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Home My WebLink AboutC-3003 - City Attorney Employment AgreementBYTHE eRYCOUNCa CRY OF NEWPORT BEACH T-PPRO E CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT -3C'i3 (24 /33) Agenda Item No. 10 September 23, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Homer L. Bludau, City Manager 644 -3000 — Hbludau @city.newport- beach.ca.us SUBJECT: Additional Information Regarding Recommended Modifications to the Current Agreement between the City and the City Attorney The City Attorney has requested two additional amendments to his contract that would allow: (a) a rollover of accumulated sick leave and flex leave into a deferred compensation account if permitted by law, and (b) the right to participate in any supplemental retirement or health insurance program that becomes effective prior to his retirement date provided he satisfies conditions to participation that are applicable to other management employees. I feel these are reasonable requests. �. Homer L. Bluda City Manager L 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 10 September 23, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Homer Bludau, City Manager 644 -3000 — hbludau @city.newport- beach.ca.us SUBJECT: Preliminary report of the City Council Ad Hoc Legal Services Committee relative to: (a) the process for selecting a successor to the City Attorney; and (b) recommended modifications to the current agreement between the City and the City Attorney. ISSUE Should the City Council accept the recommendations of the City Council Ad Hoc Legal Services Committee with respect to (a) the process for selecting a successor to the current City Attorney who has announced his intention to retire; and (b) authorizing the Mayor to execute certain modifications to the current employment agreement between the City and the City Attorney? RECOMMENDATION Accept the recommendations relative to (a) the process for selecting a successor to the current City Attorney; and (b) authorize the Mayor to execute modifications to the current employment agreement between the City and the City Attorney as specified in this memo and after review of the amendments by independent counsel. DISCUSSION On August 26, 2003, the City Council adopted a resolution creating the City Council Ad Hoc Legal Services Committee and designating Mayor Bromberg, Mayor Pro Tern Ridgeway and Council Member Heffernan as members of the Committee. The Committee was formed to consider and make recommendations to the City Council, with respect to the process of filling the position of City Attorney and any modifications to the current employment agreement between the City and the City Attorney the Committee considers appropriate under the circumstances. The Committee met on September 9th and discussed various City Attorney recruitment scenarios. The Committee is recommending that: (a) the City Council conduct the recruitment by placing advertisements in Western Cities – the League of California Cities magazine – and possibly other publications such as the Daily Journal; (b) that the recruitment commence in January 2004; (c) that the Committee develop, and submit to the City Council for approval, the minimum qualifications for eligible candidates for the • • position; (d) that the Committee members and City Manager — with the assistance of the City Attorney and /or other attorneys who specialize in municipal law - evaluate applications, conduct appropriate background checks and interview qualified candidates; and (e) that the City Council make an appointment after interviewing in closed session the candidates who appear most qualified. The Committee is also recommending certain modifications to the current employment agreement between the City and the City Attorney be modified. The Committee is recommending that the contract be modified to require the City Attorney to prepare extensive briefing memos regarding special projects that he has worked on during his tenure to ensure his successor is fully informed on important issues. The Committee is also recommending that the City Council have the option of retaining the current City Attorney — on a part time basis — after retirement at an hourly rate equal to his current salary and benefits. Recognizing that the briefing memos will require a substantial amount of time to prepare and will be additive to the City Attorney's current duties, the Committee is recommending a 5% salary increase, and 60 additional hours of administrative leave effective October 1, 2003. Finally, the Committee is recommending that the amendments to the employment agreement be reviewed by independent counsel to ensure they are consistent with this memo prior to execution by the Mayor. Environmental Review: None required. by: Bludau, City Manager Attachments: Resolution 0 RESOLUTION NO. 2003- 47 0 A RESOLUTION OF THE CITY OF NEWPORT BEACH CITY COUNCIL ESTABLISHING THE CITY COUNCIL AD HOC LEGAL SERVICES COMMITTEE WHEREAS, the City Attorney has, after more than 20 years in office, given the City Council notice of his intent to retire between March 31, 2004 and June 30, 2004; WHEREAS, the City Council believes that this is an opportune time to evaluate the legal services currently being provided by the City Attorney's Office and determine the type and level of services that office should provide in the future; WHEREAS, the City Council believes it should make a determination as to the level and nature of the services to be provided by the City Attorney's office before developing the criteria for selecting a successor; WHEREAS, in anticipation of his retirement, the City Council may want to consider modifications to the current agreement between the City and the City Attorney; WHEREAS, the City Council would like to establish an Ad Hoc Committee consisting of three Council Members who are attorneys and ask the Committee to make recommendations relative to the level and scope of legal services as well as any appropriate modifications to the current agreement. NOW, THEREFORE, BE IT RESOLVED by the Newport Beach City Council as follows: Section 1. The City Council Ad Hoc Legal Services Committee is hereby established. Section 2. The Committee shall consist of Mayor Bromberg, Mayor Pro Tern Ridgeway and Council Member Heffernan. Section 3. The Committee shall have the following duties and responsibilities: A. Meet with the City Attorney, the City Manager and staff to determine the nature and extent of the legal services currently provided by that office,. B. If desired, consult with other municipal law practitioners who are familiar with the unique legal issues facing Newport Beach and request input as to the matters the City should consider in evaluating the nature and level of legal services, appropriate staffing and the criteria for a successor to the City Attorney. 0 • C. Discuss with the City Attorney any modifications to the existing agreement that may be appropriate to ensure the continuity of effort on certain legal issues that are: (i) complex and longstanding; or (ii) unique to Newport Beach. D. Present recommendations to the full City Council within one hundred and twenty (120) days. Section 4. The term of this Committee shall expire one hundred and twenty (120) days after the adoption of this resolution. IN WITNESS WHEREOF, I have hereunto set my hand this twenty -sixth day of August 2003. ATTEST: LaVonne M. Harkless City Clerk CITY OF ORT BEACH MINUTE EXPRPT CITY COUNCIL MEETING OF NOVEMBER 26, 2002 ROLL CALL Present: Heffernan, O'Neil, Bromberg, Glover, Adams, Proctor, Mayor Ridgeway Absent: None CURRENT CALENDAR 22. ADJUSTMENTS TO THE COMPENSATION OF THE CITY CLERK, CITY ATTORNEY AND CITY MANAGER. Action: Based on successful performance evaluations, increased the salaries of the City Clerk, City Attorney and City Manager by 2% for cost of living plus an additional 3% for merit. The motion carried by the following roll call vote: Ayes: Heffernan, O'Neil, Bromberg, Glover, Adams, Proctor, Mayor Ridgeway Noes: None Abstain: None Absent: None CERTIFIED AS A TRUE AND CORRECT COPY City Clerk of the City of Newport Beach DATE: /l / a7 / Q'-D - C 3cc3 CITY OF NEWPORT BEACH (3�) CITY COUNCIL STAFF REPORT NOV 2 'z I Agenda Item No. 22 n�IF1) November 26, 2002 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Homer L. Bludau, City Manager 644 -3000, hbludau @city.newport- beach.ca.us SUBJECT: Adjustments to the Compensation of the City Clerk, City Attorney, and City Manager RECOMMENDATION: Based on successful performance evaluations, adopt the three resolutions making changes to the total compensation packages. DISCUSSION: The City Clerk, City Attorney, and City Manager are the three City employees who work directly for the City Council. Each of their employment agreements require them to be evaluated for job performance by the City Council each year. Their evaluations will take place during Council's Closed Session. Based on their evaluations, adjustments to total compensation packages are likely to change, but that is unknown at this time. Should there be adjustments to the total compensation packages, those will be reflected in new attachments to the resolutions provided. Submitted by: Homer L. Blu u • RESOLUTION NO. 2002- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADJUSTING THE COMPENSATION OF THE CITY CLERK WHEREAS, pursuant to the City Clerk's Employment Agreement which establishes performance evaluations at least on an annual basis, the City Council conducted an annual evaluation on November 12, 2002; and WHEREAS, an adjustment to the base salary are appropriate in light of the performance of the City Clerk and the compensation paid to other city clerks in Orange County. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach authorizes an amendment to the employment agreement between the City and the City Clerk to increase the City Clerk's base salary to $ effective DATED this 26th day of November 2002. MAYOR ATTEST: CITY CLERK • RESOLUTION NO. 2002- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION PAID TO THE CITY ATTORNEY WHEREAS, the City Council evaluates the performance of the City Attorney each year; and WHEREAS, an adjustment to the base salary and minor modifications to other provisions of the current employment agreement are appropriate in light of the performance of the City Attorney and the compensation paid to other in house city attorneys in Orange County WHEREAS, the proposed modifications to compensation and benefits are reflected in the Employment Agreement that is attached to this Resolution as Exhibit A. NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the salary and benefits of the City Attorney shall be as specified in Exhibit A and that the Mayor is authorized to execute Exhibit A on behalf of the City Council. ADOPTED, this 26th day of November 2002. ATTEST: LaVonne Harkless, City Clerk Tod Ridgeway Mayor of the City of Newport Beach RESOLUTION NO. 2002- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION PAID TO THE CITY MANAGER WHEREAS, the City Council has evaluated the performance of the City Manager during the preceding (12) months; WHEREAS, an adjustment to the base salary (Third Amended Agreement) is appropriate given the excellent performance of the City Manager and the compensation paid to other City Manager's within Orange County; and WHEREAS, the proposed modifications to compensation are reflected in the Third Amended Agreement that is attached to this resolution as Exhibit A. NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the salary and benefits of the City Manager shall be as specified in Exhibit A and the Mayor is authorized to execute Exhibit A on behalf of the City Council. ADOPTED, this 26th day of November 2002. Tod Ridgeway Mayor of the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk r- April 9, 2002 OS) . Agenda Item No. 7 C -3JQ)3 CITY OF NEWPORT BEACH Office of the City Council TO: Mayor & Members of the City Council FROM: Dennis D. O'Neil, Chair, Ad Hoc Council Comp. Comm. RE: City Attorney Employment Agreement ` vNEWPOeri�u Proposed Modification to Compensation C4LI F R APR 0 9 2002 DATE: Auril9.2002 The City Council recently evaluated the performance of the City Attorney during the past year. The City Council concluded that the City Attorney's performance was well above average and that the City Attorney has exceeded the Council's expectations in most, but not all, areas. The City Council noted that the City Attorney has played a significant role in the annexation of Newport Coast, the timely completion of the EIR for the proposed extension of the JWA Settlement Agreement and the preparation of the new Personnel Manual. The City Attorney also been involved in the preparation of the Harbor Element, the Greenlight Implementation Policy and the management agreement for the Newport Theatre Arts Center. The City Council asked a Council Committee (Glover, Heffernan and O'Neil) to conduct a survey of the compensation paid to other non- elected "in- house" city attorneys in Orange County and make recommendations relative to any increase in compensation appropriate for the City Attorney. We have surveyed the compensation paid to the city attorneys of Orange, Santa Ana, Anaheim and Costa Mesa. Based on this survey and the Council's evaluation, the Committee is recommending the City Attorney's employment agreement be modified to establish a salary of $165,000 (current salary is $156,000) with no car allowance and a minor increase in expenses paid for a physical examination. The Committee is recommending the Council adopt the resolution that accompanies this memo and authorize the Mayor to sign the employment agreement attached to the resolution. t • &0 � Dennis D. O'Neil Chair, Ad Hoc Council Compensation Committee 0 0 RESOLUTION NO. 2002- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION PAID TO THE CITY ATTORNEY WHEREAS, the City Council has evaluated the performance of the City Attorney during the preceding (19) months; WHEREAS, an adjustment to the base salary and minor modifications to other provisions of the current employment agreement are appropriate in light of the performance of the City Attorney and the compensation paid to other in house city attorneys in Orange County WHEREAS, the proposed modifications to compensation and benefits are reflected in the Employment Agreement that is attached to this Resolution as Exhibit A. NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the salary and benefits of the City Attorney shall be as specified in Exhibit A and that the Mayor is authorized to execute Exhibit A on behalf of the City Council. ADOPTED, this 9th day of April 2002. Tod Ridgeway Mayor of the City of Newport Beach FA44x19 LaVonne Harkless, City Clerk 0 EXHIBIT A EMPLOYMENT AGREEMENT 0 This EMPLOYMENT AGREEMENT, (Agreement) entered into this 9t' day of April 2002, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and ROBERT H. BURNHAM (Burnham) is made with reference to the following: A. City has employed Burnham as the City Attorney since January 1983; B. City and Burnham have entered into a series of employment agreements since March 14,1992; C. This Agreement is intended to modify provisions of the current agreement related to salary and flex leave accrual and otherwise to accurately reflect the terms and conditions of Burnham's employment as City Attorney. SECTION 1: Employment as City Attorney. A. City shall continue to employ Burnham as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. Burnham shall also perform other duties assigned by the City Council or City Manager, without additional compensation, so long as those duties are related to matters of concern to the City of Newport Beach or cities generally and are performed by legal counsel for other municipalities. Burnham shall obtain the prior written approval of City Council prior to performing legal services, for compensation, for any person or entity other than City. B. Burnham shall devote at least eighty (80) hours every two (2) weeks to the performance of his duties as City Attorney unless on paid leave and /or unpaid leave approved by City Council or attending conferences. . SECTION 2: Effective Date/Term. This Agreement shall remain in effect until terminated pursuant to Section 4 of this Agreement. SECTION 3: Base Compensation. City shall pay Burnham an annual base salary of $165,000.00, effective December 1, 2001, in twenty-six (26) equal installments paid at the same time other management employees of City are paid. City shall have the right to deduct or withhold from Burnham's base salary any and all sums required for federal income and social security taxes and all state or local taxes now applicable or that may become applicable in the future. City may also deduct sums Burnham is obligated to pay because of participation in plans or programs generally described in Section 6 of this Agreement. 1 0 0 SECTION 4: Termination and Severance Pay, A. Burnham may terminate this Agreement by giving City at least sixty (60) days prior written notice of termination. Burnham shall provide as least one hundred eighty (180) days notice in the event termination is based on a decision to retire. B. City may terminate Burnham, without cause, upon the affirmative votes of a majority of the members of City Council at any regular meeting. However, Burnham may not be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of City Council. Burnham shall be furnished with written notice stating the Council's intention to terminate this agreement at least ninety (90) days prior to the effective date of termination. Burnham shall receive severance pay equal to one -half (1/2) of his annual base salary as of the date of termination, unless he is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. SECTION 5: Employee Benefits /Special Provisions. A. Except as otherwise provided in this Agreement or a Resolution of the City Council, Burnham shall be entitled to the same benefits as are provided to other management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Burnham unless except to the extent inconsistent with this Agreement. (1) Burnham shall receive eighty (80) hours of administrative leave per calendar year. Burnham shall not have the right to accrue administrative leave from year to year. Burnham shall not be entitled to any compensation, or compensatory time off, for overtime. Burnham shall receive flex leave in accordance with the then current rate for employees with similar longevity. Burnham shall not be entitled to flex leave spillover pay and shall not be subject to any flex leave accrual threshold. (2) Burnham shall have the right to "buy out" up to eighty (80) hours of flex leave each year. B. Burnham may undergo an annual physical examination and City shall reimburse Burnham for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Burnham for all reasonable business expenses actually incurred by Burnham in the performance of services pursuant to this Agreement. 41 0 SECTION 7: Meetings and Conferences. Burnham shall, at City's expense, by entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services he is required to perform pursuant to this agreement. In no event shall expenditures pursuant to this Section exceed the amount allocated for such purpose in the then current City Attorney's budget. SECTION 8: General Provisions. A. Burnham shall serve at the pleasure of the City Council as specified in the City's Charter and may be terminated "at will" subject to the procedural requirements specified in this Agreement and /or City ordinance. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Burnham. C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of City), or deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested, and properly addressed. D. This Agreement describes the complete understanding of the parties may be modified only by a writing signed by the party to be charged. CITY OF NEWPORT BEACH, By: Dated: Mayor CITY ATTORNEY Dated: City Attorney ATTEST: By: City Clerk 3 • • :�+? RESOLUTION NO. 2002- 29 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION PAID TO THE CITY ATTORNEY WHEREAS, the City Council has evaluated the performance of the City Attorney during the preceding (18) months; WHEREAS, an adjustment to the base salary and minor modifications to other provisions of the current employment agreement are appropriate in light of the performance of the City Attorney and the compensation paid to other in house city attorneys in Orange County WHEREAS, the proposed modifications to compensation and benefits are reflected in the Employment Agreement that is attached to this Resolution as Exhibit A. NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the salary and benefits of the City Attorney shall be as specified in Exhibit A and that the Mayor is authorized to execute Exhibit A on behalf of the City Council. ADOPTED, this 9*b day of April 2002. Tod Ridgew Mayor of th ity of N ort Beach ATTEST: LaVonne Harkless, City Clerk 0 5 Ong �, c, �00.N1l. FA 0 0 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2002.29 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 9th day of April, 2002, and that the same was so passed and adopted by the following vote, to wit: Ayes: Heffernan, O'Neil, Bromberg, Glover, Adams, Proctor, Mayor Ridgeway Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 10th day of April, 2002. (Seal) City Clerk Newport Beach, California 0 EXHIBIT A EMPLOYMENT AGREEMENT 0 This EMPLOYMENT AGREEMENT, (Agreement) entered into this 9"' day of April 2002, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and ROBERT H. BURNHAM (Burnham) is made with reference to the following: A. City has employed Burnham as the City Attorney since January 1983; B. City and Burnham have entered into a series of employment agreements since March 14, 1992; C. This Agreement is intended to modify provisions of the current agreement related to salary and flex leave accrual and otherwise to accurately reflect the terms and conditions of Burnham's employment as City Attorney. SECTION 1: Employment as City Attorney. A. City shall continue to employ Burnham as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. Burnham shall also perform other duties assigned by the City Council or City Manager, without additional compensation, so long as those duties are related to matters of concern to the City of Newport Beach or cities generally and are performed by legal counsel for other municipalities. Burnham shall obtain the prior written approval of City Council prior to performing legal services, for compensation, for any person or entity other than City. B. Burnham shall devote at least eighty (80) hours every two (2) weeks to the performance of his duties as City Attorney unless on paid leave and /or unpaid leave approved by City Council or attending conferences. . SECTION 2: Effective Date/Term. This Agreement shall remain in effect until terminated pursuant to Section 4 of this Agreement. SECTION 3: Base Compensation. City shall pay Burnham an annual base salary of $165,000.00, effective December 1, 2001, in twenty -six (26) equal installments paid at the same time other management employees of City are paid. City shall have the right to deduct or withhold from Burnham's base salary any and all sums required for federal income and social security taxes and all state or local taxes now applicable or that may become applicable in the future. City may also deduct sums Burnham is obligated to pay because of participation in plans or programs generally described in Section 6 of this Agreement. • SECTION 4: Termination and Severance Pay. A. Burnham may terminate this Agreement by giving City at least sixty (60) days prior written notice of termination. Burnham shall provide as least one hundred eighty (180) days notice in the event termination is based on a decision to retire. B. City may terminate Burnham, without cause, upon the affirmative votes of a majority of the members of City Council at any regular meeting. However, Burnham may not be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of City Council. Burnham shall be furnished with written notice stating the Council's intention to terminate this agreement at least ninety (90) days prior to the effective date of termination. Burnham shall receive severance pay equal to one -half (1/2) of his annual base salary as of the date of termination, unless he is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. SECTION 5: Employee Benefits /Special Provisions. A. Except as otherwise provided in this Agreement or a Resolution of the City Council, Burnham shall be entitled to the same benefits as are provided to other management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Burnham unless except to the extent inconsistent with this Agreement. (1) Burnham shall receive eighty (80) hours of administrative leave per calendar year. Burnham shall not have the right to accrue administrative leave from year to year. Burnham shall not be entitled to any compensation, or compensatory time off, for overtime. Burnham shall receive flex leave in accordance with the then current rate for employees with similar longevity. Burnham shall not be entitled to flex leave spillover pay and shall not be subject to any flex leave accrual threshold. (2) Burnham shall have the right to "buy out" up to eighty (80) hours of flex leave each year. B. Burnham may undergo an annual physical examination and City shall reimburse Burnham for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Burnham for all reasonable business expenses actually incurred by Burnham in the performance of services pursuant to this Agreement. 2 0 SECTION 7: Meetings and Conferences. 0 Burnham shall, at City's expense, by entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services he is required to perform pursuant to this agreement. In no event shall expenditures pursuant to this Section exceed the amount allocated for such purpose in the then current City Attorney's budget. SECTION 8: General Provisions. A. Burnham shall serve at the pleasure of the City Council as specified in the City's Charter and may be terminated "at will" subject to the procedural requirements specified in this Agreement and /or City ordinance. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Burnham. C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of City), or deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested, and properly addressed. D. This Agreement describes the complete understanding of the parties may be modified only by a writing signed by the party to be charged. CITY OF NEWPORT BEACH, By: Mayor CITY ATT,;tSRNEY Attorney ATTES By City Clerk Dated: qlq (7;, Dated: Dated: 3 • November 14, 2000(') Agenda Item No. 7 CITY OF NEWPORT BEACH OFFICE OF THE MAYOR TO: Members of the City Council FROM: Mayor John Noyes RE: Modifications to City Attorney Contract DATE: November 14, 2000 ARKO 99SUVW W20�Rs The City Attorney was recently evaluated and the City Council was generally pleased with his performance during the past twelve months. In the next year, the City Attorney will be called upon to provide legal advice on complex matters such as the proposed extension of the JWA Settlement Agreement and the proposed annexation of the Newport Coast. The City Council has recently granted pay increases to the City Manager and City Clerk. I am proposing that the City Attorney's contract be modified to reflect a three percent (3 %) increase in the current base salary for the position and to conform flex leave accrual rates to those of other employees with the same tenure. I am recommending the City Council approve these amendments by adopting the Resolution that accompanies this memo. Joh oyes Mayor of Newport Beach 0 0 RESOLUTION NO. 2000- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION PAID TO THE CITY ATTORNEY WHEREAS, the City Council has evaluated the performance of the City Attorney during the past twelve (12) months; WHEREAS, an adjustment to the base salary and modification of the flex leave provisions of the current employment agreement is appropriate given the compensation paid to other department directors and the manner in which the City Attorney has performed the duties of that position; and WHEREAS, the adjustments in compensation for the City Attorney that are authorized by this Resolution are appropriate under the circumstances NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the Mayor is authorized to execute amendments to the employment contract (Agreement) between the City and the City Attorney consistent with the following: 1. The current base salary of the City Attorney shall be increased three percent (3 %) effective the second pay period in November, 2000; 2. The current provisions of the employment agreement regarding flex leave accrual shall be modified so that the City Attorney accrues flex leave to the same extent as other employees with the same term of service. ADOPTED, this 14"' day of November, 2000. ATTEST: LaVonne Harkless, City Clerk John Noyes Mayor of the City of Newport Beach -11- RESOLUTION NO. 2000- 95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION PAID TO THE CITY ATTORNEY WHEREAS, the City Council has evaluated the performance of the City Attorney during the past twelve (12) months; WHEREAS, an adjustment to the base salary and modification of the flex leave provisions of the current employment agreement is appropriate given the compensation paid to other department directors and the manner in which the City Attorney has performed the duties of that position; and WHEREAS, the adjustments in compensation for the City Attorney that are authorized by this Resolution are appropriate under the circumstances NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the Mayor is authorized to execute amendments to the employment contract (Agreement) between the City and the City Attorney consistent with the following: 1. The current base salary of the City Attorney shall be increased three percent (3 %) effective the second pay period in November, 2000; 2. The current provisions of the employment agreement regarding flex leave accrual shall be modified so that the City Attorney accrues flex leave to the same extent as other employees with the same term of service. ADOPTED, this 14" day of November, 2000. John Noyes J j j Mayor oft City of wport Beach ATTEST: OF NFL jai LaVonne Harkless, City Clerk m o Rp�A 5111 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2000 -95 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 14th day of November, 2000, and that the same was so passed and adopted by the following vote, to wit: Ayes: Thomson, Glover, Adams, Ridgeway, Debay, O'Neil, Mayor Noyes Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 15th day of November, 2000. (Seal) City Clerk Newport Beach, California *EMPLOYMENT AGREEMENT • This EMPLOYMENT AGREEMENT, (Agreement) entered into this 14" day of November, 2000, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and ROBERT H. BURNHAM (Burnham) is made with reference to the following: A. City has employed Burnham as the City Attorney since January 1983; B. City and Burnham have entered into a series of employment agreements since March 14, 1992; C. This Agreement is intended to modify certain provisions of the existing agreement relative to salary and flex leave accrual and to otherwise accurately reflect the terms and conditions of Burnham's employment as City Attorney. SECTION 1: Employment as City Attorney. A. City shall continue to employ Burnham as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. Burnham shall obtain the prior written approval of City Council prior to performing legal services for any person or entity other than City. B. Burnham shall devote at least eighty (80) hours every two (2) weeks to the performance of his duties as City Attorney except when on paid leave and /or unpaid leave approved by City Council or attending conferences. Burnham shall have the right to work a 9/80. SECTION 2: Effective Date/Term. This Agreement shall be effective as of the second pay period in November, 2000 and shall remain in effect until terminated pursuant to Section 4 of this Agreement. SECTION 3: Base Compensation. A. City shall pay Burnham an annual base salary of $144,926.00 in twenty- six (26) equal installments paid at the same time other management employees of City are paid. City shall have the right to deduct or withhold from Burnham's base salary any and all sums required for federal income and social security taxes and all state or local taxes now applicable or that may become applicable in the future. City may also deduct sums Burnham is obligated to pay because of participation in plans or programs described in Section 6 of this Agreement. B. The base salary shall be adjusted on March 1, 2001, and each subsequent March 1st during the term of this Agreement, to reflect 1 increases Odecreases in the Consumer PAI Index (Los Angeles, Anaheim and Riverside — all urban consumers) during the preceding calendar year. SECTION 4: Termination and Severance Pay. A. Burnham may terminate this Agreement by giving City at least sixty (60) days prior written notice of termination. Burnham shall provide as least one hundred eighty (180) days notice in the event termination is based on a decision to retire. B. City may terminate Burnham, without cause, upon the affirmative votes of a majority of the members of City Council at any regular meeting. However, Burnham may not be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of City Council. Burnham shall be furnished with written notice stating the Council's intention to terminate this agreement at least ninety (90) days prior to the effective date of termination. Burnham shall receive severance pay equal to one -half (1/2) of his annual base compensation as of the date of termination, unless he is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. SECTION 5: Employee Benefits /Special Provisions. A. Except as otherwise provided in this Agreement or a Resolution of the City Council, Burnham shall be entitled to the same benefits as are provided to other management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Burnham except to the extent inconsistent with this Agreement. 1. Burnham shall receive eighty (80) hours of administrative leave per calendar year. Burnham shall not have the right to accrue administrative leave from year to year. Burnham shall not be entitled to any compensation, or compensatory time off, for overtime. 2. Burnham shall receive flex leave in accordance with the then current rate for employees with similar longevity. 3. Burnham shall have the option of converting up to five (5) days of annual flex leave accrual to salary. The conversion shall be at the rate of .4% of salary for each day of flex leave accrual. 4. Burnham shall have the right to "buy out" up to eighty (80) hours of flex leave each year. B. Burnham shall, at City's expense, undergo an annual physical examination similar to the extent such examinations are made available to other management employees. 2 0 0 C. City shall pay Burnham a car allowance of $275 per month until June 2001. Burnham shall not receive any car allowance subsequent to June 2001. SECTION 6: Business Expenses. City shall reimburse Burnham for all reasonable business expenses actually incurred by Burnham in the performance of services pursuant to this Agreement. SECTION 7: Meetings and Conferences. Burnham shall, at City's expense, by entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services he is required to perform pursuant to this Agreement. In no event shall expenditures pursuant to this Section exceed the amount allocated for such purpose in the then current City Attorney's budget. SECTION 8: General Provisions. A. Burnham shall serve at the pleasure of the City Council as specified in the City's Charter and may be terminated "at will" subject to the procedural requirements specified in this Agreement and /or City ordinance. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Burnham. C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of City), or deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested, and properly addressed. D. This Agreement represents the entire understanding of the parties and any modification is effective only if it is in writing and signed by the party to be charged. CITY OF NEWPORT BEACH By: (-M Odr Joh o CITY A 117 By: Robert Burnham Dated: �:,-7yr i1 /,� 4ry-2�� Dated: ?-I 3 ATTEST: By: ,!416.-x,,- � )� /�a'14't� F:\ cat \Shared\da\Ag \Employment\CityAtty\102198. doc Dated: / ' -V /') /c, c' 4 RESOLUTION NO. 98 -6 C' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION OF THE CITY ATTORNEY WHEREAS, the City Attorney has received salary adjustments totaling 6.5% since 1991; and WHEREAS, during that period all management employees have received substantially greater salary adjustments; and and WHEREAS, the Cost of Living has increased approximately 14.0 % since 1991; WHEREAS, the City Attorney's workload has substantially increased in the past few years and his performance warrants a salary increase; and WHEREAS, the adjustments in compensation for the City Attorney will be, to some extent, off -set by reductions in benefits; and NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the Mayor is authorized to execute amendments to the employment contract between the City and the City Attorney consistent with the memo to the City Council attached as Exhibit "A" to this Resolution. ADOPTED, this 12th day of January, 199. Th Col s, Mayor ATTEST: 'Zf%j M. P� LaVonne Harkless, City Clerk F:\cat\da\Resolution%AttomeySal. doc ,%Vr -11- CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY January 8,1998 TO : Members of City Council FROM: Tom Edwards, Mayor Dennis O'Neil, Mayor Pro Tern Jan DeBay, Councilmember RE : CITY ATTORNEY COMPENSATION ADJUSTMENT At the direction of the City Council, we have met and discussed modifications to the salary and benefits of the City Attorney. We are submitting our recommendations and the information we believe supports our recommendations including: 1. A survey of the "in- house' City Attorney salaries in Orange County prepared by the Orange County Division of the League of Cities. (Attachment 1) 2. A schedule listing adjustments received by represented and non - represented employees from 1992 to the present. (Attachment 2) BACKGROUND The City Attorney has received salary increases totaling 6.5% since July, 1991. Adjustments for represented and management employees during that period are shown in Attachment 2. The Cost of Living during that period has increased approximately 14 %. During this period, the City Attorney's workload has increased due to a number of factors including: a. Acceptance of additional assignments relative to airport and Upper Bay issues; EXHIBIT A 0 b. His involvement in complex matters such as the IRWD Reclaimed Water Project, the NBPD sexual harassment litigation, the Pacific View, Lutheran Church and Fletcher Jones Development Agreements, CIOSA, the Oceanfront Encroachment Policy, the Mermaid litigation, the Thunderbird revocation, and employee termination hearings; and C. The assumption of responsibility for handling many liability cases "in- house". PROPOSED ADJUSTMENTS We are recommending the City Council approve the following adjustments: 1. Salary Adjustments; A 3% salary increase on March 1, 1998 and March 1, 1999 in addition to the Cost of Living adjustment in the current Agreement and elimination of the provision which called for payment of an annuity upon retirement equal in value to the difference between pay increases granted other management employees and City Attorney salary increases; 2. Benefit Adjustments: a. Flex Leave Reductions: A reduction in flex leave from 28 days to 25 days, with flex leave permanently capped (a six day reduction overall) at that level with flex leave spill -over pay. The City Attorney would have the right to buy out up to 80 hours of flex leave each year and the right to convert up to 5 days of flex leave (reducing accruals) to salary at .4% per day. b. Bereavement Leave: Bereavement leave, which is authorized up to five days per incident would be eliminated. C. Car Allowance: Replacement of city car with a car allowance. The car allowance would be $375 for first twelve months, $325 for the next 12 months, $275 for the final 12 months and no car or allowance thereafter. (current car is scheduled to be replaced with new vehicle) The other terms and conditions of the current agreement would remain unchanged. We are recommending the City Council adopt a Resolution authorizing Mayor Edwards to execute an amended agreement consistent with the terms discussed in this memo. If you have any questions, please feel free to contact any or all of us prior to the formal consideration of this matter. iO > •tl�tR g A F a z to Fill t X11! l ll! 11 ••M • t Y / i / t i ■ t Y I Y / ■ 7 H b rl H Z m y (J rl b a �Fu O m b n P M H R o P N q O q I I N N YI N' •1 q y q m I r' • Y t W • Y 4 i I t Y I / ■ Z ■ H ap ■ Y M al I y $ 2 � y ■ U Y � � Y W F , ■ M I Y a H I (f Y H i W W � >I i, N it 'r N N N ml ■ zz z z z z z w, ■ a, Y law. Y H Y �E �+ U ■ o a y • P a, N >. N �. 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N N.L..w L O m N 0- n O d O E ->- L U T N i r O T m m o ca Ito c a of 3 o� C T N n m 7 n ' CL 2 m$ U 2' — 0 0 CL 2 U . Y • STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } 0 I, LAVONNE M. HARELESS, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 98 -6, was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 12th day of January, 1998, and that the same was so passed and adopted by the following vote, to wit: Ayes: Thomson, Debay, O'Neil, Hedges, Glover, Noyes, Mayor Edwards Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 13th day of January, 1998. i City Clerk of the City of Newport Beach, California (Seal) n C,11-1�'= NAP 1FOR_. 11 CITY OF NEWPORT BEACH Office of the City Manager January 12, 1998 TO: City Council FROM: Mayor Thomas C. Edwards Mayor Pro Tem Dennis O'Neil Councilmember Jan Debay C c -�� January 12, 1998 Agenda Item # 7 SUBJECT: COMPENSATION ADJUSTMENT FOR CITY MANAGER As directed by the City Council, we've met and discussed an adjustment to the salary of the City Manager. Following that discussion, we enclose for your information our recommended compensation adjustment. We're providing as background information the following: 1. A survey of all city manager salaries in Orange County as prepared by the Orange County Division of the League of Cities (Attachment 1). 2. A schedule listing adjustments received by represented and non- represented employees during the period of the City Manager's employment, March 1992 to present (Attachment 2). 3. A list of council goals for the last three years (Attachment 3). Historical Perspective To put in perspective Mr. Murphy's present situation, he has had no increase in salary since beginning his employment in 1992. Since 1992 the City has adjusted the compensation levels of all of our City employee (see Attachment 2). During his tenure, the City Manager has repeatedly demonstrated his commitment and devotion to this organization and there are numerous examples of the results of his commitment. During lean fiscal years this commitment has included not requesting a salary adjustment so that the City Council's fiscal message of hard times is consistent with our policy on senior executive salaries. The City in year's past has had the financial resources and support in the community to put off key decisions. This abruptly changed in the fiscal year the City Manager arrived to work in Newport Beach. For example, on assuming the City Manager position in March 1992, the draft 1992 -93 fiscal year budget was $12 million out of balance before he began making reductions and adjustments. 0 0 Then to compound the difficulties, the State shifted $2 million of the City's property tax revenues to the schools, followed by a similar action in 1993 -94 of t $1.3 million. Under his direction, the City has rebounded from the recession and State raids. Needless to say, he has had to make some difficult decisions due to these new fiscal circumstances which many of our constituents and City employees can't fathom because of our past fiscal affluence. Longstanding Issues The City Council has directed the City Manager in the last five years to face up to several long standing issues which have been "boiling" under the surface for years in the City. Frankly, past councils ignored many of these issues. Examples include: 1) The "War Zone" of West Newport Beach. Arrests are down, noise complaints are down and when was the last reference to the "War Zone ? "; 2) The establishment of an Economic Development program; 3) A new Balboa Bay Club lease requiring the rehabilitation of the facility; 4) The problems of alcohol establishments for the Police Department; 5) A plan to revitalize the Peninsula (and actually commencing the work program with a funding source); 6) Completing a Groundwater system; 7) Taking on the Marinapark Tidelands issue; 8) Closing in on annexing the Newport Coast; and finally 9) Dealing with runaway leave benefits of our employees. The City Manager, with Council direction and support, has tackled many issues with success. - Achievements The City Manager, at the Council's request, provided the City Council with a list of accomplishments recently and we would like to list a few of these as a reminder of the issues: • Fletcher Jones Motorcars Relocation • Comprehensive Zoning Ordinance Rewrite • Privatized Tree and Parkway Maintenance • Reclaimed Water Agreement with IR.WD /OCWD and End Users • Emergency Medical/Ambulance Program in 1993 and 1996 • Bonita Canyon Annexation • Joint Helicopter Service • Income Property Policy • Bankruptcy Recovery Plan for League of Cities • 10 Year Landfill Agreement with County at $22/ton • Re- negotiated Recycling Agreement with CRT for Lower Costs • Balboa Island Fire Station • Reorganization of City Departments from 13 to 8 Proposed Compensation Adjustment Since 1992 if the City Manager had received the same adjustments as all other non- safety represented employees, his salary today would be $149,148 or nearly 12% higher than its present level of $132,912. The cumulative costs of these periodic adjustments, had they been approved would have been $66,000, when factoring in only salary and retirement costs. As stated earlier, the cost of living for the past five- and -a -half years has been 10.31%. After reviewing the increases received by all our other employees,' we think you would agree that the City Manager should be entitled to a substantial salary adjustment for his accomplishments, long hours and dedication to the City. Based thereon, we are recommending an adjustment of 5% retroactive to January 1, 1997 and 5% effective July 1, 1998. The adjustments we are recommending would set his new salary at $139,558 or $11,630 per month effective immediately and then $146,535 or $12,211 per month in July 1998. We also recommend that the City Manager's Flex Leave accrual be reduced to 21 days per year, which is a reduction of four days per year, and exceeds all other employee flex leave reductions. If you have any questions, please feel free to contact the three of us prior to the formal consideration of this matter. H Z w 4 H F d Z� N � 4� 1 S� M � hI N ; M 1 q m � M11 N � N 1 1 N 1 m > 13 . (M1 1 u � � 4 � �4 hNQ4 �S'4f■11i Zm41 OI�9M II Y.F W W m ��yqJ VJ K b hi Nh 14 Fu h mu bg Y ■ ■ ■ ■ Y Y ■ i i coo 00 O o o ■ V NNi. i.N ZMN „NM Z)-N ZuM ) -NZ l01-W IZZZ ZZZ� in N o 0 o mo e o 00 0 ■ F o 0 0 oa N N oN N ■ f �. �.M N7+Ni.ZYti. 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O m E CL:- Rmv° V Zo > m c .� N L) 7 2 m E • O Y • • i ATTAC1QW.NT 3 COUNCIL PRIORITIES r 1995 • Fiscal • Economic Development/Advanced Planning I • Airport Monitoringlissues • Organization Development/Task Organization 1996 • Downcoast Annexation • Fiscal • Airport • Economic Development �- • City Landfill Disposal 1997 • Airport Monitoringflssues • Marine Environmental and Water Quality Issues • Advanced Planning/Annexation • Water Service Delivery/Quality • Crime Prevention • Economic Development • Employee Relations/Negotiations • Financial Forecasting f • Tidelands Administration/Management 0 0 RESOLUTION NO. 98_ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION OF THE CITY MANAGER WHEREAS, the City Manager has received no increase in salary during his term of employment with the City of Newport Beach which began in March, 1992; and WHEREAS, during that period all management employees have received salary adjustments between 14% and 17 %; and WHEREAS, since 1992 the Cost of Living has increased approximately 10.31%; and WHEREAS, the City Manager has achieved substantially all of the goals set for him by the City Council during that period and his performance, his hours of service, and dedication for the City all warrant a salary adjustment; and WHEREAS, the salary adjustment contemplated by this Resolution is accompanied by a reduction in flex leave accruals; NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the Mayor is authorized to execute amendments to the employment contract between the City and the City Manager consistent with the memo to the City Council attached as Exhibit "A" to this as Resolution. ADOPTED, this day of January, 1998. ATTEST: LaVonne Harkless, City Clerk F: \cat\da\ResolutbnWanagerSal.doc Thomas Cole Edwards, Mayor -1- • 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY January 8,1998 TO : Members of City Council FROM: Tom Edwards, Mayor Dennis O'Neil, Mayor Pro Tem Jan DeBay, Councilmember RE : CITY ATTORNEY COMPENSATION ADJUSTMENT At the direction of the City Council, we have met and discussed modifications to the salary and benefits of the City Attorney. We are submitting our recommendations and the information we believe supports our recommendations including: 1. A survey of the "in- house" City Attorney salaries in Orange County prepared by the Orange County Division of the League of Cities. (Attachment 1) 2. A schedule listing adjustments received by represented and non - represented employees from 1992 to the present. (Attachment 2) BACKGROUND The City Attorney has received salary increases totaling 6.5% since July, 1991. Adjustments for represented and management employees during that period are shown in Attachment 2. The Cost of Living during that period has increased approximately 14 %. During this period, the City Attorney's workload has increased due to a number of factors including: a. Acceptance of additional assignments relative to airport and Upper Bay issues; N EXHIBIT 0 0 b. His involvement in complex matters such as the IRWD Reclaimed Water Project, the NBPD sexual harassment litigation, the Pacific View, Lutheran Church and Fletcher Jones Development Agreements, CIOSA, the Oceanfront Encroachment Policy, the Mermaid litigation, the Thunderbird revocation, and employee termination hearings; and C. The assumption of responsibility for handling many liability cases "in- house". PROPOSED ADJUSTMENTS We are recommending the City Council approve the following adjustments: 1. Salary Adjustments; A 3% salary increase on March 1, 1998 and March 1, 1999 in addition to the Cost of Living adjustment in the current Agreement and elimination of the provision which called for payment of an annuity upon retirement equal in value to the difference between pay increases granted other management employees and City Attorney salary increases; 2. Benefit Adjustments: a. Flex Leave Reductions: A reduction in flex leave from 28 days to 25 days, with flex leave permanently capped (a six day reduction overall) at that level with flex leave spill -over pay. The City Attorney would have the right to buy out up to 80 hours of flex leave each year and the right to convert up to 5 days of flex leave (reducing accruals) to salary at .4% per day. b. Bereavement Leave: Bereavement leave, which is authorized up to five days per incident would be eliminated. C. Car Allowance: Replacement of city car with a car allowance. The car allowance would be $375 for first twelve months, $325 for the next 12 months, $275 for the final 12 months and no car or allowance thereafter. (current car is scheduled to be replaced with new vehicle) The other terms and conditions of the current agreement would remain unchanged. We are recommending the City Council adopt a Resolution authorizing Mayor Edwards to execute an amended agreement consistent with the . terms discussed in this memo. If you have any questions, please feel free to contact any or all of us prior to the formal consideration of this matter. „ P • y Y r X y W 4 d F U W F F W U Mq Q U W J z O N O d q W a m M d q N N Q M nw a u 6 m N m ou Xv�7 m44 aMag¢� Rot? 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R ■mOO�UG , 6Gy ty� ,7 JI�00 \_ a m > N rl F ~ ~ y 0 b Z r b o rI M d o n0 b gV m f pW Q z z .. m 'IK O O, §yP� ��Wujj y A m a :...., . :i MtW 4 4 N H Z W U Z W N 7 a Y a J a U a W m 0 a W Z Onf rn N r E 0 r ro 0 E U o 6 6 6 6 0 fit'. � N r � C ,. O O 00 it .'f*- 1p lIq^^ T Co Q) co C a C o N U y0 N N N 07 ' a dca 7 2 v Q o D) U U n,' F. CD � � .e. O O\O and E L U T O O M O m d CD .vsY. W tr M im W CC n CD o c aw o r N 0 m o+ r N (p M 3 c a C CD nom FA E q C n CL ta m$ o W H O m CL so M cc U Iis O, Q 0 r , �.� ,g R e I un Y`yyy«. ?�o ,+tTjyx .R M q CO CO 10 O 1 %'n Ot:. ;MtN� CC b r.. IAox�,nN 0 :.. ... ro 0 E U 0 d V) � N r � C IV CO o CD 0). E T Co Q) co C a C o N U y0 N N N 07 ' a dca 7 2 v Q o D) U U � oar CD � � O O\O and E L U T j F� M O m d CD T E�� IV CD m�ro t O W CC n CD o c aw o r N 0 m o+ r N (p M 3 c a C CD nom FA E q C n CL ta m$ W H O m CL cc U • O V L RESOLUTION NO. 98_ r A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ADJUSTING THE COMPENSATION OF THE CITY ATTORNEY WHEREAS, the City Attorney has received salary adjustments totaling 6.5% since 1991; and WHEREAS, during that period all management employees have received substantially greater salary adjustments; and and WHEREAS, the Cost of Living has increased approximately 14.0 % since 1991; WHEREAS, the City Attorney's workload has substantially increased in the past few years and his performance warrants a salary increase; and WHEREAS, the adjustments in compensation for the City Attorney will be, to some extent, off -set by reductions in benefits; and NOW, THEREFORE, BE IT RESOLVED by the City of Council of the City of Newport Beach that the Mayor is authorized to execute amendments to the employment contract between the City and the City Attorney consistent with the memo to the City Council attached as Exhibit "A" to this Resolution. ADOPTED, this day of January, 1998. ATTEST: LaVonne Harkless, City Clerk F: tcattda\ResoluUonVlttomeySal.doc Thomas Cole Edwards, Mayor -1- I UGC y 112884 SEPARATION PAY AGREEMENT CITY ATTORNEY T as Agreement is entered into this ��day of t �L. ° 1984, by and between the City of Newport Beach, a Chartered Municipal Corporation, hereinafter referred to as "City" and Robert H. Burnham, an individual employed as City Attorney for City, hereinafter referred to as "City Attorney" and is made with reference to the following facts. Recitals A. The City Attorney serves at the pleasure of the City Council of City and unlike other permanent City employees, may be terminated by the City Council at any time without cause. B. City believes that it would be fair and equitable to establish a procedure for paying the City Attorney separation compensation in the event of such termination under the terms and conditions as herein set forth. C. City also wishes to establish by this agreement the maximum amount of vacation time the City Attorney can accrue. NOW, THEREFORE, the parties agree as follows: 1. Upon involuntary termination of the City Attorney for any cause except death, City shall pay City Attorney as separation pay an amount of money based on the following schedule: a. For zero (0) to five (5) years of continuous municipal service, the City Attorney shall be entitled to one (1) month separation pay; b. For five (5) to ten (10) years of continuous municipal service, the City Attorney shall be entitled to two (2) months separation pay; C. For ten (10) to fifteen (15) years of continuous municipal service, the City Attorney shall be entitled to three (3) months separation pay; d. For fifteen (15) and more years of continuous municipal service, the City Attorney shall be entitled to four (4) months separation pay; e. In no event shall entitlement to separation pay exceed four (4) months. 2. The separation pay benefit established by this agreement shall commence as of the date execution of this agreement. The number of years of continuous municipal employment service for purposes of calculating separation pay as provided in Paragraph 1 of this agreement shall be based on the date the City Attorney was appointed to that position by the City Council of City. The rate of separation pay shall be based on the annual salary of City Attorney on the date of involuntary termination and shall be paid in monthly increments from the date of such involuntary termination until the total amount is paid. 3. From and after the date of this agreement, City Attorney shall accrue vacation time based on the schedule set forth in Section 702.3 of the City's Personnel Resolution, incorporated herein by this reference. 4. From and after the date of execution of this agreement, City Attorney shall not accrue vacation time in excess of three hundred twenty (320) hours. All accrued vacation time in excess of three hundred twenty (320) hours shall be taken prior to December 31st of each year or said vacation days shall be lost and City Attorney shall not be entitled to any compensation for those lost vacation days. City Attorney or his estate shall be entitled to receive payment for any unused vacation time up to three hundred twenty (320) hours upon death or termination of employment -2- with City. Payment for said vacation time shall be based on the City Attorney's salary hourly rate at the time of termination or death. 5. All other conditions of employment pertaining to the position of City Attorney as set forth in the City's charter, municipal code, resolutions and policies not otherwise modified by this agreement shall continue to control the terms of employment for the City Attorney. Executed the day and year first above written. CITY._.Qf NEWPORT BEACH By Mayor ATTESTED TO: City Clerk OBERT H. BURNHAM, City Attorney -3- EMPLOYMENT AGREEMENT The City of Newport Beach ( "City ") and Robert H. Burnham (Burnham) agree as follows: SECTION 1. Employment as City Attorney. (a) City shall employ Burnham as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and Municipal Code of the City of Newport Beach. Burnham shall obtain the approval of the City council prior to performing legal services for any person or entity other than the City of Newport Beach. (b) Burnham shall devote at least 85 hours every two weeks to the performance of his duties as City Attorney except when on paid leave, unpaid leave approved by the City Council or attending conferences. Burnham shall have the right to go to an 9/85 schedule on 9/1/94, SECTION 2. Effective Date /Term. This Agreement shall be effective on March 14, 1992 and shall remain in effect until terminated pursuant to Section 4. SECTION 3. Base Compensation. (a) City shall pay Burnham an annual base salary of $124,842.00 in twenty -six (26) equal installments paid at the same time other management employees of the City are paid. City shall have the right to deduct or withhold from Burnham's base salary any and all sums required for federal income and social security taxes and all state or local taxes now applicable or that may become applicable in the future. City may also deduct sums Burnham is obligated to pay because of participation in plans or programs described in Section 6 of this Agreement. (b) The base salary shall be adjusted on March 1, 1995, and each subsequent March 1 during the term of this agreement, to reflect increases or decreases in the Consumer Price Index for the Los Angeles- Anaheim - Riverside area during the preceding twelve month period from January 1 to December 31. SECTION 4. Termination and Severance Pay. A. Burnham may terminate this Agreement by giving the City at least sixty (60) days' prior written notice of termination. Burnham shall provide at least 180 days notice in the event termination is based on a decision to 9 0 retire. B. City may terminate Burnham, without cause, upon the affirmative votes of a majority of the members of the City Council at any regular meeting, provided, however, Burnham may not be terminated within ninety (90) days after any municipal election for the selection or recall of one or more members of the City Council. Burnham shall be furnished with written notice stating the Council's intention to terminate this Agreement at least ninety (90) days prior to the effective date of termination. Burnham shall receive severance pay equal to one -half (1/2) of his annual base compensation as of the date of termination, unless he is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. SECTION 5. Employee Benefits /Special Provisions. A. Except as provided in this Section or elsewhere in this agreement, Burnham shall be entitled to the same benefits as are provided to other management employees of the City. The provisions of the then current Personnel Policies Resolution as well as those provisions of the City Charter and Municipal Code that relate to the terms and conditions of employment shall, except to the extent inconsistent with the terms of this Agreement, apply to Burnham as they are applied to other management employees provided, however, Burnham shall not be entitled to any compensation, or compensatory time off, for overtime. In lieu of overtime and in recognition of the significant expenditure of time, over and above normal working hours, required to perform the duties of City Attorney, especially in 1992 and 1993: (i) Burnham shall receive the receive eighty (80) hours of administrative leave per year. Administrative leave shall be taken or lost - administrative leave may not be carried over from year to year. (ii) Burnham shall receive an additional eighty (80) hours of administrative leave for 1994, sixty hours of which may be applied to offset flex leave reductions during 1993 or 1994 and twenty hours of which must be used in 1994 or lost. B. Burnham shall, at City expense, undergo an annual physical examination similar to that made available to MreW.agt other management employees of the same age. C. City shall from March 1, 1994 to January 1, 1997 provide Burnham with an automobile that may be used for City business as well as incidental personal use. Burnham shall purchase gasoline for the automobile when used for reasons other than City business. D. City shall provide Burnham with supplemental retirement benefits upon termination of this agreement (except for criminal conduct, malfeasance or gross abuse of discretion). The supplemental retirement benefits shall be based on the years of service and the difference between the percentage salary increases granted pursuant to Section 3(b) and the percentage salary increases granted to other management employees from July 1, 1991 to the date of termination SECTION 6. Business Expenses. City shall reimburse Burnham for all reasonable business expenses actually incurred by Burnham in the performance of services pursuant to this Agreement. SECTION 7. Meetings and Conferences. Burnham shall, at City expense, be entitled to attend a reasonable number of local, state and national conferences relevant to his performance of services pursuant to this Agreement, provided, however, in no event shall expenditures pursuant to this section exceed the amount allocated in the City Attorney's budget for that fiscal year. SECTION S. General Provisions. A. Burnham shall serve at the pleasure of the City Council as specified in the Newport Beach City Charter and may be terminated "at will" subject to the procedural requirements specified in this Agreement and /or City ordinance. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Burnham. C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of the City) , or deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested, and properly addressed. mg romp. agt 3 D. This Agreement represents the entire understanding of the parties and any modification is effective only if it is in writing and signed by the party to be charged. Dated: S -i- q C( CITY OF NEWPORT BEACH, A Municipal Corporation A Dated: OBERT H. BURNHAM, City Attorney mgre p.agt 4 • )V) TO FROM: CITY COUNCIL Agenda Item No. CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER April 11, 1994 APR I I I9 °n Honorable Mayor And Members Of The City Council Kevin J. Murphy, City Manager I - SUBJECT: AGREEMENT WITH CITY ATTORNEY (' - 3 ro BACKGROUND: Late last year the City Council reviewed the performance of the three City employees that report directly to the City Council pursuant to the City Charter. These three employees are the City Manager, City Attorney and the City Clerk. During the review process with the City Attorney the concept of an agreement • with the City was discussed, and more recently this matter was discussed again in greater detail in Closed Session. In follow up to these discussions, a draft agreement was reviewed and approved by an independent municipal attorney retained to represent the City in this matter, Steve Dorsey, a partner in the Los Angeles law firm of Richards, Watson and Gershon. Neither the City, nor the City Attorney's office, has had any prior working relationship with Steve Dorsey. Mr. Dorsey represents the cities of Artesia, Norwalk and San Marino as legal counsel. FACTS: The agreement between the City and the City Attorney is patterned after the agreements which have been approved previously for the City Manager and Police Chief. The agreement's major provisions are: compensation, termination, severance and hours worked per week. More specifically, the agreement provides that the City Attorney shall receive a cost -of- living pay adjustment in March 1995, the amount to be determined by the CPI increase between January 1994 and January 1995. Thereafter, the City • Attorney shall receive a CPI increase in base salary each March based on the same index. The agreement provides for termination of the agreement by the City by majority vote of the City Council with ninety (90) days notice and with six months severance pay, unless terminated for criminal wrongdoing, malfeasance, or a gross abuse of discretion. The agreement sets out in writing that the City Attorney is an "at will" employee and as such may be terminated with notice and severance and without any legal complications. Similarly, the City Attorney may terminate the agreement with at least sixty (60) days prior written notice, or if for the purpose of retirement with one hundred and eighty (180) days notice to the City. Agreement with City Attorney Page 2 • The agreement indicates that the City Attorney as a City employee shall be entitled to all other benefits that other management employees receive, however, he is not entitled to receive overtime for hours worked in excess of the normal workweek. The agreement specifies that the City Attorney will agree to work a minimum of eighty -five (85) hours every two weeks in the performance of his duties and may go to a "9 -85" schedule effective September 1, 1994. This simply means that he will work nine days in a two week pay period and will work 85 hours in those nine work days. The City has gone to a 9 -80 system with most work units in the City to assist us in achieving our trip reduction goals pursuant to Regulation XV of the AQMD. In recognition of the fact that the City Attorney is not eligible for overtime and yet works an extraordinary number of hours, the agreement provides for eighty (80) hours of administrative leave to compensate him for these additional hours. These hours are to be credited to the City Attorney each year for leave purposes, but may not be accumulated year to year, nor paid upon termination of the agreement by either party. The City staff is now looking at the City's compliance with the Fair Labor Standards Act (FLSA) which was found to apply • to the public sector in the mid- 1980's, and most importantly changed the way public sector employers calculate eligibility and credit for overtime hours. It is very likely for employees that are determined to be ineligible for overtime or exempt, that City staff will propose a program of administrative leave for our senior management employees in recognition of the long hours of overtime that they work regularly without overtime eligibility. Finally, the agreement provides that the City Attorney is to be provided, upon termination or retirement, a supplemental annuity similar to those structured for early retirees, for the salary increases that have been granted to other management employees between July 1, 1991 and the termination of the agreement which exceed the compensation to the City Attorney in that same time period pursuant to this agreement. • • EMPLOYMENT AGREEMENT • The City of Newport Beach ( "City ") and Robert H. Burnham ( "Burnham ") agree as follows: SECTION 1. Employment as City Attorney. A. City shall employ Burnham as City Attorney of the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter and Municipal Code of the City of Newport Beach. Burnham shall obtain the approval of the City Council prior to performing legal services for any person or entity other than the City of Newport Beach. B. Burnham shall devote at least 85 hours every two weeks to the performance of his duties as City Attorney except when on paid leave, unpaid leave approved by the City Council or attending conferences. Burnham shall have the right to go to a 9/85 schedule on 9/1/94. SECTION 2. Effective Date/Term. • This Agreement shall be effective as of April 1, 1994, and shall remain in effect until terminated pursuant to Section 4. SECTION 3. Base Compensation. A. City shall pay Burnham an annual base salary of $124,842.00 in twenty -six (26) equal installments paid at the same time other management employees of the City are paid. City shall have the right to deduct or withhold from Burnham's base salary any and all sums required for federal income and social security taxes and all state or local taxes now applicable or that may become applicable in the future. City may also deduct sums Burnham is obligated to pay because of participation in plans or programs described in Section 5 of this Agreement. B. The base salary shall be adjusted on March 1, 1995, and each subsequent March 1 during the term of this Agreement, to reflect increases or decreases in the Consumer Price Index published by the U.S. Department of Labor, Bureau of Labor Statistics, for the Los Angeles- Anaheim - Riverside • Metropolitan Statistical Area for All Urban Consumers (1982 - 1984 =100) for the preceding twelve month period from January 1 to December 31. SECTION 4. Termination and Severance Pay. A. Burnham may terminate this Agreement by giving the City at least sixty (60) days' prior written notice of termination. Burnham shall provide at least • • one hundred eighty (180) days notice in the event termination is based on Burnham's decision to retire. B. City may terminate Burnham, without cause, upon the affirmative votes of a majority of the members of the City Council at any regular meeting. City shall endeavor, but not be required, to furnish Burnham with written notice at least ninety (90) days prior to the effective date of termination stating the Council's intention to terminate this Agreement. Burnham shall receive severance pay equal to one -half (1/2) of his annual base compensation as of the date of termination, unless he is terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. In the event the City does not give Burnham a full ninety (90) days notice of termination, Burnham shall receive additional severance pay. This additional severance pay shall be equal to Burnham's annual base compensation divided by 365 multiplied by the number of days determined by subtracting the date of the notice of termination from the effective date of termination and subtracting that result from 90 days. All severance pay shall be paid in a lump sum. SECTION 5. Employee Benefits /Special Provisions. A. Except as provided in this Section or elsewhere in this Agreement, Burnham shall be entitled to the same benefits as are provided to other management employees of the City. The provisions of the then current Personnel Policies Resolution as well as those provisions of the City Charter and Municipal Code that relate to the terms and conditions of employment shall, except to the extent inconsistent with the terms of this Agreement, apply to Burnham as they are applied to other management employees provided, however, Burnham shall not be entitled to any compensation, or compensatory time off, for overtime, In lieu of overtime and in recognition of the significant expenditure of time, over and above normal working hours, required to perform the duties of City Attorney. (i) Burnham shall receive eighty (80) hours of administrative leave per year. Administrative leave shall be taken or lost - administrative leave may not be carried over from year to year. (ii) Burnham shall receive an additional eighty (80) hours of administrative leave for 1994, sixty hours of which may be applied to offset flex leave reductions during 1993 or 1994 and twenty hours of which must be used in 1994 or lost. B. Burnham shall, at City expense, undergo an annual physical examination similar to that made available to other management employees of the same age. C. City shall from March 1, 1994 to January 1, 1997 provide Burnham with an automobile that may be used for City business as well as incidental 2 • • • • • personal use. Burnham shall purchase gasoline for the automobile to the extent it is used for reasons other that City business. • D. City shall provide Burnham with supplemental retirement benefits upon termination of this Agreement (except for criminal conduct, malfeasance or gross abuse of discretion). This supplemental retirement benefits shall be based on the difference between the percentage salary increases granted pursuant to Section 3B and the percentage salary increases grated to other management employees from July 1, 1991 to the date of termination. If Burnham's salary increases exceed those granted to other management employees during the period prior to termination, then Burnham shall not be entitled to supplemental retirement benefits. The calculation of the salary increases granted to other management employees between July 1, 1991 and termination of the Agreement shall be determined by averaging the salary increases granted during this term to all Key and Management personnel. The supplemental retirement benefits shall be paid in the form of a structured annuity or actuarial equivalent lump sum payment as elected by Burnham. The actual form of the annuity shall be similar to other Early Retirement annuities offered to other City employees during 1993 and 1994. SECTION 6. Business Expenses. • City shall reimburse Burnham for all reasonable business expenses actually incurred by Burnham in the performance of services pursuant to this Agreement. Claims for such expenses shall be submitted to the City Council for approval and be supported by expense receipts, statements or personal affidavits, and subject to an audit thereof in like manner as other demands against the City. Reimbursement of business expenses shall be consistent with any City policy, resolution or practice in effect during the term of the Agreement. SECTION 7. Meetings and Conferences. Burnham shall, at City expense, be entitled to attend a reasonable number of local, state and national conferences relevant to his performance of services pursuant to this Agreement, provided, however, in no event shall expenditures pursuant to this section exceed the amount allocated in the City Attorney's budget for the fiscal year in which they are incurred. • SECTION 8. General Provisions. A. Burnham shall serve at the pleasure of the City Council as specified in the Newport Beach City Charter and may be terminated "at will" subject to the procedural requirements specified in this Agreement and /or City ordinance. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Burnham. '43 • • C. Any notice required by this Agreement shall be in writing and deemed given when personally delivered (to the City Clerk in the case of the City or to Burnham personally in the case of Burnham), or deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested, and properly addressed. In the case of Burnham, mailed notices shall be given to the current address on file with the City for Burnham for employment purposes. D. This Agreement represents the entire understanding of the parties and any modification is effective only if it is in writing and signed by the party to be charged. Dated: Dated: ATTEST: Wanda Raggio, City Clerk APPROVED AS TO FORM: Robert H. Burnham, City Attorney 4 CITY OF NEWPORT BEACH, A Municipal Corporation A Robert H. Burnham • •