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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 1 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 g 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 g 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 2 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 2. 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. 3 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 4 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 5 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. 6 §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 7