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HomeMy WebLinkAbout05 - Temporary Special Investigations SergeantCITY OF NEWPORT BEACH City Council Staff Report July 22, 2014 Agenda Item No. 5. TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Jay R. Johnson, Chief of Police — (949) 644-3701, jjohnson@nbpd.org PREPARED BY: Dale Johnson, Captain PHONE: (949) 644-3750, djohnson@nbpd.org TITLE: Contract with Former City Employee, Charles Freeman ABSTRACT: The Police Department seeks to obtain authorization to temporarily rehire a retired police sergeant for a period of one year or less, and not to exceed 960 hours, to assume the duties of the Special Investigations Sergeant until which time a replacement can be trained. RECOMMENDATION: Authorize the City Manager to execute a Temporary Employment Agreement (TEA) with a former employee, Mr. Charles Freeman, to temporarily fill the position of Special Investigations Sergeant. The employee currently filling this position has been promoted and is immediately needed in the Patrol Division. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this agreement. It will be expended to the Part - Time Salaries Account in the Detective Division of the Police Department, 1850-7020. DISCUSSION: Background: Council Policy F-20 states that the City Council shall review and consider any contract the City enters into with a former employee when not more than five years have passed since the person was employed by the City. The Police Department seeks to hire Charles Freeman, on a limited basis, to temporarily serve as the Department's Special Investigations Sergeant, a sworn position within the Department. Mr. Freeman served as a Police Officer for the Newport Beach Police Department from June 1984 until June 2005, and as a Police Sergeant from June 2005 to July 2014. Most recently, Mr. Freeman served as the Special Investigations Sergeant from January 2011 until his retirement on July 2, 2014. The current Special Investigations Sergeant began his training approximately one month ago to replace Mr. Freeman. Since then, he was promoted to the rank of Police Lieutenant and is immediately needed in the Patrol Division to fill a vacancy. Mr. Freeman will be responsible for training the newly selected Special Investigations Sergeant as well as leading the unit during the interim. The Special Investigations Sergeant is a critical position for the Detective Division and the Department. The Special Investigations Sergeant provides direct supervision to the Narcotics Unit and Vice and Intelligence Unit. The Special Investigations Sergeant duties include, but are not limited to, the following: supervision of the Special Investigations Unit, operational supervision of the Narcotics Unit including management of confidential informants, tracking and approval of investigative funds, management of the Narcotics Asset Forfeiture process, and management of Narcotics Registrants. The Special Investigations Sergeant also manages Vice and Intelligence operations and administration and licensing related to Alcohol and Beverage Control. Services will also include assessing and updating the City's massage ordinance and processes in anticipation of the City assuming massage licensing and regulation in 2015. The Department cannot fill the extended vacancy with existing employees. Mr. Freeman possesses specialized skills and knowledge necessary to perform the function of Special Investigations Sergeant and, most importantly, the experience necessary to train and prepare the replacement Sergeant. His lengthy law enforcement career in Newport Beach has provided him with extensive knowledge and understanding of the Department's policy and procedures, especially as related to Narcotics and Vice and Intelligence operations. The Department cannot effectively train and prepare a replacement Sergeant absent Mr. Freeman's assistance. The Temporary Employment Agreement provides: 1. The City will engage Mr. Freeman at rate of $59.39 per hour, the amount equal to a Police Sergeant. Should Mr. Freeman work 960 hours, the maximum hours allowed, his total compensation would be approximately $57,014.40. 2. He shall not work overtime. 3. His work with the Police Department shall cease upon completion of the training process for a replacement Sergeant in the Special Investigations Unit. He will also be tasked with assessing and updating the City's massage ordinance in preparation for the City assuming massage licensing and regulation in 2015. It is anticipated these services can be completed in approximately 320 hours. Under no circumstances will this agreement be extended beyond 960 hours. This Staff Report requests approval by City Council to hire a former employee who was a City employee less than five years ago, pursuant to Council Policy F-20. A copy of the Temporary Employment Agreement has been included with this report for reference purposes. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Temporary Employment Agreement with Charles Freeman ATTACHMENT A AGREEMENT FOR TEMPORARY EMPLOYMENT WITH CHARLES FREEMAN THIS AGREEMENT for temporary employment ("Agreement") is made effective as of the 23`d day of July, 2014, by and between the City of Newport Beach, a California municipal corporation and charter city, ("City") and Charles Freeman, ("Employee") whose mailing address is , with reference to the following: RECITALS A. City is a municipal corporation and charter city duly organized and validly existing under the laws of the State of California with the power to cant' on its business as it is now being conducted under the statutes of the State of California and the charter of the City. B. On July 2, 2014, Employee retired from the City. C. The City desires to employ Employee on a provisional "at will" basis and to enter into an Agreement with Employee for temporary employment services upon the terms and conditions in this Agreement based upon a finding that Employee possesses specialized skills needed to perform work of a limited duration. D. Employee is willing to accept such employment on the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM 1.1 The term of this Agreement shall commence upon the 23'd day of July, 2014, and shall end on the 30th day of June, 2015, unless terminated earlier as provided herein. 1.2 Employee shall not work more than nine hundred sixty (960) hours during the term of this Agreement in accordance with the California Government Code ("Government Code") and CalPERS post retirement employment guidelines, as outlined below. The Employee shall be responsible for monitoring the hours worked during these time periods. 1.3 Employee may work for a CalPERS-covered public agency without reinstatement from retirement into active employment, pursuant to Government Code Section 21224(a), if all of the following conditions are met: a. Employee has specialized skills needed to perform work of limited duration or his/her employment is needed during an emergency to prevent stoppage of public business; b. Employee's temporary employment will not exceed 960 -hours in a fiscal year (July 1 st through June 30th); and C. Employee's rate of pay received will not be less than the minimum nor exceed the maximum rate of pay that is paid to other employees performing comparable duties. 1.4 By executing this Agreement, Employee certifies pursuant to Government Code Section 7522.56(e)(1) that during the twelve (12) months prior to execution of this Agreement, Employee has not received any unemployment insurance compensation arising out of prior employment with a public agency employer. 2. SERVICES TO BE PERFORMED BY EMPLOYEE Services shall include the following: Supervision of the Special Investigations Unit, including preparing and training a Sergeant that will assume the position; operational supervision of the Narcotics Unit including management of confidential informants, tracking and approval of investigative funds, management of the Narcotics Asset Forfeiture process, and management of Narcotics Registrants; management of Vice and Intelligence operations and administration and licensing related to Alcohol and Beverage Control; and assessing and updating the City's massage ordinance and processes in anticipation of the City assuming massage licensing and regulation in 2015. All duties shall be performed in compliance with City ordinances, current policies, rules and regulations. Employee shall familiarize himself with the City's Employee Manual and the Newport Beach Police Department Policy Manual. At all times, Employee agrees to perform all services related to Employee's employment hereunder faithfully and diligently and to discharge the responsibilities thereof to the best of Employee's ability. 3. COMPENSATION As consideration for the performance of specified services under this Agreement Employee shall be compensated as follows: 3.1 Pay of fifty-nine dollars and thirty-nine cents ($59.39) per hour for hours worked pursuant to this Agreement. Employee shall be paid on a bi-weekly basis corresponding to the City's payroll schedule and Employee is subject to State and Federal income tax withholdings. Fifty-nine dollars and thirty-nine cents ($59.39) per hour shall be considered just compensation and no additional compensation, incentives, benefits, or holiday pay, or other form of compensation in addition to the hourly pay rate will be provided under this Agreement. 3.2. Employee shall maintain and submit complete records of time expended pursuant to this Agreement and corresponding to City's payroll schedule. 4. HOURS 4.1 Hours of work are not guaranteed. Employee's services will be provided on an as needed, per project basis, upon written request of the Department Director or City 2 AGREEMENT FOR TEMPORARY EMPLOYMENT Manager. Hours of work shall not exceed 40 hours per week nor exceed 960 hours total during the term of this agreement. 4.2 It is expressly understood that Employee is a nonexempt Employee and employment is for an "at will" position. 5. TERMINATION Employee understands and agrees that: 5.1 Employee's employment is "at will" which means that Employee's employment with City may be terminated at any time, with or without cause, by either party by giving 24 hours prior written notice to the other party. 5.2. Employee's at will status cannot be changed except in writing on a form signed by the Department Director, City Manager and Employee. 5.3. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from the temporary position with the City. 5.4 No promises or representations regarding regular, full time or permanent employment status have been made to Employee and Employee has no expectation of permanent employment with the City. Furthermore, Employee has no expectation of Civil Service classification, rights or status under this Agreement. 5.5 Upon termination of this Agreement, the City shall pay to Employee that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 6. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto and all preliminary negotiations and agreements of any kind or nature are merged herein. Any modification of this Agreement will be effective only by written execution signed by Employee, Department Director, City Manager, attested to by the City Clerk, and approved as to form by City Attorney. 7. EFFECT OF PRIOR AGREEMENTS This Agreement supersedes any prior agreement between the City and the Employee, except that this agreement shall not affect or operate to reduce any benefit or compensation inuring to the Employee of a kind elsewhere provided and not expressly provided in this agreement. 8. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Employee, in the course of implementing this Agreement, shall become the exclusive property of City, 3 AGREEMENT FOR TEMPORARY EMPLOYMENT and City shall have the sole right to use such materials in its discretion without further compensation to Employee or any other party. 9. CONFIDENTIALITY Employee shall hold and safeguard the Confidential Information in trust for the City and shall not, without the prior written consent of the City, misappropriate or disclose or make available to anyone for use outside the City at any time, either during his employment with the City or subsequent to the termination of his employment with the City for any reason, including, without limitation, termination by the City for cause or without cause, any of the Confidential Information, whether or not developed by Employee, except as required in the performance of Employee's duties to the City. All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 10. CONFLICTS OF INTEREST The Employee may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Employee shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. 11. OUTSIDE ACTIVITIES Employee is expected to devote his full time, attention and efforts to the performance of his assigned duties. An Employee shall not engage in any outside employment or business activities during his workday without written authorization from his department director. An Employee shall not engage in any employment, outside activity, or enterprise that is inconsistent, incompatible or in conflict with, or that interferes with, his ability to perform the duties, functions, or responsibilities of his position. Employees may obtain and/or maintain employment with persons or entities other than the City or self-employment (outside employment) subject to approval by the Department Director. 12. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 4 AGREEMENT FOR TEMPORARY EMPLOYMENT 13. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 14. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 15. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH, EMPLOYEE: A California Municipal Corporation Dave Kiff City Manager APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: A o C. Harp City,Aftorney ATTEST: M Leilani I. Brown City Clerk M Charles Freeman 5 AGREEMENT FOR TEMPORARY EMPLOYMENT