partner benefits, many were not planning changes. Of the 19 percent that
offered domestic partner benefits to same·sex couples, 23 percent said they would drop
the option in the next year, while another 23 percent said they would do so over the next
two or three years. The majority of companies offered domestic partner benefits to both
homosexual and heterosexual couples, and 62 percent of those said they were not
planning any changes.
Elliott said domestic partner benefits may be more vulnerable within state and local
government, where competition over employees isn't as fierce as in the private sector
and where leaders have been under pressure to keep finances in check since the
recession.
A Question of Fairness
Cathryn Oakley, senior legislative counsel for the Human Rights Campaign, a gay rights
advocacy group, said the group is encouraging public and private employers to keep
offering domestic partner benefits. But she said employers that offer domestic partner
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41712016
After Same-Sex Marriage Ruling, States Reconsider Domestic Partner Benefits
benefits exclusively to same-sex couples should extend them to heterosexual couples
to avoid discrimination lawsuits.
That risk is part ofthe reason the capital city ofAnnapolis, Maryland, decided to end its
domestic partner benefit program.
'We had added it because the law didn't treat people equally," Paul Rensted, former
human resources manager for the city, said of the program, created in 2010. Now all city
employees must be married to add an adult to their benefits package, and Rensted said
couples were given six months' notice, with four employees ultimately marrying.
Many in the gay rights community say keeping domestic partner benefits would
continue to benefit some in the gay community as well as other non-traditional families.
But straight couples would continue to be the biggest user of the benefits, they say.
"Millennials are waiting longer to get married, but that doesn't mean they're not living
together-they're not all living with mom and dad," said SHRM's Elliott.
Nancy Polikoff, a family law professor at American University Washington College of
Law, said she likes "plus one" policies that allow employees to take care of their
families, whether it be a spouse, a partner or an aging relative.
"The purpose of providing benefits is to help employees fund the financial and
emotional obligations in their homes, and marriage is not always a part of that," she
said.
She pOinted to Salt Lake City's plan as a model. City employees can add any adult to
their plan as long as they live together.
Jodi Langford, who oversees the benefits program for the city, said it has been used to
cover parents, siblings and unmarried children older than 26 who would otherwise age
out of their parents' health insurance plans. Of the 60 people on the plan before same­
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4/7/2016
After Same-Sex Marriage Ruling. States Reconsider Domestic Partner Benefits
sex marriage was made legal, only about 10 have switched to spousal benefits.
"If we stop, we would have parents, siblings, boyfriends and girlfriends who would be
without bene'fits," Langford said. While the program is secure for now, she said there's
been some talk about reviewing it within the next year.
In Florida, public universities are planning to review their domestic partner benefits.
Because only spouses are eligible for state-funded benefits, state universities had to
come up with creative solutions to offer benefits to gay employees' domestic partners. It
was an anonymous gift that covered the additional cost of adding an adult beneficiary to
a health plan at Florida State University (FSU) starting in 2014, while the University of
North Florida (UNF) began covering the additional cost to employees through its
fundraising foundation in 2006.
Spokesmen for both universities said the programs played a role in attracting talent.
UNF is winding down its program, which had only been offered to same-sex couples,
said Vice President and Chief of Staff Tom Serwatka.
'When we went to this, we did so on the basis that heterosexual couples had a choice
whether they wanted to marry and understood the full implication of that choice.
Homosexual couples didn't have that choice." Now that they do, Serwatka said, it
makes less sense for the university to raise private funds to pay for the benefits .
. 'The university wasn't trying to change the idea of marriage as the policy for the state,
and state funding required marriage," he said.
FSU is reviewing its program, which only paid for health insurance for domestic partners
who could not get insurance through their work, said spokesman Dennis Schnittker.
"The gift was made under the belief of the donor that the state would be funding the
benefit in the near future," he said.
.
/
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417/2016
After Same-Sex Marriage Ruling. States Reconsider Domestic Partner Benefits
No Change?
In some states, however, domestic partner benefits are likely to continue.
California's domestic partner benefit statutes remain intact, and in Massachusetts the
policy is part of a still-standing executive order. Maine and Vermont, which was the first
state to offer domestic partner benefits,' are not planning to change their programs.
'We
wouidn'tjust get rid of it because same-sex marriage has come about," said Tom
Cheney, deputy commissioner for Vermont's Department of Human Resources. "The
state of Vermont has long seen the value in offering domestic partner benefits to
couples of all types. It's a useful recruitment and retention tool for the state as an
. employer."
Elliott believes it's too early to know what most employers-both public and private­
will do with domestic partner benefits.
"Once we get past this year into next year's open enrollment, we're going to see some
real change. The tea leaves haven't dried yet," he said.
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