Sec. 33-8. Administrative responsibilities of the chief administrative officer.

   (a)   The chief administrative officer shall be responsible for the administration and enforcement of the merit system, including any retirement laws, labor relations laws and the personnel regulations. The chief administrative officer may designate a representative to implement any or all of the provisions of law or the personnel regulations. The chief administrative officer and all department heads are responsible for implementing all final decisions of the merit system protection board made after grievance appeals, although the chief administrative officer shall have the right to appeal any such decision in accordance with procedures recited elsewhere in this article. The chief administrative officer shall ensure that all supervisors receive continual orientation and training about the intent purpose and principles of the merit system and shall ensure that all supervisors implement the objectives of this article.

   (b)   The chief administrative officer shall formulate administrative procedures to implement requirements of the merit system law and personnel regulations after providing reasonable public notice and opportunity for comment. These administrative procedures shall be distributed in a manner to make them accessible to all employees. (1979 L.M.C., ch. 24, § 2; 1982 L.M.C., ch. 40, § 5.)

   Editor’s note—Section 33-8 is cited in Montgomery County, Maryland v. Jamsa, 153 Md. App. 346, 836 A.2d 745 (2003).

   See County Attorney Opinion dated 12/17/08 discussing the authority and role of the Merit System Protection Board and the role of the County Attorney as legal advisor.

Sec. 33-9. Equal employment opportunity and affirmative action.

   (a)    Policy. Except as provided in Section 33-7(d), the County must take all personnel actions on the basis of merit and fitness without regard to political affiliation or non-merit factors, and without regard to other factors as may be provided for in chapter 27, “Human Relations and Civil Liberties,” such as sex, marital status, race, religion, national origin, age or disability. The Chief Administrative Officer must initiate, develop, and maintain an equal employment opportunity and affirmative action program necessary to ensure that all persons have an equal opportunity to enter and progress in the County's service on the basis of open competition and demonstrated ability. The County Executive may adopt regulations, under method (1), to implement this policy. Such regulations must provide that an employee whose personal religious beliefs require the abstention from work during certain periods of time may elect to engage in an alternate work schedule in order to meet those religious requirements. The regulations must require an employee who elects to work an alternate schedule to work an equal period of time to that taken off for such religious reasons.

   (b)   Conciliation. The chief administrative officer is authorized to engage in consultation and conciliation efforts with agencies responsible for enforcement of equal employment opportunity laws with the objective of resolving complaints and to execute binding agreements with these agencies; provided, however, that these conciliation efforts shall not be deemed to abate the procedures or requirements as recited in chapter 27. Should the complaint be determined to be a matter not properly within the jurisdiction of an equal employment opportunity enforcement agency, the complaint, as filed, shall be treated as a grievance and processed under the appropriate procedures established for grievances.

   (c)   Appeals by applicants. Any applicant for employment or promotion to a merit system position may appeal decisions of the chief administrative officer with respect to their application for appointment or promotion. Appeals alleging discrimination prohibited by chapter 27, "Human Relations and Civil Liberties," of this Code, may be filed in the manner prescribed therein. Appeals alleging that the decisions of the chief administrative officer were arbitrary and capricious, illegal, based on political affiliation, failure to follow announced examination and scoring procedures, or nonmerit factors, may be filed directly with the merit system protection board. Appeals filed with the merit system protection board shall be considered pursuant to procedures adopted by the board. The board may order such relief as is provided by law or regulation. (1979 L.M.C., ch. 24, § 2; 1979 L.M.C., ch. 52, § 3; 1982 L.M.C., ch. 40, § 5; 1984 L.M.C., ch. 24, § 39; 2010 L.M.C., ch. 2, § 1.)

   Editor's note-This section was cited in Andre v. Montgomery County Personnel Board, 37 Md. App. 48, 373 A.2d 1149 (1977), where it was held that there was no denial of due process which would justify the award of monetary damages to a person who, along with others, was denied a promotion when the County failed to follow established promotion procedures, as the procedures are not a guarantee of a promotion.

Sec. 33-10. Disclosure of illegal or improper actions in County government; protection for merit system employees against retaliation or coercion; appeals.

   (a)    Disclosure of illegal or improper actions.

      (1)   Employees should report illegal or improper actions in County government.

      (2)   Employees should first report illegal or improper actions to the individual responsible for corrective action. That person may be anyone from the employee's immediate supervisor to the County Executive, or for legislative branch employees, the County Council.

   (b)    Protection for employees.

      (1)   A personnel action is an act or omission by a supervisor which has a significant adverse impact on the employee, or a change in the employee’s duties or responsibilities which is inconsistent with the employee’s grade and salary. A personnel action does not include an act or omission by a supervisor that is not subject to review by the Merit Systems Protection Board under Section 33-12.

      (2)   A merit system employee must not be subjected to a personnel action in retaliation for:

         (A)   refusing to obey an instruction involving an illegal or improper action; or

         (B)   disclosing, to a Federal, State or County official or employee, information concerning illegal or improper action in County government with a reasonable good-faith belief that the information disclosed is accurate.

      (3)   This subsection does not protect a merit system employee if the:

         (A)   employee's actions were frivolous, unreasonable, and without foundation, even though not brought in bad faith;

         (B)   employee, without good cause, did not comply with applicable regulations concerning the making of such disclosures; or

         (C)   employee was the subject of an otherwise proper personnel action that would have been taken regardless of the employee’s disclosure of information concerning illegal or improper action in County government.

   (c)    Appeal. A merit system employee who alleges that he or she was subject to a retaliatory personnel action in violation of subsection (b) may appeal to the Merit System Protection Board under Section 33-12.

   (d)    Decision. The Board must issue a written decision, including necessary findings of fact and conclusions of law, and may order any remedy authorized by Section 33-14. (1979 L.M.C., ch. 24, § 2; 1982 L.M.C., ch. 40, § 5; 1990 L.M.C., ch. 21, § 4; 2010 L.M.C., ch. 8, § 1.)

   Editor's note-In Waller v. Montgomery County, 36 Md. App. 326, 373 A.2d 971 (1977), it was held that a person cannot sue alleging he had been discharged without due process unless he had exhausted his administrative remedies (citing former §§ 33-23(e), (h), and 33-25).

   See County Attorney Opinion dated 12/17/08 discussing the authority and role of the Merit System Protection Board and the role of the County Attorney as legal advisor. See County Attorney Opinion dated 12/19/01 explaining that quasi-judicial agencies generally do not have standing to participate in appeals from the agency’s decisions, but may have an interest in certain circumstances.

Sec. 33-11. Classification; salary and wage plans.

   (a)   Classification.

      (1)   The Chief Administrative Officer must apply the classification standards in this Chapter and the Personnel Regulations to:

         (A)   establish and abolish occupational classes as necessary for effective and economical operation of the County government;

         (B)   assign all positions in the merit system to proper classes;

         (C)   assign pay grades to classes; and

         (D)   establish a procedure for the administrative review of an employee’s objection to an assignment action that downgrades the employee's position.

The Board must have a reasonable opportunity to review and comment on any proposed new classes except new classes proposed for the Management Leadership Service under paragraph (2).

      (2)   The CAO may establish by amendment to the Personnel Regulations under method (1) a Management Leadership Service (MLS) to ensure that the senior management of the County government is responsive to the needs, policies, and goals of the County and is the highest quality possible. The MLS must:

         (A)   be established within the Merit System;

         (B)   provide a compensation system designed to attract and retain highly competent senior managers and compensate employees on the basis of individual and organizational performance (including success in improving efficiency, productivity, quality of work or service, cost efficiency, and timeliness and complying with anti-discrimination and equal employment opportunity requirements);

         (C)   ensure that senior managers are accountable and responsible for the effectiveness and productivity of the employees they supervise;

         (D)   ensure accountability for honest, economical, and efficient government;

         (E)   recognize exceptional accomplishment;

         (F)   enable the CAO reasonably to reassign senior managers to promote the mission and goals of the County government;

         (G)   protect senior managers from arbitrary and capricious actions and maintain a Merit System free of prohibited personnel practices;

         (H)   ensure compliance with applicable personnel laws, including those related to equal employment opportunity, political activity, and conflicts of interest;

         (I)   enhance the management and leadership skills of highly competent senior managers through professional development; and

         (J)   appoint career managers to fill MLS positions to the extent practical, consistent with the effective and efficient implementation of agency policies and responsibilities.

      (3)   The CAO may establish by amendment to the Personnel Regulations under method (1) a Police Leadership Service (PLS) to ensure that the senior management of the Department of Police is responsive to the needs, policies, and goals of the County and is the highest quality possible. The PLS must:

         (A)   be established within the Merit System;

         (B)   include only lieutenants and captains in the Department of Police;

         (C)   provide a compensation system designed to attract and retain highly competent senior police managers and compensate lieutenants and captains on the basis of individual and organizational performance (including success in improving efficiency, productivity, quality of work or service, cost efficiency, and timeliness and complying with anti-discrimination and equal employment opportunity requirements);

         (D)   ensure that senior police managers are accountable and responsible for the effectiveness and productivity of the employees they supervise;

         (E)   ensure accountability for honest, economical, and efficient police service;

         (F)   recognize exceptional accomplishment;

         (G)   enable the Police Chief reasonably to reassign senior police managers to promote the mission and goals of the Department of Police;

         (H)   protect senior police managers from arbitrary and capricious actions and maintain a Merit System free of prohibited personnel practices;

         (I)   ensure compliance with applicable personnel laws, including those related to equal employment opportunity, political activity, and conflicts of interest;

         (J)   enhance the management and leadership skills of highly competent senior police managers through professional development; and

         (K)   appoint career police managers to fill PLS positions to the extent practical, consistent with the effective and efficient implementation of Department of Police policies and responsibilities.

      (4)   The CAO must determine by written finding that a reclassification is necessary for the efficient and effective operation of County government before approving an upward reclassification of a position between July 1 and December 31 of any year in which the County Executive is elected.

   (b)   Uniform salary plan.

      (1)   The uniform salary plan consists of:

         (A)   salary schedules for employees represented by certified employee organizations;

         (B)   a minimum wage/seasonal salary schedule;

         (C)   a salary schedule for sworn police managers and positions included in the Police Leadership Service;

         (D)   a salary schedule for uniformed fire/rescue managers;

         (E)   a salary schedule for sworn deputy sheriff managers;

         (F)   a salary schedule for uniformed correctional managers;

         (G)   a salary schedule for medical doctors;

         (H)   a salary schedule for employees in positions included in the Management Leadership Service; and

         (I)   a general salary schedule for all other employees.

      (2)   The Chief Administrative Officer may recommend to the County Council amendments to the uniform salary plan.

      (3)   The Council must approve the uniform salary plan and any amendments by resolution.

      (4)   In approving the salary plan or amendments, the Council may consider such factors as:

         (A)   experience;

         (B)   prevailing salary rates for comparable services in both the public and private sectors;

         (C)   County collective bargaining agreements;

         (D)   living costs; and

         (E)   other employee benefits.

      (5)   A salary schedule must include grades and a salary rate or salary range for each grade.

      (6)   The Chief Administrative Officer must assign each occupational class to an appropriate grade under an approved salary schedule.

      (7)   The minimum wage/seasonal salary schedule must identify each occupational class assigned to the salary schedule. The Chief Administrative Officer may assign an occupational class to the minimum wage/seasonal salary schedule only if all employees in the class:

         (A)   are paid the federal minimum wage; or

         (B)   work for the County fewer than:

            (i)   20 regularly scheduled hours per week on a continuing year- round or school-year basis; or

            (ii)   1040 hours in a 12-month period; or

         (C)   are participants in the County's Conservation/Service Corps job training program.

      (8)   The Chief Administrative Officer must base any recommendation to amend the police management salary schedule on:

         (A)   police management salary rates in neighboring jurisdictions;

         (B)   County collective bargaining agreements that establish the pay and benefits of police officers;

         (C)   other pay and benefits available to police management;

         (D)   availability of funds; and

         (E)   any other relevant factors.

      (9)   The Chief Administrative Officer must base any recommendation to amend the fire/rescue management salary schedule on:

         (A)   fire/rescue management salary rates in neighboring jurisdictions;

         (B)   County collective bargaining agreements that establish the pay and benefits of uniformed fire/rescue employees;

         (C)   other pay and benefits available to fire/rescue management;

         (D)   availability of funds; and

         (E)   any other relevant factors.

      (10)   The Chief Administrative Officer must base any recommendation to amend the sworn deputy sheriff management salary schedule on:

         (A)   salary rates of sworn deputy sheriff managers in neighboring jurisdictions;

         (B)   County collective bargaining agreements that establish the pay and benefits of deputy sheriffs;

         (C)   other pay and benefits available to sworn deputy sheriff managers;

         (D)   availability of funds; and

         (E)   any other relevant factors.

      (11)   The Chief Administrative Officer must base any recommendation to amend the uniformed correctional management salary schedule on:

         (A)   salary rates of uniformed correctional managers in neighboring jurisdictions;

         (B)   County collective bargaining agreements that establish the pay and benefits of correctional officers;

         (C)   other pay and benefits available to uniformed correctional managers;

         (D)   availability of funds; and

         (E)   any other relevant factors.

      (12)   The Chief Administrative Officer must base any recommendation to amend the medical doctors’ salary schedule on:

         (A)   salaries of medical doctors employed in the public and private sectors in Montgomery County;

         (B)   salaries of medical doctors employed in the public and private sectors in neighboring jurisdictions;

         (C)   other pay and benefits available to medical doctors;

         (D)   availability of funds; and

         (E)   any other relevant factors.

      (13)   The Chief Administrative Officer must ensure that all occupational classes that require comparable experience and have comparable duties, responsibilities, and authority are paid comparable salaries that reflect the relative value of the services performed, except occupational classes on the salary schedules for:

         (A)   sworn police managers included in the Police Leadership Service;

         (B)   uniformed fire/rescue managers;

         (C)   sworn deputy sheriff managers;

         (D)   uniformed correctional managers;

         (E)   deputy sheriffs in the Office, Professional, and Technical bargaining unit;

         (F)   the police bargaining unit;

         (G)   the fire/rescue bargaining unit;

         (H)   medical doctors;

         (I)   Management Leadership Service; and

         (J)   minimum wage/seasonal employees.

      (14)   The Chief Administrative Officer may recommend compensation policies for overtime, pay differentials, and other salary and wage benefits to the County Council. The County Council must approve any such policy or benefit.

      (15)   Any plan, policy, or schedule approved by the County Council under this subsection is subject to the provisions of this Chapter regarding employees who are represented by a certified employee organization.

   (c)   Salary policies. Employees must be paid on a biweekly basis. Except as expressly provided by federal, state, or County law, the Chief Administrative Officer must determine any applicable payroll deductions and charges for deductions, including state income tax withholding for any state where an employee resides. The Chief Administrative Officer may deduct from an employee’s salary, without written authorization, any amount specified under any automatic enrollment provision of the Deferred Compensation Plan established under Section 33-142 and of a deferred compensation plan established under Section 33-146B to the extent permitted by a collective bargaining agreement if the employee is a member of an applicable bargaining unit. When an employee leaves County employment, any debts the employee owes to the County may be deducted from any unpaid salary, accrued annual or compensatory leave, or retirement contributions due to the employee.

   (d)   Other compensation policies. The chief administrative officer may establish other compensation policies to recognize employees who perform in an extraordinary manner either on a sustained performance basis or in recognition of a specific act or service. These compensation policies may include monetary awards to employees making suggestions which result in better public service, cost savings or more efficient operations. Compensation policies may be in the form of cash awards or be part of the uniform salary plan. (1979 L.M.C., ch. 24, § 2; 1981 L.M.C., ch. 28, § 1; 1986 L.M.C., ch. 70, § 1; 1989 L.M.C., ch. 30, § 1; FY 1991 L.M.C., ch. 4, § 1; FY 1991 L.M.C., ch. 7, § 1; CY 1991 L.M.C., ch. 19, § 1; 1993 L.M.C., ch. 29, § 1; 1994 L.M.C., ch. 5, § 1; 1998 L.M.C., ch. 3, § 1; 1998 L.M.C., ch. 8, § 1; 1999 L.M.C., ch. 15, § 1; 2005 L.M.C., ch. 9, § 1; 2006 L.M.C., ch. 18, § 1; 2008 L.M.C., ch. 21, § 1; 2018 L.M.C., ch. 5, §1.)

   Editor's note—See County Attorney Opinion dated 2/19/97 explaining that the County Executive has the authority to establish a separate salary schedule for non-merit heads of departments and principal offices within the Executive Branch. [attachments] See County Attorney Opinion No. 90.007 dated 7/24/90 explaining that the County Council may amend the uniform salary plan only through legislation and not by resolution.

   Res. No. 9-1649, introduced on December 8, 1981, and adopted on January 19, 1982, deals with pay retention for employees demoted as a result of reduction in force.

   1994 L.M.C., ch. 5, § 2, states: This act takes effect on the date on which it becomes law, except that it does not apply to any employee who objects to a classification assignment action resulting from an individual position study request filed before September 21, 1993.

Sec. 33-12. Appeals of disciplinary actions; grievance procedures.

   (a)   Appeals of certain disciplinary actions. Any merit system employee, excluding those in probationary status, who has been notified of impending removal, demotion or suspension shall be entitled to file an appeal to the board, which shall cause a hearing to be scheduled without undue delay unless the appeal has been settled during administrative review of the appeal by the chief administrative officer or a designee. Any merit system employee who is the subject of other disciplinary action not specified above may file an appeal with the board, but such appeal may or may not require a hearing as the board may determine.

   (b)   Grievances. A grievance is a formal complaint arising out of a misunderstanding or disagreement between a merit system employee and supervisor with reference to a term or condition of employment. The determination of the board as to what constitutes a term or condition of employment shall be final. Grievances do not include the following: Classification allocations, except due process violations; failure to reemploy a probationary employee; or other employment matters for which another forum is available to provide relief or the board determines are not suitable matters for the grievance resolution process. A grievance shall include termination by resignation which is found by the board to have been submitted under circumstances which cause the resignation to be involuntary; in the event of such a finding, the board shall require the appointing authority to substantiate the termination as in the case of a removal. The county executive shall prescribe, in the personnel regulations adopted under method (1) of section 2A-15 of this Code, procedures which seek to secure at the lowest possible level a fair, prompt and mutually satisfactory resolution to a grievance. In providing these procedures, the county executive shall ensure that any grievance based upon an alleged improper application of a merit system law or regulation concerning a disputed issue of fact is entitled to resolution after a fact-finding inquiry authorized by the board. Grievances based upon an alleged improper interpretation of merit system laws or regulations do not require a hearing during the grievance resolution process.

   (c)   Hearing examiners. The board may utilize hearing examiners to conduct grievance investigations and other hearings, authorized under this section, who shall make findings and recommendations subject to objection by the parties and final board approval under such procedures as established by the board. A party to any proceeding which has been assigned to a hearing examiner shall be afforded the opportunity to present an oral argument on the record before the board prior to a final decision. (1979 L.M.C., ch. 24, § 2; 1982 L.M.C., ch. 40, § 5; 1984 L.M.C., ch. 24, § 39; 1984 L.M.C., ch. 27, § 23.)

   Editor's note— Section 33-12 was quoted in Mayer v. Montgomery County, 143 Md. App. 261, 794 A.2d 704 (2002). Section 33-12 was interpreted in Haub v. Montgomery County, 353 Md. 448, 727 A.2d 369 (1999). In Waller v. Montgomery County, 36 Md. App. 326, 373 A.2d 971 (1977), it was held that a person cannot sue alleging he had been discharged without due process unless he had exhausted his administrative remedies.

   See County Attorney Opinion dated 11/12/97 indicating that the Charter permits the use of merit system employees for pilot programs and enterprise programs, but prohibits the use of contract employees for these programs.