HomeMy WebLinkAboutReso 15-21 Retired Annuitant CalPERS (Knuckles)RESOLUTION NO. 15-21
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA
FOR 180-DAY WAIT PERIOD EXCEPTION
G.0 SECTIONS 7522.56 & 21221(H)
THE CITY COUNCIL
City of Morro Bay, California
WHEREAS, in compliance with Government Code section 7522.56 the City of Morro Bay (' City")
City Council must provide CalPERS this certification resolution when hiring a retiree before 180 days
has passed since his or her retirement date; and
WHEREAS, Steven Knuckles (CaIPERS ID 5047239807) will retire from the City of Morro Bay
in the position of Fire Chief, effective March 30, 2021 and
WHEREAS, section 7522.56 requires that post -retirement employment commence no earlier
than 180 days after the retirement date, which is September 27, 2021 (date of 181 st day after
retirement) without this certification resolution; and
WHEREAS, section 7522 56 provides that this exception to the 180-day wait period shall not
apply if the retiree accepts any retirement -related incentive; and
WHEREAS, the City Council of the City and Mr. Knuckles certify that he has not and will not
receive a Golden Handshake or any other retirement -related incentive; and
WHEREAS, the City Council of the City hereby appoints Mr. Knuckles as an interim appointment
retired annuitant to the vacant position of Fire Chief for the City under Government Code section
21221(h), effective March 30, 2021; and
WHEREAS, an appointment under Government Code section 21221(h) requires an active,
publicly posted recruitment for a permanent replacement; and
WHEREAS, the current status of this recruitment is active; and
WHEREAS, this section 21221(h) appointment shall only be made once and therefore will end
on March 30, 2022 if not automatically terminated earlier; and
WHEREAS, the entire employment agreement, contract or appointment document between Mr.
Knuckles and the City of Morro Bay has been reviewed by this body and is attached herein; and
WHEREAS, no matters, issues, terms or conditions related to this employment and appointment
have been or will be placed on a consent calendar; and
WHEREAS, the employment shall be limited to 960 hours per fiscal year, except as allowed by
CalPERS pursuant to Executive Order N-25-20, which suspends the 960 hour per fiscal year limit during
the state of emergency due to the COVID-19 pandemic, and
01181.0004/703226.2
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WHEREAS, the compensation paid to retirees cannot be Tess than the minimum nor exceed the
maximum monthly base salary paid to other employees performing comparable duties, divided by
173.333 to equal the hourly rate; and
WHEREAS, the maximum monthly base salary for this position is $13,355.67 and the hourly
equivalent is $77.05, and the minimum base salary for this position is $10,987.75 and the hourly
equivalent is $63.39; and
WHEREAS, the salary paid to Mr. Knuckles will be equivalent to the hourly rate of $77.05; and
WHEREAS, Mr. Knuckles has not and will not receive any other benefit, incentive,
compensation in lieu of benefit or other form of compensation in addition to this hourly pay rate.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City of Morro Bay City Council hereby certifies the nature of the employment of
Steven Knuckles as described herein and detailed in the attached employment agreement and that this
appointment is necessary to fill the critically needed position of Fire Chief for the City by March 30, 2021
because such position is essential to maintaining the basic ongoing emergency operations, ensuring
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adequate staffing during the state of emergency caused by the COVID-19 pandemic, and because a
recruitment for the permanent position of Fire Chief could not be completed by this date.
PASSED, APPROVED AND ADOPTED this 23' day of March 2021.
ATTEST:
State of California )
County of San Luis Obispo ) SS
City of Morro Bay )
I, Dana Swanson, City Clerk of the City of Morro Bay, California, do hereby certify that the City Council of
the City of Morro Bay duly approved and adopted the foregoing Resolution No. 15-21 at a regular meeting
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of said Council held on the 23' day of March 2021, by the following roll call vote:
AYES°
NOES'
ABSENT:
ABSTAIN:
Headding, Addis, Barton, Davis, Heller
N one
N one
N one
01181.0004/703226.2
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CITY OF MORRO BAY
AT -WILL INTERIM FIRE CHIEF
EMPLOYMENT AGREEMENT
This AT -WILL INTERIM FIRE CHIEF EMPLOYMENT AGREEMENT
("Agreement") is made by and between the CITY OF MORRO BAY (the `City") and STEVEN
KNUCKT,ES ("Employee"). The City and Employee may be referred to individually as a
`Parry' or collectively as "the Parties."
RECITALS
WHEREAS, Government Code subdivision 21221(h) permits retired annuitants under the
California Public Employees' Retirement System ("Ca1PERS') to be employed without
reinstatement from retirement upon appointment by a public agency to fill a vacant position on
an interim basis during the recruitment to permanently fill the vacant position; and
WHEREAS, Employee very recently announced his retirement from the position of Fire
Chief effective March 30, 2021, and as a result, the Fire Chief position will be vacant as of that
date; and
WHEREAS, Employee has reached normal retirement age; and
WHEREAS, the City is currently conducting an open recruitment to permanently fill the
position of Fire Chief and
WHEREAS, the City anticipates the Fire Chief position will be filled with a permanent
replacement within four months after the effective date of this Agreement and
WHEREAS, the duties of the Fire Chief are set forth in full in Exhibit "A" to this
Agreement and
WHEREAS, pursuant to Cal. Government Code § 7522.56(f), a retired person shall not
be employed as a retired annuitant for a period of 180 days following the date of retirement,
unless he or she meets one of several exceptions, including that "[t]he employer certifies the
nature of the employment and that the appointment is necessary to fill a critically needed
position before 180 days have passed and the appointment has been approved by the governing
body of the employer in a public meeting[;]"; and
WHEREAS, concurrent with the approval of this Agreement, the City Council adopted
Resolution No. 15-21, certifying the nature of Employee's employment and that the appointment
is necessary to fill a critically needed position before 180 days have passed since Employee's
retirement; and
WHEREAS, Ca1PERS requires in order 'No secure a 180-day wait period exception, the
employer must submit the resolution -certification package . . . and a copy of the retiree's
01181.0004/703227.3
Page 1 of 7
employment agreement or personnel appointment document to Ca1PERS before the first day of
employment[;]" and
WHI-i,REAS, it is the desire of the City Manager to appoint Fmployee to serve as an at -
will, temporary employee for the position of Interim Fire Chief, which is a position that requires
specialized skills and expert professional services for a definite period of time, effective March
30, 2021; and
WHEREAS, as a Ca1PERS retired annuitant under Government Code subdivision
21221(h), Employee (i) possesses knowledge, skills and abilities necessary to fulfill the required
duties of the Interim Fire Chief, as demonstrated by his success as fire chief over an extensive
period of time, (ii) desires to perform the duties of and assume responsibility for the position of
Interim Fire Chief, and (iii) acknowledges such employment is at -will and of a limited duration
for a definite period of time, as described below; and
WHEREAS, the Parties wish to establish the terms and conditions of Employee's
services to the City, as described in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, City
and Employee hereby agree as follows:
AGREEMENT
Section 1: TERM
The term of this Agreement shall commence on March 30, 2021 and shall automatically
terminate on March 29, 2022 unless terminated prior to that date by either Party (the "Term").
The City shall terminate this Agreement in accordance with Section 4 of this Agreement upon
the City appointment of a permanent replacement for the position of Fire Chief. In no event shall
the Term exceed the 960-hour per fiscal year limit under Government Code subdivision
21221(h) except as allowed by Ca1PERS pursuant to Executive Order N-25-20, which suspends
the 960 hour per fiscal year limit during the state of emergency due to the COVID-19 pandemic.
In the event Fmployee works 960 hours during the Term of this Agreement without Ca1PERS
authorization, then this Agreement shall terminate automatically. March 30, 2021 shall be
Employee's "Hire Date" for purposes of this Agreement.
Section 2: DUTIES, RESPONSIBILITIES, AND WORK HOURS
A. Fmployee shall be appointed to the position of Interim Fire Chief the functions
and duties of that position, as described in Exhibit "A' to this Agreement, and such other legally
permissible and proper duties and functions as the City Manager shall, from time to time, direct
or assign to Fmployee. Fmployee acknowledges the position of Interim Fire Chief requires
specialized skills and expert professional services for a definite period of time, as described
above in Section 1 of this Agreement. Employee agrees to perform all such functions and duties
to the best of Employee's ability and in an efficient, competent, and ethical matter.
B. Employee acknowledges proper performance of the duties of Interim Fire Chief
will generally require Employee to observe normal business hours, as directed by the City
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Manager, as well as regularly devote time outside of normal office hours, including attendance at
City Council and other City or community meetings. Furthermore, the Interim Fire Chief
position remains an `exempt" classification under the overtime provisions of the federal Fair
Labor Standards Act ("FLSA") and Employee shall not be entitled to any compensation for
overtime nor subject to such overtime provisions of the FLSA. Notwithstanding the foregoing,
the Parties understand and agree, due to the CalPERS limitation on the number of hours
Employee can work for the City, Employee may not be available during some hours or days, if
extra time is required for attendance at meetings and other reasons relating to City -business.
C. All data, studies, reports, and other documents prepared and/or reviewed by
Employee while performing her duties during the Term of this Agreement shall be furnished to
and become the property of the City, without restriction or limitation on their use. All ideas,
memoranda, specifications, plans, procedures, drawings, descriptions, computer program data,
input record data, written information, and other materials either created by or provided to
Employee in connection with the performance of this Agreement shall be held confidential by
Employee to the extent permitted by applicable law. Such materials, without the prior written
consent of the City, shall not be used by Employee for any purpose other than the performance of
his duties. Nor shall such materials be disclosed to any person or entity not connected with the
performance of services under this Agreement, except as required by law.
Section 3: COMPENSATION/ BENEFITS PROHIBITED
A. The City agrees to compensate Employee at a salary equivalent to Step 5 of the
City's approved rate of compensation for the Fire Chief position, which is currently Thirteen
Thousand Three Hundred Fifty-five Dollars and Sixty-seven Cents ($13,355.67) per month
(based on an annual salary of $160,268.00), to equal an hourly late of Seventy-seven Dollars and
Five Cents ($77.05; $13,355.67 divided by 173.333). That calculated hourly late is simply to
show compliance with Ca1PFRS' requirements (Gov't Code subdivision 21221(h)) and not to be
construed as designating the Interim Fire Chief position as hourly employment and anything
other than salaried and exempt pursuant to the FLSA.
B. Not as a benefit to Employee, but to allow Employee to provide efficient
emergency response for services provided by Employee at all times, during the term of this
Agreement the City shall provide Employee with a specially equipped suitable City -owned
automobile for N,mployee's reasonable use only to perform City -related business and emergency
response. The City shall be responsible for paying for liability, property damage and
comprehensive insurance for that automobile and shall be responsible for paying for gasoline
and maintenance and repair of that automobile. Employee will also be provided with the
necessary personal protective equipment, iPad and laptop computer regularly assigned to the
position of Fire Chief to fill the required duties.
C. Employee shall not be eligible for any other benefits incentives, compensation in
lieu of benefits, or any other forms of compensation in addition to the hourly rate except for the
above hourly rate and workers' compensation benefits.
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Section 4: RESIGNATION/TERMINATION
A. Employee may resign at any time, provided, however, Employee shall reasonably
provide the City Manager with at least thirty -days' advance written notice unless otherwise
shortened by the City Manager.
B. Employee is an at -will employee and serves at the will and pleasure of the City
Manager and may be terminated at any time, with or without cause, and with or without notice,
at any time by the City Manager, subject to section 4(C) below.
C. In accordance with the Firefighters Procedural Bill of Rights Act, Government
Code sections 3250 et seq., including Section 3254(c), Employee shall not be terminated except
by virtue of the expiration of this Agreement exhaustion of his Ca1PERS 960 hour per fiscal
year limit, or because of the City's appointment of a permanent Fire Chief, without written notice
and the reason(s) therefor, as well as the opportunity for an administrative appeal. The removal
of -Employee by the City, for the purpose of implementing the goals or policies, or both, of the
City, for reasons including, but not limited to, incompatibility of management styles or as a result
of a change in administration, shall be sufficient to constitute reason or reasons within the
meaning of this Agreement and Government Code section 3254(c). Nothing in this Section shall
be construed to create a property interest in Employee's job as Interim Fire Chief. In the event
Rmployee is terminated by virtue of the expiration of this Agreement, Ca1PERS hours
limitations, or the City's appointment of a permanent Fire Chief, he shall not be entitled to
written notice or an administrative appeal of his teinrination.
D. In accordance with state law and the requirements of the California Public
Employees Retirement Law, Rmployee may not be reappointed to this position following the
expiration of this Agreement, nor may this Agreement be modified to extend the term of the
Agreement.
E After notice of resignation or termination, Employee shall cooperate with the
City, as requested by the City, to effect a transition of Employee's responsibilities and duties and
to ensure the City is aware of all matters being handled by Employee.
F. Employee shall not be entitled to severance pay and Rmployee expressly waives
any and all rights with respect to severance pay.
Section 5. NOTICES
Notices required to be served pursuant to this Agreement shall be served in person or by
first-class U.S. mail addressed as follows:
City
City Manager
City of Morro Bay
595 Harbor Street
Morro Bay, California 93442
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Employee
Steven Knuckles
Address on file with the City
Section 6: GENERAL TERMS AND CONDITIONS
The General Terms and Conditions of this Agreement are described as follows:
A. Indemnification To the extent mandated by the California Government Code, the
City shall defend, hold harmless, and indemnify Employee against any tort, professional liability,
claim or demand, or other legal action arising out of an alleged act or omission occurring in the
performance of Employee's services under this Agreement This section shall not apply to any
intentional tort or crime committed by Employee, to any action outside the course and scope of
Employee's employment, or any other intentional or malicious conduct or gross negligence of
hmployee.
B. Entire Agreement. The text of this Agreement shall constitute the entire and
exclusive agreement between the Parties regarding the subject matter hereof. All prioi oral or
written communications, understandings, or agreements between the Parties not set forth herein
shall be superseded in total by this Agreement. No amendment or modification to this
Agreement may be made except by a written agreement signed by the Employee and the City
Manager and approved as to form by the City Attorney.
C. Assignment. This Agreement is not assignable by either the City or Employee.
D. Severability. In the event any provision of this Agreement is finally held or
determined to be illegal or void by a court having jurisdiction over the Parties, the remainder of
this Agreement shall remain in full force and effect unless the parts found to be illegal or void
are wholly inseparable from the remaining portions of this Agreement.
E hffect of Waiver. The failure of either Party to insist on strict compliance with
any of the terms, covenants, or conditions in this Agreement by the other Party shall not be
deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of
any right or power at any one time or times be deemed a waiver or relinquishment of that right or
power for all or any other time or times.
F. Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, which are in full force and
effect as of the date of execution. Any action to interpret or enforce the terms of this Agreement
shall be held exclusively in a state court in San Luis Obispo County, California hmployee
expressly waives any right to remove any such action from San Luis Obispo County.
G. Effective Date. This Agreement shall not become effective until it has been
signed by Employee and on behalf of the City.
H. Effect of Agreement on Employee's Ca1PFRS Retirement Benefits. The City
makes no representation on the impact, if any, this Agreement shall or may have upon his
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Ca1PERS retirement benefits, status, duties, and/or obligations. Employee acknowledges that in
entering into this Agreement, he has not relied upon any such representations (none of which
being in existence) in assessing the Ca1PERS-related impact of his employment. Therefore,
Employee releases the City from any and all Ca1PP:RS-related claims or liabilities that may arise
in connection with his employment pursuant to this Agreement
I. No Unemployment Insurance Benefits Received By Employee. Employee
expressly certifies and warrants to the City that he has not received any unemployment insurance
payments for retired annuitant work for any public employer within the 12 months prior to his
appointment date.
J. Compliance With 960 Hours Per Fiscal Year Limit. Employee further certifies
and warrants to the City his anticipated work schedule of 40 hours per week will not cause him
to exceed the 960 hours per fiscal year limit pursuant to Government Code subdivision 21221(h),
including work foi any other Ca1Ph,RS employer during the current fiscal year.
K. Conflicts Prohibited. During the term of this Agreement, Employee shall not
engage in any business or transaction or maintain a financial interest which conflicts, or
reasonably might be expected to conflict, with the proper discharge of Employee s duties under
this Agreement. Employee shall comply with all requirements of law, including but not limited
to, Sections 1090, 1125, and 87100 et seq. of the Government Code, and all other similar
statutory and administrative rules
L Independent Legal Advice. The City and 1-h,mployee represent and warrant to each
other that each has received legal advice from independent and separate legal counsel with
respect to the legal effect of this Agreement or at least had the opportunity to do so, that each has
carefully reviewed this entire Agreement, that each and every teuu thereof is understood and
that the teirrrs of this Agreement are contractual and not a mere recital. This Agreement shall not
be construed against the Party or its representatives who drafted it or who drafted any portion
thereof.
M. Government Code §§ 53243 - 53243.4. Government Code §§ 53243 - 53243.4
sought to provide greater transparency in local government and institute certain limitations on
compensation paid to local government executives. Those statutes also require contracts
between local agencies and its employees include provisions requiring an employee who is
convicted of a crime involving an abuse of his office or position to provide reimbursement to the
local agency. Those statutes are incorporated herein by reference Accordingly, the Parties
agree it is their mutual intent to fully comply with the cited Government Code sections and all
other applicable law as it exists as of the date of execution of this Agreement and as such laws
may be amended from time to time thereafter. Specifically, the following Government Code
sections are called out and hereby incorporated by this Agreement:
§53243. Reimbursement of paid leave salary required upon conviction of crime
involving office or position.
§53243.1. Reimbursement of legal criminal defense upon conviction of crime
involving office or position.
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§53243.2. Reimbursement of cash settlement upon conviction of crime involving
office or position.
§53243.3. Reimbursement of noncontractual payments upon conviction or crime
involving office or position.
§53243.4. "Abuse of office or position" defined.
Employee represents Employee has reviewed, is familiar with, and agrees to comply fully
with each of these provisions if any of these provisions are applicable to Employee.
IN WITNESS WHEREOF, the City of Morro Bay has caused this Agreement to be signed and
executed on its behalf by its City Manager, and approved as to form by the City Attorney, and
executed by the Employee.
CITY OF MORRAY,
Dated:
Attest:
(Scott Collins:
City Manager
Dana Swanson,
City Clerk
EMPLOYEE,
Approved as to form:
elms yue
Chris F. Neume
City Attorney
In signing this Agreement, Employee understands and agrees he is an at -will, salaried
and exempt employee and his rights to employment with the City are governed by the terms and
conditions of this Agreement rather than the ordinances, resolutions, and policies of the City,
which might otherwise apply to classified or other employees of the City. Employee further
acknowledges he was given the opportunity to consult with an attorney prior to signing this
Agreement.
Dated: 3/1>) 202
Signed:ta-41
STEVEN KNUCKLES
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