GO Item 1
September 22, 2016
Worksession
MEMORANDUM
September 20, 2016
TO:
Government Operations and Fiscal Policy Committee
FROM:
Robert H. Drummer, Senior Legislative
Attorney
~
SUBJECT:
Worksession: Expedited Bill 36-16, Employees' Retirement System - Disability
Retirement - Redetermination of Eligibility - Amendments
Expedited Bill 36-16, Employees' Retirement System - Disability Retirement ­
Redetermination of Eligibility .:. .- Amendments, sponsored by Lead Sponsor Council President
Floreen at the request of the County Executive, was introduced on August 2, 2016. A public
hearing was held on September 13.
County Code §33-43(g) requires the periodic medical reexamination of a disability retiree.
The Chief Administrative Officer (CAO) is authorized to reduce or discontinue disability
retirement benefits if the retiree is no longer medically qualified. Although a disability retiree
whose benefits are discontinued due to a medical reexamination can apply for an open County
position, there is currently no provision permitting the CAO to non-competitively appoint the
person to a merit position.
Bill 36-16 would permit the County to non-competitively re-appoint a former County
employee to the same position or a position of comparable status in the same Department if the
individual's disability retirement benefits are discontinued due to a medical reexamination. The
Bill would also permit the former disability retiree to become a member of the retirement plan in
which the individual was enrolled when the individual left County service if the individual was
vested at the time the individual left County service. These 2 new provisions would only apply to
a member who became disabled on or before July 1, 2016.
Finally, the Bill would add a definition for a position of comparable status. The term
"position of comparable status" is currently used in Section 33-43(t)(1) as part of the test to
determine an employee's eligibility for service-connected disability retirement. However, there is
no definition for the term in the Code. Bill 36-16 would add the following definition:
Position gfcomparable status
means
~
position:
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ill
.ill
ill
with
~
grade and
~
range resulting in the same
~
as the position the
member was assigned before receiving disability retirement benefits;
in the same department; and
for which the member is qualified.
Public Hearing
Linda Herman, Executive Director ofthe Board ofInvestment Trustees for the Employees'
Retirement System, speaking on behalf of the Executive, supported the Bill. See ©23. Ms.
Herman explained that the Bill would give the County additional authority to non-competitively
re-appoint a former employee whose disability retirement pension is discontinued after a medical
re-evaluation to a position of comparable status and permit the employee to re-join the same
retirement plan the employee was a member of before the employee became disabled. Jeffrey
BuddIe, President of IAFF Local 1664 (©24-25) and Torrie Cooke, President of FOP Lodge 35
(©26-28) each opposed the Bill. Both
Mr.
BuddIe and
Mr.
Cooke argued that the Executive should
be required to resolve these issues with their respective unions exclusively through the collective
bargaining process.
Mr.
BuddIe did not take a position on the Bill on its merits. Mr. Cooke
opposed the Bill on its merits as well as the failure to bargain over these issues.
Issues
1.
Can the Council act on Bill 36-16 if the Executive did not negotiate these issues with each
County employee union?
Both
Mr.
Buddle and
Mr.
Cooke argued that the Executive committed a prohibited practice
under the County collective bargaining laws when he sent Bill 36-16 to the Council for
introduction. Both the IAFF Local 1664 and the FOP Lodge 35 filed a prohibited practice charge
against the Executive with the appropriate Labor Relations Administrator (LRA) alleging that the
Executive failed to bargain in good faith with the union concerning these proposed changes to the
disability retirement law. A copy of the IAFF charge filed with LRA Homer C. LaRue is at ©29­
34.
1
The County Attorney's Office filed a similar response to both charges on behalf of the
Executive. A copy of the County's response to the IAFF charge is at ©35-37. No hearing has
been set yet on either charge.
The dispute between the Executive and these unions
2
centers around whether or not the
proposed amendments to the disability retirement law in Bill 36-16 is a mandatory topic of
bargaining. The unions argue that any changes to the disability retirement law affect their members
and must be bargained. The Executive argues that the amendments authorizing the Executive to
non-competitively re-appoint a retired member to a non-sworn position of comparable status is
limited to a member who became disabled on or before July 1, 2016. Therefore, these provisions
only apply to members who are currently retired and does not apply to any current employees
The FOP filed a similar charge with the Pennanent Umpire for the Police Labor Relations Law, Ira Jaffe. The
separate LRA's governing each of these collective bargaining laws act independently of each other and can arrive at
different legal conclusions based upon the same facts.
2
MCGEO has not filed a similar prohibited practice charge.
1
2
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represented by the union.
3
The Executive argues that the union only represents current employees
and therefore does not have to bargain over changes to the disability retirement law affecting only
current retirees.
Bill 36-16 also contains a defInition for a "position of comparable status." This phrase is
currently used in the Code without a defInition and would be applicable to the new provisions
authorizing a non-competitive re-appointment ofa disability retiree whose pension is discontinued
due to a medical re-evaluation.
The LRA (or Permanent Umpire)
has
the authority to decide if the Executive's actions
constitute a prohibited practice. If the LRA fmds that the Executive committed a prohibited
practice by refusing to bargain over these amendments, he can order the Executive to bargain over
these issues.
However, the LRA does not have the authority to prevent the Council from
considering Bill
36-16
and acting on
it.
The Bill was introduced by the Council President and can
go through the normal legislative process without regard to the findings ofthe LRA.
2. Should the Executive have the authority to non-competitively re-appoint a retiree to a
position of comparable status if the retiree's disability retirement pension is discontinued
due to a medical re-evaluation?
Under Bill 37-08, Personnel- Disability Retirement - Amendments, enacted on May 12,
2009 and signed into law on May 20, 2009, the CAO must require an annual medical re-evaluation
of disability for a member for the fIrst 5 years after retirement and once every 3 years after that up
to age 55. Prior to Bill 37-08, the CAO had the authority to require a medical re-evaluation, but it
was rarely done. The CAO is also authorized to discontinue a member's disability retirement
pension if the member no longer qualifies after a medical re-evaluation. However, the law does
not currently permit the CAO to non-competitively re-appoint a retiree to a County position after
the disability pension is discontinued. The member must apply for a vacant position to return to
County service or, if eligible, receive a normal retirement pension. Under current law, if the
employee is successful in returning to County service, the employee must become a member of
the retirement plan for that new position.
Bill 36-16 would permit the CAO to non-competitively appoint the retiree to a position of
comparable status in the same department. For a public safety employee, such as a fIre fIghter or
police officer, the employee could be re-appointed to a non-sworn position in the department with
the same grade and salary range as their prior position. Bill 36-16 would also permit the retiree to
return to the same defIned benefIt plan the retiree belonged to as a sworn fIre fIghter or police
officer instead of the Retirement Savings Plan or the Guaranteed Retirement Plan. Bill 36-16
would also permit a public
saf~ty
employee to enter the Deferred Retirement Option Plan, if
eligible.
Bill 36-16 would provide a better path for a disability retiree to return to County service if
the medical re-evaluation results in a discontinuation of a disability retirement pension.
3
The IAFF attached an early draft of the Bill that does not contain this limitation to its prohibited practice charge.
3
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This packet contains:
Expedited Bill 36-16
Legislative Request Report
Executive's Transmittal Memorandum
Fiscal and Economic Impact Statement
Public Hearing Testimony
Linda Herman
Jeffrey BuddIe
Torrie Cooke
IAFF Prohibited Practice Charge
County Response to IAFF Prohibited Practice Charge
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Circle #
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Expedited Bill No.
_....::3~6:..--1~6~~
_ _
Concerning:
Employees' Retirement
System - Disability Retirement ­
Redetermination of Eligibility ­
Amendments
Revised: August
15, 2016
Draft No._4_
Introduced:
August
2.2016
Expires:
February
2, 2018
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ _ __
Effective: _ _:--_ _ _ _ _ __
Sunset Date:
--.!N~o~n~e:..__-~-_-_
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Council President at the request of the County Executive
AN EXPEDITED ACT
to:
(1)
(2)
(3)
require the County to re-employ certain former County employees if the
individual's disability retirement benefits are discontinued;
define a position of comparable status; and
generally amend the law regarding disability retirement.
By amending
Montgomery County Code
Chapter 33, Personnel and Human Resources
Sections 33-37, 33-38A and 33-43
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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Expedited Bill No. 36-16
1
Sec.
1.
Sections 33-37, 33-38A, and 33-43 are amended as follows:
33-37. Membership requirements and membership groups.
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(
e)
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*
Retirement plans.
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ill
An individual whose disability retirement benefits under Section
33-43(g)(1) are discontinued and who returns to County service
pursuant to Section 33-43(g)(2),
Q1
B1
or
ill
must again
become
~
member of the retirement plan in which the individual
was enrolled when the individual left County service if the
individual was vested under Section 33-45 at the time the
individual left County service.
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(£)
Membership groups and eligibility.
Any full-time or part-time
employee is eligible for membership in the appropriate membership
group if the employee meets all of the requirements for the group:
(1) Group A: An employee, elected official, or appointed official not
eligible for membership in another group is a group A member.
An employee who otherwise would be eligible for membership
in group
A
must participate in the guaranteed retirement income
plan or the retirement savings plan if the employee:
(A) begins, or returns to, County service on or after October 1,
1994 (except as provided in the last sentence of subsection
(e)(2) or (e)(7));
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(B)
is not represented by an employee organization;
(C) does not occupy a bargaining unit position; and
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(D)
is not an elected official (except as provided in subsection
(e)( 4) [(D)(ii))].
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ERS Personnel - Disability Retirement - Amendments\BiII 4.Docx
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Expedited Bill No. 36-16
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*
(4)
*
*
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Group E: The Chief Administrative Officer, the Council
Administrator, the hearing examiners, the County Attorney and
each head of a principal department or office of the County
government, if appointed to that position before July 30, 1978,
or a member having held that position on or before October 1,
1972. Any sworn deputy sheriff and any County correctional
staff or officer as designated by the chief administrative officer.
Any group E member who has reached elective early retirement
date may retain membership in group E if the member transfers
from the position which qualified the member for group E. Any
group E member who is temporarily transferred from the position
which qualified the member for group E may retain membership
in group E as long as the temporary transfer from the group E
position does not exceed 3 years. Any former group E member
who returns to County service under Section 33-43(g)(4) because
the member's disability retirement benefits are discontinued
pursuant to Section 33-43(g)(1) must return as
~
group E member
even if the position is not qualified for group
E
membership if
the individual was vested under Section 33-45 at the time the
individual left County service. Notwithstanding the foregoing
provisions in group E, any employee who is eligible for
membership in group E must participate in the guaranteed
retirement income plan or the retirement savings plan under
Article VIII if the employee:
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Expedited Bill No. 36-16
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(A) (i)
begins, or returns to, County service on or after
October 1, 1994 (except as provided in the last
sentence of subsection (e)(2) or (e )(7));
(ii) is not represented by an employee organization; and
(iii) does not occupy a bargaining unit position; or
(B)
(i)
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begins County service on or after October 1, 1994;
and
(ii) is subject to the terms of a collective bargaining
agreement between the County and an employee
organization which requires the employee to
participate in the guaranteed retirement income plan
or the retirement savings plan.
(5) Group F: sworn police officers.
(A) A group F member who has reached elective early
retirement date may retain membership in group F if the
member is transferred from the position that qualified the
member for group F membership.
(B) A group F member who is temporarily transferred from
the position that qualified the member for group F
membership may retain membership in group F as long as
the temporary transfer from the group F position does not
exceed 3 years.
(C) Notwithstanding the foregoing provisions in group F, an
employee who is eligible for membership in group F must
participate in the retirement savings plan under Article
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VIn
or the guaranteed retirement income plan if the
employee:
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Expedited Bill No. 36-16
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(i)
begins, or returns to, County service on or after
October 1, 1994 (except as provided in the last
sentence of subsection (e)(2) or (e)(7));
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(ii) is not represented by an employee organization;
and
(iii) does not occupy a bargaining unit position.
(D)
An
employee who is eligible for membership in group
F
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must participate in the retirement savings plan under
Article
VIII
if the employee:
(i)
begins County service on or after October 1, 1994;
and
(ii) is subject to the terms of a collective bargaining
agreement between the County and an employee
organization
that
requires
the
employee
to
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participate in the retirement savings plan.
(E) A group F member who is a member of the Police
Bargaining Unit may transfer to the retirement savings
plan under Article
VIII
if the employee has accumulated
enough credited service to obtain the maximum retirement
benefit under the optional or integrated plan.
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®
Any
former group F member who returns to County
service under Section 33-43(g)(2) because the member's
disability retirement benefits are discontinued pursuant to
Section 33-43(g)(1) must return as
~
Group F member
~
even if the individual does not qualify as
sworn police
officer if the individual was vested under Section 33-45 at
the time the individual left County service.
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(6)
Group G: Any paid firefighter, paid fire officer, and paid rescue
service personnel. Any group G member who has reached normal
retirement may retain membership in group G if the member
transfers from the position which qualified the member for group
G. Any group G member who is temporarily transferred from the
position which qualified the member for Group G may retain
membership in group G as long as the temporary transfer from
the group G position does not exceed 3 years.
(A)
Notwithstanding the foregoing provisions in group G, any
employee who is eligible for membership in group G must
participate in the retirement savings plan under Article
VIII if the employee:
(i)
begins County service on or after October 1, 1994;
and
(ii)
is subject to the terms of a collective bargaining
agreement between the County and an employee
organization which requires the employee to
participate in the retirement savings plan.
(B)
An
employee who is eligible for membership in group G
must participate in the retirement savings plan under
Article VIII or the guaranteed retirement income plan if:
(i)
the employee begins, or returns to, County service
on or after October 1, 1994 (except as provided in
the last sentence of subsection (e)(2) or (e)(7);
(ii)
is not represented by an employee organization;
and
(iii)
does not occupy a bargaining unit position.
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(Q
Any former group G member who returns to County
service under Section 33-43(g)(3) because the member's
disability retirement benefits are discontinued pursuant to
Section 33-43(g)(1) must return as
£
group G member
even if the individual does not qualify as
£
paid firefighter,
paid fire officer or paid rescue service personnel if the
individual was vested under Section 33-45 at the time the
individual left County service.
(7)
Group H: Any member, including any probationary employee,
who holds a bargaining unit position described in section 33­
105(a)(1) or section 33-105(a)(2), unless the member is eligible
for membership in group B or E. Notwithstanding the foregoing
provisions in group H, any employee who is eligible for
membership in group H must participate in the guaranteed
retirement income plan or the retirement savings plan under
Article VIII if the employee:
(A)
begins, or returns to, County service on or after October 1,
1994 (except as provided in the last sentence of subsection
(e)(2) or (e)(7)); and
(B)
is subject to the terms of a collective bargaining agreement
between the County and an employee organization which
requires the employee to participate in the guaranteed
retirement income plan or the retirement savings plan.
*
*
*
*
*
*
33-38A. Deferred Retirement Option Plans.
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Expedited Bill No. 36-16
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(
a)
DROP Plan for Group F members.
"Discontinued Retirement Service
Program" or "DRSP" means the DROP program for Group F members.
(l)
Eligibility.
A Group F member who is at least 46 years old and
has at least 25 years of credited service may participate in the
DRSP. A member who returns to County employment under
Section 33-43(g)(2)(B) and participates as
~
Group F member
under Section 33-37 is eligible to participate
ih
prior to receiving
disability retirements benefits under Section 33-43, the member
had 12 years and
§.
months of credited service as
~
sworn police
officer with Montgomery County government.
*
(b)
*
*
DROP Planfor Group
G
members.
(1)
Eligibility.
An employee who is a member of Group G and who
has met the minimum requirements for a normal retirement may
participate in the DROP Plan. A member who returns to
employment under Section 33-43(g)(3)(B) and participates as
~
Group G member under Section 33-37 is eligible to participate
if:
prior to receiving disability retirements benefits under Section
33-43, the member had 10 years of credited service as
firefighter, paid fire officer or
~
~
paid
paid rescue service personnel
with Montgomery County government.
*
(c)
*
*
DROP Plan for Sworn Deputy Sheriffs and Uniformed Correctional
Officers.
*
(3)
*
*
Eligibility.
A sworn deputy sheriff or uniformed correctional
officer who is at least age 55 years old and has at least 15 years
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of credited service or is at least 46 years old and has at least 25
years of credited service may participate in the DROP. A
uniformed correctional officer or sworn deputy sheriff must
participate in the optional retirement plan or the integrated
retirement plan as a Group E member in order to participate in
the DROP. A member who returns to employment under Section
33-43(g)(4) and participates as
~
Group E member under Section
33-37 is eligible
to
participate if prior to receiving disability
benefits under Section 33-43, the member had 12 years and six
months of credited service as
~
sworn deputy sheriff or
uniformed correctional officer with Montgomery County
government.
*
33-43. Disability Retirement.
*
*
*
*
*
(b)
following meanings:
Definitions.
In
this Section, the following words and phrases have the
*
*
*
~
Position
q[
comparable status
means
~
position:
ill
with
~
grade and salary range resulting in the same
as the
position the member was assigned before receiving disability
retirement benefits;
ill
ill
(g)
in the same department; and
for which the member is qualified.
*
*
*
212
Medical reexamination ofdisability retiree.
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ERS Personnel - Disability Retirement - Arnendments\BiII 4.Docx
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ill
The Chief Administrative Officer must require a member
receiving disability pension payments to undergo either a yearly
physical examination or to submit a medical doctor's certificate
verifying continuation of the disability during the 5 years after
retirement, and once in every 3 years thereafter, until age 55 for
a member ofgroup B, E, F, or G, or age 60 for a member of group
A or H, unless the Chief Administrative Officer fmds that a
physical examination is unnecessary because of the nature and
severity ofthe injury or illness. The Chief Administrative Officer
must review the findings of the physical examination and take
appropriate action, which may include submitting the results of
the evaluation to the Disability Review Panel
for a
redetermination whether the individual qualifies for disability
benefits in accordance with subsection (d). If a member does not
submit to the examination, the Chief Administrative Officer may
reduce or discontinue any disability pension payments which the
member receives. The Disability Review Panel may require the
member to submit to an additional independent medical
examination. A member may appeal a decision to reduce or
discontinue disability pension payments to the appropriate
Disability Arbitration Board.
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ill
GroupF.
®
A retired Group F member must be non-competitively
reappointed (unless the reappointment is declined) to
sworn police officer position, or to
~
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~
Police Officer
Candidate's position, at
~
rank, grade and step equal to that
clQ)
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of the position to which the member was assigned when
the disability occurred, if:
ill
the employee became disabled on or before July
L
2016;
(ii) the member's disability penSIon payments are
discontinued as
~
result of
~
physical examination
conducted under subsection (g)(1);
(iii) the
member
IS
determined
Qy
the
Chief
Administrative Officer to be physically able to
perform all of the essential duties of
~
sworn police
officer; and
(iv) the member is eligible for certification as
enforcement officer
Qy
the
Commission
ill}
A retired Group F member must be non-competitively
~
law
Police
Training
reappointed to
~
non-sworn position of comparable status
within the Police Department (unless the reappointment is
declined) if:
ill
the member became disabled on or before July
L
2016;
(ii) the member's disability penSIOn payments are
discontinued as
~
result of
~
physical examination
conducted under subsection (g)(l); and
(iii)
the member is not eligible for certification as
~
sworn law enforcement officer, or if the member is
not medically approved for reappointment to
~
Iil\
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sworn police officer position
Qy
the Employee
Medical Examiner; or
(iv) the
member, IS
determined
Qy
the
Chief
Administrative Officer to be unable to perform all
of the essential duties of
~
sworn police officer, but
the ChiefAdministrative Officer determines that the
member is able to perform the duties of
~
position
of comparable status within the Police Department.
ill
Group G.
CA)
A retired Group G member must be non-competitively
reappointed (unless the reappointment is declined) to
~
paid fire fighter, paid fire officer, or paid rescue service
personnel position, at
~
rank, grade and step equal to that
of the position to which the member was assigned when
the disability occurred, if:
ill
the employee became disabled on or before July
..L.
2016;
(ii) the member's disability penSIOn payments are
discontinued as
~
result of
~
physical examination
conducted under subsection (g)(1); and
(iii) the
member
IS
determined
Qy
the
Chief
Administrative Officer to be physically able to
perform all of the essential duties of
~
paid fire
fighter, paid fire officer or paid rescue service
personnel.
@
A retired Group G member must be non-competitively
reappointed to
~
position of comparable status within the
W
F:\LAw\BILt;;t36 ERS Personnel- Disability Retirement - Arnendments\BiII4.Docx
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Expedited Bill No. 36-16
292
Fire and Rescue Service Department (unless the
reappointment is declined) if:
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
ill
(ii)
the member became disabled on or before July
1.,.
2016;
the member's disability penSIOn payments are
discontinued as
~
result of
~
physical examination
conducted under subsection (g)(
l);
and
(iii)
the member is not eligible for certification as
~
paid
fire fighter, paid fire officer, or paid rescue service
position, or ifthe member is not medically approved
for reappointment to
~
paid fire fighter, paid fire
officer, or paid rescue service position
Qy
the
Employee Medical Examiner; or
(iv)
the
member
IS
determined
Qy
the
Chief
Administrative Officer to be unable to perform all
ofthe essential duties of
~
paid fire fighter, paid fire
officer, or paid rescue service personnel, but the
Chief Administrative Officer determines that the
member is able to perform the duties of
~
position
of comparable status within the Fire Department.
(4)
312
313
GroupE:
(A)
A retired Group E member must be non-competitively
reappointed (unless the reappointment is declined) to
position at
~
~
314
315
316
317
rank, grade and step equal to that of the
position to which the member was assigned when the
disability occurred
it
fi3\
F:\LAW\BIL'iS\16'36 ERS Personnel - Disability Retirement - Amendments\BiII4.Docx
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Expedited Bill No. 36-16
318
319
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
335
336
ill
The member became disabled on or before July
L
2016;
(ii) the member's disability penSIOn payments are
discontinued as
~
result of
~
physical examination
conducted under subsection (g)( 1); and
(iii) the
member
IS
determined
Qy
the
Chief
Administrative Officer to be physically able to
perform all of the essential duties of the position to
which the member was assigned when the disability
occurred;
.an
A retired Group E member must be non-competitively
reappointed to
~
position of comparable status (unless the
reappointment is declined) if:
ill
the member became retired on or before July
L
2016;
(ii) the member's disability penSIOn payments are
discontinued as
~
result of
~
physical examination
conducted under subsection (g)(I); and
(iii) the member is not eligible for the position to which
337
338
339
340
341
342
343
344
the member was assigned when the disability
occurred.
ill
Groups A and H: A retired Group A or H member must be non­
competitively reappointed (unless the reappointment is declined)
to either that position at the grade and step equal to the position
the individual held when the disability occurred or
~
comparable
position at the same grade and step if:
CA)
the member became retired on or before July
L
2016;
F:\LA
w\BIL~36
ERS Personnel - Disability Retirement - Arnendments\BiIl 4.Docx
Ii4>
.
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Expedited Bill No. 36-16
345
346
347
348
349
350
351
352
353
354
355
356
ill}
the
member's
disability
~
penSIOn
~
payments
are
discontinued as
result of
physical examination
conducted under subsection (g)(n; and
(Q
the member is determined
Qy
the Chief Administrative
Officer to be physically able to perform all of the essential
duties of the position to which the member was assigned
when the disability occurred.
*
Effective Date.
*
*
The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date it becomes law.
Approved:
357
358
Nancy Floreen, President, County Council
Date
359
Approved:
360
Isiah Leggett, County Executive
Date
361
This is a correct copy o/Council action.
362
Linda M. Lauer, Clerk of the Council
Date
F:\LA
ii0
W\BIL~36
ERS Personnel - Disability Retirement - Amendments\BiII 4.Docx
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LEGISLATIVE REQUEST REPORT
Expedited Bill 36-16
Employees' Retirement System-Disability Retirement-Redetermination ofEligibility­
Amendments
DESCRIPTION:
The Bill amends the County's retirement law to permit the CAO to
non-competitively re-employ certain former County employees to
a position of comparable status if the individual has disability
retirement benefits discontinued after a medical reexamination.
The Bill would define a position of comparable status. The Bill
would also permit the former disability retiree to become a
member ofthe retirement plan in which the individual was enrolled
when the individual left County service if the individual was
vested at the time the individual left County service.
PROBLEM:
The County Code does not provide for non-competitive re­
employment of persons whose disability retirement benefits have
been stopped due to a medical reexamination.
GOALS AND
OBJECTIVES:
The goal of the Bill is to encourage the re-employment of former
County employees whose disability retirement benefits have been
stopped due to a medical reexamination.
COORDINATION:
Montgomery County Employee Retirement Plans, Office of Human
Resources, and the County Attorney's Office have reviewed this
Bill.
FISCAL IMPACT:
Office of Management and Budget
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
Finance
N/A
Numerous other retirement plans in the surrounding jurisdictions
offer similar re-employment rights to certain persons whose
disability retirement benefits have been stopped.
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SOURCE OF
INFORMATION:
Linda Hennan, Montgomery County Employee Retirement Plans
Shawn Stokes, Office of Human Resources
Amy Moskowitz, Office of the County Attorney
APPLICATION
WITIDN
MUNICIPALITIES:NI A
PENALTIES:
N/A
F:\LAW\BILLS\1636 ERS Personnel - Disability Retirement - Amendments\LRR.Doc
2
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OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20850
Isiah Leggett
County Executive
MEMORANDUM
July 20, 2016
TO:
FROM:
SUBJECT:
rJ
~
"
I,iab Leggett, County Executive
-V
~71"'""'--_~
Nancy Floreen, Council President
Expedited Bill to Amend the County's Retirement Law
I
am
attaching for the Council's consideration a bill that would amend the
County's retirement law to permit persons whose Employees' Retirement System's
disability retirement benefits have been stopped, due to no longer being medically
eligible to receive the benefits, to be non-competitively rehired by the County
government.
The County Code establishes the requirements for disability retirement
benefits in Section 33-43 and provides for the ongoing re-evaluation of certain persons
receiving the disability benefits. However, it does not currently provide for the non­
competitive reappointment of persons whose disability benefits are stopped. The
legislation would permit the County government to re-employ these individuals non­
competitively to County government positions within the department
in
which they were
working prior to the disability award being granted.
The bill would permit the Board to delegate its duties as it deems
appropriate and consistent with its fiduciary duties and its written policies and
procedures.
Thank you for your prompt consideration of this bill.
Attachments
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Fiscal Impact Statement
Expedited Bill XX-16, Employees' Retirement System - Disability
1. Legislative Summary.
This bill would amend the law concerning the re-employment of
certain
former County
employees to County employment following a discontinuation of disability benefits, and
define a ''position ofcomparable status".
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.
This
bill would provide for the non-competitive re-employment of certain former County
employees whose disability benefits had been stopped due to their no longer being
medically eligible to receive
the
benefits. These individuals would be placed into either
the position formerly occupied,
if
qualifications are met, or into positions of comparable
status. Since
the
bill would pennit non-competitive re-employment into a vacant position,
this bill is :not estimated to have a fiscal impact.
This
bill would have no impact on County revenues.
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
Not applicable
4.
An
actuarial analysis through the entire amortization period for each bill that would
affect
retiree pension or group insurance costs.
The number of individuals who may no longer be eligible for disability retirement
payments and could be non-competitively re-employed is not expected to be significant.
This bill is not estimated to have a material fiscal impact.
5. Later actions that may
affect
future revenue and expenditUres
if
the bill authorizes ,
future spending.
Not applicable.
6. .An estimate of the staff time needed to implement the bilL
Not applicable.
7.
An
explanation of how the addition of new staff responsibilities would atJect other
duties.
Not applicable.
8.
An
estim~de
of costs when an additional appropriation is needed.
Not applicable.
9. A description of any variable that could affect revenue and cost estimates.
In
the event the individual being re-employed is on .the high end of
the
particular
grade/step scale, there could be a fiscal impact between the personnel costs ofthe re­
employment over the personnel costs of an alternative hire lower in the grade/step. The
number of re-employments is difficult to project, but is not expected to be significant.
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I '.
r'::'_
· .-.' .......
'.. l _ ,'-----.
-.
--.--"""",,,~~~
".:"
.-.-."
"-_."
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
See response to #9.
11.
If
a bill
is
likely
to have no fiscal impact, why that
is
the case.
Not applicable.
12. Other rlScal impacts or comments.
Not applicable.
13. The following contributed to and concurred with this analysis:
Corey Orlosky, Office ofManagement and Budget
Linda Herman, Director, Montgomery County Employee Retirement Plans
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-. I
.-'
Economic Impact Statement
Bill ##-16, Employees' Retirement System
Background:
This legislation would amend the County's retirement plan to re-employ certain former County
employees to County employment
if
the individual's disability retirement benefits are
discontinued under County Code Section 33-43G. Section 33-43 governs the award and
payment of disability retirement benefits and sets forth the criteria for the required ongoing
medical evaluation of persons receiving disability retirement benefits. However, current law
does not provide for the non-competitive re-employment of persons whose disability retirement
benefits have been discontinued. Bill ##-16 would amend the Code to permit re-employment of
such individuals. Also, County Council did not defme comparable status in the County Code.
Bill ##-16 amends Section 33-43 by adding the following definition to Section 33-43(b):
"Position of comparable status means a position that is the same pay as the position the
member was assigned before receiving disability retirement benefits -and which is in the same
department and for which the member is qualified."
1.
The sources of information, assumptions, and methodologies used.
Sources of information include the Montgomery County Employees Retirement Plans
(MCERP) and the Office of Management' and Budget (OMB). The Department of Finance
did not use any assumptions or methodologies in the preparation of the economic impact
statement (EIS). Data provided by MCERP as of June 30, 2015, states that there were 6,380
retirees and beneficiaries of which 1,125 (17.6%) were receiving disability retirement
benefits. However, without specific data on the probability that current retirees receiving
disability benefits will be ineligible for such benefits and not be re-employed, it is uncertain
if Bill ##-16 would have an impact on the County's economy.
2. A description of any variable that could affect the economic impact estimates.
The variable that could affect the impact estimates are the number of retirees who-would be
re-employed.
3. The Bill's positive or negative effect,
if
any on employment, spending, savings,
investment, incomes, and property
valu~s
in the County.
As stated in paragraph 1, without specific data on the number of retirees who may be re­
employed, it is uncertain whether Bill ##-16 would have an impact on the County's
employment, spending, savings, incomes, and property values. However,
if
the number of
retirees who are re-employed is small in terms of the County's total employment, there
would be no significant positive effect on the County's economy.
4.
If
a Bill is likely to have
DO
economic impact, why is that the case?
Please see paragraph 3 on the impact to the County's economy.
Page lof2
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Economic Impact Statement
Bill ##-16, Employees' Retirement System
s.
The following contributed to or concurred with this analysis:
David Platt, Finance; Linda
Herman, Executive Director, Montgomery County Employee Retirement Plans; Corey
Orlosky, OMB.
Robert
Department
0
~."",r
.
Date
I
ce
Page 2 of2
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TESTIMONY ON BEHALF OF THE COUNTY EXECUTIVE LEGGETT ON
EXPEDITED BILL 36-16, EMPLOYEES' RETIREMENT SYSTEM­
DISABILITY RETIREMENT - REDETERMINATION OF ELIGIBILTY
­
AMENDMENTS
Good afternoon. I am Linda Hennan, Executive Director of the Montgomery .County
Employee Retirement Plans, which oversees the assets and the administration of the
County's three retirement plans. I am here today on behalf of the County Executive to
testify in support of Bill 36-16E, Employees' Retirement System - Disability Retirement
- Redetennination of Eligibility - Amendments.
The County Code does not provide for non-competitive re-employment of persons whose
disability retirement benefits have been stopped. This Bill would pennit the County to re­
employ certain fonner County employees to County positions if their disability benefits
had been stopped, due to their no longer being medically eligible to receive the disability
benefits, as defmed
in
the County Code. Section 33-43, which governs the award and
payment of disability retirement benefits, also sets forth the criteria for the required
ongoing medical evaluation of persons receiving disability benefits. However, it does not
currently provide for the non-competitive re-employment of persons whose disability
benefits are stopped due to no longer being eligible for the benefits. The County
Executive would like to amend the Code to pennit the non-competitive re-employment of
certain individuals whose retirement disability benefits have been stopped.
In addition, the Bill provides a definition for position of comparable status which is
currently not defined in the County Code.
We look forward to working with the Council in its deliberations on this legislation.
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Montgo1nery
COll11ty
Career
Fire Fighters Association
lOCAL 1664
q
PUBLIC BEARING
TESTThIO~"Y
OF THE
J\IONTGOMERY COUNTY CAREER FIRE FIGHTERS ASSOCLI\TION, IAFF LOCAL 1664,
AFL-CIO
EXPEDITED Bfi,L 36-16:
E~IPLUYEES'
RETIREMENT SYSTEM - DISABILITY RETIREMENT ­
REDETERl\INATION OF ELIGIBILITY - AMENDMENTS
The Montgomery County Career Fire Fighters Association, IAFF Local 1664, AFL-CIO (hereinafter,
"MCCFFA" or "the Union") is submitting this written testimony to express its opposition at this time to
Expedited Bill 36-16, a bill sponsored by the Council President at the request of the County Executive.
The amendments to the Employees' Retirement System that are contained in the bill pertain to matters that
are clearly mandatory subjects ofbargaining between the County Government employee unions and the
County Executive.
As noted in the explanatory memo from Senior Legislative Attorney Robert Drummer to the Council, the
proposed legislation seeks to amend County Code provisions regarding disability retirement of COlmty
employees in various ways. First, when former employees who retired due to a disability are deemed fit
to return to active employment in their former department, they may receive a non-competitive
appointment to the same position or a position of comparable status within the department that they retired
from. Second, disability retirees who are reappointed in accordance with these criteria would be
permitted to become a member of the retirement plan in which the individual was enrolled when he or she
previously left County employment provided the individual was vested at the time he or she initially
retired. The proposed legislation also defines the term "position of comparable status".
The MCCFFA is not taking a position, currently, on the merits of any of these proposed amendments to
the disability retirement provisions of the County Code.
It
does, however, urge the Council members to
preclude the proposed legislation's application to bargaining unit members
since it strikes at the heart of
employees' collective bargaining rights.
Section 33-152(a)(2) of the Code provides that the employer and the employees' certified representative
must bargain collectively with respect to pension and other retirement benefits for active employees. The
phrase "pension and other retirement benefits" is to be interpreted broadly, and covers the issues
addressed in Expedited Bill 36-16. By establishing via legislation conditions upon which disability
retirement benefits may be discontinued and individuals re-enrolled in retirement plans, the MCCFF A
would then be foreclosed from addressing these important matters at the bargaining table. Such
impediment to bargaining is clearly inconsistent with the Fire
&
Rescue Collective Bargaining Law..
It
may be that the County Executive considers these proposed amendments to the Code as impacting only
individuals who have already retired, and therefore outside the authority granted to MCCFF A (and other
County Government Employee unions) to bargain for active employees only. However, it is clearly
established that the MCCFF A has been granted the right to bargain over pension and other retirement
benefits for
future retirees,
i.e., current active employees who may become eligible for retirement benefits
from the County at a later date. The MCCFF A may bargain over the discontinuance of disability
932 Hungerford Drive, Suite 33A, Rockville, MD 20850-1713 •
Teleph~~~01)
762-6611 • FAX: (301) 762-7390 • Website: www.iafflocaI1664.org
1
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retirement benefits and re-enrollment in retirement plans as these issues are applied to active employees
who later become disabled, just as it may bargain over retirement benefits for active employees who later
leave County service under normal retirement criteria.
The MCCFF A notes that the provisions in the County Executive's proposed legislation concerning non­
competitive re-appointments and re-enrollments in pension plans apply only to employees who became
disabled on or before July 1, 2016.
It
may be that by limiting these amendments to employees who
became disabled on or before this date, the County Executive believes he is not interfering with the
bargaining rights of current employees. However, that is simply not the case. There are fire and rescue
service employees who became disabled from performing the required duties of their assigned position
before
July 1, 2016 yet are still in an active employment status. They are either on disability leave or
assigned to a light duty position. Some of these individuals may subsequently reach "maximum medical
improvement" and be physically unable to return to their former positions, and will then become disability
retirees. As current employees who became disabled on or before July 1, 2016, they would cleady be
impacted by the legislation, if passed, and would not have had any benefit of negotiations between the
MCCFF A and the County Executive on these issues. Thus, it cannot be credibly argued that the County
Executive's proposed legislation does not affect
current
employees.
The MCCFF A has filed a Prohibited Practice Charge with the Fire and Rescue Service Labor Relations
Administrator (LRA) to protect its bargaining rights attendant to these issues. The LRA will issue a
decision that will resolve the Union's claim that bargaining on these matters as to current employees is
required, and that the proposed legislation, as drafted, forecloses bargaining.
'Ve respectfully request the
County Council to defer further hearings and any action on this legislation until after the issue of
mandatory bargaining over the subject matter is resolved by the Labor Relations Administrator.
Submitted by: Jeffrey BuddIe, President
MCCFF A - IAFF local 1664
2
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Page 1 of3
Email Viewer
Message
I
L9=-~~~~J
Att~chments
I
Headers
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Source
I.
HTML
From: "Tcooke35" <tcooke35@verizon.net>
Date:
911312016
1:29:47 PM
To: "county .council@montgomerycountymd.gov" <county .council@montgomerycountymd.gov>
Cc:
Subject: FOP Testimony For Bill 36-16
PUBLIC HEARING TESTIMONY OF THE
FRATERNAL ORDER OF POLICE MONTGOMERY COUNTY, LODGE 35
EXPEDITED BILL 36-16: EMPLOYEES' RETIREMENT SYSTEM DISABILITY
RETIREMENT - REDETERMNATION OF ELIGIBILITY AMENDMENTS
The Fraternal Order of Police, Montgomery County Lodge 35, is submitting this written testimony
in opposition to Expedited Bill 36-16, a bill requested by the County Executive and submitted by
the County Council President. This bill impacts not only those currently retired, it also intrudes on
the rights provided under Collective Bargaining Agreements of both current employees and
retirees. The subject matter contained in the bill falls within the Executive's obligation to bargain.
The Executive's actions
in
proposing legislation affecting retirement benefits impact established
rights as well as his obligations to bargain under the PLRA. Section 33-80(a) expressly requires
that the "Employer," defined elsewhere
in
the law as the "county executive and the Executive's
designees," must bargain with the Union over, among other matters, pension and retirement
benefits for active employees. There are provisions for disability retirement Group F employees
(police officers) that, by the terms of bill 36-16, will also not only limited the bill to current
retirees as of July 1,2016, it also includes active employees. With the contained ambiguities, the
County Executive makes the claim that the legislation only applies to current disability retirees,
while plainly other provisions within the bill states to have application to future retirees and, thus,
to current employees.
Legislative Attorney Robert Drummer, in his summary to the Council, states the proposed
legislation seeks to amend County Code provisions regarding disability retirement of County
employees in various ways. First, when former employees who retired due to a disability are
deemed fit to return to active employment in their former department, they may receive a non­
competitive appointment to the same position or a position of comparable status within the
department that they retired from. Second, disability retirees who are reappointed
in
accordance
with these criteria would be permitted to become a member of the retirement plan in which the
individual was enrolled when he or she previously left County employment provided the
individual was vested at the time he or she initially retired. The proposed legislation also defines
the term "position of comparable status." The very nature of
Mr.
Drummer's explanation
embodies the intent of the PLRA (Section 33-80(a) (2) pension and retirement benefits) which
ht+nC'·I!TY\l'lvmnl'.iltnti ltnhndp.nll1.com/countv council/view eml 2.aspx?rid=5114424&oid...
9/15/2016
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Page 2 of3
provides that the employer and the employees' certified representative must bargain collectively
with respect to pension and other retirement benefits for active employees (Future Retirees). Bill
36-16 would establish non-bargained unspecified conditions by which the Employer may
terminate disability retirement benefits and force individuals to be reemployed and re-enrolled in
retirement plans at the county's pleasure. FOP Lodge 35 would then be forestalled from
addressing at the table important matters that impact its members and are subject to bargaining.
An
obstruction in this manner is not consistent with the collective bargaining laws for either, IAFF,
FOP, or MCGEO.
The County Executives representatives did not inform the Council of the FOP's bargained
provision for retaining disabled officers. Through collective bargaining, FOP Lodge 35 worked to
keep disabled officers employed and working within their capacity. The FOP negotiated a contract
provision to allow disabled/injured police officers to perform police functions within their
capabilities through non-competitive placement as an alternative to disability retirement (The
County has complained of the number of chronically disabled working police officers, sought and
obtained a contract amendment requiring a reopener should the number of chronically
incapacitated officers exceed 1.5% of the bargaining unit). Officers who have reached maximum
medical improvement may be accommodated by assigning them to duties within their capacity and
within the bargaining unit.
Additionally, the impact on retirees will be severe considering that most have moved on with their
life and family goals. Some have transitioned to other states to lessen the impact of the lost income
or to provide better opportunities for a spouse who has to bear the extra burden. The impacted
individual would have their retirement benefit terminated, and then be subject to taking ajob
outside of the profession for which they originally applied. There is no job comparison to a police
officer. This bill creates an undue burden for the retiree by forcing them to accept the position the
county dictates. In the case of a retiree of FOP Lodge 35 (police department), that individual was a
police officer which have strict requirements. Furthermore, the county must be aware that injured
officers, especially catastrophically injured individuals, receive compensation from the Workers'
Compensation Commission. Should this bill be passed, the county is not excused from its
obligation to individuals who forfeited compensation for their injury when they went out on
disability retirement. Bill 36-16 is regressive and stands to increase employee cost for the county
government.
In the most recent contract negotiations, the County Executive submitted proposals to bargain over
the discontinuance of disability retirement benefits and re-enrollment in retirement plans as it
applied to active employees who might later become disabled. The County Executive is aware that
pursuant to Section 33-80 of the Montgomery County Code, FOP Lodge 35 has the right to
bargain over pension and other retirement benefits for future retirees, those active employees who
become eligible for benefits from the County at a later time.
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9115/2016
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Page 3 of3
The County Executive has bargained with the FOP a provision that allows for the continued
employment of disabled officers. The county Executive can retain disabled officers by allowing
them to work within their capabilities through non-competitive placement as an alternative to
disability retirement. This agreement has been
in
existence for more than a decade.
FOP Lodge 35 has filed a Prohibited Practice Charge with the Police Labor Relations
Administrator to protect its bargaining rights as they apply to this issue. FOP Lodge 35 requests
the County Council defer further hearings and any action on this legislation to allow the matter to
be bargained as negotiations for the next collective bargaining agreement begin in November of
this year.
Torrie Cooke
President
Montgomery County FOP, Lodge 35
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LAW OFFICES
WOODLEY
&
MCGILLIVARY
SUITE 1000
LLP
1101 VERMONT AVENUE, N.W.
THOMAS A. WOODLEY
GREGORY K. McGILLIVARY
DOUGLAS L. STEELE
MOLLY A. ELKIN
BALDWIN ROBERTSON
DAVID RICKSECKER
MEGAN K. MECHAK
SARA L. FAULMAN
DIANA
J.
NOBILE
REID COPLOFF
MICHAEL R. WILLATS
DONNA K. McKINNON
WILLIAM W. LI
WASHINGTON, D.C. 20005
TELEPHONE: (202) B33·B855
FAX: (202) 452·1090
E-MAIL: INFO@WMLABORLAW.COM
EDWARD
J.
HICKEY,
JR.
(1912·2000)
August 25, 2016
VIA ELECTRONIC MAIL TO
HOlVlERLARUE641@GMAIL.COM
AND
OVERNIGHT MAIL
Homer C. LaRue
Labor Relations Administrator
Montgomery County
5430 Lynx Lane
Suite 339
Columbia, MD 21044
Re:
Prohibited Practice Charge by the Montgomery County Career Fire Fighters
Association, International Association of Fire Fighters, Local 1664, AFL-CIO, CLC
-- County's Failure to Bargain in Good Faith Regarding Changes to Disability
Retirement
Dear Administrator LaRue:
Pursuant to Section 33-154 of the Montgomery County Code, the Montgomery County Career
Fire Fighters Association, International Association of Fire Fighters, Local 1664, AFL-CIO, CLC
("Union"), respectfully submits for your review and consideration the enclosed prohibited practice
charge concerning the County's failure to bargain
in
good faith regarding changes it has proposed to
employees' disability retirement.
As set forth in the attached charge, the Union requests expedited hearing
in
advance of the
County Council's consideration of the
draft
legislation, which is scheduled to occur on September 13,
2016.
To schedule the haring, or
if
you require additional information, please do not hesitate to contact
me by telephone at (202) 833-8855, facsimile at (202) 452-1090, or electronic mail at
mkm@wmlaborlaw.com.
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Homer LaRue
August 25,2016
Page 2 of2
Sincerely,
WOODLEY
&
McGILLIVARY LLP
'u
~J'~ ~.
L/h-U
Gfz
o.!c
Megan K. Jlchalc
Enclosures
cc:
The Honorable Isiah Leggett, Montgomery County Executive (via e-mail and first class mail)
Shawn Stokes, Director, Montgomery County Office of Human Resources (via e-mail and first
class mail)
Linda
A.
Herman, Executive Director, Montgomery County Employee Retirement Plans (via e­
mail and first class mail)
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CHARGE OF PROHIBITED PRACTICE
TO THE
LABOR RELATIONS ADMINISTRATOR
MONTGOMERYCOUNTY,MARYLAND
EXPEDITED HEARING REQUESTED
THE UNION RESPECTFULLY REQUESTS AN EXPEDITED HEARING ON THIS
PROHIBITED PRACTICE CHARGE FOR THE REASONS SET FORTH BELOW.
NOTE
A written Charge of a prohibited practice by an individual must be filed with the
Labor Relations Administrator within six (6) months of the incident giving rise to the
charge, or within six (6) months of the date upon which the charging party knew or
should have known of the matter that is the subject of the charge. (Article 33-154(f) of
the Montgomery County Govenirnent Fire and Rescue Collective Bargaining Law.).
1.
Charging Party.
Montgomery County Career Fire Fighters Association, International Association of Fire
Fighters Local 1664, AFL-CIO, CLC
932 Hungerford Drive, Suite 33A
Rockville, Maryland 20850-1713
(301) 762-6611 (telephone)
2.
Charged Parties.
The Honorable Isiah Leggett, County Executive
Montgomery County, Maryland
101
Monroe Street, 2nd Floor
Rockville, Maryland 20850
240-777 -2500
ike .leggett@montgomerycountymd. gOV
Shawn Stokes, Director
Montgomery County Office of Human Resources
10 1 Monroe Street, 7th Floor
Rockville, Maryland 20850
240-777 -5010
shawn.stokes@montgomeryccuntymd.gov
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Linda A. Herman, Executive Director
Montgomery County Employee Retirement Plans
101 Monroe Street, 15th Floor
Rockville, Maryland 20850
240-777 -8224
linda.hermall@montgomerycountymd.gov
3.
Statement of the Charges.
Sections ofthe Montgomery County Government Fire and Rescue Collective Bargaining
Law violated:
Section 33-147
Section 33-152(a)(2)
Section 33-154(a)(5)
Statement ofFacts Constituting Prohibited Practice:
Montgomery County Career Fire Fighters Association, International Association
of Fire Fighters, Local 1664, AFL-CIO, CLC (the "Union") is the sole and exclusive
bargaining agent of the employees in the Montgomery County Fire and Rescue Services
who are in the classification of: Fire FighterlRescuer I, Fire FighterlRescuer II, Fire
FighterlRescuer
ill,
Master Fire Fighter/Rescuer, FirelRescue Lieutenant, Fire/Rescue
Captain and who are associated with fire suppression, fire protection, fire
communications, fire service training, rescue and emergency medical services, fire
investigation, fire code enforcement.
On July 22, 2016, via electronic mail, the Montgomery County Government
informed Union President Jeffrey BuddIe that it planned to submit. draft legislation
amending Montgomery County Code Sections 33-37, 33-38A, and 33-43. A copy ofthis
correspondence is attached hereto as
Exhibit
1.
These sections concern employee
pensions, specifically, how employees who are retired on disability but later found fit for
duty will be treated.
On July 27, 2016, the Union submitted a demand to bargain to Charged Party
Leggett. A copy of the demand to bargain is attached hereto as
Exhibit 2.
To date, Respondents have not bargained with the Union over the proposed
changes to employment conditions. Instead of negotiating with the Union, the County
ignored its request and, on July 29,2016, submitted the draft legislation to the County
Council for consideration, which will occur on September 13,2016. A copy of the
memorandum submitting this draft legislation to the County Council is attached hereto as
Exhibit 3.
Because the County has already submitted the draft legislation to the Montgomery
County Council, and because the Union will suffer irreparable harm if its rights are not
2
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remedi.ed prior to any further consideration of this issue by the Council, the Union
respectfully requests an expedited hearing on this Charge, with expedited briefmg
scheduled to occur prior to the hearing.
4.
Relief Requested.
The Union seeks an Order:
I)
declaring that Respondents have committed a prohibited practice by failing to
bargain with the Union regarding changes to Montgomery Code Sections 33­
37, 33-38A, and 33-43, which will impact current employees' pensions;
directing Respondents to cease and desist their unlawful conduct immediately,
including but not limited to ordering Respondents to negotiate with the Union
regarding changes to employee working conditions;
awarding the Union appropriate injunctive and affirmative relief, including
payment of all costs, fees and expenses incurred as a result of Respondents'
prohibited practices and any and all other legal or equitable relief deemed
appropriate.
Supporting Documents.
2)
3)
5.
Supporting documents are attached hereto. Should the Administrator need further
documentation, upon request and during your investigation of this matter, the Union will
gladly provide such requested documentation.
Dated: August 25,2016
Respectfully Submitted,
/s/ Megan K. Mechak
Megan
K.
Mechak
WOODLEY
&
McGILLIVARY LLP
1101 Vermont Avenue, N.W.,
Suite 1000
Washington, DC 20005
Telephone: (202) 833-8855
Facsimile: (202) 452-1090
mkm@wrnlaborlaw.com
Counsel for Charging Party
3
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CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of August, 2016, the above Prohibited
Practice Charge by the Montgomery County Career Fire Fighters Association,
International Association of Fire Fighters, Local 1664, AFL-CIO, CLC has been
delivered electronically upon the following Charged Parties:
The Honorable Isiah Leggett, County Executive
Montgomery County, Maryland
101 Monroe Street, 2nd Floor
Rockville, Maryland 20850
240-777 -2500
ike.leggett@montgomerycountymd.gov
Shawn Stokes, Director
Montgomery County Office of Human Resources
101 Monroe Street, 7th Floor
Rockville, Maryland 20850
240-777 -5010
shawn.stokes@montgomerycountymd.gov
Linda A. Herman, Executive Director
Montgomery County Employee Retirement Plans
101 Monroe Street, 15th FIQor
Rockville, Maryland 20850 '
240-777 -8224
linda.herman@montgomerycountymd.gov
/s/ Megan
K.
Mechak
Megan K. Mechak
WOODLEY
&
McGILLIVARY LLP
1101 Vermont Avenue, N.W., Suite 1000
Washington, D.C. 20005
mkm@wrn1aborlaw.com
4
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...
_ ... _ •• _. _ _
._~.:..:.
... _.____.:... _ _ _ ---=-..:_ _ _ .,;.:-_ . ..:..::...._ _...:.._ • • • • •___
0..:...________
•• _ .••• __ ... _--'-'
~
... _
• __
Isiah
Leggett
County Executive
Marc
P. Hansen
County Attorney
OFFICE OF THE COUNTY ATTORNEY
September 8, 2016
BY EMAIL (RESPONSE LETTER ONLY) AND OVERNIGHT MAIL
Homer LaRue
Labor Relations Administrator
5305 Village Center Drive, Suite 339
Columbia, Maryland 21044
homerlarue641@gmail.com
Re:
International Association of Fire Fighters Loca11664 and Montgomery County,
Maryland
Prohibited Practice Charge: Proposed Unilateral Change Regarding Disability
Retirement
Dear Administrator LaRue:
-
.
.
As the representative of record for Montgomery County, Maryland (the "Employer" or
the "County"), the Charged Party in this matter, I am presenting the County's Response to the
Charge of Prohibited Practice filed on behalf of International Association of Fire Fighters Local
1664 ("IAFF" or the "Union") by Megan
K.
Mechak, Esquire,
in
a letter to you dated August 25,
2016.
In
its charge of prohibited practice, the Union alleges the following:
To date, Respondents have not bargained with the Union over the proposed
changes to employment conditions. Instead of negotiating
with
the Union, the
County ignored its request and, on July 29, 2016, submitted
the
draft
legislation to
the County Council for consideration, which will occur on September 13,2016...
The County denies the allegations set forth by IAFF
in
that, for the reasons.discussed
below, the County is not obligated to negotiate proposed legislation contained
in
Montgomery
County Expedited Bill 36-16
(see
attached Exhibit "A"), because IAFF lacks standing to raise
the Prohibited Practice Charge, and because the right to
hire
and select employees, and classify
positions are Employer's Rights recognized by Montgomery County Code ("MCC")
§
33-152(b)
and Article 5 of the Collective Bargaining Agreement.
BACKGROUND
On August 2, 2016, Montgomery County Council President Nancy Floreen introduced
101 Monroe Street, Third Floor, Rockville, Maryland 20850
(240) 777-6749. TID (240) 177-2545. FAX (240) 777-6705.
edward.haenftling@montgomerycountymd.gov
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Expedited Bil136-16 (the "Bill") to address situations
in
which disability retirees under MCC
§
33-43 are no longer medically eligible for the disability retirement benefit. The purpose ofthe
Bill is to create a Non-Competitive hiring and selection procedure for those retirees that became
disabled prior to July 1, 2016 and meet specific criteria. The Bill also provides a definition for
the term "position of comparable status." The Bill does not alter any of the disability retirement
.benefits available
to
employees under MCC
§
33-43 and does not affect any current County
employees or bargaining unit members.
DISCUSSION
MCC
§
33-148(4) defines "employee" as:
[A]
fire and rescue employee in the classification of FirelRescue Captain,
Fire/Rescue Lieutenant, Master FirefighterlRescuer, FirefighterlRescuer
ill,
FirefighterlRescuer
II,
and FirefighterlRescuer
I,
but not:
(A)
an
employee in a probationary status;
(B)
an employee in the classification of
District Chief or an equivalent or higher classification; or (C) a
FirelRescue Lieutenant or Captain whose primary assignment is in: (i)
budget;
(li)
internal affairs;
(iii)
labor relations; (iv) human resources; (v)
public infonnation; or (vi) quality assurance.
ld.
Retirees are not included
in
the definition and as such are
not employees.
See
Allied
Chemical
&
Alkali Workers ofAmerica, Local Union No.1
v.
Pittsburgh Plate Glass Co., 404
U.S. 157 (1971).
.
MCC
§
33-148(5) defines "employee organization" as "any organization that admits
employees
to membership 'and that has as a primary purpose the representation of employees in
collective bargaining."
ld.
(Emphasis added).
IAFF does not represent retirees or former employees for the purpose of bargaining.
It
is
clear from the plain language of Bill 36-16 that nothing contained therein affects current
bargaining unit members. Therefore, the County is not obligated
to
negotiate and IAFF lacks
standing to demand to bargain the provisions contained in Bil136-16. See
Allied Chemical, 404
U.S.
at 172.
. Furthennore, the proposed changes in Bill 36-16 specifically relates to the hiring and
selection procedure of persons who are no longer employed with the County. Bill 36-16 does
not address future disabilitY retirement benefits for active employees. Contrary to IAFF's
assertion, the changes
in
no way affect the rights of bargaining unit employees, including
whether or not an employee may retire from County service with disability retirement benefits
should the employee qualify, working conditions, or pension benefits previously granted.
Rather, the Bill focuses on the re-hiring procedure should the retiree no longer qualify for said
benefits.
.
The County has reserved the right to hire and select candidates for employment, classify
positions, as well as "determine the overall organizational structure, methods, processes, means,
2
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. . . . . . • • • ., : _ . :- - -
.:....--:.:...-- .. .:..:......;-- .•
,-.::..:..~-~.....:.:
...••.•
-.-..-:.:...:-..:.~;-
•.: , . : . - - . -
..
....-.:..'- .. -.- ...• -..:-'"-..:..--:.....-...:..-.:.....!.....-- . : ­
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job classifications, and personnel by which operations are conducted," free from collective
bargaining under MCC
§
33-1S2(b).
As
previously stated, Bill 36-16 deals specifically with how
the County will hire and select those former employees that are no longer eligible for disability
retirement benefits. By defining "position of comparable status," the County
has
exercised its
right to classify jobs and determine which position a candidate for employment will
fill.
Requiring the County
to
bargain over Bil136-16 with IAFF would be an impermissible
infringement on the County's Employer Rights.
The fact that the County
has
not discussed potential legislation affecting matters
that
fall
within the scope of its Employer rights does not equate to a prohibited practice. Under MCC
§
33-1S2(c), the County may
voluntarily
"discuss with the representatives of its employees any
matter concerning the employer's exercise of any right specified in
33-152(b)]. However, any
matter so discussed is
not subject to bargaining."
(Emphasis added). The County Code
has,
therefore, carved out an exemption for the County to receive input from IAFF on employer rights
matters, without the requirement to bargain or a waiver of its Employer Rights.
CONCLUSION
For the foregoing reasons, the County requests that the Prohibited Practice Charge filed
by IAFF,
be
dismissed.
Sincerely,
EEH
Enclosures
cc: Megan K. Mechak, Esquire (mkm@wrnlabodaw.com), Response and Exhibit via email only.
3