Sec. 33-110. Expression of views.

   (a)   The expression or dissemination of any views, argument, or opinion, whether orally, in writing, or otherwise, does not constitute and is not evidence of a prohibited practice under any of the provisions of this article, nor is it grounds for invalidating any election conducted under this article if the expression or dissemination does not contain a threat of reprisal or promise of benefit.

   (b)   Recognizing an employee organization does not preclude the county from dealing with religious, social, fraternal, professional, or other lawful associations with respect to matters or policies that involve individual members of the associations or are of particular applicability to it or its members. (1986 L.M.C., ch. 70, § 3.)

   Editor’s note—Sections 33-75 through 33-85 and Sections 33-101 through 33-112 are cited, and Section 33-80 is quoted, in Fraternal Order of Police Lodge 35 v. Montgomery County, 436 Md. 1, 80 A.3d 686 (2013).

   Section 33-108 is cited and quoted, and Sections 33-109 and 33-110 are cited in Municipal and County Government Employees Organization v. Montgomery County Executive, 210 Md. App. 163, 62 A.3d 265 (2013).

Sec. 33-111. Strikes and lockouts.

   (a)   An employee or employee organization shall not either directly or indirectly cause, instigate, encourage, condone, or engage in any strike, nor the employer in any lockout. An employee or employee organization shall not obstruct, impede, or restrict, either directly or indirectly, any attempt to terminate a strike.

   (b)   The employer shall not pay, reimburse, make whole, or otherwise compensate any employee for or during the period when that employee is directly or indirectly engaged in a strike, nor shall the employer thereafter compensate an employee who struck for wages or benefits lost during the strike.

   (c)   If an employee or employee organization violates this Section, the employer, after adequate notice and a fair hearing before the labor relations administrator who finds that the violations have occurred and that any or all of the following actions are necessary in the public interest, may impose any of the following sanctions, subject to the Law- Enforcement Officers’ Bill of Rights, Title 3, Subtitle 1 of the Public Safety Article of the Maryland Code:

      (1)   Impose disciplinary action, including dismissal from employment, on employees engaged in the conduct.

      (2)   Terminate or suspend the employee organization’s dues deduction privilege, if any.

      (3)   Revoke the certification of and disqualify the employee organization from participation in representation elections for a period up to a maximum of two (2) years.

   (d)   This article does not prohibit an employer or a certified employee organization from seeking any remedy available in a court of competent jurisdiction. (1986 L.M.C., ch. 70, § 3; 2010 L.M.C., ch. 49, § 1.)

   Editor’s note—Sections 33-75 through 33-85 and Sections 33-101 through 33-112 are cited, and Section 33-80 is quoted, in Fraternal Order of Police Lodge 35 v. Montgomery County, 436 Md. 1, 80 A.3d 686 (2013).

Sec. 33-112. Effect of prior enactments.

   (a)   Nothing contained in this article shall be construed to repeal any law, executive order, rule, or regulation adopted by the county or any of its departments or agencies that is not inconsistent with the provisions of this article.

   (b)   Any executive order, rule, or regulation of the county or any of its departments or agencies that regulates any subject that is bargainable under this article shall not be held to be repealed or modified by a provision of a collective bargaining agreement negotiated under this article except to the extent that the application of the order, rule, or regulation is inconsistent with the provision in the collective bargaining agreement. However, if the inconsistent order, rule, or regulation is subject to and has received council approval, the collective bargaining agreement shall not govern unless the order, rule, or regulation was identified to the council by the parties prior to the council’s ratification of the collective bargaining agreement, as required by section 33-108(g); or unless the order, rule, or regulation is repealed or modified by the council. (1986 L.M.C., ch. 70, § 2.)

   Editor’s note—Sections 33-75 through 33-85 and Sections 33-101 through 33-112 are cited, and Section 33-80 is quoted, in Fraternal Order of Police Lodge 35 v. Montgomery County, 436 Md. 1, 80 A.3d 686 (2013).

Article VIII. Employees' Retirement Savings Plan. [Note]

 

Notes

[Note]

----------    *Editor’s note—2011 L.M.C., ch. 14, §§ 2 and 3, effective July 2, 2012, state in part:    Sec. 2. Implementation. Notwithstanding any other provision of law, including § 33-80(a)(7) and § 33- 107(a)(7), the implementation of any amendment to County Code Chapter 33 in Section 1 of this Act concerning disability retirement is not subject to collective bargaining with a certified representative of employees in any bargaining unit.    Sec. 3. The amendments to County Code Chapter 33 made in Section 1 of this Act apply to any disability occurring on or after the date this Act takes effect [July 1, 2012].    2011 L.M.C., ch. 13, § 4, which is effective October 10, 2011, states:    Collective bargaining.    (a)   It is the policy of Montgomery County that all County employees should have a multi-tier service- connected disability retirement system which includes a:       (1)   partial incapacity service-connected disability retirement benefit for any injury or illness that prevents an employee from continuing in the employee’s current position but does not prevent the employee from engaging in other substantial gainful employment; and       (2)   total incapacity service-connected disability retirement benefit for any injury or illness that prevents an employee from engaging in any other substantial gainful employment.    (b)   It is also the policy of the County that disability benefits are a mandatory subject of collective bargaining with each appropriate certified employee representative.    (c)   Notwithstanding any County law to the contrary, the County Executive may separately negotiate the terms of an appropriate multi-tier service-connected disability retirement system with the certified employee representative for the police bargaining unit and the certified representative for the OPT and SLT bargaining units, in each case not later than March 1, 2012. If in either case the parties are unable to reach agreement on an appropriate multi-tier system, the parties may submit this issue for resolution through the applicable impasse procedures under the County’s police labor relations law and the County collective bargaining law as a separate matter, not part of or linked to any other collective bargaining procedure. The impasse neutral for the police bargaining unit and the mediator/arbitrator for the OPT and SLT bargaining units must choose the final offer of either party after considering equally the following factors:       (1)   service-connected disability retirement systems for similar employees of other public employers in the Washington Metropolitan Area and in Maryland;       (2)   best practices for service-connected disability retirement systems for similar employees in the United States;       (3)   the interest and welfare of the public; and       (4)   the long-term ability of the employer to finance a disability retirement system, and the effect of the cost of the system on the normal standard of public services provided by the employer.    (d)   The Executive must submit the results of any collective bargaining process regarding this issue to the Council for legislative action not later than April 1, 2012.

Division 1. Retirement Savings Plan.

Sec. 33-113. Definitions.

   In this Division the following words and phrases have the following meanings:

   Account balances means the balance credited to the retirement account of a participant under the retirement savings plan as of the valuation date preceding the date of distribution determined without regard to vesting, including:

      (1)   any participant contributions (including contributions picked up by the County);

      (2)   County contributions; and

      (3)   rollover contributions.

   Board or Board of Investment Trustees means the Board of Investment Trustees established under Article III.

   County means the Montgomery County Government and, when applicable, any participating agency.

   County service means any period of County employment during which a participant is:

      (1)    in pay status, or

      (2)   on an approved leave of absence without pay on or after January 1, 2002.

   Domestic partner means a person who was registered as the domestic partner of a participant with the Office of Human Resources on or before June 27, 2016 in a domestic partenrship that did not end before the participant’s death.

   Employee means any eligible elected or appointed County official and any full-time or career part-time County employee.

   Employee organization means any organization that:

      (1)   admits employees to membership;

      (2)   has as a primary purpose the representation of employees in collective bargaining; and

      (3)   is certified as an employee organization under applicable law.

   Former participant means any individual with an account balance in the retirement savings plan who has ceased to be a participant.

   Investment manager means a person or entity who exercises discretion to manage all or part of the assets of an institutional investor. The investment manager is a fiduciary as defined in Section 33-35.

   Merit System Protection Board means the Merit System Protection Board established in the Charter.

   Non-public safety employee means any employee who is not a public safety employee.

   Normal retirement date means the first day of the month after the month in which the participant reaches age 62.

   Participant means an employee who is participating in the retirement savings plan.

   Participant’s contribution account means the portion of a participant’s account balances in the retirement savings plan that is attributable to participant contributions, including contributions picked up by the County, and any gains or losses attributable to those contributions.

   Plan year means the 12-month period beginning January 1 and ending on December 31 each year.

   Public safety employee means any employee who is a:

      (1)   sworn officer of the Police Department;

      (2)   paid firefighter, paid fire officer, or paid rescue service worker of the Montgomery County Fire and Rescue Service;

      (3)   sworn deputy sheriff;

      (4)   correctional officer; or

      (5)   County employee who provides services to a correctional facility and designated as a public safety employee by the Chief Administrative Officer.

   Regular earnings means gross pay for actual hours worked, including paid leave, but not including overtime, without reduction for participant contributions that are picked up under Section 33-116(a), or contributions to any County deferred compensation plan or statutory fringe benefit program. If a participant is required to take any furlough, as defined in personnel regulations under Section 33-7(b) or a collective bargaining agreement, regular earnings must include any amount the participant would have received if the participant had not been required to take any furlough.

   Retirement accounts means the required participant contributions account, a County contributions account, and any rollover contributions account.

   Rollover contributions means that portion of a participant's account balances in the retirement savings plan that is attributable to any assets transferred or rolled over to the retirement savings plan from another eligible retirement plan as defined in the Internal Revenue Code Section 402(c). No after-tax contributions may be transferred or rolled over into the retirement savings plan.

   Valuation date means the last business day of March, June, September, and December of each plan year, and any other date the Board establishes in a uniform and nondiscriminatory manner for determining the fair market value of the assets of the retirement savings plan. (1994 L.M.C., ch. 13, § 2; 2003 L.M.C., ch. 3, § 1; 2006 L.M.C., ch. 20, § 1; 2007 L.M.C., ch. 19, § 1; 2009 L.M.C., ch. 23, § 1; 2010 L.M.C., ch 21, § 1; 2010 L.M.C., ch. 45, § 1; 2010 L.M.C., ch. 56, § 1; 2017 L.M.C., ch. 29, §1.)

   Editor's note—2003, ch. 3, § 2, states: Rule of Interpretation. The amendments made by Section 1 of this Act must be interpreted to comply with requirements stated in letters issued on December 11, 2002, and January 14, 2003, by the Internal Revenue Service to the County regarding the continued qualification of County employee retirement plans. 2003, ch. 3, § 3, states, in part: (g) The amendments made by Section 1 of this Act to Code Section 33-113(d) take effect July 1, 2002.

Sec. 33-114. Establishment.

   (a)   Purpose. The retirement savings plan is established to provide a defined contribution retirement plan for County employees.

   (b)   Participating agencies.

      (1)   Any agency that participates in the retirement system under Article III must also participate in the retirement savings plan.

      (2)   A participating agency must:

         (A)   execute an adoption agreement in a form satisfactory to the Chief Administrative Officer;

         (B)   submit any information and execute any form or document that the Chief Administrative Officer deems prudent for purposes of maintaining the governmental or qualified plan status of the retirement savings plan within the meaning of the Internal Revenue Code; and

         (C)   notify the Chief Administrative Officer, in writing, of its intent to adopt an employee benefit plan before adopting any benefit plan which has an impact on the computation of any benefit or any benefit limitation in the retirement savings plan.

      (3)   The Chief Administrative Officer may treat a participating agency as having withdrawn from the retirement savings plan if the participating agency does not:

         (A)   submit information or execute documents necessary to administer and maintain the plan as requested by the Chief Administrative Officer;

         (B)   qualify as a participating agency; or

         (C)   adhere to the terms of the plan.

      (4)   No liability will accrue to the County Government by the inclusion of participating agency employees. Each participating agency must be fully responsible for the cost of coverage for its employees and any necessary costs for administrative services provided.

   (c)   Uniformed Services Employment and Reemployment Rights Act. Notwithstanding any provision of a plan, the County must provide rights, contributions, benefits and service credit for qualified military service according to Section 414(u) of the Internal Revenue Code, including subsection 414(u)(12). (1994 L.M.C., ch. 13, § 2; 2003 L.M.C., ch. 3, § 1; 2017 L.M.C., ch. 7, §1.)

   Editor's note—2003, ch. 3, § 2, states: Rule of Interpretation. The amendments made by Section 1 of this Act must be interpreted to comply with requirements stated in letters issued on December 11, 2002, and January 14, 2003, by the Internal Revenue Service to the County regarding the continued qualification of County employee retirement plans. 2003, ch. 3, § 3, states, in part: (h) The amendment made by Section 1 of this Act to Code Section 33-114 takes effect December 12, 1994.

Sec. 33-115. Participant requirements and participant groups.

   (a)    Participant requirements.

      (1)   Full-time employees.

         (A)   Except as provided in paragraphs (3) and (4), and the last sentence of Section 33-37(e)(2), a full-time employee eligible for membership in Group I or Group II must participate in the Retirement Savings Plan or the Guaranteed Retirement Income Plan when the full-time employee meets the applicable eligibility requirements or forfeit employment, unless the Chief Administrative Officer exempts the employee from participation.

         (B)   A part-time employee who becomes a full-time employee and is not an active member of any retirement plan for County employees, must become a member of:

            (i)   the integrated retirement plan, if the employee is eligible for membership in the integrated plan;

            (ii)   the Retirement Savings Plan, if the employee qualifies for Group I or II, even if the employee did not begin or return to County service on or after October 1, 1994; or

            (iii)   the guaranteed retirement income plan if the employee is eligible for membership in accordance with subsection (7).

         (C)   A temporary employee who becomes a full-time employee must become an active member of:

            (i)   the integrated plan, if the employee is eligible for membership in the integrated plan;

            (ii)   the Retirement Savings Plan, if the employee satisfies the requirements for membership in Group I or II, even if the employee did not begin or return to County service on or after October 1, 1994; or

            (iii)   the guaranteed retirement income plan if the employee is eligible for membership in the guaranteed retirement income plan.

      (2)   Part-time employees.

         (A)   A part-time employee eligible for membership in Group I or Group II may elect to participate in the plan. An employee who becomes a member of the Retirement Savings Plan must remain an active member until the employee becomes ineligible for membership in Group I or II.

         (B)   A part-time employee who is not an active member of a retirement plan may become a member of:

            (i)   the integrated plan, if the employee is eligible for membership in the integrated plan;

            (ii)   the Retirement Savings Plan if the employee satisfies the requirements for membership in Group I or II, even if the employee did not begin or return to County service on or after October 1, 1994; or

            (iii)   the guaranteed retirement income plan if the employee is eligible for membership and makes an election under subsection (7).

         (C)   A full-time employee who becomes a part-time employee may withdraw from active membership in the Retirement Savings Plan and stop making employee contributions, but may not become an active member again unless the employee becomes a full-time employee or an elected official.

      (3)   A person employed by the County Department of Social Services on July 1, 1996, with fewer than 3 years of eligibility service as of October 1, 1996, under the State of Maryland Retirement or Pension Systems must transfer the service to the retirement savings plan and participate in the retirement savings plan, or forfeit employment by the County. If the employee is a part-time employee of the County upon transferring from State to County employment, the employee may, but is not required to, participate in the retirement savings plan.

      (4)   A person employed by the County Department of Social Services on July 1, 1996, who earned at least 3 years of eligibility service as of October 1, 1996, under the State of Maryland Retirement or Pension Systems may participate in the retirement savings plan only if the person notifies the Chief Administrative Officer in writing by April 1, 1997. An employee who elects under this paragraph to participate becomes a member of the plan at the beginning of the first pay period after the Chief Administrative Officer receives the employee's written notice.

      (5)   If a person transfers under paragraphs (3) or (4) to the retirement savings plan, all funds in the State of Maryland Retirement or Pension Systems attributable to the participation of the person must be transferred directly from the Board of Trustees of the State Retirement or Pension Systems to the Board.

      (6)   An employee who is not an active member of a County retirement plan but is eligible for membership in the integrated retirement plan may become a member of the Retirement Savings Plan or the guaranteed retirement income plan. The employee must remain a member of the Retirement Savings Plan or the guaranteed retirement plan until the employee becomes ineligible for membership.

      (7)   Participation in the guaranteed retirement income plan.

         (A)   A participant who changes employment from the County directly to a participating agency or from a participating agency directly to the County must continue to participate in his or her retirement plan and is not eligible to make an election. A member of the Office, Professional and Technical (OPT) or the Service, Labor and Trades (SLT) collective bargaining unit of the County government must participate in the Guaranteed Retirement Income Plan, unless the employee makes a one-time irrevocable election to participate in the Retirement Savings Plan during the first 150 days of employment, if the employee:

            (i)   is hired as a full-time employee on or after July 1, 2015;

            (ii)   is a part time employee who does not participate in the Retirement Savings Plan and becomes a full-time employee on or after July 1, 2015; or

            (iii)   is hired as a part time employee on or after July 1, 2023, and does not elect to forego participation in either the guaranteed retirement income plan or the retirement savings plan.

Participation must begin on the first pay period after an employee has completed 180 days of full time employment.

         (B)   Except as provided in subparagraph (A), an eligible employee must participate in the Retirement Savings Plan unless the employee makes a one-time irrevocable election to participate in the Guaranteed Retirement Income Plan during the first 150 days of full-time employment. Participation must begin on the first pay period after an employee has completed 180 days of full-time employment. A part-time employee who participates in either the Retirement Savings Plan or the Guaranteed Retirement Income Plan when the employee becomes a full-time employee must continue to participate in the same retirement plan.

         (C)   A part time employee who is not a participant in the retirement savings plan may make a one time irrevocable election to participate in the guaranteed retirement income plan any time after the employee has completed 150 days of employment.

   (b)    Participants groups and eligibility.

      (1)   Group I. Except as provided in the last sentence of Section 33-37(e)(2), any full- time or career part-time employee meeting the criteria in paragraphs (A) or (B) must participate in the retirement savings plan if the employee begins, or returns to, County service on or after October 1, 1994. An employee hired on or after July 1, 2009 must be employed on a full time or part time basis with the County for 180 days before participating in the retirement savings plan. An individual who changes employment from the County government directly to a participating agency or from a participating agency directly to the County government must continue to participate in the same retirement plan. Participation in the Retirement Savings Plan must begin on the first payroll after an employee has completed 180 days of employment if the employee:

         (A)   (i)    is not represented by a County government employee organization;

            (ii)   does not occupy a County government bargaining unit position;

            (iii)   is not a public safety employee; and

            (iv)   does not elect to participate in the guaranteed retirement income plan; or

         (B)   (i)    is not a public safety employee; 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 if the employee does not elect to participate in the Retirement Savings Plan; and

            (iii)   elects to participate in the Retirement Savings Plan.

      (2)   Group II. 

         (A)   Except as provided in the last sentence of Section 33-37(e)(2), a full-time or career part-time employee must participate in the retirement savings plan if the employee begins, or returns to, County service on or after October 1, 1994; and

            (i)    is a public safety employee; 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)   A member of the Police Bargaining Unit may transfer to Group II of the retirement savings plan if the employee has accumulated enough credited service to obtain the maximum retirement benefit under the optional or integrated plan.

         (C)   Except as provided in the last sentence of Section 33-37(e)(2), a full-time or career part-time employee must participate in the retirement savings plan or the guaranteed retirement income plan if the employee begins, or returns to, County service on or after October 1, 1994; and

            (i)   is not represented by an employee organization;

            (ii)   does not occupy a bargaining unit position; and

            (iii)   is a public safety employee.

   (c)    Transfers.

      (1)   Transfers from the retirement savings plan are only permitted as described in paragraph (4). After an employee enrolls in the retirement savings plan, the employee must continue in the retirement savings plan until the employee is no longer eligible for membership in either Group I or Group II. If an employee is no longer eligible for membership in Group I or Group II, the employee may participate in the plan of the retirement system in which the member qualifies for participation under Article III.

         (A)   A former participant who is no longer eligible to participate in the retirement savings plan retains the right to the vested account balances and any distribution under the retirement savings plan, unless the participant elected to participate in the guaranteed retirement income plan under paragraph (4) and the participant’s account balance was transferred to the guaranteed retirement income plan.

         (B)   The former participant's participation under the optional retirement plan or the integrated retirement plan, or the guaranteed retirement income plan is governed by Article III.

      (2)   Any employee enrolled in the optional retirement plan or the integrated retirement plan under Article III may transfer to the retirement savings plan.

         (A)   An employee electing to transfer into the retirement savings plan must transfer into the membership group for which the employee qualifies for participation, excluding the requirement that the employee begin County service on or after October 1, 1994.

         (B)   The employee's credited service for purposes of determining the employee's vested benefits in the retirement savings plan must be determined based upon the employee's total number of years of credited service earned under the retirement savings plan, the optional retirement plan, and the integrated retirement plan.

         (C)   The employee's benefit calculations under the plan from which the employee transferred is governed by Article III.

         (D)   No transfers will be permitted before April 1, 1995. Any transfer takes effect at the beginning of the first pay period following the employee's written election to transfer.

      (3)   Transfers between Group I and Group II. If a participant no longer satisfies the requirements for the group in which the participant is enrolled, the participant must transfer to the group in which the participant satisfies the membership requirements.

      (4)   Transfer to the guaranteed retirement income plan.

         (A)   A full time or part time employee hired on or after October 1, 1994 and before January 1, 2009 who participates in the retirement savings plan, and who is not a public safety employee, may make a one time irrevocable election to terminate participation in the retirement savings plan and participate in the guaranteed retirement income plan effective the first full pay period after July 1, 2009. An employee must make this election between December 31, 2008 and June 1, 2009. An employee who elects to terminate participation in the retirement savings plan must have his or her account balances transferred to the guaranteed retirement income plan. An employee who does not make this election must continue to participate in the retirement savings plan.

         (B)   A full time or part time employee hired between December 31, 2008 and July 1, 2009 who participates in the retirement savings plan, and who is not a public safety employee, may make a one time irrevocable election to terminate participation in the retirement savings plan and participate in the guaranteed retirement income plan. An employee has 150 days after the employee was hired to make this election. An employee who makes this election must have his or her account balance transferred to the guaranteed income plan. An employee who does not make this election must continue to participate in the retirement savings plan.

         (C)   A full-time or part-time employee hired on or after October 1, 1994 and before January 1, 2009 who participates in the retirement savings plan, and who is a public safety employee not represented by an employee organization and does not occupy a bargaining unit position, may make a one-time irrevocable election to terminate participation in the retirement savings plan and participate in the guaranteed retirement income plan effective the first full pay period after December 31, 2009. An employee must make this election between October 1, 2009 and December 1, 2009. An employee who elects to terminate participation in the retirement savings plan must have his or her account balances transferred to the guaranteed retirement income plan. An employee who does not make this election must continue to participate in the retirement savings plan. (1994 L.M.C., ch. 13, § 2; 1996 L.M.C., ch. 27, § 1; 2004 L.M.C., ch 17, § 1; 2008 L.M.C., ch. 22, § 1; 2009 L.M.C., ch. 23, § 1; 2014 L.M.C., ch. 17, § 1; 2015 L.M.C., ch. 28, § 1; 2023 L.M.C., ch. 24, § 1.)