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HomeMy WebLinkAbout10 - Contract witih Former City Employee - Thomas VothTO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Police Department Jay R. Johnson, Chief of Police; 949- 644 -3701; JJohnson @nbpd.org: . Craig Fox, Captain; 949 - 644 - 3750, CFox @nbpd.org SUBJECT: CONTRACT WITH FORMER CITY EMPLOYEE, THOMAS VOTH ISSUE: The Police Department seeks to obtain authorization to temporarily rehire a retired police officer for a period: of one year, and not to exceed 960 hours, to assist with the. prosecution of two suspects arrested in conjunction with a 1994" homicide case. RECOMMENDATION: Authorize the City Manager to execute a Temporary Employment Agreement (TEA) with a former employee, Mr. Thomas Voth, "to assist the Police Department and the'Orange County District Attorney's Office with pre -trial and trial work on the'; McLaughlin homicide case (NBPD Case #94- 14897). 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. The Police Department seeks to hire Thomas Voth, on a limited basis, to prepare . pre trial and trial work on a "cold case homicide that occurred in 1994. Mr. Voth,. a . detective working for the Police Department in 1994, received a service retirement on December 29, 2006. Mr. Voth was the lead detective in. the McLaughlin homicide investigation, and this case had remained unsolved until early 2009. New evidence was discovered in 2009, and two suspects were arrested and are now in custody. It is estimated the suspects will stand trial in late <2010 or early.2011. The Police Department is presently working with the Orange County District Attorney's Office to prepare for the trial., Senior Deputy District Attorney (DDA) Matt Murphy has requested Mr. Voth, act as the case agent on this trial as he was the lead detective in 1994. DDA Murphy states that`Mr: Voth will be needed for pre - trial preparation, and his daily court appearance will also.be required. Currently, Contract with Former Employee August 10, 2010 Page 2 Mr. Voth is under subpoena for this case; however, the subpoena only addresses his actual appearance for his testimony. It does not require him to complete pre -trial preparation or appear daily to assist the People at trial. Thus far, Mr. Voth has spent a large number of uncompensated hours assisting DDA Murphy on the pre -trial preparation for this case. As the trial draws near, he will be required to perform additional pre -trial preparation and be present during the entire trial. The Temporary Employment Agreement provides the City will: 1. Engage Mr. Voth at $48.83 per hour, the amount equal to a rehired, part-time police officer. Should Mr. Voth work the maximum allowable 960 hours, his total compensation would be approximately $46,876.80. 2. He is not to be paid overtime or work overtime. 3. His work with the Police Department shall cease upon adjudication of the case for which he is being contracted for. 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. As the total amount of this contract will not exceed $50,000, per Council Policy F -14, the City Manager has the authority to approve the employment contract. ' A copy of the contract has been included with this report for reference purposes. ENVIRONMENTAL REVIEW: None. PUBLIC NOTICE: None. FUNDING AVAILABILITY: This contract will be funded through the Police Department's budget. Submitted by: Craig Fox, Captain Detective Division Commander Attachments: Temporary Employment Agreement Council Policy F -20 Approved by: J,ag�,v!� W Jo cn 641EF OF POLICE P I i AGREEMENT FOR TEMPORARY EMPLOYMENT WITH MR. THOMAS VOTH THIS AGREEMENT for temporary employment ( "Agreement ") is made effective as of the 1ST day of July, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and Charter City, ( "City ") and Thomas Voth ( "Employee ") whose mailing address is 1420 E. Lomita Avenue, Orange, CA 92767 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 carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. On December 29, 2006, Employee retired from the City of Newport Beach. C. The City desires to employ Employee on a provisional "at will" basis and to enter into an Agreement with Employee for temporary investigative employment services upon the terms and conditions in this Agreement. 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 The term of this Agreement shall commence upon the 1 st day of July, 2010 and shall end June 30, 2011, unless terminated earlier as provided herein. 1.1 Employee shall not work more than 960 hours during the term of this Agreement in accordance with CalPERS post retirement employment guidelines, as outlined below. The Employee shall be responsible for monitoring the hours worked during these time periods. 1.2 Employee may work for a CalPERS- covered public agency without reinstatement from retirement into active employment, per Government Code section 21221(h), 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 1St through June 30th); and 3 C. Employee's rate of pay received will not be less than the minimum, nor exceed the maximum that is paid to other employees performing comparable duties. 2. SERVICES TO BE PERFORMED BY EMPLOYEE Services shall include the following: Assist the Orange County District Attorney's Office and the Newport Beach Police Department in pre -trial preparation and to act as the case agent at trial in a homicide case known as Newport Beach Police Department case DR No. 94- 14897. Employee acknowledges and agrees that he is not being employed by City as a Peace Officer and that he will not have any powers or duties of a Peace Officer. Additionally, Employee acknowledges and agrees that his employment will not be subject to the Public Safety Officers Procedural Bill of Rights (Govt. Code Section 3300 et seq.). Notwithstanding the foregoing, Employee will still maintain all rights, privileges and obligations afforded to him as an honorably retired Peace Officer under the laws of the State of California. All duties shall be performed in compliance with City ordinances, current policies, rules and regulations. Employee shall familiarize him or herself with the City's Employee 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 $48.83 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. $48.83 per hour shall be considered just compensation and no additional benefits or holiday pay 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 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. 2 AGREEMENT FOR TEMPORARY EMPLOYMENT -I 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 Find 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, 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 3 AGREEMENT FOR TEMPORARY EMPLOYMENT 5 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. 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. 4 AGREEMENT FOR TEMPORARY EMPLOYMENT 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, A California Municipal Corporation M Dave Kiff, City Manager APPROVED AS TO FORM: OFFICE OF THE CITY ATT. City ATTEST: Leilani I. Brown City Clerk NEY Form Temporary Employment (Post Retirement] Agreement 12.15.09 EMPLOYEE: Thomas Voth 5 AGREEMENT FOR TEMPORARY EMPLOYMENT