The Olszewski administration failed to implement a key charter provision regulating the benefits of political appointees
The story about the extended absence of controversial Baltimore County employee William “Chris” McCollum from his position as Senior Administrative Assistant to Stacy Rodgers, the County Administrative Officer (CAO), led me to discover a remarkable fact:
For the past 3 ½ years the County has been in violation of a 2018 amendment to the county charter requiring that compensation for officials and employees in the County’s exempt service be governed by “a system adopted or amended by the county council upon the recommendation of the county executive.”
The term “exempt service” refers to the fact that the positions of employment are exempted from the county’s classified service in accordance with Section 801 of the charter. McCollum’s current position is in the exempt service, which includes all political appointees.
The violation places McCollum’s reported use of sick leave to excuse absence not due to illness or injury in even further legal doubt. In my opinion, unless county officials can point to a lawfully-approved compensation plan that permits the use of sick leave for absences not due to illness or injury the sick leave payments to McCollum since early October of last year have violated the law and should be repaid.
History (and scandal) repeats itself
What makes the violation so egregious is that the 2018 amendment was a response to a previous controversy involving the benefits of exempt service employees. The amendment was intended to ensure council oversight over those benefits.
Eyebrows were raised in 2017 when the Baltimore Sun reported that former police chief Jim Johnson received a $117,000 “severance package” upon termination. Curious about the authority for severance pay for county officials, I submitted a PIA request and obtained a copy of an unpublished “executive benefit policy” signed by former CAO Fred Homan.
I wrote an op-ed in May of that year that disclosed the existence of the policy and challenged its legality on the basis that all forms of compensation paid to county officials for their employment with the county must be based on express provisions of law, including “fringe” benefits such as severance pay, paid vacation leave, and paid sick leave.
Two months later former County Executive Kevin Kamenetz scrapped the executive benefit policy and ended the practice of severance pay. In 2018, members of the council unanimously sponsored and passed Bill 17–18. The bill proposed adding language to Section 505 of the county charter reading as follows:
“Officers and employees in the exempt service as defined in section 801 of this Charter shall have their compensation determined according to a system adopted or amended by the county council upon the recommendation of the county executive.”
“Compensation” as used in the section broadly refers to any benefit paid for by the county in exchange for work performed on behalf of the county. The approved compensation system was intended to replace the policy terminated by Kamenetz that purported to establish the entitlement of exempt service employees to paid sick leave, health insurance, life insurance, and retirement benefits, in addition to severance pay.
The amendment was approved by the voters at the election on November 6, 2018. It took effect on December 6, 2018, three days after Johnny Olszewski was sworn in as county executive.
Olszewski has not implemented the amendment
After reading about McCollum’s use of various forms of leave to excuse his protracted absence, curiosity again got the best of me, and I began searching for the approved compensation plan for exempt employees adopted in accordance with Section 505.
I didn’t find it online, and a review of the council’s minutes over the past 3 ½ years did not indicate that any action had been taken by the council to approve a plan. Was it déjà vu all over again for the benefits of exempt service employees? The answer, as it turns out, is yes.
On April 27th, the Legislative Counsel to the County Council, Thomas Bostwick, sent an email in response to my PIA request, confirming that no compensation plan for exempt service employees had been approved. He explained that the council could not act until it received a recommendation from the county executive, and no recommendation was ever received.
As Bostwick stated, it was the county executive’s responsibility to submit a proposed plan to the council for approval. Rodgers confirmed in a subsequent email that the Olszewski administration had not implemented the change in the law, stating that the administration was not aware of the requirement.
A legal quagmire and its consequences
The impact of the charter violation extends beyond McCollum to dozens of other members of the exempt service, placing the legal status of their compensation in limbo. Without an approved compensation plan, the county is paying for their benefits without clear legal authority to do so.
McCollum — and whoever approved his use of unused sick leave to remain on the payroll — may have particular problems.
McCollum appears to be using unused paid sick leave to excuse his absence from work since last October. According to the Sun, McCollum must stay on the payroll as an active employee at least through August to qualify for an enhanced pension benefit that is available only to certain high-ranking political appointees.
Although McCollum’s last day of showing up at work was July 2, 2021, he reportedly remains on the payroll drawing a salary of $137,710 as Senior Administrative Assistant to the CAO. He was transferred to that position in November 2020 from the Department of Economic and Workforce Development where he had served as Acting Director since August 2020.
Section 5–1–214(a)(5) of the county code provides for an enhanced pension benefit for officials who served as “appointed department heads” for at least two years immediately prior to termination. The position of Senior Administrative Assistant to the CAO is expressly included in that plan.
It appears from the story in the Sun that the county also considers McCollum’s tenure as Acting Director of Economic and Workforce Development to be qualifying service under the appointed department head pension plan. If so, McCollum must remain on the payroll in his current position through August of this year to get in the two years necessary to be eligible for what the Sun reports is a jump in pension from about $50,000 per year to $68,855 per year.
The legal fly in the ointment
County officials are categorically prohibited by the county’s personnel rules from granting sick leave to a classified employee for anything other than illnesses, injuries, appointments, or quarantines. Nor do classified employees have the right to “cash out” unused sick leave upon terminating their employment. They do have the right to be paid for unused vacation leave, or use unused vacation leave for “terminal leave” before their date of actual termination, if approved.
The difference in treatment of the two types of leave reflects a distinction in Maryland law. Under that law, an employee is entitled to payment for unused vacation leave unless company policy expressly provides otherwise. On the other hand, an employee is entitled to payment for unused sick leave only if expressly provided in a (lawful) policy or contract.
So where did Olszewski administration officials get the authority to spend taxpayers’ money to pay McCollum sick leave for absence not due to illness or injury? From some informal policy for exempt service employee benefits not approved by the council and therefore in violation of the charter?
The Sun stated that McCollum has been using sick leave since early October of last year to excuse his absence. If County officials are in fact trying to get McCollum to the magic two-year mark to qualify for an enhanced pension benefit, the legality of placing McCollum on sick leave for something other than illness or injury is critical. That legality is now in even more serious doubt.
An opportunity for abuse
The failure of the Olszewski administration to implement Section 505 of the charter created a legal quagmire. It also created the opportunity for abuse.
The one thing that I am sure of is that the failure does not mean that the administration gets to do as it pleases regarding the benefits of exempt employees. It is worth a look by the County Auditor to see if there have been any other shenanigans over the past 3 ½ years.
(Speaking of whom, where has the Auditor been during that period? Rodgers’ explanation notwithstanding, the charter amendment was hardly a secret. Didn’t anyone in county government notice that it had not been implemented?)
The potential consequences are not limited to McCollum. Suffice it to say that the duty imposed on the county executive to implement Section 505 of the charter was not “optional,” and any official who knowingly approves the payment of compensation to exempt employees in violation of the charter is inviting investigation by the State Prosecutor.
Rodgers stated that the Olszewski administration would move to implement Section 505 of the charter now that I brought it to their attention. Better late than never, but maybe too late to help McCollum get across the finish line for his pension bump.
