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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 15

Meeting Date: July 12, 2005

Subject/Title: Approve an Employment Agreement for a new City Attorney

Prepared by: Karen Chew, Assistant City Manager

Submitted by: Donna Landeros, City Manager

RECOMMENDATION

Approve an employment agreement for a new City Attorney.

BACKGROUND

On February 22, 2005, the City Council authorized staff to hire CPS Executive Search to begin recruitment efforts for a new City Attorney.

Dave Harris of CPS Executive Search met with the City Council to collect information that would assist in his efforts to locate the City Council’s ideal candidate. Based on this information as well as the classification description for City Attorney, Mr. Harris prepared a job brochure, developed an advertisement strategy, and recruited for City Attorney candidates.

Four finalists that appeared to possess the City Council’s most desirable qualifications were invited to be interviewed by the City Council. The City Council selected their top candidate and has extended an offer of employment to that person.

FISCAL IMPACT

The salary and benefits for the City Attorney are included in the 2005/2006 and 2006/2007 Operating Budget.

Attachment:

• Employment Agreement between the City of Brentwood and City Attorney

EMPLOYMENT AGREEMENT BETWEEN THE CITY OF BRENTWOOD
AND CITY ATTORNEY

Introduction

This Agreement, made and entered into this __ day of _______2005, by and between the City of Brentwood, a municipal corporation (hereinafter called "Employer”) and Damien B. Brower (hereinafter called “Employee”), both of whom agree as follows:

Section 1: Term

This Agreement shall become effective on August ___, 2005, and shall continue until terminated by either party as herein provided.

Section 2: Duties and Authority

Employer agrees to employ Employee as City Attorney for the City and for the Redevelopment Agency to perform the functions and duties as may be specified in the Brentwood Municipal Code and to perform other legally permissible and proper duties and functions.

Section 3: Compensation

A. Base Salary: Employer agrees to pay Employee an annual base salary of Step C of the City Attorney pay scale payable in installments at the same time that the other management employees of Employer are paid.

B. Management Incentive Pay: Employer shall pay Employee a sum of $700 per month as Management Incentive Pay.

C. This Agreement shall be automatically amended to reflect any salary adjustments that are provided or required by Employer's compensation policies.

D. Consideration shall be given on an annual basis to increase compensation. Employer shall provide Employee performance review and salary increase to Step D after the first twelve months of employment. Performance review and consideration for salary increases shall be given annually thereafter.

Section 4: Health, Disability and Life Insurance Benefits

Employer agrees to provide and to pay the premiums for health, vision, dental, life and disability insurance for Employee and his dependents equal to that which is provided to all other exempt management employees of the City of Brentwood.

Section 5: Vacation, Sick, and Administrative/Executive Leave

A. Employee shall accrue twenty-one (21) days (168 hours) of annual vacation leave each fiscal year. Vacation leave shall cap at forty (40) days (320 hours), at which point Employee shall cease to accrue vacation until such time as his vacation accrual is less than forty (40) days (320 hours). Employee shall be entitled to any vacation buyback program to the same extent as other exempt management employees. After three years of employment with the City of Brentwood, the accrual will increase to twenty-six (26) days (208 hours) per year.

B. Employee shall be provided sick leave to the same extent as other exempt management employees. Employee shall be provided an initial balance of forty (40) hours sick leave.

C. Employee shall be entitled to up to sixty (60) hours of paid Administrative/Executive leave each fiscal year. This leave shall not carry over from year to year if unused.

D. Employee shall be entitled to Holidays to the same extent as other exempt management employees.

Section 6: Retirement and Deferred Compensation

A. Employee shall be eligible to participate, at no cost to Employee, in the Public Employees’ Retirement System (PERS) for the 2.7% at age 55 formula and the Third Level 1959 survivor benefit. The terms of the contract between the City of Brentwood and CalPERS shall govern the eligibility for and level of benefits to which Employee is entitled.

B. Employee shall be allowed to participate in the City’s deferred compensation plan and shall receive a matching City contribution to the same extent as other exempt management employees or $1,320 per year, whichever is greater.

Section 7: Disability

If determined that Employee is unable to return to work, Employer shall have the option to terminate this Agreement without further payment of compensation and benefits if Employee is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity or death for a period of four (4) successive weeks beyond any accrued sick leave, or for twenty (20) working days over a thirty (30) working day period.

Section 8: General Business Expenses

A. Employer agrees to budget for and to pay for professional dues and subscriptions of the Employee necessary for continuation and full participation in national, regional, state, and local associations, and organizations necessary and desirable for Employee’s continued professional participation, growth, and advancement, and for the good of the Employer.

B. Employer agrees to budget for and to pay for travel and subsistence expenses of Employee for professional and official travel, meetings, and occasions to adequately continue the professional development of Employee and to pursue necessary official functions for Employer, including but not limited to the California League of Cities, International Municipal Lawyers Association, and such other regional, state, and local governmental groups and committees in which Employee serves as a member.

C. Employer also agrees to budget for and to pay for travel and subsistence expenses of Employee for short courses, institutes, and seminars that are necessary for Employee’s professional development and for the good of the Employer.

Section 9: Termination

For the purpose of this agreement, termination shall occur when:

A. The majority of the governing body votes to terminate Employee at a duly authorized public meeting.

B. If Employer, citizens or legislature acts to amend any provisions of the Brentwood Municipal Code pertaining to the role, powers, duties, authority, responsibilities of Employee’s position that substantially changes the form of government, Employee shall have the right to declare that such amendments constitute termination.

C. If Employer reduces the base salary, compensation or any other financial benefit of Employee, unless it is applied in no greater percentage than the average reduction of all department heads, such action shall constitute a breach of this agreement and will be regarded as a termination.

D. If Employee resigns following an offer to accept resignation, whether formal or informal, by Employer as representative of the majority of the governing body that Employee resign, then Employee may declare a termination as of the date of the suggestion.

E. Breach of contract declared by either party with a 30-day cure period for either Employee or Employer. Written notice of a breach of contract shall be provided in accordance with the provisions of Section 18.

F. Employer’s decision to terminate shall be made in closed session and confirmed in a public meeting.

G. Employee may choose to resign his office instead of being terminated if a decision by the City Council to terminate has been made in closed session; provided, however, that the severance provisions of this Agreement remain applicable.

Section 10: Severance

Severance shall be paid to Employee when employment is terminated as defined in Section 9.

Employer shall provide a minimum severance payment equal to six months salary at the current rate of pay. This severance shall be paid in a lump sum unless otherwise agreed to by Employer and Employee.

Employee shall also be compensated for all accrued, vacation time, and Administrative/Executive leave. The Employer agrees to continue medical, dental and vision benefits for a six month period after termination. Such severance pay and benefits shall not be due or payable if the City Attorney is terminated for willful misconduct, dishonesty, or fraud in office; willful destruction, theft, misappropriation or misuse of City property; conduct resulting in the revocation of his license to practice law; or after being convicted of a felony or misdemeanor involving moral turpitude.

Section 11: Resignation

In the event that Employee voluntarily resigns his position with Employer, Employee shall provide a minimum of sixty (60) days written notice unless the parties agree otherwise. If Employee resigns his employment, he shall not be entitled to any severance pay nor continued compensation and benefits except as otherwise required under state or federal law.

Section 12: Performance Evaluation

Employer shall annually review the performance of Employee in August of each year and may adjust Employee’s annual compensation package and salary based upon that performance evaluation. Employer shall provide Employee with written comments, if any, and may discuss its evaluation with him, at the choice of either the Employer or Employee. The City Attorney will timely cause to be placed on the City Council agenda for each year a “closed session” for the purpose of the performance evaluation.

Section 13: Outside Activities

The employment provided for by this Agreement shall be Employee’s sole employment. Employee agrees not to undertake any other employment or consulting during the term of this Agreement without City Council approval, unless otherwise allowed under State or Federal law, such as military service.

Section 14: Moving and Relocation Expenses

Employer shall pay for actual moving expenses not to exceed Three Thousand Five Hundred dollars ($3,500) to cover relocation costs. Employer shall pay an amount not to exceed $1,600.00 per month for a period up to six months to reimburse Employee for temporary (rental) housing while Employee is in the process of relocating to the Brentwood area.

Section 15: Indemnification

Beyond that required under Federal, State or Local Law, Employer shall defend, save harmless and indemnify Employee against any tort, 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 Employee’s duties as City Attorney or resulting from the exercise of judgment or discretion in connection with the performance of program duties or responsibilities, unless the act or omission involved willful or wanton conduct. Employee may request and Employer shall not unreasonably refuse to provide independent legal representation at Employer’s expense and Employer may not unreasonably withhold approval. Legal representation, provided by Employer for Employee, shall extend until a final determination of the legal action including any appeals brought by either party. Employer shall indemnify employee against any and all losses, damages, judgments, interest, settlements, fines, court costs and other reasonable costs and expenses of legal proceedings including attorneys fees, and any other liabilities incurred by, imposed upon, or suffered by such Employee in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened, arising out of or in connection with the performance of his or her duties. Any settlement of any claim must be made with prior approval of Employer in order for indemnification, as provided in this Section, to be available.

Employee recognizes that Employer shall have the right to compromise and unless Employee is a party to the suit which Employee shall have a veto authority over the settlement, settle any claim or suit; unless, said compromise or settlement is of a personal nature to Employee. Further, Employer agrees to pay all reasonable litigation expenses of Employee throughout the pendency of any litigation to which Employee is a party, witness or advisor to Employer. Such expense payments shall continue beyond Employee's service to Employer as long as litigation is pending. Further, Employer agrees to pay Employee reasonable consulting fees and travel expenses when Employee serves as a witness, advisor or consultant to Employer regarding pending litigation.

Section 16: Bonding

Employer shall bear the full cost of any fidelity or other bonds required of Employee under any law or ordinance.

Section 17: Other Terms and Conditions of Employment

Employer, only upon agreement with Employee, shall fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of Employee, 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 18: Notices

Notice pursuant to this Agreement shall be given by depositing in the custody of the United States Postal Service, postage prepaid, addressed as follows:

EMPLOYER: City Clerk
City of Brentwood
150 City Park Way
Brentwood, CA 94513

EMPLOYEE: Damien B. Brower
1017 Middlefield Road
Redwood City, CA 94063

Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial practice. Notice shall be deemed given as of the date of personal service or as the date of deposit of such written notice in the course of transmission in the United States Postal Service. Each party will notify the other of any changes of address that would require any notice or delivery to be directed to another address.

Section 19: General Provisions

A. Integration. This Agreement sets forth and establishes the entire understanding between Employer and Employee relating to the employment of Employee by Employer. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any provision of this Agreement during the life of the Agreement. Such amendments shall be incorporated and made a part of this Agreement.

B. Binding Effect. This Agreement shall be binding on Employer and Employee as well as their heirs, assigns, executors, personal representatives and successors in interest.

C. Severability. The invalidity or partial invalidity of any portion of this Agreement will not effect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they have been executed by both parties subsequent to the expungement or judicial modification of the invalid provision.

EMPLOYER:                                                        EMPLOYEE:

CITY OF BRENTWOOD
_________________________                       ___________________________
Brian Swisher, Mayor                                           Damien B. Brower
__________________________
Ana Gutierrez, Vice-Mayor
___________________________
Annette Beckstrand, Councilmember
___________________________
Robert “Bob” Taylor, Councilmember
___________________________
Robert “Bob” Brockman, Councilmember

ATTEST:

Cindy Garcia, Interim City Clerk

Approved as to Form:

Tom Curry, Interim City Attorney

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov