Agenda Item 4D
April 19,2016
Introduction
MEMORANDUM
April 14,2016
TO:
FROM:
County Council
~
Robert H. Drummer, Senior Legislative
AttomeY~J
SUBJECT:
Introduction:
Bill 17-16, Contracts and Procurement - Equal Benefits for
Domestic Partner - Repeal
Bill 17-16, Contracts and Procurement Equal Benefits for Domestic Partner - 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.
Background
Bill 17-16 would repeal the equal benefits law requiring a County contractor to provide
same-sex domestic partner benefits to its employees. Bill 37-09, Contracts and Procurement
Equal Benefits, was enacted on February 2,2010 and signed into law on February 16,2010. Code
§11B-33D(b) provides:
A contractor or subcontractor must provide the same benefits to an employee with
a domestic partner as provided to an employee with a spouse.
If
a benefit cannot
reasonably be provided to a domestic partner, the contractor or subcontractor must
pay the employee the cash equivalent.
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 mamages. 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
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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 equal
benefits law. The original purpose of the equal 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 108-13. 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 17-16 would follow the trend of
eliminating domestic partner benefits by permitting a County contractor to decide whether or not
to provide domestic partner benefits for their employees.
Lead Sponsor Councilmember Leventhal explained his reasons for introducing this Bill
and related Bill 16-16 that would eliminate domestic partner benefits for County employees and
retirees in an April 13 memorandum at 107.
This packet contains:
Bill 17-16
Legislative Request Report
Councilmember Leventhal April 13 Memorandum
Stateline, September 11, 2015
Circle
#
1
6
7
8
F:\LAW\BILLS\1617 Procurement - Equal Benefits - Repeal\Intro Memo.Docx
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Bill No.
--:..1..:....7-...:.1=6_ _ _ _ _ _ __
Concerning: Contracts and
Procurement - Equal Benefits for
Domestic Partner - Repeal
Revised: April
13. 2016
Draft No.
_1_
Introduced:
April
19, 2016
Expires:
October
19,2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
...:.N=o:.!.!n",,-e_~
_ _ __
Ch. _ _• Laws of Mont. Co. _ __
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]
DQuble 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. 17-16
1
Sec.
1.
Section IlB-33D is amended as follows:
IlB-33D. [Equal Benefits] Reserved.
[(a)
Definitions.
In this Section, the following words have the meanings
2
3
4
5
6
indicated:
Benefit
means a plan, program, or policy provided or offered by a
contractor or subcontractor to some or all employees as part of the
employer's total compensation package. This may include:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
bereavement leave;
family medical leave;
sick leave;
health benefits;
dental benefits;
disability insurance;
life insurance; and
retirement benefits.
7
8
9
10
11
12
13
14
15
16
17
18
Cash equivalent
means the actual cost to the employer for insurance
benefits to the spouse of a married employee, which are not provided
to a domestic partner, if:
(1)
the benefit would be provided to a domestic partner of an
employee if that person were a spouse ofthe employee; and
(2)
the employer is unable to provide the benefit to a domestic
partner of an employee after making a reasonable effort to do so.
Contract
means a contract for services subject to Section
IlB-33A
or a
19
20
21
22
23
24
contract for construction services subject to Section
IlB-33C.
Domestic partnership
means:
25
(2)
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Bill No. 17-16
26
27
(1)
a relationship between two individuals of the same sex that has
been licensed as a civil union or marriage in a jurisdiction where
such a civil union or marriage is pennitted; or
28
29
30
(2)
an unlicensed relationship between two individuals of the same
sex who:
(A)
share a close personal relationship and are responsible for
each other's welfare;
(B)
have shared the same legal residence for at least 12
months;
(C)
(D)
are at least 18 years old;
have voluntarily consented to the relationship, without
fraud or duress;
(E)
are not married to, or in a domestic partnership with, any
other person;
(F)
are not related by blood or affinity in a way that would
disqualify them from marriage under State law if the
employee and partner were opposite sexes;
(G)
(H)
(I)
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
are each legally competent to contract;
share fmancial and legal obligations; and
legally register the domestic partnership if a domestic
partnership registration system exists in the jurisdiction
where the employee resides.
47
48
49
Employee
means a person who performs work on a contract
in
an
employment relationship with the contractor or a subcontractor.]
[(b)
50
51
Equal benefits requirement.
A· contractor or subcontractor must
provide the same benefits to an employee with a domestic partner as
provided to an employee with a spouse. If a benefit cannot reasonably
l.Docx
52
o
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Bill No. 17-16
53
54
be provided to a domestic partner, the contractor or subcontractor must
pay the employee the cash equivalent.]
[(c)
Contract requirement.
Each contract covered by this Section must:
55
56
(1)
require the contractor and all subcontractors to comply with this
Section; and
57
58
(2)
specify that an aggrieved employee, as a third-party beneficiary,
may by civil action recover the cash equivalent of any benefit
denied in violation of this Section or other compensable
damages.]
59
60
61
62
63
[(d)
Enforcement.
(1)
The Director or a designee may perform random or regular audits
and investigate any complaint of a violation of this Section. If
the Director determines that this Section has been violated, the
Director must issue a written decision, including appropriate
sanctions, and may withhold from payment due the contractor,
pending a final decision, an amount sufficient to:
(i)
pay each employee of the contractor or subcontractor the
cash equivalent ofthe benefits denied; and
(ii)
64
65
66
67
68
69
70
71
satisfy a liability of a contractor for liquidated damages as
provided in this Section.
72
73
(2)
A contractor or subcontractor must not discharge or otherwise
retaliate against an employee for asserting any right under this
Section or for filing a complaint of a violation.
74
75
76
(3)
The
sanctions
of Section
IlB-33(b)
which
apply
to
77
78
noncompliance with nondiscrimination requirements apply with
equal force and scope to noncompliance with this Section.
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Bill No. 17-16
79
(4)
Each contract subject to this Section may specify the payment of
liquidated damages to the County by the contractor for any
noncompliance with this Section.
80
81
82
83
84
(5)
Each contractor is jointly and severally liable for noncompliance
with this Section by a subcontractor.
(6)
A contractor may appeal a written decision of the Director that
the contractor violated this Section to the Chief Administrative
Officer within 10 working days after receiving a copy of the
decision. The Chief Administrative Officer must designate a
hearing officer to conduct a hearing under Chapter 2A after
receiving a timely appeal. If the contractor does not appeal a
written decision within 10 working days after receipt, the
decision of the Director becomes fmal and binding.]
85
86
87
88
89
90
91
92
93
[(e)
Report.
The Chief Administrative Officer must report annually to the
Council and Executive on the operation of and compliance with this
Section.]
Sec. 2. Transition.
94
95
96
97
The amendments to Section IlB-33D made in Section 1 apply to any contract
awarded after the date this Act takes effect.
Approved:
98
99
100
101
Nancy
Floree~
President, County Council
102
Approved:
Date
103
Isiah Leggett, County Executive
Date
F:\LAW\BILLS\1617 Procurement ­ Equal Benefits - Repeal\BiII
I.Docx
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LEGISLATIVE REQUEST REPORT
Bill 17-16
Contracts and Procurement
-
Equal Benefits for Domestic Partner
-
Repeal
DESCRIPTION:
Bill 17-16 would repeal the requirement in the County Procurement
Law that contractors and subcontractors provide same-sex domestic
partner benefits to its employees.
The US Supreme Court recently held that same sex marriage must
be recognized in all
SO
States.
Permit County contractors and subcontractors to decide for
themselves if they want to provide domestic partner benefits to their
employees.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
Office of Procurement
FISCAL IMPACT:
Office of Management and Budget
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
Office of Finance
N/A
N/A
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
Robert H. Drummer, Senior Legislative Attorney
N/A
N/A
F:\LAW\BILLS\1617 Procurement - Equal Benefits - Repeal\LRR.Docx
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MONTGOMERY COUNTY COUNCil
ROCKVILLE,
MARytJ,ND
GEORGE LeVENTHAl..
MEMORANDUM
April
13, 2016
Counc:ilmembers
George L. Leventhal
COUNC,!LME:;.MBER
AT-LARGE.
TO:
FROM:
c;.f).....­
SUBJECT: .
Bills for introduction re; domestic partner benefits
Dear Colleagues,
I
will be introducing the two attached bills and welcomevour co-sponsorship.
At the request ohhe County Executive, legislation was introduced this week to extend
domestiC partner benefits to
all
county em ployees.
I
can't go along with this in
2016.
The
cou nty has provided health benefits to members of the police union who register as. non­
married domestic partners (regardless of whether they are straight or
gay
or lesbIan) Since
2001,
and to members of the firefighters' union since
2010.
This bill would expand the benefit
to members of MCGEO, the Montgomery County Government Employee Organization.
I strongly support marriage equality, and it makes p.erfect sense to me that when marriage
became legal in Maryland for gays and lesbians, former Governor O'Malley eliminated domestic
partner benefits for
all
state
employees, and Montgomery County Public Schools eliminated
them for MCPS employees. Mr. Leggett's bill) which
I
oppose, goes
in
the opposite direction,
extending health benefits to non-married employees who live together at an estimated cost to
taxpayers of $4.8 million over
the
next
six
years.
Domestic partner benefits made sense when marriage wasiUegat for gays and lesbians
1
but
they don't make sense today. We should recognize that tim.es have changed and taxpayers.
should not have to continue paying the cost otan historic artifact. I am strongly committed to
universa.1 access to health care but this can be achieved through other
means,
including getting
married!
The first of the two bills would repeal domestic partner benefits
for
county employees.
The
second bill would repeal the law requiring a county contractor to provide Same,..sex domestic
partner benefits to its employees,
Please let me know If you have questions or would like to co-sponsor either
or
both bills.
STELLA B.
WER.NER
OI"FICEBUIL.OtNG
"
too
MAfiIYtJ,NO.AVENUE,oTIt FLOOR,
ROCKVILL!!t,MARYLAN020850
240n77-7811
OR 24Dn7.7-7900, TTY
Z4Dn77-79
t 4, FAX
240n77-7989
WWW:MONTGOMERYCOUNTYMO.GOV/CDUNC1L
~
F'fltlNT£O ON RECYCI..ED
PAPER
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41712016
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
it;
After Same-Sex Marriage Ruling, States
Reconsider Domestic Partner Benefits
September 11, 2015
By Rebecca Beitsch
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41712016
After Same-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 benefits 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.
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4f712016
After Same-Sex Marriage Ruling, States Reconsider Domestic Partner Benefits
Ofthe 13 states that prohibited same-sex marriage before the Supreme 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 of the reason the capital city of Annapolis, 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 ofthe 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 userofthe 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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41712016
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 benefits," 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 (UN F) began covering the additional cpst 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
bene'fit in the near future,
n
he said.
@
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41712016
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 wouldn't just 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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