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HomeMy WebLinkAboutReso 22-25 Retired Annuitant_Final - signed RESOLUTION NO. 22-25 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA, APPOINTING ROBERT SCHULTZ AS AN INTERIM CITY ATTORNEY PURSUANT TO GOVERNMENT CODE SECTION 21221 and 21224 T H E C I T Y C O U N C I L City of Morro Bay, California WHEREAS, on December 19, 2024, the City Council terminated its independent contractor agreement for city attorney legal services with Burke, Williams, Sorensen, which created an immediate emergency need for specialized legal services during the recruitment of a permanent city attorney; and WHEREAS, on December 19, 2024, the City Council entered into an interim independent contract agreement with Robert Schultz for specialized legal services during the recruitment of a permanent city attorney; and WHEREAS, in addition to providing specialized legal services, the independent contract agreement requires Robert Schultz to analyze s and make recommendations regarding the advantages and disadvantages of contracting City Attorney services versus maintaining an in-house City Attorney for the City of Morro Bay; and WHEREAS, pursuant to the independent contractor agreement, the City does not exercise any control over the legal services or analysis performed by Robert Schultz, and he is responsible for managing his duties and assignments independently, without oversight from the City; and WHEREAS, since December 19, 2024, the recruitment for a permanent City Attorney has been underway with Robert Schultz actively searching for a potential permanent City Attorney and conducting background checks; and Whereas on April 8, 2025, Robert Schultz prepared and presented a detailed analysis to the City Council on the advantages and disadvantages of contracting City Attorney services versus maintaining an in-house City Attorney and the City Council directed staff to prepare a job description, salary range, and recruitment schedule for an in-house City Attorney; and WHEREAS, CalPERS has preliminarily determined that Robert Schultz is not an independent contractor and must be classified as a retired annuitant employee under Government Code sections ; and WHEREAS, Government Code section 21221 and 21224 Retirement Law permits the governing body to appoint a CalPERS retiree to a vacant position requiring specialized skills needed to perform work of limited duration, or their employment is necessary during an emergency to prevent stoppage of public business, or an appointment to an interim position during active recruitment for a permanent replacement for the vacant position; and WHEREAS, Robert Schultz was the City Attorney for Morro Bay from 1997 to 2013, both as an independent contractor and as a CalPERS employee. As Morro Bay City Attorney for 16 years, Robert Schultz has specialized skills and knowledge of Morro Bay city business to provide legal advice during an emergency and without delay, to provide an analysis of City Attorney services, and to provide strategic advice as to the selection of a permanent City Attorney; and WHEREAS,if the City did not obtain immediate specialized legal services of Robert Schultz, a work stoppage of public business would occur as there would be no ability for the City to obtain legal advice as outlined in Government Code Section 41805; and WHEREAS, the City Council desires to hire Robert Schultz to ensure a work stoppage of public business does not occur and to appoint him as a retired annuitant to the position of Interim City Attorney for the City of Morro Bay under Government Code Sections 21221 and 21224, effective December 19, 2024; and WHEREAS, the City Council, the City of Morro Bay, and Robert Schultz certify that Robert Schultz -related incentive; and WHEREAS, this appointment shall only be made once to this vacant position and therefore, will end no later than September 30, 2025, if not sooner by the terms of the employment agreement (Exhibit A); and WHEREAS, the entire employment agreement, contract or appointment document between Robert Schultz has been reviewed by this body and is attached hereto (Exhibit A), and all other Agreements between the City and Robert Schultz are terminated and null and void but the City and Robert Schultz reserve its rights to challenge CalPERS determination the Robert Schultz is not classified as an independent contractor; and WHEREAS, this appointment shall be limited to 960 hours per fiscal year; and WHEREAS, the compensation paid to retirees cannot be less 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 monthly base salary rate paid to Robert Schultz will be equivalent to the City Attorney Salary approved by the City Council in the amount of $107.17 hourly, and WHEREAS, Robert Schultz 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 DOES HEREBY RESOLVE: Section 1. The City Council hereby certifies the above recitals are true and correct and incorporated herein. Section 2. The City Council does hereby appoint Robert Schultz to the position of Interim City Attorney and hereby certifies the nature of the appointment of Robert Schultz as described herein and detailed in the attached Employment Agreement and that this appointment is necessary to fill the critically needed position of Interim City Attorney for the City of Morro Bay until the recruitment process is completed. Section 3. That the Mayor is authorized, on behalf of the City Council, to execute the Employment Agreement, a copy of which is attached as Exhibit A, setting forth the terms and conditions of employment for Robert Schultz. Section 4. The City Clerk shall certify the passage and adoption of this resolution and enter it into the book of original resolutions. /// Section 4. This resolution shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held this 13 nd day of May 2025, by the following vote: AYES: Wixom, Eckles, Edwards, Landrum, Luffee NOES: None ABSENT: None ABSTAIN: None RECUSE: None _______________________________ CARLA WIXOM, Mayor ATTEST: ________________________________ DANA SWANSON, City Clerk Page 1 of 5 INTERIM CITY ATTORNEY EMPLOYMENT AGREEMENT LIMITED DURATION RETIRED ANNUITANT This INTERIM CITY ATTORNEY EMPLOYMENT AGREEMENT-LIMITED DURATION 19th day of December 2024 and is made by and between the CITY OF MORRO BAY Municipal corporation, and ROBERT SCHULTZ R E C I T A L S WHEREAS, the City of Morro Bay - will employee for a definite period of time to serve in the position of Interim City Attorney for the City of Morro Bay, California, which is a position that requires specialized skills, and Employee desires to perform and assume responsibility as the Interim City Attorney on a temporary basis subject to the terms and conditions set forth in this Agreement; and WHEREAS, the parties wish to have Employee perform the services of Interim City Attorney, while the City conducts its recruitment for a permanent City Attorney, and will terminate Attorney; and WHEREAS, Government Code Sections 7522.56 and 21221(h) and 21224 permit retired annuitants 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, if approved by the City Council; and WHEREAS, Employee has served as a City Attorney with over twenty-five years of Municipal experience, and those specialized skills are necessary to support the continuing operations of the City during the recruitment; and WHEREAS, the City wishes to establish the terms and conditions of services to the City through this Agreement, in compliance with Government Code section 7522.56 and 21221(h) and 21224. NOW, THEREFORE, in consideration of the mutual covenants contained herein, City and Employee hereby agree as follows: A G R E E M E N T 1.0 EMPLOYMENT & DUTIES 1.1 Duties. City hereby employs Employee as Interim City Attorney for the City to perform the functions and duties of the City Attorney contained in the City of Morro Bay Municipal Code, as otherwise provided by law, ordinance, or regulation, and such further lawful duties as directed by the City Council. Employee shall devote his best efforts to the performance of these duties. 1.2 Work Schedule. Employee will be required to keep accurate time records of his hours worked and be enrolled in the myCalPERS system as a retired annuitant to ensure that he does not exceed 960 hours worked within the fiscal years that occur during the term Page 2 of 5 of this Agreement. In the position of Interim City Attorney, work before or after normal business hours may be required. Employee shall attempt to flex his hours (starting late or ending early or scheduling time off during the week), so that he does not work over 40 hours in a workweek. 1.3 Employment Status. Employee shall serve at the will and pleasure of the City Council and understands he is an "at-will" employee subject to summary dismissal without hearing. The City may terminate the employment of the Employee at any time, as set forth in Section 2.2 below. Employee shall not be and will not acquire a property interest in the position of Interim City Attorney. Employee is a temporary employee employed to perform specialized services in accordance with Government Code sections 7522.56 and 21221(h) and 21224. 2.0 TERM 2.1 Term. This Agreement is effective December 19, 2024. This Agreement shall expire as of the first of the following to occur: (i) within 30 days of the employment commencement date of a permanent City Attorney to allow for a transition period, but no later than September 30, 2025; (ii) upon Employee working 960 hours for fiscal year 2024-2025 or 960 hours in any subsequent fiscal year; or (iii) upon termination of the Agreement by either Employee or the City as provided below. 2.2 Termination by City or Employee. The City may terminate this Agreement at any time with or without cause and with or without notice. At the time of termination, Employee shall not be entitled to any pay or benefits, except that which is owed for those hours already worked. Additionally, Employee may terminate this Agreement at any time with or without cause, provided, however he shall reasonably provide the City with at least two a shorter period is acceptable to the City. 2.3 Transfer of Responsibilities. After Notice of Resignation, Termination, or selection of a permanent City Attorney, the Employee shall cooperate with the City, as requested by the City, to effect a transition of the the City is aware of all matters being handled by Employee. 2.4 No Reappointment or Extension of Term. In accordance with state law and the requirements of the PERL, the Employee may only be appointed to this position one time (single appointment). 2.5 No Severance Pay. Upon termination, Employee shall not be entitled to severance pay, payment of any benefits, or any other form of compensation, and Employee expressly waives any and all rights with respect to severance pay. 3.0 COMPENSATION AND REIMBURSEMENT 3.1 Compensation and Compensation Cap. For the services rendered pursuant to this Agreement, sole compensation, the amount of $107.17 per hour, which amount is in conformance with the requirements of Government Code Section 7522.56(d). The hourly rate is not more than the maximum nor less than the minimum monthly base salary paid to other employees performing comparable duties, reflected as an hourly rate by dividing the monthly base pay by 173.333. Because the Employee Page 3 of 5 is paid on an hourly basis, and in accordance with the FLSA, if the Employee works over 40 hours per workweek, the Employee will be paid for additional hours at the legally required overtime rate. 3.2 Medicare. Employee shall pay his own required Medicare contributions. 3.3 No Other Benefits. Employee shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation. 3.4 Reimbursable Expenses. Employee shall be entitled to reimbursement of mileage for driving required in the course of his work (not commuting), in accordance with City policies for all employees. Employee shall not be entitled to reimbursement for any other costs or expenses incurred in the performance of duties under this Agreement unless said costs and expenses have received prior approval by the City Council and are supported by written documentation in accordance with the established policies and customary practices of the City. 4.0 ACKNOWLEDGMENT OF NO BENEFITS 4.1 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 this Agreement. Employee shall comply with all requirements of law, including but not limited to, Sections 87100 et seq., Section 1090 and Section 1125 of the Government Code, and all other similar statutory and administrative rules. 4.2 Provision of Benefits Prohibited. Employee is a CalPERS retiree and will thus not be enrolled in CalPERS, other than as a retired annuitant solely for administrative recording keeping purposes (Employee will remain in retired status) and will report both the hours worked by Employee and pay pursuant to this Agreement. Employee understands and acknowledges that Government Code Section 21221(h) provides that a retired annuitant appointed to a vacant position pursuant to this subdivision shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate of compensation. Therefore, Employee will receive only the hourly wages described above, unless otherwise required by applicable law 5.0 REPRESENTATIONS AND WARRANTIES 5.1 Employee warrants that he has been retired for service from state service, is eligible to be employed as a retired annuitant by the City. 5.2 Employee represents that he is currently not employed by any other CalPERS employer. 5.3 Employee warrants that he has not received any unemployment insurance compensation arising out of prior public employment during the prior 12-month period prior to appointment. Page 4 of 5 6.0 BONDS AND INDEMNIFICATION 6.1 Indemnification. For the purposes of indemnification and defense of legal actions, Employee shall be considered an employee of the City and entitled to the same rights and subject to the same obligations as are provided for all other employees of the City, as required by the Government Code. Accordingly, to the extent mandated by the 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 within the exclusions provided by law. 6.2 Bonds. City shall bear the full cost of any fidelity or other bonds, which 7.0 NOTICES Any notice required or permitted by this Agreement shall be in writing and shall be personally served or shall be sufficiently given when served upon the other party as sent by the United States Postal Service, postage prepaid and addressed as follows: To City: To Employee: City Council Robert Schultz City of Morro Bay 3940 Broad Street 595 Harbor Street. Ste. 7-155 Morro Bay, CA 90755 SLO, CA 93401 Notices shall be deemed given as of the date of personal service or upon the date of deposit in the course of transmission with the United States Postal Service. 8.0 GENERAL PROVISIONS 8.1 Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, either oral or in writing, between agreements between the parties with respect to such employment. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either party, or anyone acting on behalf of either party, which are not embodied herein, and that no other agreement, statement or promises not contained in this Agreement shall be valid or binding upon either party. 8.2 Assignment. This Agreement is not assignable by either the City or Employee. 8.3 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. 8.4 Effect of Waiver. The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be Page 5 of 5 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 times. 8.5 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. 8.6 Interpretation. This Agreement shall not be construed against the party or its representatives who drafted it or who drafted any portion thereof. 8.7 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF, the City of Morro Bay has caused this Agreement to be signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly authorized, and Employee has signed and executed this Agreement. CITY OF MORRO BAY _______________________________ Mayor, Carla Wixom RETIRED ANNUITANT EMPLOYEE ________________________________ Robert Schultz