Officials in Montgomery County, Maryland, are asking the County Council to approve nearly $1.5 million in new funding to cover COVID-19 premium pay for county managers from earlier in the coronavirus pandemic.
The request has set up a sharp battle between County Executive Marc Elrich and some members of the county council over the role of the executive and the council in the stewardship of the county’s spending and finances.
Council President Tom Hucker said Tuesday during a hearing that the question is “one of the most consequential issues the council has had to deal with all year because it goes to the fundamental role and responsibility of the council.”
Pay for managers
Montgomery County has already used federal money to pay out some $89 million to cover COVID-19 premium pay for rank-and-file county employees covered by collective bargaining agreements.
The COVID-19 hazard pay, which was retroactive to March 2020, ended in February 2021.
While the union contracts specified county employees should earn double pay for work during emergencies, Elrich’s administration negotiated an agreement with unions to instead offer a $10-an-hour pay bump.
However, 83 members of managerial staff — from the county’s Fire and Rescue Service, the sheriff’s office and the police department — have filed grievances, arguing that they’re entitled to the same extra pay their subordinates received because they performed the same front-facing kind of work during the pandemic.
County personnel regulations say that non-union workers are entitled to the same hazard pay during an emergency as union workers.
Elrich’s administration has proposed settling with the managers, saying that should the managers prevail in an arbitration hearing, county taxpayers could be on the hook for much larger payments.
The total price tag for the settlement is $1.45 million, which must be approved by the county council. The request for the settlement money was formally introduced Tuesday, and members of the council had questions for Elrich and other officials about both payouts.
“We all know that no one knew the extent of the pandemic in March of 2020,” Hucker said, “but the executive’s decision to begin spending tens of millions of dollars without proper council approval or a specified end date … created a significant financial liability and risk for the county.”
A question of timing
Several members of the council grilled County Attorney Marc Hansen and Chief Administrative Officer Rich Madaleno specifically about a letter Elrich sent to the Federal Emergency Management Agency in July 2020, seeking reimbursement for the COVID-19 pay for unionized workers.
FEMA reimburses local government for employee hazard pay during declared emergencies, but only if required by existing agreements. Elrich’s agreement with the unions was struck in April 2020, after the start of the coronavirus pandemic, but he sought to show that it was rooted in the pre-existing requirement to pay employees double pay during declared emergencies.
The hazard pay for union workers was ultimately covered by other federal coronavirus relief money, but some council members said that letter has come back to tie the county’s hands.
During the council hearing Tuesday, Hucker said, “That claim undercuts the established public positions of the executive branch and the council and the county attorney — specifically, that the emergency provisions were never triggered, because the county executive intentionally did not declare a general emergency and our government never shut down.”
The federal government had issued an emergency declaration, and Maryland Gov. Larry Hogan had declared a statewide emergency, but Elrich had not. However, the letter to FEMA said the emergency pay provisions had been “unquestionably invoked.”
While some Maryland counties declared local states of emergency during the coronavirus pandemic, Montgomery County did not, “and the reason that was given in numerous news conferences and briefings to the council was because we didn’t want to, because that would trigger this double-time provision,” Hucker said Tuesday.
“We were told that then,” he added. “And now, we see a letter that the county executive sent … to FEMA, saying there unquestionably was an emergency and those provisions were unquestionably triggered, even though our public position was that they were not.”
Hucker said the council only recently learned of the FEMA letter and it emerged during the hearing Tuesday that the letter had not been reviewed by the county attorney’s office, which such letters customarily are.
‘Minimize our exposure’
Speaking to reporters Wednesday during an online media briefing, Elrich said the county’s agreement with the unions on hazard pay ultimately aimed to limit the amount the county would be liable for.
“We were trying to minimize our exposure, and we were trying to get the FEMA reimbursement … where we had historically gotten funding from FEMA for being in an emergency,” he said.
Elrich added that the issue is complicated by the lack of a definition of “emergency” that would trigger the double pay provision in county personnel regulations and union contracts. Typically, the term has been used to inclement weather that may last for at most several days.
Given the length of the coronavirus pandemic, having to pay employees double pay would have risked bankrupting the county, officials have said.
“We negotiated a lower rate because we didn’t want to wind up in court and have a judge rule that, ‘Your contract says double time and you’re going to pay double time,'” Elrich said. “That would have cost the county way, way, more money than what we arrived at.”
Elrich added that “I didn’t make a decision not to share” the FEMA letter with the county attorney. “I thought it was going through whatever normal processes we had. And so nobody sat here and said, ‘Don’t share this with the attorney.’ … I don’t sit there and, you know, tell people who to send every copy of every letter to. In this case. I assumed that it had gone to everybody that it needed to.”
Asked during the council hearing Tuesday whether the county’s lawyers would have recommended any changes if they had reviewed the letter, Hansen, the county attorney, said, “This is hindsight. We’re not inside the pressure cooker, the crucible, so to speak, of the pandemic.”
He added, “I think we may have suggested a more nuanced way of wording the letter.”
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