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 CITY COUNCIL AGENDA ITEM NO. 19


Meeting Date: March 26, 2002

Subject/Title: Approve the Employment Agreement between the City of Brentwood and Michael Davies, Police Chief

Submitted by: Dennis Beougher, City Attorney

Approved by: John Stevenson, City Manager

RECOMMENDATION 
Motion to approve the employment agreement between the City of Brentwood and Michael Davies. Appoint Michael Davies as Brentwood’s Police Chief, effective March 12, 2002.

PREVIOUS ACTION
Michael Davies was appointed as Acting Police Chief effective January 8, 2002, upon the retirement of Larry Shaw. At the City Council meeting of March 12, 2002 the Council met in a closed session to review and discuss the employment agreement with Michael Davies.

BACKGROUND
On January 22, 2002 Ordinance 697 was amended approving selection of department heads on basis of merit, fitness and ability to perform the job duties. City Manager John Stevenson had appointed Michael Davies as Acting Police Chief and now wants to appoint Davies as permanent Police Chief. An agreement has been drafted and is attached for your review. Staff recommends approval of the agreement.

FISCAL IMPACT
Funds are available in the Police Department budget to cover the salary and benefits expenditures that result from the proposed agreement.

EMPLOYMENT AGREEMENT BETWEEN THE CITY OF BRENTWOOD AND MICHAEL R. DAVIES, CHIEF OF POLICE
THIS EMPLOYMENT AGREEMENT made and entered into this 26th day of March, 2002, by and between the CITY OF BRENTWOOD, hereinafter called “City or Employer” and MICHAEL R. DAVIES, Chief of Police, hereinafter called “DAVIES”, both of whom understand as follows:
WITNESSETH:
WHEREAS, City desires to employ and retain the services of DAVIES as Police Chief of the City of Brentwood; and
WHEREAS, the City Council of the City of Brentwood wishes to retain the services of DAVIES and to establish and incorporate certain benefits, conditions of employment and working conditions of said DAVIES into a written contract; and
WHEREAS, DAVIES desires to serve as Police Chief of said City and DAVIES represents that he has the requisite skill and experience to perform the job of Chief of Police for the City of Brentwood.
NOW, THEREFORE IN CONSIDERATION OF THE MUTUAL CONVENANTS HEREIN CONTAINED, the parties agree as follows:
Section 1. Duties:
City hereby agrees to employ MICHAEL DAVIES, as Police Chief of the City of Brentwood, who will perform such other legally permissible and proper duties and functions as the City Manager, shall assign him from time to time. From an organizational standpoint, DAVIES shall report to the City Manager of the City of Brentwood with regard to day-to-day responsibilities. DAVIES agrees to devote his full time to said duties as shall be reasonably necessary for their proper performance, regardless of the number of hours involved.
Section 2. Term:
(A). The term of this Agreement shall be from March 26, 2002 until March 26, 2005, inclusive, unless terminated earlier by either party or unless terminated by the death or permanent disability of DAVIES. Prior to the expiration date of March26, 2005, both the City and DAVIES may agree to extend the contract.
(B). DAVIES shall devote his time and efforts exclusively to the position of Chief of Police. DAVIES agrees not to undertake any other employment or consulting incompatible with his duties hereunder during the term of this Agreement without City Manager written approval, unless otherwise required under State or Federal law, such as military service.
(C) Nothing in this agreement shall prevent, limit or otherwise interfere with the right of DAVIES to resign at any time from his position with City, subject to the provisions set forth in Section 3.

Section 3. Termination and Severance Pay:
This Agreement may be terminated at any time in any one of the following ways: 
(A) By mutual agreement of the parties hereto, expressed in writing; or 
(B) By DAVIES, upon giving to City not less than four (4) weeks prior written notice of his election to terminate; or 
(C] By City, for cause, arising from a willful breach of duty or habitual neglect of duty by DAVIES, by DAVIES’ conviction or plea of guilty or nolo contendere of a crime involving moral turpitude, or for any conduct by DAVIES which makes it impossible or impractical for him to perform his duties including permanent disability, or that seriously and substantially impedes City ’s operations; or 
(D) By City, without cause, upon giving DAVIES five (5) days written notice of termination. This is to say, DAVIES’ employment may be terminated at the will of the City. In the case of such at-will termination by City (but not in the event of termination for cause), City agrees to pay DAVIES a lump sum cash payment equal to six (6) months salary and benefits accrued to date of such at-will termination, including, without limitation, sick leave, holiday bank, vacation, and pro-rated compensatory benefits earned while employed with the City of Brentwood, but excluding administrative/executive leave under Section 4 (B). City ’s health, dental, and vision insurance coverage for DAVIES shall be continued for a six (6) month period after termination or until DAVIES finds other employment, whichever occurs last. 
Section 4. Compensation and Benefits:
(A) Compensation: CITY agrees to pay DAVIES for his services rendered an initial annual salary for fiscal year 2001/02 of $111,929.00 payable in installments at the same time and manner as other employees of the CITY are paid. Fiscal year 2001/02 salary is based upon $53.81/hr effective July 1, 2001 through June 30, 2002, Step C. Salary for the remainder of the term shall be the mean pay of those cities specified by the City Council through the adopted Classification/Compensation Study used for comparable pay calculations with the City of Brentwood, Step C considerations. For the Police Chief position, salary compensation for DAVIES shall be established by the City Manager and DAVIES based on the mean pay calculations of the approved survey cities and approved on or before the last regular Council meeting in June as part of the annual budget process.
(B) Administrative/Executive Leave: DAVIES shall be entitled to the lesser of up to eighty (80) hours of paid Administrative/Executive leave each fiscal year or the number of hours provided to the City ’s other exempt management employees, if any. In the event that City policy for exempt management adjusts the amount of Administrative/Executive Leave, DAVIES’ leave shall be adjusted as well. This leave shall not carry over from year to year if unused, unless approved in writing by the City Manager, nor shall any unused leave be paid to DAVIES in the event of the termination of this Agreement.
(C) Vacation Leave: DAVIES shall accrue twenty-eight (28) days (224 hours) of annual vacation leave each fiscal year. DAVIES’ vacation leave shall cap at forty-two (42) days (336 hours), at which point he shall cease to accrue vacation until such time as his vacation accrual is less than forty-two (42) days (336 hours). In the event that City policy increases the amount of vacation leave, DAVIES’ annual vacation shall be adjusted upward as well. DAVIES shall be entitled to any vacation buyback program to the same extent as other exempt management employees. 
(D) Holidays: DAVIES shall be entitled to Holidays to the same extent as other exempt management employees.
(E) Sick Leave: DAVIES shall be provided sick leave to the same extent as other exempt management employees.
(F) Health / Dental / Life / Vision / LTD Insurance: DAVIES shall be provided health / dental / life / vision / LTD insurance packages to the same extent as other exempt management employees at the Department Head level. Benefit levels and eligibility for benefits are defined in the contracts between the providers and the CITY. With respect to health insurance after retirement, unless eligible for CalPERS retirement health plan, DAVIES will be provided an in-lieu contribution equivalent to that portion of the benefit level provided under the CalPERS retirement health plan to exempt police management employees at the Department Head level.
(G) Retirement: DAVIES shall be eligible to participate, in the Public Employees’ Retirement System (PERS) for the 3% at age 50 formula and the Third Level 1959 survivor benefit. Cost to DAVIES through June 30, 2002 will be 2% of reportable wages. Effective July 1, 2002 DAVIES shall contribute 1% of reportable wages for the period ending on June 30, 2003. Future adjustment to employee contributions will be in line with the City’s Sworn member group. The terms of the contract between the CITY and PERS shall govern the eligibility for and level of benefits, if any, to which DAVIES is entitled.
(H) Deferred Compensation: DAVIES shall be allowed to participate in the CITY ’s deferred compensation plan to the same extent as other exempt management employees. 
(I) No reduction of benefits: City shall not at any time during the term of this agreement reduce the salary, compensation or other benefits of DAVIES, except to the degree of such reduction for all management employees at the department head level. 
(J) Automobile Allowance. DAVIES shall provide his own automobile. City shall provide DAVIES a monthly automobile allowance of $600 per month, adjusted annually at the same percentage rate of any salary increase, to reimburse him for the use of his automobile for City ’s business. The City, in addition, shall pay for gasoline used during the course of City business. 
(K) Uniform Allowance and Education Supplement. DAVIES shall receive a uniform allowance and education supplement to the same extent as other sworn officers on the police department.
(L) Dues and Subscriptions. CITY shall budget and shall pay for the professional dues and subscriptions of DAVIES necessary for his continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for his professional growth and advancement, and for the good of the CITY, including but not limited to the International Association of Chiefs of Police, the California Police Chiefs’ Association, the Contra Costa County Chiefs’ Association, and the FBI National Academy Associates.
(M) Professional Development. CITY shall budget and shall pay, as stated in the approved budget, for travel and subsistence expenses of DAVIES for professional and official travel, meetings, and occasions. The amount shall be adequate to continue the professional development of DAVIES and to adequately pursue necessary official and other functions for CITY, including but not limited to the Annual Conferences of the International Association of Chiefs’ of Police, the California Police Chiefs’ Association, the Contra Costa County Chiefs’ Association, law enforcement seminars and training, and such other national, regional, state and local governmental groups and committees for which DAVIES serves as a member for the good of the CITY.
Section 5. Other terms and conditions of Employment: 
City, in consultation and agreement with DAVIES, shall fix any such other terms and conditions of employment, relating to the performance of DAVIES provided such terms and conditions are not inconsistent with or in conflict with the provisions of this agreement, the Brentwood Municipal Code or any other law.
Section 6. General Provisions: 
A. This agreement shall be binding and inure to the benefits of the heirs at law and executors of DAVIES
B. If any provision, or any portion thereof, contained in this agreement is held unconstitutional, or unenforceable, the remainder of this agreement or portion thereof, shall be deemed severable and shall not be affected and shall remain in full force in effect. 
C. All documents, reports, notes and computer data prepared by DAVIES in the course and scope of his duties under this agreement shall be delivered to and become the property of the City .
D. DAVIES shall not engage in any activity which is or is likely to become a conflict of interest or which may create an incompatibility of office as defined under California Law. DAVIES shall complete annual disclosure forms required by law.
E. This agreement shall be interpreted as though prepared by both parties and constitutes the entire, integrated understanding of the parties. 
F. DAVIES serves at the pleasure of the City Manager and nothing herein shall be taken to prevent, limit or otherwise interfere with the right of the City Manager to terminate the services of DAVIES with or without cause and with or without prior notice. There is no express or implied promise made to DAVIES for any form of continued employment. This Agreement is the sole and exclusive basis for an employment relationship between DAVIES and City. 
G. Notwithstanding the above, the CITY shall not be obligated to pay any compensation, benefits or severance under the provisions of this Agreement if DAVIES is terminated because of a conviction, plea bargain or adverse State Attorney General, Grand Jury or Fair Political Practices Commission determination involving any felony, intentional tort, crime of moral turpitude, or violation of statute or law constituting forfeiture of office, misconduct in office, misuse of public funds or conflict of interest. During the proceedings, the CITY may place DAVIES on unpaid administrative leave. If such proceedings do not result in a conviction, plea bargain or adverse determination, CITY shall reimburse DAVIES all unpaid administrative leave amounts, plus interest, within 30 days of concluding the proceedings.
(H) All reports, notes, plans, documents, records, and data or certified copies of same prepared by DAVIES in the course and scope of his duties under this Agreement shall be delivered to and become the property of the CITY. DAVIES shall make such documents available for review and/or audit by CITY and CITY’s representatives at all reasonable times during the term of this Agreement and for at least four (4) years from the date of the completion and/or termination of this Agreement.
(I) Nothing in this agreement shall be construed to deny DAVIES all rights accorded under the California Police Officer Bill of Rights.
Section 7. PERFORMANCE EVALUATION: 
City Manager shall evaluate DAVIES’ performance annually upon the anniversary of the effective date of this Agreement and prior to any renewal or extension of this Agreement. As part of each evaluation, DAVIES will set goals and objectives for DAVIES’ performance for the following year. During any performance evaluation, City Manager may reduce any part of the compensation and benefits in Paragraph 6 provided DAVIES is notified of such adjustment and the adjustment is made in writing and attached to this Agreement and agreed to by DAVIES. City Manager and DAVIES may renew or extend the term of this Agreement provided such renewal or extension is reduced to writing, signed by both parties and adopted as an Addendum to this Agreement and approved by the City Council.
Section 8. CONFLICT OF INTEREST PROHIBITION: 
DAVIES shall not engage in any activity which is or may become a conflict of interest, prohibited contract, or which may create an incompatibility of office as defined under California law. DAVIES shall complete annual disclosure forms required by law. 
Section 9. INDEMNIFICATION: 
CITY and DAVIES agree that they will at all times assist each other in defending any litigation involving City and City agrees to indemnify and defend DAVIES against any and all demands, claims, suits, actions and legal proceedings against him in his individual capacity or in his official capacity for damages or relief arising out of an act or omission occurring within the scope of his employment, except any punitive damages that may be imposed on DAVIES. In any case in which DAVIES is subject to punitive damages, the City will consider and evaluate the circumstances, and may, as provided for by law, pay those punitive damages on behalf of DAVIES. City’s defense may be with a reservation of City ’s rights. The parties shall each comply with the requirements of Government Code Section 825 or its successor in implementing this paragraph. 
Section 10. NON-LIABILITY OF OFFICIALS AND EMPLOYEES: 
No official or employee of CITY shall be personally liable for any default or liability under this Agreement. 

Section 11. NOTICE: 
Notices pursuant to this Agreement shall be given by deposit in the custody of the United States Postal Service, postage prepaid. Alternatively, notices required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial proceedings. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service to the addresses set out below or as subsequently communicated by one party to the other in writing. 
Notice to DAVIES shall be sent to: 
Michael R.Davies (Home address as given to City by DAVIES)
Notice to EMPLOYER shall be sent to:
City of Brentwood City Manager 150 City Park Way Brentwood, CA 94513
IN WITNESS WHEREOF, The City of Brentwood has caused this agreement to be signed and executed on its behalf by its City Manager, and duly attested by its City Clerk and DAVIES has signed and executed this agreement. 
CITY OF BRENTWOOD MICHAEL R. DAVIES

__________________________ _________________________
John Stevenson, City Manager Michael R. Davies

_______________ _______________
Date Date
ATTEST:
__________________________ _______________
Karen Diaz, CMC, City Clerk Date