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HomeMy WebLinkAboutResolution 2017-025 N.C.S. 02/27/2017Resolution No. 2017-025 N.C.S. of the City of Petaluma, California RESOLUTION APPROVING A NEW AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY CLERK WHEREAS, on June 6, 2005, the City Council appointed Claire Cooper to the position of City Cleric of the City of Petaluma, California, under an at -will employment agreement; and WHEREAS, the City Clerk's employment agreement was amended first in June, 2007, amended a second time in June, 2007, amended a third time in March, 2010, and amended a fourth time on August 4, 2014; and WHEREAS, CITY and City Clerk (the Parties) intend to enter a new At -Will Agreement for Employment of City Clerk effective December 16, 2016; and, WHEREAS, the proposed new At -Will Agreement for Employment of the City Clerk would incorporate a number of substantive changes to the existing agreement for employment of the City Cleric, including: the Cleric's base salary would increase from $91,915 to $95,591, an increase of 4%, retroactive to December 19, 2016; continuation of duties and responsibilities as City Clerk for the City of Petaluma, to expire in 2020; three (3) months' severance upon termination of the Clerk without cause; increase of administrative leave from 80 hours to 96 hours; and reduction of annual sell -back of unused administrative leave from 40 hours to 20 hours; and WHEREAS, the proposed new At -Will Agreement for Employment of the City Clerk would incorporate a number of non -substantive changes to the existing City Cleric employment agreement, including: incorporation of portions of the Unit 8 compensation plan into the City Clerk's contract, including those provisions governing bereavement leave, domestic violence leave, election and voting leave, jury duty leave, FMLA leave, and reasonable accommodation provisions; and WHEREAS, in accordance with California Government Code section 54953, subdivision (c), paragraph (3), prior to taking final action on the proposed new At -Will Agreement for Employment of the City Clerk, an oral report of the recommended action on the compensation and other terms of employment of the City Clerk proposed pursuant to the new At -Will Agreement was provided at a duly noticed meeting of the City Council; and WHEREAS the new at -will employment agreement for the City Clerk is intended to replace and supersede the agreement entered June 6, 2005, and all amendments to that agreement; and WHEREAS, the City Council and City Clerk Claire Cooper agree to the terms of Employment, Compensation, and Benefits relating to the position of City Clerk set forth in the At -Will Agreement for Employment of City Clerk attached as Exhibit A; Resolution No. 2017-025 N.C.S. Page 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma as follows; REFERENCE: AYES: NOES: ABSENT: ABSTAIN: ATTEST 1. The City Council hereby approves the At -Will Agreement for Employment of City Clerk, attached as Exhibit A and incorporated herein by reference. 2. The City Council authorizes and directs the Mayor to sign the agreement attached as Exhibit A on behalf of the City. Under the power and authority conferred upon this Council by the Charter of said City. I hereby certify the foregoing Resolution was introduced and adopted by the A6proved as to ( K Council of the City of Petaluma at a Regular meeting on the 27`h day of February, � �� folzin: 2017, by the following vote: V Attorney Albertson, Vice Mayor Barrett, Mayor Glass, Healy, Kearney, King, Miller None None None V"40-.., Ci y Clerk Pro Tem 4ayvor Resolution No. 2017-025 N.C.S. Page 2 FIFTH AMENDED AT -WILL AGREEMENT FOR EMPLOYMENT OF CITY CLERK This Agreement is made and entered into this V61day of , 2017, by and between the City of Petaluma, California ("the CITY"), a charter city, and Claire Cooper ("City Clerk"). This Agreement shall have an effective date of December 19, 2016 ("Effective Date"). The parties agree as follows: Appointment of City Clerk: The City Council appointed Claire Cooper to the position of City Clerk of the City of Petaluma, California on June 6, 2005, The City Council hereby acknowledges the continuing appointment of Claire Cooper as City Clerk of the City of Petaluma, California. 2. Term: a. Duration and Effective Date. The term of this Fifth Amended Agreement (Agreement) shall commence on the Effective Date and expire four years thereafter on December 18, 2020. 3. At -Will Employment: City Clerk is an at -will employee in accordance with California Labor Code section 2922, and shall serve at the pleasure of the City Council. The terms of CITY's Personnel Rules, Policies, Procedures, Ordinances and Resolutions shall not apply to City Clerk, and nothing in this Agreement is intended to, or does, confer upon City Clerk any right to or expectation of any right or property interest in continued employment. If a decision to terminate City Clerk's employment is made by the City Council, whether with or without cause, the City Clerk shall be entitled to only that due process as is provided by City Charter, ordinance, or this Agreement. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of City Clerk to resign at any time from her position with CITY, subject to section 5(a) of this Agreement. 4. Duties and Responsibilities: a. City Clerk shall continue her duties under this Agreement commencing on the Effective Date. b. City Clerk shall serve as the City Clerk of the City of Petaluma, and shall be vested with the powers, duties and responsibilities and perform the functions and duties specified under the laws of the State of California, the Petaluma City Charter and the Petaluma Municipal Code, and the ordinances and Resolutions of the CITY and other applicable law, and such other duties and functions as the City Council may from time to time assign. Resolution No. 2017-025 N.C.S. Page 3 C. City Clerk agrees to remain in the exclusive employ of CITY, and devote her full productive time and attention to CITY's business, during the term of this Agreement, except with specific permission of the City Council for endeavors which are not in conflict with the City Clerk's duties and responsibilities as City Clerk. Termination of Employ a. City Clerk may terminate this Agreement, with or without cause, by giving the CITY a minimum of forty-five (45) days written notice in advance of termination, unless the parties agree otherwise. During the period following notice of termination and until the termination becomes effective, all the rights and obligations of the parties under this Agreement shall remain in full force and effect. City Clerk will not be entitled to receive any severance pay if her resignation is voluntary. b. The City Council may terminate this Agreement, with or without cause. City Council shall give City Clerk a minimum sixty (60) days prior written notice of termination provided, however, that if City Clerk is terminated for cause, as defined in this Agreement, the sixty (60) day written notice requirement shall not apply and City Cleric may be terminated with notice as provided in Section 5 (c). Prior to terminating this Agreement for cause pursuant to Section 7, the City Council shall give City Clerk at least ten (10) days prior written notice of the charges. Within the ten-day period, but not earlier than five days after the notice has been given, the City Council shall meet with City Clerk in closed session and give City Clerk an opportunity to address the City Council regarding the alleged cause for termination. City Cleric may also choose to have allegations brought against her heard in open session in accordance with California Government Code 54957 (b) (2). After hearing City Clerk's response to the allegations, the City Council shall make a decision as to whether to terminate the Agreement and shall inform City Clerk in writing of its decision. d. Upon separation from CITY for any reason, City Clerk will be paid for all earned, accrued, and unused vacation, administrative leave, and floating holidays, subject to the limitations imposed elsewhere in this Agreement. 6. Termination Without Cause: For the purposes of this Agreement, termination without cause shall be deemed to occur when: a. The majority of the City Council votes to terminate the City Clerk at a duly authorized public meeting without cause, as defined in Section 7 of this Agreement. b. The City Council, the citizens or the Legislature acts to amend any provisions of the City Charter, codes, or other enabling legislation pertaining to the role, Resolution No. 2017-025 N.C.S. Page 4 powers, duties, authority, or responsibilities of the City Clerk's position that substantially changes the form of government. City Clerk shall have the right to declare that such amendments constitute termination. c. The City Council reduces the base salary, compensation or any other financial benefit of the City Clerk (unless it is applied in no greater percentage than the average reduction of all department directors). Such action will be regarded as a termination. d. Material breach of this Agreement is declared in writing by City Clerk specifying the reasons therefore, but only if CITY has not cured such declared material breach within thirty (30) days of receipt of notice of the declared material breach. 7. Termination for Cause: a. For purposes of this Agreement, cause for termination by CITY means: Willful and repeated failure to perform the duties of City Clerk or other material breach of this Agreement declared in writing by CITY by notice in accordance with Section 26 and not cured within thirty days of receipt of notice of the declared material breach; 2. Conviction of City Clerk for an employment related criminal act; 3. Conviction of City Clerk for a felony; or 4. A finding by a court, jury, State or Federal Attorney General, the Fair Political Practices Commission, or any successor agency, that City Clerk engaged in intentional or negligent misconduct in relation to the performance of City Clerk's duties. b. Pursuant to Government Code Sections 53243, 53243. 1, and 53243.2, if City Clerk is convicted of a crime involving an abuse of her office or position, all of the following shall apply: 1. If City Clerk is provided with administrative leave pay pending an investigation, City Clerk shall be required to fully reimburse City such amounts paid. 2. If CITY pays for the criminal legal defense of City Clerk, City Clerk shall be required to fully reimburse CITY such amounts paid. 3. If this Agreement is terminated, any Severance Pay and Severance Benefits related to the termination that City Clerk may receive from CITY shall be fully reimbursed to CITY or void if not yet paid to City Clerk. For purposes of subsection 7 (b), abuses of office or position means either: Resolution No. 2017-025 N.C.S. Page 5 A. an abuse of public authority, including waste, fraud, and violation of the law under color of authority; or B. a crime against public justice, including but not limited to, a crime described in Title 7 (commencing with Section 92) of Part 1 of the California Penal Code. 8. Severance Pay: a. If CITY terminates this Agreement without cause in accordance with Section 6, then City Clerk shall be entitled to a severance payment equal to three (3) months of base salary at the rate in effect at the time of termination, plus CITY's share of the cost of continuing health, dental, and vision insurance for City Clerk and all dependents as provided in Section 16(b) for three (3) months. At City Clerk's election, and pursuant to City Clerk's written instructions at the time of severance, severance pay shall be paid either in a lump sum cash payment within thirty (30) days of the date of termination, or in equal monthly payments. Should City Clerk elect to receive severance pay in equal payments, the number of such monthly payments shall not exceed three (3). b. All payments required under Section8 (a) are subject to and shall be interpreted to comply with the limitations set forth in California Government Code Sections 53260 and 53261. The CITY's share of the cost of Health, Dental and Vision benefits shall continue for the same duration of time as covered in the settlement or until the City Clerk finds other employment, whichever occurs first. d. If CITY terminates City Clerk for cause, she will not be entitled to any severance payment. The determination of whether there is cause for termination shall be consistent with Section 6 and/or 7. 9. Compensation: a. Base Salary. City agrees to pay City Clerk an annual base salary of $95,591.00, payable in installments at the same time that the other management employees of the CITY are paid. b. Merit Adjustment. CITY may increase City Clerk's compensation in such amounts and to such extent as the City Council may determine is desirable on the basis of any salary review of City Clerk. c. Cost of Living_ Adjustment. CITY may consider, on an annual basis, a cost of living adjustment to City Clerk's compensation. Such adjustment shall be separate of any adjustment granted pursuant to Section 9 (b) of this Agreement. d. In effecting this section, City and City Clerk mutually agree to abide by the provisions of applicable law. Resolution No. 2017-025 N.C.S. Page 6 10. Disability: If City Clerk is permanently disabled or otherwise unable to perform her duties because of sickness, accident, injury, mental incapacity or health for a period of ninety (90) successive days beyond any accrued sick leave, CITY shall have the option to terminate this Agreement. Upon termination pursuant to this provision, CITY shall have no obligation to pay severance benefits pursuant to Section 8. 11. Vacation Leave: a. As of the Effective Date of this Agreement, City Clerk has a balance of 592.64 hours of accumulated Vacation leave. City Clerk shall continue to accrue vacation hours at the rate of 200 hours per year. City Clerk shall not accrue vacation time in excess of 600 hours. b. Vacation leave shall be taken at times and in amounts selected by the City Clerk, taking the operational needs of the City into account. C. Fixed holidays shall not be charged as vacation leave when vacation and holiday(s) coincide. 12. Sick Leave: a. Eligibility. Sick leave shall be used only in case of personal illness, disability or the illness or injury of City Clerk's family member, which requires City Clerk's attention. The term family members shall include: spouse, children, parents, spouse's parents, brothers, sisters or other individuals whose relationship to the employee is that of a dependent or near dependent. b. Accrual. Sick leave shall accrue and be credited to City Clerk's personal account at the rate of eight (8) hours for each month of continuous service. C. Retirement Payout. In the event of the death or retirement and the completion of ten (10) or more continuous years of service with the City, City Clerk shall be paid or shall receive to her benefit fifty percent (50%) of her accumulated but unused sick leave not to exceed four -hundred -eighty (480) hours. The employee may elect not to receive this benefit and instead place all sick leave hours into the Ca1PERS sick leave conversion benefit. 13. Administrative Leave: City Clerk shall be credited with eighty (96) hours of administrative leave each fiscal year. a. Carry Forward of Leave. City Clerk may carry forward up to forty (40) hours of unused administrative leave into the next fiscal year. City Clerk may not maintain balances of more than one hundred and thirty-six (13 6) hours in any fiscal year. Resolution No. 2017-025 N.C.S. Page 7 Carry forward administrative leave may only be taken as paid time off, has no cash value, and shall not be included in the totals subject to payment under Section 5 (d). b. Annual Payment for Unused Leave. City Clerk shall receive payment for up to twenty (20) hours of unused administrative leave at the end of each fiscal year. Payment shall be at the employee's base pay rate as of June 30. Payment shall be made on the last pay period of the fiscal year. 14. Holidays and Holiday Leave: a. The City observes twelve (12) fixed -date holidays per year.. Those holidays, for fiscal year 2016/17 are: Independence Day Christmas Eve Labor Day Christmas Day Columbus Day New Year's Day Veterans Day Martin Luther King Day Thanksgiving Day Presidents' Day Day after Thanksgiving Memorial Day b. Observance. The actual date of the observed holidays is determined by City Council resolution each fiscal year. If participating in a 5/8 schedule, when a holiday falls on a Saturday, that holiday will be observed on the prior Friday. When a holiday falls on a Sunday, that holiday will be observed on the following Monday. Should this conflict with a Friday or Monday designated holiday, the Friday or Monday holiday will occur on the preceding Thursday or following Tuesday. If participating in a 4/10 schedule, when a holiday falls on a Friday or Saturday, that holiday will be observed on Thursday. When a holiday falls on a Sunday, that holiday will be observed on the following Monday. Should this conflict with a Friday or Monday designated holiday, the Friday or Monday holiday will occur on the preceding Wednesday or following Tuesday. Floating Holidays. CITY shall provide City Clerk one (1) "Floating Holiday," each fiscal year which may be taken at a time selected by City Clerk, subject to operational requirements of the City. The floating holiday will be added to City Clerk's bank of leave with the first payroll period each January during the term of this Agreement. 15. Other Leaves: a. Industrial Injury Leave 1. Benefits shall be payable when City Clerk's absence is due to industrial injury as provided in California State Workers' Compensation Law. During the first three (3) workdays when her absence has been occasioned by injury suffered during her employment and she receives Workers' Compensation, she shall receive full pay. Following this period, sick leave may be a supplement to the Resolution No. 2017-025 N.C.S. Page 8 workers' benefits provided. Compensation is at her regular rate for a period not to exceed six (6) months, or until such sick leave is exhausted, or the disability is abrogated, or she is certified "permanent and stationary" by a competent medical authority. The City shall pay her the regular salary, based on the combination of the workers' compensation benefit plus sick leave. 2. Sick leave for industrial injury shall not be allowed for a disability resulting from sickness, self-inflicted injury, or willful misconduct. The City may, with City Clerk's agreement, retire City Clerk prior to the exhaustion of accumulated sick leave, at which time all accrued but unused sick leave shall be abrogated, subject only to the limitations provided under this Agreement. b. Leave of Absence Without Pay CITY may grant City Clerk a leave of absence without pay pursuant to State and Federal Law. Good cause being shown by a written request, CITY may extend such leave of absence without pay or benefits for an additional period not to exceed six (6) months. No such leave shall be granted except upon written request of City Clerk setting forth the reason for the request, and the approval will be in writing. 16. Disability, Health, and Life Insurance; a. CITY agrees to purchase and to pay during the term of this Agreement, premiums on term life insurance policies equal in amount to one and one-half 1-1/2 times the amount of the annual compensation package of City Clerk described in Section 9. b. CITY agrees to provide and to pay the CITY's share of premiums for medical, dental, and vision insurance for the City Clerk and her dependents in accordance with the approved Compensation Plan for Department Directors. City Clerk shall have the right to select medical, dental and vision coverage from the plan options offered by CITY. CITY agrees to have in force and make required premium payments for City Clerk's participation in the CITY's current group disability plan. Currently that Plan is provided through CIGNA, and replaces 60% of annual earnings, to a maximum of $3,000 per month after being disabled for sixty (60) days. 17. Retirement: a. California Public Employees Retirement System. City has previously enrolled City Clerk into the California Public Retirement System, (PERS). City agrees to make all the appropriate contributions on City Clerk's behalf, for the employer share required. City Clerk shall pay the entire contribution for the PERS employee share required. Resolution No. 2017-025 N.C.S. Page 9 b. City Clerk has continuously been employed with CITY since September 1, 1999, and does and shall continue to participate in the 2% at 55 formula retirement plan provided to Miscellaneous members, calculated at the single highest one-year compensation. C. The City's contract with PERS, for Miscellaneous members with the two percent (2%) at fifty-five (55) formula retirement plan, includes the following optional benefits: 1. Third Level - 1959 Survivor's Benefit as provided in Section 21573 (April 5, 1999). 2. Military Service Credit as provided in Section 21024 (January 1, 1992), 3. One -Year Final Compensation as provided Section 20042 (November 1, 1980). 4. Credit for Unused Sick Leave as provided in Section 20965 (November 1, 1980). 5. Cost of Living Allowance two percent (2%) as provided by Section 21329 (Aprill, 1971). 6. Retired Death Benefit of five -hundred dollars ($500.00) as provided in Section 21620 (December 1, 1969). 7. Death Benefit Continues as provided in Section 21551 (January 1, 2000). 8. Prior Service Credit as provided in Section 20055 (January 1, 1950). d. The City shall continue to defer that portion of the employee's contribution paid to CalPERS through section 414(h)(2) of the Internal Revenue Code pursuant to City of Petaluma Resolution 90-363 N.C.S. 18. Dues and Subscriptions: Subject to budgetary approval by the CITY, CITY agrees to pay for professional dues and subscriptions of City Clerk necessary for City Clerk's continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for City Clerk's continued professional participation, growth and advancement and for the good of CITY. 19. Professional Development: a. Subject to budgetary approval by CITY, CITY agrees to pay for, to the extent allowed by law, travel and subsistence expenses of City Clerk for official travel, meetings and events as necessary and appropriate to continue the professional development of City Clerk at gatherings such as the City Clerk's Association of California (CCAC) annual conference and League of California Cities New Law and Elections seminar. b. Subject to budgetary approval by CITY, CITY agrees to pay for, to the extent allowed by law, travel and subsistence expenses of City Clerk for short courses, institutes and seminars that are necessary for City Clerk's professional development and for the good of CITY. Resolution No. 2017-025 N.C.S. Page 10 20. General Expenses: CITY recognizes that certain expenses of a non -personal nature are incurred by City Cleric for the benefit of the CITY in the course of performance of City Clerk's duties and hereby agrees to reimburse or to pay said general expenses, and CITY's Finance Director is hereby authorized to disburse such monies upon receipt of duly executed expenses of petty cash vouchers, receipts, statements or personal affidavits to the extent allowed by law and subject to budgetary approval. 21. Bonding: CITY shall bear the full cost of any fidelity or other bonds required of City Clerk under any law or ordinance. 22. Continuity: In the event of a change of the elected representation of the City Council, there will be a ninety (90) day period commencing upon the seating of new City Council members when the City Council can take no action regarding the provisions of City Clerk's contract, unless both parties agree or the action is for cause. 23. Attorney Fees: In the event of any suit or action by either party under this Agreement, the prevailing party in such suit or action shall be entitled to reasonable attorney fees and costs to be fixed by the court. 24. Other Terms and Conditions of Employment: The City Council, in consultation with City Clerk, shall fix any other terms and conditions of employment, as it may determine from time to time, relating to the performance of City Clerk, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the Petaluma City Charter, the Petaluma Municipal Code or any other applicable state or federal law. 25. Indemnification: a. CITY shall defend, hold harmless and indemnify City Clerk against any tort, civil rights, personnel, discrimination, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of the City Clerk's duties in accordance with the provisions of California Government Code Section 825 and following as amended from time to time and provide a defense in accordance with California Government Code Section 995 and following. Notwithstanding anything to the contrary in this Agreement, CITY reserves the right to refuse to provide a defense of City Clerk for the reasons set forth in California Government Code section 995.2 or other applicable provisions of law. Resolution No. 2017-025 N.C.S. Page 11 b. Following termination or expiration of this Agreement, for any reason, when City Clerk serves as a witness, advisor and/or consultant to CITY regarding pending litigation, CITY agrees to pay City Clerk consulting fees at an hourly rate equal to the base wage paid to City Clerk at the time of separation, CITY also agrees to pay reasonable travel expenses and miscellaneous costs related to such consulting. 26. Notices: Notices pursuant to this Agreement shall be in writing given by deposit in the custody of the United States Postal Service, first class postage prepaid, addressed as follows: a. CITY: Mayor and City Council 11 English Street Petaluma CA 94952 b. CITY CLERK: Claire Cooper City Clerk 11 English Street Petaluma CA 94952 Alternatively, notices required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial process. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice, postage prepaid, with the United States Postal Service. 27. Performance Evaluations: a. City Council may review and evaluate the performance of City Clerk annually in advance of the adoption of the annual operating budget or when requested by the City Clerk. Said review and evaluation shall be in accordance with specific criteria developed jointly by the City Council and City Clerk. Said criteria may be amended as the City Council may from time to time determine and in consultation with City Clerk. The City Council shall conduct its evaluation of City Clerk in closed session. The City Council shall provide City Clerk with the written evaluation and provide an adequate opportunity for City Clerk to discuss City Clerk's evaluation with City Council. b. In recognition of accomplishments and objectives, and satisfactory performance, a potential annual merit increase may be negotiated. C. The City Council and City Clerk shall define such goals and performance objectives as they determine necessary for the proper operation of CITY and the attainment of the City Council's policy objectives and shall further establish a relative priority among those various goals and objectives, said goals and Resolution No. 2017-025 N.C.S. Page 12 objectives to be reduced to writing. Said goals and objectives shall generally be attainable within the time limitations as specified in the annual operating and capital budgets and appropriations provided. d. In effecting the provisions of this section, the City Council and City Clerk mutually agree to abide by the provisions of applicable law. e. City Cleric will timely cause to be placed on the City Council agenda a "closed session" for purpose of City Clerk's performance evaluation. 28. Benefits: Except as otherwise provided in this Agreement, the City Clerk shall be entitled to the same benefits, including the same level of benefits and benefits choices, that are enjoyed by department directors of the CITY as provided in the City's approved Compensation Plan for Department Directors, and/or by practice. 29. Miscellaneous: a. The text herein shall constitute the entire agreement between the parties. Upon execution by both parties and commencing on the Effective Date, this Agreement will replace in its entirety the Fourth Amended At -Will Agreement for Employment of City Clerk dated August 4, 2014. This Agreement may not be modified, except by written agreement executed by both parties. b. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected and shall remain in full force and effect. C. This Agreement shall be governed by the laws of the State of California. d. The parties agree that any ambiguity in this Agreement shall not be construed or interpreted against, or in favor of, either party. This agreement shall be binding upon and inure to the benefit of the heirs at law and executors of City Clerk. CITY CLERK By kav(�u Claire Cooper, City Clerk Resolution No. 2017-025 N.C.S. Page 13 CITY . .ate 'D� ATTEST: John C. Brown Deputy City Clerk APPROVE. � ,AS TO FORM: °F. Eric W. Danly City Attorney Resolution No. 2017-025 N.C.S. Page 14