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HomeMy WebLinkAboutC-3744 - City Attorney Employment Agreement* 6 C-3144 RETIREMENT AGREEMENT This Retirement Agreement ("Agreement ") is made and entered into this Oh day of June 2008, by and between the CITY OF NEWPORT BEACH ( "City "), a California municipal corporation, and ROBIN CLAUSON ( "Clauson "), an individual, with reference to the following matters: Recitals A. The City is a charter city and is organized and operates pursuant to and in accordance with the laws of the State of California and the City's Charier. B. In August of 1989, the City employed Clauson as its Assistant City Attorney. C. In August of 2004, the City appointed Clauson as its Acting City Attorney. D. In December of'2004, the City appointed Clauson as its City Attorney pursuant to previously approved agreements. E. Clauson has served continuously as the City Attorney since December of 2004. F. On or about April 22, 2008, the City and Clauson entered into and executed an Employment Agreement to specify the terns and conditions of Clauson's continued employment relevant to salary and benefits. G. Clauson has voluntarily elected to give irrevocable notice of her retirement from appointment by and employment with the City, with her retirement to be effective as further described herein. H. The City is willing to accept Clauson's election to retire as further described herein. 1. The City and Clauson now wish, by the terms and conditions of this Agreement, to forever and finally resolve all of their respective rights and obligations relating to Clauson's appointment by and employment with the City and her retirement from the City, and any potential claims either party has or may have against the other. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained herein, the City and Clauson agree as follows: Agreerncnt Section l: Retirement A. Clauson voluntarily and irrevocably gives notice of her retirement from appointment by and employment with the City, with such retirement to be effective December 26, 2008. 9 0 B. Clauson makes this resignation of her own free will and choice, without any representation of facts or law by the City, and she expressly assumes the risk that facts or law may be different from what she understands or anticipates thorn to he. Clauson agrees that this resignation shall be in all respects effective and binding and not subject to termination or rescission by reason of any such difference in facts or law, subject to the provisions of Section 4.13 below. C. Clauson will continue her full work duties and responsibilities as City Attorney until December 26, 2008 or the first day of employment of her successor, whichever occurs earlier, and thereafter will perform transition duties and responsibilities, as further set forth below. D. Clauson's resignation is hereby accepted by the City, to become effective on December 26, 2008, subject to the terms and conditions contained in this Agreement. E. Should any prospective employer contact the City to inquire regarding Clauson for reference or employment purposes, the City shall only provide confirmation of employment dates and positions held by Clauson during her employment with the City. In response to any inquiries from prospective employers, the City shall state that it is the City's standard policy not to provide any further information. However, if Clauson's prospective employer submits a Waiver of Consent to Obtain Information, or similar document, bearing Clauson's signature and authorizing the release of information, the City shall provide only such information as is specifically authorized by Clauson. Section 2: Transition Clauson agrees to continue in all respects to function as the full -time City Attorney until the earlier of December 26, 2008 or the first day of employment of her successor. For a period of six (6) months after such earlier date, Clauson agrees to and shall provide such professional services to the City as the City reasonably requests up to twenty (20) hours per month, and will reasonably cooperate and assist in an orderly transition of the duties and responsibilities of the City Attorney. Section 3: Salary, Benefits and Other Compensation A. Effective as of January 1, 2008, and through and including December 26, 2008, the City shall pay Clauson an annual base salary of One Hundred Ninety -Six Thousand Dollars ($196,000.00) in twenty -six (26) equal installments paid at the same time and in the same manner as other management employees of the City are paid. The City shall have the right to deduct or withhold from Clauson's base salary any and all sums required for federal income and social security taxes and all state or local taxes now or hereafter applicable. The City may also deduct such sums as Clauson is obligated to pay by reason of her enrollment in any plan or program, including without limitation group health plans, disability insurance coverage and deferred compensation plans, generally offered to City employees. B. In recognition and consideration of Clauson's agreement to defer her retirement date and to provide transition services on request (as set forth in Section 2 above) through and following December 26, 2008, the City agrees to pay a retainer benefit to Clauson in the total -2- 9 0 amount of Forty -Five Thousand Dollars ($45,000.00), payable in two installments as follows: the sum of Twenty -Two Thousand Five Hundred Dollars (522,500.00) shall be paid on the first pay period in July of 2008, and the sum of Twenty -Two Thousand Five Hundred Dollars (S22,500.00) shall be paid on January 2, 2009; provided, however, that in the event of a failure or refusal of Clauson to fulfill her duties as the full -time City Attorney and thereafter provide transition services as required by this Agreement, and upon thirty (30) days advance written notice and demand by the City, then Clauson agrees to immediately repay any sums paid to her pursuant to this Subsection B. C. Clauson shall receive all legally vested benefits to which she is entitled pursuant to all benefit plans for which she is eligible, including without limitation leave benefits, benefits under the Public Employees Retirement System and the City's health and medical plan(s) for retirees. Such vesting and other rights accorded to Clauson shall be governed by the terms of all applicable benefit plans and applicable law. D. Clauson acknowledges that this Agreement provides for all compensation and benefits due and owing to her through the effective date of her resignation and the period of her transition duties and responsibilities, and that there are no other sums or benefits of any nature whatsoever due and owing to her except as expressly provided for in this Agreement. Section 4: Release A. Clauson, for herself, her successors, assigns and representatives, does hereby release City, its officials, officers, agents, and employees, both existing and prospective, successors and assigns, of and from any and all actions, causes of action, damages, costs, contracts, covenants, representations, warranties, promises, undertakings, obligations, losses, claims, liabilities, rights of action, and demands of any kind, whether known or unknown, accrued or to accrue, suspected or unsuspected, arising out of or in any way related to, without limitation, Clauson's appointment or employment by the City or this resignation (collectively, "Claims "). The matters released include, by way of example and not limitation: claims for injury to Clauson arising out of or relating to the course and scope of her appointment or employment by City; claims for alleged violations of any contract, express or implied, or any covenant of good faith and fair dealing, express or implied; claims of any legal restrictions on City's right to discipline, tenninate or lay off its employees; any allegation of constructive discharge or wrongful discharge or tort; claims for defamation, invasion of privacy, emotional and/or personal injury or distress, or the like; claims for sick leave, vacation, compensated time off, separation pay or severance pay; and claims for violation of any local, state, federal or other goverrunental constitutional provision, statute, regulation or ordinance, as amended, or any public policy expressed in any such statute, regulation or ordinance, including without limitation, the following: Title VII of the Civil Rights Act of 1964 (race, color, religion, sex, national origin); Title 42 of the United States Code, sections 1981 and 1983 (discrimination in the making and enforcement of contracts, deprivation of rights, respectively); federal and state Equal Pay Acts (Title 29 of the United States Code, section 206(d)(1) and California Labor Code section 3200 et seq.); California Fair Employment and Housing Act (California Government Code section 12940 et seq.), discrimination including race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex; Labor Code section 1102.1 (sexual orientation); Executive Order 11246 (race, color, religion, sex, and national origin discrimination); -3- 0 0 Rehabilitation Act of 1973 (Title 29 of the United States Code, sections 503 and 504); Civil Rights Act of 1991; Americans with Disabilities Act; Employment, Retirement and Income Security Act of 1974 (ERISA); and/or state or federal Family Medical Leave Act. B. Clauson expressly acknowledges and agrees that, by entering into this Agreement, she is waiving any and all rights or claims that she may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Agreement. Clauson further expressly acknowledges and agrees that: I . In return for this Agreement, she will receive consideration beyond that which she was already entitled to receive before entering into this Agreement; 2. She was given a copy of this Agreement on June A7 , 2008, and was informed that she has twenty -one (2 1) days within which to consider the Agreement (which she has elected to waive); and 3. She was informed that she has seven (7) days following the date of his execution of the Agreement in which to revoke the Agreement. C. The parties intend and agree that this Agreement will be effective as a full, final, and general release of and from all matters covered herein. In furtherance thereof, Clauson acknowledges that she is familiar with and has been given the opportunity to secure independent advice as to California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor." Clauson expressly waives and releases any right or benefit which she may have or may in the future have under California Civil Code section 1542 and all similar laws, rules and statutes, to the fullest extent that such rights or benefits may be lawfully waived and released. Clauson acknowledges that she may hereafter discover facts different from or in addition to those now known or believed to exist arising out of the employment relationship recited above or the matters for which releases have been given herein, and agrees that this Agreement will nevertheless be binding and remain in full and complete force and effect. Section 5: General Provisions A. This Agreement shall be binding upon, and inure to the benefit of the heirs, executors and assigns of Clauson. B. 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. C. This Agreement describes the complete understanding of the parties, is a fully integrated and complete agreement and supersedes and replaces any prior agreements or lE 0 0 understandings between the parties, including without limitation the Employment Agreement, except as expressly provided herein otherwise. The parties expressly agree that there are no covenants, agreements, representations or warranties of any kind whatsoever between the parties that exist outside the Agreement. D. This Agreement may be amended or modified only by a writing signed by all of the parties. E. This Agreement is made and entered into in the State of California and shall in respects be interpreted, enforced and governed by the laws of the State of California. F. Each party acknowledges that, prior to executing this Agreement, she or it has been encouraged to consult with an attorney regarding the terms of this Agreement, and each party understands that whether to do so or not is within his or its sole discretion. Each party shall pay her or its own attorneys' fees and costs, if any, arising out of or in connection with this Agreement or its subject matter. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first recited above. ROBIN CLAUSON Robin Clauson CITYqf'NEWPO EACH i. By: Edward D. Selich, Mayor ATTESTS) -5- LaVonne M. Harkless, City Clerk -1�, • a CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT C- 3-/ L�Zt Agenda Item No. S33 June 10, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Homer Bludau, City Manager 949/644 -3000 or hbludau @city.newport - beach.ca.us SUBJECT: 1) Council Approval of a Retirement Agreement with the City Attorney and 2) Resolution 2008 - Establishing a City Council Ad Hoc Committee to Make Recommendations Regarding the Duties, the Salary and the Process for Filling the City Attorney Position ISSUE: 1. Does the City Council want to enter into the proposed retirement agreement with the City Attorney which would extend her retirement date with the City until December 26, zoos? 2. Should the City Council create a City Attorney Ad Hoc Recruitment Committee in order to assist the City Council in conducting a successful City Attorney recruitment, and if so, are the proposed Committee duties reflective of the Council's thinking on the Committee's role? RECOMMENDATION: 1. Approve the proposed retirement agreement with the City Attorney. 2. Adopt Resolution 2008 - creating the City Attorney Ad Hoc Recruitment Committee, making any changes to better reflect the City Council's thinking on this issue and approve the appointment of Council members Webb (Chair), Rosansky and Daigle to the Committee. DISCUSSION: Retirement Contract City Attorney Robin Clauson has decided to retire in order to spend more time with her family. Whereas it had been her intent to retire this summer, after making her retirement intentions known to the City Council, she has agreed to stay longer in order to provide ( the Council enough time to recruit her replacement and have the replacement on the job Citotorney Replacement Process June 10, 2008 Page 2 when she leaves. Therefore, she has agreed to a retirement date effective December 26, 2008. In order to create a smooth transition and obtain the additional services the City Council feel are important to ensure a seamless personnel change with this important position, a retirement agreement was developed with the advice of outside counsel. While the document is legalistic in its structure and terminology, its purpose is to ensure both parties understand and agree to the conditions under which the City Attorney will defer her retirement until December 26`". The Release provision is standard for City personnel contracts. The proposed retirement agreement provides the City Attorney with additional salary and retainer benefits in return for the additional time the City Attorney has agreed to remain with the City, and for her willingness to provide assistance and information to the new city attorney, with her almost 20 years of institutional knowledge, after her retirement date, in order to ensure the City's representation on important legal cases and matters is not adversely affected due to the personnel change. City Attorney Ad Hoc Recruitment Committee Past history shows it is customary for the City Council to create ad -hoc committees composed of three City Council members to deal with the issues surrounding the recruitment and selection of the positions (City Manager, City Attorney and City Clerk) which report directly to the City Council. Among the issues which will need to be addressed in determining the recruitment process are some of the following: whether a recruitment firm should be used; whether a salary adjustment should be made to ensure a favorable recruitment environment; whether the job description and qualifications are current and accurate; devising a recruitment schedule and process that meets the City Council's desired time frame; the decision of how "wide" to cast the recruitment advertising net. The Council subcommittee will meet, discuss these issues with staff and bring forth recommendations to the City Council in regular meetings so the public can be made aware of the.secruitment details. -.Once the application date for candidates closes, decisions made regarding the screening and interview process of individual City Attorney candidates qualify for Council Closed Session discussions and for efficiency, the Recruitment Committee can shepherd that process. The City Attorney Recruitment Committee is an ad -hoc committee not subject to Brown Act requirements, since it is for a limited subject, has a limited duration and involves personnel issues for a position subject to City Council oversight. The proposed date for the expiration of this Committee is January 10, 2009. A draft resolution creating the City Attorney Ad Hoc Recruitment Committee provides a general description as to the Committee's proposed duties. Mayor Selich has appointed Council members Webb, Rosansky and Daigle to the Committee, with Council member Webb being Chair. The Council is asked to approve these appointments. { • J.Atomey Replacement Process June 10, 2008 Page 3 Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the Council considers the item). Submitted by: Pv HOMER L. BLURAU City Manager Attachments: Resolution C. � 0 0 RETIREMENT AGREEMENT This Retirement Agreement ( "Agreement ") is made and entered into this day of June 2008, by and between the CITY OF NEWPORT BEACH ( "City"), a California municipal corporation, and ROBIN CLAIJSON ( "Clauson "), an individual, with reference to the following matters: Recitals A. The City is a charter city and is organized and operates pursuant to and in accordance with the laws of the State of California and the City's Charter. B. In August of 1989, the City employed Clauson as its Assistant City Attorney. C. In August of 2004, the City appointed Clauson as its Acting City Attorney. D. In December of 2004, the City appointed Clauson as its City Attorney pursuant to previously approved agreements. E. Clauson has served continuously as the City Attorney since December of 2004. F. On or about April 22, 2008, the City and Clauson entered into and executed an Employment Agreement to specify the terms and conditions of Clauson's continued employment relevant to salary and benefits. G. Clauson has voluntarily elected to give irrevocable notice of her retirement from appointment by and employment with the City, with her retirement to be effective as further described herein. H. The City is willing to accept Clauson's election to retire as further described herein. I. Thr City and Clauson now wish, by the terms and conditions of this Agreement, to forever and finally resolve all of their respective rights and obligations relating to Clauson's appointment by and employment with the City and her retirement from the City, and any potential claims either party has or may have against the other. NOW, TI IEREFORE, in consideration of the foregoing and of the mutual covenants contained herein, the City and Clauson agree as follows: Agreement Section I: Retirement A. Clauson voluntarily and irrevocably gives notice of her retirement from appointment by and employment with the City, with such retirement to be effective December 26, 2008. 1 W 951 -002..1 92800804 z0 MOS B. Clauson makes this resignation of her own free will and choice, without any representation of facts or law by the City, and she expressly assumes the risk that facts or law may be different from what she understands or anticipates them to be. Clauson agrees that this resignation shall be in all respects effective and binding and not subject to termination or rescission by reason of any such difference in facts or law, subject to the provisions of Section 4.6 below. C. Clauson will continue her full work duties and responsibilities as City Attorney until December 26. 2008 or the first day of employment of her successor, whichever occurs earlier, and thereafter will perform transition duties and responsibilities, as further set forth below. D. Clauson's resignation is hereby accepted by the City, to become elective on December 26, 2008, subject to the terms and conditions contained in this Agreement. G Should any prospective employer contact the City to inquire regarding Clauson for reference or employment purposes, the City shall only provide confirmation of employment dates and positions held by Clauson during her employment with the City. In response to any inquiries from prospective employers, the City shall state that it is the City's standard policy not to provide any further information. However, if Clauson's prospective employer submits a Waiver of Consent to Obtain Information, or similar document, bearing Clauson's signature and authorizing the release of information, the City shall provide only such information as is specifically authorized by Clauson. Section 2: Transition Clauson agrees to continue in all respects to function as the full -time City Attorney until the earlier of December 26, 2008 or the first day of employment of her successor. For a period of' six (6) months after such earlier date, Clauson agrees to and shall provide such professional services to the City as the City reasonably requests up to twenty (20) hours per month, and will reasonably cooperate and assist in an orderly transition of the duties and responsibilities of the City Attorney. Section 3: Salary. Benefits and Other Compensation A. Effective as of January 1, 2008, and through and including December 26, 2008, the City shall pay Clauson an annual base salary of One Hundred Ninety -Six Thousand Dollars ($196,000.00) in twenty -six (26) equal installments paid at the same time and in the same manner as other management employees of the City are paid. The City shall have the right to deduct or withhold from Clauson's base salary any and all sums required for federal income and social security taxes and all state or local taxes now or hereafter applicable. The City may also deduct such sums as Clauson is obligated to pay by reason of her enrollment in any plan or program, including without limitation group health plans, disability insurance coverage and deferred compensation plans, generally offered to City employees. 13. In recognition and consideration of Clauson's agreement to defer her retirement date and to provide transition services on request (as set forth in Section 2 above) through and ' following December 26, 2008, the City agrees to pay a retainer benefit to Clauson in the total 130,OM.75111023 928008 04 &06104,08 -2- 0 0 amount of Forty -Five I'housand Dollars ($45,000.00), payable in two installments as follows: the sum of Twenty= Two 'thousand Five Hundred Dollars ($22,500.00) shall be paid on the first pay period in July of 2008, and the sum of Twenty -Two Thousand Five Hundred Dollars ($22,500.00) shall be paid on January 2, 2009; provided, however, that in the event of a failure or refusal of Clauson to fulfill her duties as the full -time City Attorney and thereafter provide transition services as required by this Agreement, and upon thirty (30) days advance written notice and demand by the City, then Clauson agrees to immediately repay any sums paid to her pursuant to this Subsection B. C. Clauson shall receive all legally vested benefits to which she is entitled pursuant to all benefit plans for which she is eligible, including without limitation leave benefits, benefits under the Public Employees Retirement System and the City's health and medical plan(s) for retirees. Such vesting and other rights accorded to Clauson shall be governed by the terms of all applicable benefit plans and applicable law. 1). Clauson acknowledges that this Agreement provides for all compensation and benefits due and owing to her through the effective date of her resignation and the period of her transition duties and responsibilities, and that there are no other sums or benefits of any nature whatsoever due and owing to her except as expressly provided for in this Agreement. Section 4: Release A. Clauson, for herself, her successors, assigns and representatives, does hereby release City, its officials, officers, agents, and employees, both existing and prospective, successors and assigns, of and from any and all actions, causes of action, damages, costs, contracts, covenants, representations, warranties, promises, undertakings, obligations, losses, claims, liabilities, rights of action, and demands of any kind, whether known or unknown, accrued or to accrue, suspected or unsuspected, arising out of or in any way related to, without limitation, Clauson's appointment or employment by the City or this resignation (collectively, "Claims "). The matters released include, by way of example and not limitation: claims for injury to Clauson arising out of or relating to the course and scope of her appointment or employment by City; claims for alleged violations of any contract, express or implied, or any covenant of good faith and fair dealing, express or implied; claims of any legal restrictions on City's right to discipline, terminate or lay off its employees; any allegation of constructive discharge or wrongful discharge or tort; claims for defamation, invasion of privacy, emotional and/or personal injury or distress, or the like; claims for sick leave, vacation, compensated time off, separation pay or severance pay; and claims for violation of any local, state, federal or other governmental constitutional provision, statute, regulation or ordinance, as amended, or any public policy expressed in any such statute, regulation or ordinance, including without limitation, the following: Title VII of the Civil Rights Act of 1964 (race, color, religion, sex, national origin); Title 42 of the United States Code, sections 1981 and 1983 (discrimination in the making and enforcement of contracts, deprivation of rights, respectively); federal and state Equal Pay Acts (Title 29 of the United States Code, section 206(d)(1) and California Labor Code section 3200 et .seq.); California Fair Employment and Housing Act (California Government Code section 12940 et seq.), discrimination including race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex; Labor Code section 1102.1 (sexual orientation); Executive Order 11246 (race, color, religion, sex, and national origin discrimination); 130.066751 0023 929008 04 a06:o4%ox -3- 0 0 Rehabilitation Act of 1973 (Title 29 of the United States Code, sections 503 and 504); Civil Rights Act of 1991; Americans with Disabilities Act; Employment, Retirement and Income Security Act of 1974 (ERISA); and/or state or federal Family Medical Leave Act. B. Clauson expressly acknowledges and agrees that, by entering into this Agreement, she is waiving any and all rights or claims that she may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Agreement. Clauson further expressly acknowledges and agrees that: L In return for this Agreement, she will receive consideration beyond that which she was already entitled to receive before entering into this Agreement; 2. She was given a copy of this Agreement on June __ , 2008, and was informed that she has twenty -one (2 1) days within which to consider the Agreement (which she has elected to waive); and 3. She was informed that she has seven (7) days following the date of his execution of the Agreement in which to revoke the Agreement. C. The parties intend and agree that this Agreement will be effective as a full, final, and general release of and from all matters covered herein. In furtherance thereof, Clauson acknowledges that she is familiar with and has been given the opportunity to secure independent advice as to California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor." Clauson expressly waives and releases any right or benefit which she may have or may in the future have under California Civil Code section 1542 and all similar laws, rules and statutes, to the fullest extent that such rights or benefits may he lawfully waived and released. Clauson acknowledges that she may hereafter discover facts different from or in addition to those now known or believed to exist arising out of the employment relationship recited above or the matters for which releases have been given herein, and agrees that this Agreement will nevertheless be binding and remain in full and complete force and effect. Section 5: General Provisions A. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors and assigns of Clauson. B. 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. C. This Agreement describes the complete understanding of the parties, is a fully integrated and complete agreement and supersedes and replaces any prior agreements or 130X"751 -0013 9180oa 04 a(WIWOa -4- 0 0 understandings between the parties, including without limitation the Employment Agreement, except as expressly provided herein otherwise. The parties expressly agree that there arc no covenants, agreements, representations or warranties of any kind whatsoever between the parties that exist outside the Agreement. D. This Agreement may be amended or modified only by a writing signed by all of the parties. I.- This Agreement is made and entered into in the State of California and shall in respects be interpreted, enforced and governed by the laws of the State of California. F. Each party acknowledges that, prior to executing this Agreement, she or it has been encouraged to consult with an attorney regarding the terms of this Agreement, and each party understands that whether to do so or not is within his or its sole discretion. Each party shall pay her or its own attorneys' fees and costs, if any, arising out of or in connection with this Agreement or its subject matter. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first recited above. ROBIN CLAUSON Robin Clauson 130io66751 0023 928008 04 a0n,Wi08 -5- CITY OF NEWPORT BEACH By: Edward D. Selich, Mayor ATTEST: LaVonne M. Harkless, City Clerk `I • I.Atorney Replacement Process June 10, 2008 Page 4 RESOLUTION NO. 2008- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ESTABLISHING THE CITY ATTORNEY AD HOC RECRUITMENT COMMITTEE WHEREAS, the City Attorney has given notice of her intent to retire and has agreed to a retirement date of December 26, 2008; and WHEREAS, the City Council believes an efficient way of dealing with the details involving the City Attorney's recruitment and hiring is through the appointment of a Council ad hoc committee to make recommendations to the City Council; and WHEREAS, since the City Attorney Ad Hoc Recruitment Committee would exist to provide research and information for a limited issue and limited duration, it is not subject to the Brown Act; now, therefore, be it RESOLVED by the City Council of the City of Newport Beach as follows: Section 1. The City Attorney Ad Hoc Recruitment Committee is hereby established. Section 2. The Committee shall have the following duties and responsibilities: a) To make timely recommendations to the City Council regarding the qualifications, job description, salary, recruitment process and other issues pertinent to the recruitment and hiring of a City Attorney in order to have the new City Attorney hired and ready to assume the job duties by December 26, 2008. b) Work with the current City Attorney to ensure a smooth transition for the transfer of duties. Section 3. The Committee shall be composed of three members of the City Council appointed by the Mayor and confirmed by the City Council. Section 4. The term of this Committee shall expire on January 10, 2009. ADOPTED this 10" day of June, 2008 EDWARD D. SELICH Mayor of Newport Beach ATTEST: \ LAVONNE HARKLESS 1 City Clerk of Newport Beach June 2, 2008 Honorable Mayor and Members of the City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Honorable Mayor Selich and Members of the City Council: It has been an honor to have served as City Attorney for the last 4 years of a 19 year career for the exceptional City of Newport Beach. I have been blessed not only with a wonderful work place, but a supportive family who is proud of my service. During the last year, I began to realize that I need to devote more time to my family. My 13 year old daughter has been supportive and understanding for all these years, but I know it is time to relieve us both of this very demanding job that brings me home late many nights a week. Fortunately, I have an understanding husband who supports my decision to do so. While reviewing the organizational needs of this office with the City Manager, I have asked, and the City Manager has recommended the City hire a second Assistant City Attorney. In light of these two competing challenges, I reluctantly concluded that it would be in the best interest of the City to allow for a new City Attorney to make his /her own decisions with regard to the hiring of a new assistant and the organization of the office. While I am looking forward to the opportunity to move on to other rewarding challenges, I will regard all my years with Newport Beach as the pinnacle of _7y job an attorney could have: working with the best, most dedicated employees, on the most interesting and challenging legal issues for a great City. i have agreed to remain until the end of the year to allow for a stable and smooth process for recruiting, hiring and transitioning to a new City Attorney, as such I officially offer my resignation as City Attorney effective December 26, 2008. Robin Clauson City Attorney EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT, (Agreement) entered into this lJ day of June, 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and Robin Clauson (Clauson) is made with reference to the following: A. City has employed Clauson as the Assistant City Attorney since August 1989; and B. Clauson was appointed Acting City Attorney in August 2004; and C. Clauson was appointed and has served as City Attorney since December 2004 pursuant to an agreement approved on November 23, 2004, D. The Parties intend, through this Agreement, to specify the terms and conditions of Clauson's continued employment relevant to salary and benefits. SECTION 1: Employment as City Attorney. A. City hereby employs Clauson as City Attorney to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. B. Clauson shall devote at least eighty (80) hours every two (2) weeks to the performance of her duties as City Attorney unless on paid leave and /or unpaid leave approved by City Council. C. Clauson shall obtain the written consent of the City Council prior to performing compensated legal services for any person or entity other than City. SECTION 2: Effective Date /Term. A. This Agreement shall commence on June 1, 2006 and shall remain in effect through May 31, 2008, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 8 shall survive the expiration of this Agreement. B. The City Council shall, approximately twelve (12) months after the effective date of this Agreement, conduct an evaluation of Clauson's performance in a closed session conducted pursuant to provisions of State law. SECTION 3: Base Compensation. Clauson currently receives an annual base salary of $165,000.00 which amount was effective December 1, 2004. City agrees to pay Clauson a five percent (5 %) increase of annual base salary effective June 1, 2006 and another five (5 %) increase effective June 1, 2007. Pay shall be made in the same manner and at the same time as other management employees of the City are paid. City shall have the right to deduct or withhold from Clauson'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 Clauson is obligated to pay because of her enrollment in any plan or 1 0 a program, such as group health plans, disability insurance programs and deferred compensation plans, generally offered to employees. SECTION 4: Termination. A. City may, during the term of this Agreement, terminate Clauson, without cause, upon the affirmative votes of a majority (4) of the members of the City Council at any regular meeting. However, Clauson 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. B. If Council terminates this agreement at anytime during the term of this agreement, Clauson 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 and shall be paid for an additional three months after such effective date of termination, unless 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 adopted prior to the effective Date of this Agreement, Clauson shall be entitled to and shall receive as compensation the same benefits, such as flex leave, medical cafeteria plan, disability, retirement or other similar benefits, and protections as are provided to other top level management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Clauson except to the extent they are inconsistent with this Agreement. (1) Clauson shall receive one hundred twenty (120) hours of administrative leave per calendar year. Administrative leave shall not accrue from year to year. Clauson shall not be entitled to any compensation, or compensatory time off, for overtime. (2) Clauson shall have the right to participate in any supplemental retirement or health insurance program that becomes effective prior to her retirement date provided the (i) she satisfies conditions to participation that are applicable to other management employees; or (ii) her participation will not, because of additional employee contributions or otherwise, cause the City to incur greater costs than they would with respect to other participants. B. Clauson may undergo an annual physical examination and City shall reimburse Clauson for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Clauson for all reasonable business expenses, actually incurred by Clauson in the performance of services pursuant to this Agreement. Reimbursement shall be in accordance with any relevant City Council policy. SECTION 7: Meetings and Conferences. Clauson shall, at City's expense, be entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services she 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 and reimbursement for expenses shall be in accordance with any relevant City Council policy. SECTION 8: General Provisions. A. Clauson 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 any relevant provision of State or local law. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Clauson. 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 and may be modified only by a writing signed by the party to be charged. CITY OF =C By: Mayor ATTEST NE 4,� oqbbt-20 City Clerk Dated: WTI' 4 Dated: U l/ `C/o� 3 0 r� l_I 0 CITY OF NEWPORT BEACH I W 13 2106 CITY COUNCIL REPORT L - 3 � `-f `-it Agenda Item No. 16 (June 13, 2006) TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Council Ad Hoc Compensation Committee Mayor Pro Tec Steve Rosansky Council Member Tod Ridgeway SUBJECT: Proposed Modifications to City Attorney's Employment Agreement RECOMMENDATION: Approve a two year employment agreement with the City attorney, which includes a 5% salary increase, effective June 1, 2006, and a 5% salary increase the second year, effective June 1, 2007. DISCUSSION: Earlier this year the City Council completed a performance evaluation for the City Attorney and found her to have effectively carried out her job duties. The City Council then appointed Council Member Tod Ridgeway and Mayor Pro Tern Steve Rosansky as the City Council's negotiators for discussing with the City Attorney terms of a renewal of her contract, including overall compensation and benefits. During the negotiation process the Council Committee reviewed the City Attorney's total compensation and other Orange County cities with in -house City Attorney's as comparisons. It was determined that the City Attorney's total compensation is below the other Orange County cities used as comparisons and we therefore recommend an increase in annual base compensation over a two year contract period. The Council Committee recommends the following modifications be made to the City Attorney's contract: The contract be renewed for a two year period commencing June 1, 2006 and ending on May 31, 2008, with only those changes from the existing contract included within this recommendation. 2. Increase the City Attorney's current annual base salary of $165,000.00 by 5% effective June 1, 2006 making the annual base salary $173,250.00 and then an additional 5% increase, effective June 1, 2007, at which time the City Attorney's annual base salary would increase to $181,912.50. • Proposed Modifications City Attorney's Contract June 13, 2006 Page 2 The City Attorney's administrative leave time (time provided in -lieu of overtime) but not carried over from year - to-year, would be increased from 10 to 15 days per year. 4. If the agreement is terminated without cause, the City will provide the City Attorney with 90 days prior notice and three months severance pay. Based upon comparison information provided to us, there are five cities in the County of Orange that retain an in -house City Attorney position. It is our belief that these annual base compensation adjustments without increased benefits, will maintain our City Attorney's placement around fourth place in total compensation, which we believe is fair to both our City Attorney and community. We have spoken with the City Attorney and she is agreeable to these contract terms. Prepared by: Steve Rosansky, Mayor Pro Tern / Attachments: Contract Prepared by: Tod Ridge Council Member • • I& EMPLOYMENT AGREEMENT is This EMPLOYMENT AGREEMENT, (Agreement) entered into this _ day of June, 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and Robin Clauson (Clauson) is made with reference to the following: A. City has employed Clauson as the Assistant City Attorney since August 1989; and B. Clauson was appointed Acting City Attorney in August 2004; and C. Clauson was appointed and has served as City Attorney since December 2004 pursuant to an agreement approved on November 23, 2004, ; D. The Parties intend, through this Agreement, to specify the terms and conditions of Clauson's continued employment relevant to salary and benefits. SECTION 1: Employment as City Attorney. A. City hereby employs Clauson as City Attorney to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. B. Clauson shall devote at least eighty (80) hours every two (2) weeks to the performance of her duties as City Attorney unless on paid leave and/or unpaid leave approved by City Council. C. Clauson shall obtain the written consent of the City Council prior to performing compensated legal services for any person or entity other than City. SECTION 2: Effective Date(Term. A. This Agreement shall commence on June 1, 2006 and shall remain in effect through May 31, 2008, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 8 shall survive the expiration of this Agreement. B. The City Council shall, approximately twelve (12) months after the effective date of this Agreement, conduct an evaluation of Clauson's performance in a closed session conducted pursuant to provisions of State law. SECTION 3: Base Compensation. Clauson currently receives an annual base salary of $165,000.00 which amount was effective December 1, 2004. City agrees to pay Clauson a five percent (5 %) increase of annual base salary effective June 1, 2006 and another five (5 %) increase effective June 1, 2007. Pay shall be made in the same manner and at the same time as other management employees of the City are paid. City shall have the right to deduct or withhold from Clauson'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 0 0 sums Clauson is obligated to pay because of her enrollment in any plan or program, such as group health plans, disability insurance programs and deferred compensation plans, generally offered to employees. SECTION 4: Termination. A. City may, during the term of this Agreement, terminate Clauson, without cause, upon the affirmative votes of a majority (4) of the members of the City Council at any regular meeting. However, Clauson 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. B. If Council terminates this agreement at anytime during the term of this agreement, Clauson 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 and shall be paid for an additional three months after such effective date of termination, unless 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 adopted prior to the effective Date of this Agreement, Clauson shall be entitled to and shall receive as compensation the same benefits, such as flex leave, medical cafeteria plan, disability, retirement or other similar benefits, and protections as are provided to other top level management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Clauson except to the extent they are inconsistent with this Agreement. (1) Clauson shall receive one hundred twenty (120) hours of administrative leave per calendar year. Administrative leave shall not accrue from year to year. Clauson shall not be entitled to any compensation, or compensatory time off, for overtime. (2) Clauson shall have the right to participate in any supplemental retirement or health insurance program that becomes effective prior to her retirement date provided the (i) she satisfies conditions to participation that are applicable to other management employees; or (ii) her participation will not, because of additional employee contributions or otherwise, cause the City to incur greater costs than they would with respect to other participants. B. Clauson may undergo an annual physical examination and City shall reimburse Clauson for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Clauson for all reasonable business expenses, actually incurred by Clauson in the performance of services pursuant to this Agreement. . Reimbursement shall be in accordance with any relevant City Council policy. 2 • • • SECTION 7: Meetings and Conferences. Clauson shall, at City's expense, be entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services she 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 and reimbursement for expenses shall be in accordance with any relevant City Council policy. SECTION 8: General Provisions. A. Clauson shall serve at the pleasure of the City Council as specked in the City's Charter and may be terminated "at will" subject to the procedural requirements specified in this Agreement and any relevant provision of State or local law. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Clauson. 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 and may be modified only by a writing signed by the party to be charged. CITY OF NEWPORT BEACH, By: Mayor CLAUSON By: Robin Clauson ATTEST City Clerk Dated: Dated: Dated: 3 c 3 -144 -- EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT, (Agreement) entered into this 14`h day of December 2004, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and Robin Clauson (Clauson) is made with reference to the following: A. City has employed Clauson as the Assistant City Attorney since August 1989; and B. Clauson has served as Acting City Attorney since August 2004; and C. The City Council has decided to appoint Clauson as the City Attorney for the City of Newport Beach; and D. The Parties intend, through this Agreement, to specify the terms and conditions of employment relevant to salary and benefits. SECTION 1: Employment as City Attorney A. City hereby employs Clauson as City Attorney to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. B. Clauson shall devote at least eighty (80) hours every two (2) weeks to the performance of her duties as City Attorney unless on paid leave and /or unpaid leave approved by City Council. C. Clauson shall obtain the written consent of the City Council prior to performing compensated legal services for any person or entity other than City. SECTION 2: Effective Date /Term A. This Agreement shall commence on December 1, 2004 and shall remain in effect until May 31, 2006, unless terminated pursuant to Section 4 of this Agreement. The provision of Section 8 shall survive the expiration of this Agreement. B. The City Council shall, approximately twelve (12) months after the effective date of this Agreement, conduct an evaluation of Clauson's performance in a closed session conducted pursuant to provisions of State law. SECTION 3: Base Compensation City shall pay Clauson an annual base salary of $165,000.00 effective December 1, 2004, in the same manner and at the same time as other management employees of the City are paid. City shall have the right to deduct or withhold from Clauson'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 Clauson is obligated to pay because of her enrollment in any plan 0 0 or program, such as group health plans, disability insurance programs and deferred compensation plans, generally offered to employees. SECTION 4: Termination City may, during term of this Agreement, terminate Clauson, without cause, upon the affirmative votes of a majority (4) of the members of the City Council at any regular meeting. However, Clauson 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. Clauson 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 and shall be paid for the remainder of the term of this agreement unless 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 adopted prior to the effective Date of this Agreement, Clauson shall be entitled to the same benefits and protections as are provided to other top level management employees of the City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Clauson except to the extent they are inconsistent with this Agreement. (1) Clauson shall accrue flex leave at the same rate as other management employees given the years of service. Clauson shall receive eighty (80) hours of administrative leave per calendar year. Administrative leave shall not accrue from year to year. Clauson shall not be entitled to any compensation, or compensatory time off, for overtime. (2) Clauson shall have the right to participate in any supplemental retirement or health insurance program that becomes effective prior to her retirement date provided that (i) she satisfies conditions to participation that are applicable to other management employees; or (ii) her participation will not, because of additional employee contributions or otherwise, cause the City to incur greater costs that they would with respect to other participants. B. Clauson may undergo an annual physical examination and City shall reimburse Clauson for the actual costs of the examination up to a maximum of $750.00. SECTION 6: Business Expenses City shall reimburse Clauson for all reasonable business expenses, actually incurred by Clauson in the performance of services pursuant to this Agreement. Reimbursement shall be in accordance with any relevant City Council policy. 2 ! 0 SECTION 7: Meetings and Conferences Clauson shall, at City's expense, be entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services she 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 and reimbursement for expenses shall be in accordance with any relevant City Council policy. SECTION 8: General Provisions A. Clauson 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 requirement specified in this Agreement and any relevant provision of State or local law. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Clauson. 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 and may be modified only by a writing signed by the party to be charged. CITY OF NEWPORT BEACH 0 CLAUSON By: a .11� Robin Clauson ATTEST '111 111A ./, 3 Dated: Dated: Dated: 'a � /� --6 S • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 24 December 14, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Office of the City Manager cmra Homer L. Bludau, City Manager, 949 - 644 -3000 hbludau a)city.newport- beach.ca.us SUBJECT: COUNCIL CONSIDERATION OF CITY ATTORNEY CO ISSUE: Does the City Council want to approve the City Attorney's contract presented for your consideration? 0 RECOMMENDATION: The City Attorney Recruitment Committee recommends that City Council approve the agreement as presented. DISCUSSION: At the last City Council meeting, Mayor Ridgeway reported out of Closed Session that the Council had unanimously selected Robin Clauson to serve as Newport Beach's new City Attorney. The City Manager was directed to bring a contract agreement to the Council at the next meeting for action. Submitted by: X& �44-,t�44L Homer L. Bludau City Manager • EMPLOYMENT AGREEMENT P This EMPLOYMENT AGREEMENT, (Agreement) entered into this 14th day of December 2004, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and Robin Clauson (Clauson) is made with reference to the following: A. City has employed Clauson as the Assistant City Attorney since August 1989: and B. Clauson has served as Acting City Attorney since August 2004; and C. The City Council has decided to appoint Clauson as the City Attorney for the City of Newport Beach; and D. The Parties intend, through this Agreement, to specify the terms and conditions of employment relevant to salary and benefits. SECTION 1: Employment as City Attorney. A. City hereby employs Clauson as City Attorney to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. B. Clauson shall devote at least eighty (80) hours every two (2) weeks to the performance of her duties as City Attorney unless on paid leave and /or unpaid leave approved by City Council. C. Clauson shall obtain the written consent of the City . Council prior to performing compensated legal services for any person or entity other than City. SECTION 2: Effective Date /Term. A. This Agreement shall commence on December 1, 2004 and shall remain in effect until May 31, 2006, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 8 shall survive the expiration of this Agreement. B. The City Council shall, approximately twelve (12) months after the effective date of this Agreement, conduct an evaluation of Clauson's performance in a closed session conducted pursuant to provisions of State law. SECTION 3: Base Compensation. 11 • City shall pay Clauson an annual base . salary of $165,000.00 effective December 1, 2004, in the same manner and at the same time as other management employees of the City are paid. City shall have the right to deduct or withhold from Clauson's • base salary any and all sums required for federal income and social security taxes 1 0 and all state or local taxes now applicable or that may become applicable in the • future. City may also deduct sums Clauson is obligated to pay because of her enrollment in any plan or program, such as group health plans, disability insurance programs and deferred compensation plans, generally offered to employees. SECTION 4: Termination. City may, during the term of this Agreement, terminate Clauson, without cause, upon the affirmative votes of a majority (4) of the members of the City Council at any regular meeting. However, Clauson 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. Clauson 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 and shall be paid for the remainder of the term of this agreement unless 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 adopted prior to the effective Date of this Agreement, Clauson shall be entitled to the same benefits and protections as are provided to other top level management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to • Clauson except to the extent they are inconsistent with this Agreement. (1) Clauson shall receive 25 days of flex leave per calendar year. Flex leave shall accrue at the same rate as other management employees given the years of service. Clauson shall receive eighty (80) hours of administrative leave per calendar year. Administrative leave shall not accrue from year to year. Clauson shall not be entitled to any compensation, or compensatory time off, for overtime. (2) Clauson shall have the right to participate in any supplemental retirement or health insurance program that becomes effective prior to her retirement date provided that (i) she satisfies conditions to participation that are applicable to other management employees; or (ii) her participation will not, because of additional employee contributions or otherwise, cause the City to incur greater costs than they would with respect to other participants. B. Clauson may undergo an annual physical examination and City shall reimburse Clauson for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Clauson for all reasonable business expenses, actually • incurred by Clauson in the performance of services pursuant to this Agreement. Reimbursement shall be in accordance with any relevant City Council policy. 2 0 • .... SECTION 7: Meetings and Conferences. • Clauson shall, at City's expense, be entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services she 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 and reimbursement for expenses shall be in accordance with any relevant City Council policy. SECTION 8: General Provisions. A. Clauson 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 any relevant provision of State or local law. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Clauson. 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 and may be modified only by a writing signed by the party to be charged. CITY OF NEWPORT BEACH, By: Mayor CLAUSON By: Robin Clauson ATTEST City Clerk Dated: Dated: Dated: K • r 0 C -3144 RETIREMENT AGREEMENT This Retirement Agreement ( "Agreement ") is made and entered into this Oh day of June 2008, by and between the CITY OF NEWPORT BEACH ( "City "), a California municipal corporation, and ROBIN CLAUSON ( "Clauson "), an individual, with reference to the following matters: Recitals A. The City is a charter city and is organized and operates pursuant to and in accordance with the laws of the State of California and the City's Charter. B. In August of 1989, the City employed Clauson as its Assistant City Attorney. C. In August of 2004, the City appointed Clauson as its Acting City Attorney. D. In December of 2004, the City appointed Clauson as its City Attorney pursuant to previously approved agreements. E. Clauson has served continuously as the City Attorney since December of 2004. F. On or about April 22, 2008, the City and Clauson entered into and executed an Employment Agreement to specify the terms and conditions of Clauson's continued employment relevant to salary and benefits. G. Clauson has voluntarily elected to give irrevocable notice of her retirement from appointment by and employment with the City, with her retirement to be effective as further described herein. H. The City is willing to accept Clauson's election to retire as further described herein. I. The City and Clauson now wish, by the terms and conditions of this Agreement, to forever and finally resolve all of their respective rights and obligations relating to Clauson's appointment by and employment with the City and her retirement from the City, and any potential claims either party has or may have against the other. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained herein, the City and Clauson agree as follows: Agreement Section 1: Retirement A. Clauson voluntarily and irrevocably gives notice of her retirement from appointment by and employment with the City, with such retirement to be effective December 26, 2008. B. Clauson makes this resignation of her own free will and choice, without any representation of facts or law by the City, and she expressly assumes the risk that facts or law may be different from what she understands or anticipates them to be. Clauson agrees that this resignation shall be in all respects effective and binding and not subject to termination or rescission by reason of any such difference in facts or law, subject to the provisions of Section 4.13 below. C. Clauson will continue her full work duties and responsibilities as City Attorney until December 26, 2008 or the first day of employment of her successor, whichever occurs earlier, and thereafter will perform transition duties and responsibilities, as further set forth below. D. Clauson's resignation is hereby accepted by the City, to become effective on December 26, 2008, subject to the terms and conditions contained in this Agreement. E. Should any prospective employer contact the City to inquire regarding Clauson for reference or employment purposes, the City shall only provide confirmation of employment dates and positions held by Clauson during her employment with the City. In response to any inquiries from prospective employers, the City shall state that it is the City's standard policy not to provide any further information. However, if Clauson's prospective employer submits a Waiver of Consent to Obtain Information, or similar document, bearing Clauson's signature and authorizing the release of information, the City shall provide only such information as is specifically authorized by Clauson. Section 2: Transition Clauson agrees to continue in all respects to function as the full -time City Attorney until the earlier of December 26, 2008 or the first day of employment of her successor. For a period of six (6) months after such earlier date, Clauson agrees to and shall provide such professional services to the City as the City reasonably requests up to twenty (20) hours per month, and will reasonably cooperate and assist in an orderly transition of the duties and responsibilities of the City Attorney. Section 3: Salary, Benefits and Other Compensation A. Effective as of January 1, 2008, and through and including December 26, 2008, the City shall pay Clauson an annual base salary of One Hundred Ninety-Six Thousand Dollars ($196,000.00) in twenty -six (26) equal installments paid at the same time and in the same manner as other management employees of the City are paid. The City shall have the right to deduct or withhold from Clauson's base salary any and all sums required for federal income and social security taxes and all state or local taxes now or hereafter applicable. The City may also deduct such sums as Clausen is obligated to pay by reason of her enrollment in any plan or program, including without limitation group health plans, disability insurance coverage and deferred compensation plans, generally offered to City employees. B. In recognition and consideration of Clauson's agreement to defer her retirement date and to provide transition services on request (as set forth in Section 2 above) through and following December 26, 2008, the City agrees to pay a retainer benefit to Clauson in the total -2- 0 0 amount of Forty -Five Thousand Dollars ($45,000.00), payable in two installments as follows: the sum of Twenty -Two Thousand Five Hundred Dollars ($22,500.00) shall be paid on the first pay period in July of 2008, and the sum of Twenty -Two Thousand Five Hundred Dollars ($22,500.00) shall be paid on January 2, 2009; provided, however, that in the event of a failure or refusal of Clauson to fulfill her duties as the full -time City Attorney and thereafter provide transition services as required by this Agreement, and upon thirty (30) days advance written notice and demand by the City, then Clauson agrees to immediately repay any sums paid to her pursuant to this Subsection B. C. Clauson shall receive all legally vested benefits to which she is entitled pursuant to all benefit plans for which she is eligible, including without limitation leave benefits, benefits under the Public Employees Retirement System and the City's health and medical plan(s) for retirees. Such vesting and other rights accorded to Clauson shall be governed by the terms of all applicable benefit plans and applicable law. D. Clauson acknowledges that this Agreement provides for all compensation and benefits due and owing to her through the effective date of her resignation and the period of her transition duties and responsibilities, and that there are no other sums or benefits of any nature whatsoever due and owing to her except as expressly provided for in this Agreement. Section 4: Release A. Clauson, for herself, her successors, assigns and representatives, does hereby release City, its officials, officers, agents, and employees, both existing and prospective, successors and assigns, of and from any and all actions, causes of action, damages, costs, contracts, covenants, representations, warranties, promises, undertakings, obligations, losses, claims, liabilities, rights of action, and demands of any kind, whether known or unknown, accrued or to accrue, suspected or unsuspected, arising out of or in any way related to, without limitation, Clauson's appointment or employment by the City or this resignation (collectively, "Claims "). The matters released include, by way of example and not limitation: claims for injury to Clauson arising out of or relating to the course and scope of her appointment or employment by City; claims for alleged violations of any contract, express or implied, or any covenant of good faith and fair dealing, express or implied; claims of any legal restrictions on City's right to discipline, terminate or lay off its employees; any allegation of constructive discharge or wrongful discharge or tort; claims for defamation, invasion of privacy, emotional and/or personal injury or distress, or the like; claims for sick leave, vacation, compensated time off, separation pay or severance pay; and claims for violation of any local, state, federal or other governmental constitutional provision, statute, regulation or ordinance, as amended, or any public policy expressed in any such statute, regulation or ordinance, including without limitation, the following: Title VII of the Civil Rights Act of 1964 (race, color, religion, sex, national origin); Title 42 of the United States Code, sections 1981 and 1983 (discrimination in the making and enforcement of contracts, deprivation of rights, respectively); federal and state Equal Pay Acts (Title 29 of the United States Code, section 206(d)(1) and California Labor Code section 3200 et seq.); California Fair Employment and Housing Act (California Government Code section 12940 et seq.), discrimination including race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex; Labor Code section 1102.1 (sexual orientation); Executive Order 11246 (race, color, religion, sex, and national origin discrimination); -3- n u Rehabilitation Act of 1973 (Title 29 of the United States Code, sections 503 and 504); Civil Rights Act of 1991; Americans with Disabilities Act; Employment, Retirement and Income Security Act of 1974 (ERISA); and/or state or federal Family Medical Leave Act. B. Clauson expressly acknowledges and agrees that, by entering into this Agreement, she is waiving any and all rights or claims that she may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Agreement. Clauson further expressly acknowledges and agrees that: 1. In return for this Agreement, she will receive consideration beyond that which she was already entitled to receive before entering into this Agreement; 2. She was given a copy of this Agreement on June 2008, and was informed that she has twenty -one (2 1) days within which to consider the Agreement (which she has elected to waive); and 3. She was informed that she has seven (7) days following the date of his execution of the Agreement in which to revoke the Agreement. C. The parties intend and agree that this Agreement will be effective as a full, final, and general release of and from all matters covered herein. In furtherance thereof, Clauson acknowledges that she is familiar with and has been given the opportunity to secure independent advice as to California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor." Clauson expressly waives and releases any right or benefit which she may have or may in the future have under California Civil Code section 1542 and all similar laws, rules and statutes, to the fullest extent that such rights or benefits may be lawfully waived and released. Clauson acknowledges that she may hereafter discover facts different from or in addition to those now known or believed to exist arising out of the employment relationship recited above or the matters for which releases have been given herein, and agrees that this Agreement will nevertheless be binding and remain in full and complete force and effect. Section 5: General Provisions A. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors and assigns of Clauson. B. 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. C. This Agreement describes the complete understanding of the parties, is a fully integrated and complete agreement and supersedes and replaces any prior agreements or ME 0 0 understandings between the parties, including without limitation the Employment Agreement, except as expressly provided herein otherwise. The parties expressly agree that there are no covenants, agreements, representations or warranties of any kind whatsoever between the parties that exist outside the Agreement. D. This Agreement may be amended or modified only by a writing signed by all of the parties. E. This Agreement is made and entered into in the State of California and shall in respects be interpreted, enforced and governed by the laws of the State of California. F. Each party acknowledges that, prior to executing this Agreement, she or it has been encouraged to consult with an attorney regarding the terms of this Agreement, and each party understands that whether to do so or not is within his or its sole discretion. Each party shall pay her or its own attorneys' fees and costs, if any, arising out of or in connection with this Agreement or its subject matter. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first recited above. ROBIN CLAUSON Robin Clauson By: Edward D. Selich, Mayor -5- LaVonne M. Harkless, City Clerk 0 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT C- 31 q4 Agenda Item No. S33 June 10, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Homer Bludau, City Manager 9491644 -3000 or hbludau @city.newport- beach.ca.us SUBJECT: 1) Council Approval of a Retirement Agreement with the City Attorney and 2) Resolution 2008 - Establishing a City Council Ad Hoc Committee to Make Recommendations Regarding the Duties, the Salary and the Process for Filling the City Attorney Position ISSUE: 1. Does the City Council want to enter into the proposed retirement agreement with the City Attorney which would extend her retirement date with the City until December 26, 2008? 2. Should the City Council create a City Attorney Ad Hoc Recruitment Committee in order to assist the City Council in conducting a successful City Attorney recruitment, and if so, are the proposed Committee duties reflective of the Council's thinking on the Committee's role? RECOMMENDATION: 1. Approve the proposed retirement agreement with the City Attorney. 2. Adopt Resolution 2008 - Committee, making any changes issue and approve the appointmen t Daigle to the Committee. DISCUSSION: creating the City Attorney Ad Hoc Recruitment to better reflect the City Council's thinking on this of Council members Webb (Chair), Rosansky and Retirement Contract City Attorney Robin Clauson has decided to retire in order to spend more time with her family. Whereas it had been her intent to retire this summer, after making her retirement intentions known to the City Council, she has agreed to stay longer in order to provide the Council enough time to recruit her replacement and have the replacement on the job Cloomey Replacement Process June 10, 2008 Page 2 when she leaves. Therefore, she has agreed to a retirement date effective December 26, 2008. In order to create a smooth transition and obtain the additional services the City Council feel are important to ensure a seamless personnel change with this important position, a retirement agreement was developed with the advice of outside counsel. While the document is legalistic in its structure and terminology, its purpose is to ensure both parties understand and agree to the conditions under which the City Attorney will defer her retirement until December 26th. The Release provision is standard for City personnel contracts. The proposed retirement agreement provides the City Attorney with additional salary and retainer benefits in return for the additional time the City Attorney has agreed to remain with the City, and for her willingness to provide assistance and information to the new city attorney, with her almost 20 years of institutional knowledge, after her retirement date, in order to ensure the City's representation on important legal cases and matters is not adversely affected due to the personnel change. City Attorney Ad Hoc Recruitment Committee Past history shows it is customary for the City Council to create ad -hoc committees composed of three City Council members to deal with the issues surrounding the recruitment and selection of the positions (City Manager, City Attorney and City Clerk) which report directly to the City Council. Among the issues which will need to be addressed in determining the recruitment process are some of the following: whether a recruitment firm should be used; whether a salary adjustment should be made to ensure a favorable recruitment environment; whether the job description and qualifications are current and accurate; devising a recruitment schedule and process that meets the City Council's desired time frame; the decision of how "wide" to cast the recruitment advertising net. The Council subcommittee will meet, discuss these issues with staff and bring forth recommendations to the City Council in regular meetings so the public can be made aware of the .recruitment details,- Once the application date for candidates closes, decisions made regarding the screening and interview process of individual City Attomey candidates qualify for Council Closed Session discussions and for efficiency, the Recruitment Committee can shepherd that process. The City Attorney Recruitment Committee is an ad -hoc committee not subject to Brown Act requirements, since it is for a limited subject, has a limited duration and involves personnel issues for a position subject to City Council oversight. The proposed date for the expiration of this Committee is January 10, 2009. A draft resolution creating the City Attorney Ad Hoc Recruitment Committee provides a general description as to the Committee's proposed duties. Mayor Selich has appointed Council members Webb, Rosansky and Daigle to the Committee, with Council member Webb being Chair. The Council is asked to approve these appointments. clAomey Replacement Process June 10, 2008 Page 3 Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the Council considers the item). Submitted by: 140MER L. BLUQrAu City Manager Attachments: Resolution .,F 0 0 RETIREMENT AGREEMENT This Retirement Agreement ("Agreement') is made and entered into this _ day of June 2008, by and between the CITY OF NEWPORT BEACH ("City"), a California municipal corporation, and ROBIN CLAUSON ( "Clauson "), an individual, with reference to the following matters: Recitals A. The City is a charter city and is organized and operates pursuant to and in accordance with the laws of the State of California and the City's Charter. B. In August of 1989, the City employed Clauson as its Assistant City Attorney. C. In August of 2004, the City appointed Clauson as its Acting City Attorney. D. In December of 2004, the City appointed Clauson as its City Attorney pursuant to previously approved agreements. E. Clauson has served continuously as the City Attorney since December of 2004. F. On or about April 22, 2008, the City and Clauson entered into and executed an Employment Agreement to specify the terms and conditions of Clauson's continued employment relevant to salary and benefits. G. Clauson has voluntarily elected to give irrevocable notice of her retirement from appointment by and employment with the City, with her retirement to be effective as further described herein. H. The City is willing to accept Clauson's election to retire as further described herein. I. The City and Clauson now wish, by the terms and conditions of this Agreement, to forever and finally resolve all of their respective rights and obligations relating to Clauson's appointment by and employment with the City and her retirement from the City, and any potential claims either party has or may have against the other, NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained herein, the City and Clauson agree as follows: Agreement Section 1: Retirement A. Clauson voluntarily and irrevocably gives notice of her retirement from appointment by and employment with the City, with such retirement to be effective December 26, 2008. 130/066751 -0023 928008.04 a06/04108 B. Clauson makes this resignation of her own free will and choice, without any representation of facts or law by the City, and she expressly assumes the risk that facts or law may be different from what she understands or anticipates them to be. Clauson agrees that this resignation shall be in all respects effective and binding and not subject to termination or rescission by reason of any such difference in facts or law, subject to the provisions of Section 4.13 below. C. Clauson will continue her full work duties and responsibilities as City Attorney until December 26, 2008 or the first day of employment of her successor, whichever occurs earlier, and thereafter will perform transition duties and responsibilities, as further set forth below. D. Clauson's resignation is hereby accepted by the City, to become effective on December 26, 2008, subject to the terms and conditions contained in this Agreement. E. Should any prospective employer contact the City to inquire regarding Clauson for reference or employment purposes, the City shall only provide confirmation of employment dates and positions held by Clauson during her employment with the City. In response to any inquiries from prospective employers, the City shall state that it is the City's standard policy not to provide any further information. However, if Clauson's prospective employer submits a Waiver of Consent to Obtain Information, or similar document, bearing Clauson's signature and authorizing the release of information, the City shall provide only such information as is specifically authorized by Clauson. Section 2: Transition Clauson agrees to continue in all respects to function as the full -time City Attorney until the earlier of December 26, 2008 or the first day of employment of her successor. For a period of six (6) months after such earlier date, Clauson agrees to and shall provide such professional services to the City as the City reasonably requests up to twenty (20) hours per month, and will reasonably cooperate and assist in an orderly transition of the duties and responsibilities of the City Attorney. Section 3: Salary, Benefits and Other Compensation A. Effective as of January 1, 2008, and through and including December 26, 2008, the City shall pay Clauson an annual base salary of One Hundred Ninety-Six Thousand Dollars ($196,000.00) in twenty -six (26) equal installments paid at the same time and in the same manner as other management employees of the City are paid. The City shall have the right to deduct or withhold from Clauson's base salary any and all sums required for federal income and social security taxes and all state or local taxes now or hereafter applicable. The City may also deduct such sums as Clauson is obligated to pay by reason of her enrollment in any plan or program, including without limitation group health plans, disability insurance coverage and deferred compensation plans, generally offered to City employees. B. In recognition and consideration of Clauson's agreement to defer her retirement date and to provide transition services on request (as set forth in Section 2 above) through and following December 26, 2008, the City agrees to pay a retainer benefit to Clauson in the total 130/066751 -0023 928008.04 46104M -2- 0 0 amount of Forty -Five Thousand Dollars ($45,000.00), payable in two installments as follows: the sum of Twenty -Two Thousand Five Hundred Dollars ($22,500.00) shall be paid on the first pay period in July of 2008, and the sum of Twenty -Two Thousand Five Hundred Dollars ($22,500.00) shall be paid on January 2, 2009; provided, however, that in the event of a failure or refusal of Clauson to fulfill her duties as the full -time City Attorney and thereafter provide transition services as required by this Agreement, and upon thirty (30) days advance written notice and demand by the City, then Clauson agrees to immediately repay any sums paid to her pursuant to this Subsection B. C. Clauson shall receive all legally vested benefits to which she is entitled pursuant to all benefit plans for which she is eligible, including without limitation leave benefits, benefits under the Public Employees Retirement System and the City's health and medical plan(s) for retirees. Such vesting and other rights accorded to Clauson shall be governed by the terms of all applicable benefit plans and applicable law. D. Clauson acknowledges that this Agreement provides for all compensation and benefits due and owing to her through the effective date of her resignation and the period of her transition duties and responsibilities, and that there are no other sums or benefits of any nature whatsoever due and owing to her except as expressly provided for in this Agreement. Section 4: Release A. Clauson, for herself, her successors, assigns and representatives, does hereby release City, its officials, officers, agents, and employees, both existing and prospective, successors and assigns, of and from any and all actions, causes of action, damages, costs, contracts, covenants, representations, warranties, promises, undertakings, obligations, losses, claims, liabilities, rights of action, and demands of any kind, whether known or unknown, accrued or to accrue, suspected or unsuspected, arising out of or in any way related to, without limitation, Clauson's appointment or employment by the City or this resignation (collectively, "Claims "). The matters released include, by way of example and not limitation: claims for injury to Clauson arising out of or relating to the course and scope of her appointment or employment by City; claims for alleged violations of any contract, express or implied, or any covenant of good faith and fair dealing, express or implied; claims of any legal restrictions on City's right to discipline, terminate or lay off its employees; any allegation of constructive discharge or wrongful discharge or tort; claims for defamation, invasion of privacy, emotional and/or personal injury or distress, or the like; claims for sick leave, vacation, compensated time off, separation pay or severance pay; and claims for violation of any local, state, federal or other governmental constitutional provision, statute, regulation or ordinance, as amended, or any public policy expressed in any such statute, regulation or ordinance, including without limitation, the following: Title VII of the Civil Rights Act of 1964 (race, color, religion, sex, national origin); Title 42 of the United States Code, sections 1981 and 1983 (discrimination in the making and enforcement of contracts, deprivation of rights, respectively); federal and state Equal Pay Acts (Title 29 of the United States Code, section 206(d)(1) and California Labor Code section 3200 et seq.); California Fair ,Employment and Housing Act (California Government Code section 12940 et seq.), discrimination including race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex; Labor Code section 1102.1 (sexual orientation); Executive Order 11246 (race, color, religion, sex, and national origin discrimination);' ; 130/066751-0023 92800&04 so6 /04 /08 -3- 0 E Rehabilitation Act of 1973 (Title 29 of the United States Code, sections 503 and 504); Civil Rights Act of 1991; Americans with Disabilities Act; Employment, Retirement and Income Security Act of 1974 (ERISA); and/or state or federal Family Medical Leave Act. B. Clauson expressly acknowledges and agrees that, by entering into this Agreement, she is waiving any and all rights or claims that she may have arising under the Age Discrimination in Employment Act of 1967, as amended, which have arisen on or before the date of execution of this Agreement. Clauson further expressly acknowledges and agrees that: 1. In return for this Agreement, she will receive consideration beyond that which she was already entitled to receive before entering into this Agreement; 2. She was given a copy of this Agreement on June 2008, and was informed that she has twenty -one (2 1) days within which to consider the Agreement (which she has elected to waive); and 3. She was informed that she has seven (7) days following the date of his execution of the Agreement in which to revoke the Agreement. C. The parties intend and agree that this Agreement will be effective as a full, final, and general release of and from all matters covered herein. In furtherance thereof, Clauson acknowledges that she is familiar with and has been given the opportunity to secure independent advice as to California Civil Code section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor." Clauson expressly waives and releases any right or benefit which she may have or may in the future have under California Civil Code section 1542 and all similar laws, rules and statutes, to the fullest extent that such rights or benefits may be lawfully waived and released. Clauson acknowledges that she may hereafter discover facts different from or in addition to those now known or believed to exist arising out of the employment relationship recited above or the matters for which releases have been given herein, and agrees that this Agreement will nevertheless be binding and remain in full and complete force and effect. Section 5: General Provisions A. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors and assigns of Clauson. B. 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. C. This Agreement describes the complete understanding of the parties, is a fully integrated and complete agreement and supersedes and replaces any prior agreements or 130/066751 -0023 929008.04 ao6/04M -4- 0 0 understandings between the parties, including without limitation the Employment Agreement, except as expressly provided herein otherwise. The parties expressly agree that there are no covenants, agreements, representations or warranties of any kind whatsoever between the parties that exist outside the Agreement. D. This Agreement may be amended or modified only by a writing signed by all of the parties. E. This Agreement is made and entered into in the State of California and shall in respects be interpreted, enforced and governed by the laws of the State of California. F. Each party acknowledges that, prior to executing this Agreement, she or it has been encouraged to consult with an attorney regarding the terms of this Agreement, and each party understands that whether to do so or not is within his or its sole discretion. Each party shall pay her or its own attorneys' fees and costs, if any, arising out of or in connection with this Agreement or its subject matter. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first recited above. ROBIN CLAUSON CITY OF NEWPORT BEACH Robin Clauson 130/066751 -0023 928008.04 x06104108 -5- By: Edward D. Selich, Mayor ATTEST: LaVonne M. Harkless, City Clerk U . 00omey Replacement Process June 10, 2008 Page 4 RESOLUTION NO. 2008- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ESTABLISHING THE CITY ATTORNEY AD HOC RECRUITMENT COMMITTEE WHEREAS, the City Attorney has given notice of her intent to retire and has agreed to a retirement date of December 26, 2008; and WHEREAS, the City Council believes an efficient way of dealing with the details involving the City Attorney's recruitment and hiring is through the appointment of a Council ad hoc committee to make recommendations to the City Council; and WHEREAS, since the City Attorney Ad Hoc Recruitment Committee would exist to provide research and information for a limited issue and limited duration, it is not subject to the Brown Act; now, therefore, be it RESOLVED by the City Council of the City of Newport Beach as follows: Section 1. The City Attorney Ad Hoc Recruitment Committee is hereby established. Section 2. The Committee shall have the following duties and responsibilities: _ a) To make timely recommendations to the City Council regarding the qualifications, job description, salary, recruitment process and other issues pertinent to the recruitment and hiring of a City Attorney in order to have the new City Attorney hired and ready to assume the job duties by December 26, 2008. b) Work with the current City Attorney to ensure a smooth transition for the transfer of duties. Section 3. The Committee shall be composed of three members of the City Council appointed by the Mayor and confirmed by the City Council. Section 4. The term of this Committee shall expire on January 10, 2009. ADOPTED this 10"' day of June, 2008 EDWARD D. SELICH Mayor of Newport Beach ATTEST: LAVONNE HARKLESS City Clerk of Newport Beach June 2, 2008 Honorable Mayor and Members of the City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Honorable Mayor Selich and Members of the City Council: It has been an honor to have served as City Attorney for the last 4 years of a 19 year career for the exceptional City of Newport Beach. I have been blessed not only with a wonderful work place, but a supportive family who is proud of my service. During the last year, I began to realize that I need to devote more time to my family. My 13 year old daughter has been supportive and understanding for all these years, but I know it is time to relieve us both of this very demanding job that brings me home late many nights a week. Fortunately, I have an understanding husband who supports my decision to do so. While reviewing the organizational needs of this office with the City Manager, I have asked, and the City Manager has recommended the City j hire a second Assistant City Attorney. In light of these two, competing challenges, I reluctantly concluded that it would be in the best interest of the City to allow'for a new City Attorney to make his /her own decisions with regard to the hiring of a new assistant and the organization of the office. While I am looking forward to the opportunity to move on to other rewarding challenges, I will regard all my years with Newport Beach as the pinnacle of °asy job an attorney could have: working with the best, most dedicated employees, on the most interesting and challenging legal issues for a great City. I have agreed to remain until the end of the year to allow for a stable and smooth process for recruiting, hiring and transitioning to a new City Attorney, as such 1 officially offer my resignation as City Attorney effective December 26, 2008. Robin Clawson City Attorney 0 a C -3?yq EMPLOYMENT AGREEMENT This EMPLOYMENT AGREEMENT, (Agreement) entered into this 22nd day of April, 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and Robin Clauson (Clauson) is made with reference to the following: A. City has employed Clauson as the Assistant City Attorney since August 1989; and B. Clauson was appointed Acting City Attorney in August 2004; and C. Clauson was appointed and has served as City Attorney since December 2004 pursuant to previously approved agreements; and D. The Parties intend, through this Agreement, to specify the terms and conditions of Clauson's continued employment relevant to salary and and benefits. SECTION 1: Employment as City Attorney. A. City hereby employs Clauson as City Attorney to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. B. Clauson shall devote at least eighty (80) hours every two (2) weeks to the performance of her duties as City Attorney unless on paid leave and/or unpaid leave approved by City Council. C. Clauson shall obtain the written consent of the City Council prior to performing compensated legal services for any person or entity other than City. SECTION 2: Effective Date/Term. A. This Agreement shall commence on June 1, 2008 and shall remain in effect until May 31, 2009, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 8 shall survive the expiration of this Agreement. B. The City Council shall, approximately six (6) months after the effective date of this Agreement, conduct an evaluation of Clauson's performance in a closed session conducted pursuant to provisions of State law. SECTION 3: Base Compensation. Clauson currently receives an annual base salary of $186,493.00 which amount was effective May 26, 2007. City agrees to pay Clauson a four percent (4 %) increase of annual base salary effective June 1, 2008. Pay shall be made in the same manner and at the same time as other management employees of the City are paid. City shall have the F 0 right to deduct or withhold from Clauson'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 Clauson is obligated to pay because of her enrollment in any plan or program, such as group health plans, disability insurance programs and deferred compensation plans, generally offered to employees. SECTION 4: Termination. A. City may, during the term of this Agreement, terminate Clauson, without cause, upon the affirmative votes of a majority (4) of the members of the City Council at any regular meeting. However, Clauson 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. B. If Council terminates this agreement at anytime during the term of this Agreement, Clauson shall be furnished one written notice stating the Council's intention to terminate this Agreement at least ninety (90) days prior to the effective date of termination and shall be paid for an additional three months after such effective date of termination, unless 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 adopted prior to the effective Date of this Agreement, Clauson shall be entitled to and receive as compensation the same benefits, such as flex leave, medical cafeteria plan, disability, retirement or other similar benefits, and protections as are provided to other top level management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Clauson except to the extent they are inconsistent with this Agreement. (1) Clauson shall receive one hundred twenty (120) hours of administrative leave per calendar year. Administrative leave shall not accrue from year to year. Clauson shall not be entitled to any compensation, or compensatory time off, for overtime. (2) Clauson shall have the right to participate in any supplemental retirement or health insurance program that becomes effective prior to her retirement date provided the (i) she satisfies conditions to participation that are applicable to other management employees; or (ii) her participation will not, because of additional employee contributions or otherwise, cause the City to incur greater costs than they would with respect to other participants. E • a B. Clauson may undergo an annual physical examination and City shall reimburse Clauson for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Clauson for all reasonable business expenses, actually incurred by Clauson in the performance of services pursuant to this Agreement. Reimbursement shall be in accordance with any relevant City Council policy. SECTION 7: Meetinas and Conferences. Clauson shall, at City's expense, be entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services she 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 and reimbursement for expenses shall be in accordance with any relevant City Council policy. SECTION 8: General Provisions. A. Clauson 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 any relevant provision of State or local law. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Clauson. 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 and may be modifie,q only by a writing signed by the party to be charged. CITY Dated: �43/00 CLAUSON By: a � Dated: z� 0 Robin Clauson , City Attorney ATTEST By: (Ui`L� /_��� LaVonne Harkless, City Clerk 40 Dated: CI • I� LJ U 0 t CITY OF NEWPORT BEACH CITY COUNCIL REPORT 0160 .t. .r Agenda Item No. S31 April 22, 2008 % ��- -Y#// TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Council Ad Hoc Compensation Committee Ed Selich, Mayor Mike Henn, Council Member Nancy Gardner, Council Member SUBJECT: Proposed Modifications to City Attorney's Employment Agreement RECOMMENDATION: Approve a one year employment agreement with the City Attorney, which includes a 4% salary increase. DISCUSSION: The City Council completed a performance evaluation for the City Attorney. The City Council then appointed Mayor Ed Selich, Council Member Mike Henn, and Council Member Nancy Gardner as the City Council's negotiators for discussing with the City Attorney terms of a renewal of her contract, including overall compensation and benefits. The Council Committee recommends the following modifications be made to the City Attorney's contract: 1. The contract be renewed for a one year period commencing June 1, 2008 and ending on May 31, 2009. 2. Increase the City Attorney's current annual base salary of $186,493.00 by 4% making the annual base salary $194,000.00. 3. If the agreement is terminated without cause, the City will provide the City Attorney with 90 days prior notice and three months severance pay. We have spoken with the City Attorney and she is agreeable to these contract terms. Attachments: Contract • EMPLOYMENT AGREEMENT is This EMPLOYMENT AGREEMENT, (Agreement) entered into this 22nd day of April, 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation (City), and Robin Clauson (Clauson) is made with reference to the following: A. City has employed Clauson as the Assistant City Attorney since August 1989; and B. Clauson was appointed Acting City Attorney in August 2004; and C. Clauson was appointed and has served as City Attorney since December 2004 pursuant to previously approved agreements; and D. The Parties intend, through this Agreement, to specify the terms and conditions of Clauson's continued employment relevant to salary and and benefits. n U SECTION 1: Employment as City Attorney. A. City hereby employs Clauson as City Attorney to perform the functions and duties of that position as specified in the City Charter and the Newport Beach Municipal Code. B. Clauson shall devote at least eighty (80) hours every two (2) weeks to the • performance of her duties as City Attorney unless on paid leave and/or unpaid leave approved by City Council. C. Clauson shall obtain the written consent of the City Council prior to performing compensated legal services for any person or entity other than City. SECTION 2: Effective Date/Term. A. This Agreement shall commence on June 1, 2008 and shall remain in effect until May 31, 2009, unless terminated pursuant to Section 4 of this Agreement. The provisions of Section 8 shall survive the expiration of this Agreement. B. The City Council shall, approximately six (6) months after the effective date of this Agreement, conduct an evaluation of Clauson's performance in a closed session conducted pursuant to provisions of State law. SECTION 3: Base Comaensation. Clauson currently receives an annual base salary of $186,493.00 which amount was effective May 26, 2007. City agrees to pay Clauson a four percent (4 %) increase of annual base salary effective , 2008. Pay shall be made in the same manner • and at the same time as other management employees of the City are paid. City shall 1 0 • have the right to deduct or withhold from Clauson'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 Clauson is obligated to pay because of her enrollment in any plan or program, such as group health plans, disability insurance programs and deferred compensation plans, generally offered to employees. SECTION 4: Termination. A. City may, during the term of this Agreement, terminate Clauson, without cause, upon the affirmative votes of a majority (4) of the members of the City Council at any regular meeting. However, Clauson 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. B. If Council terminates this agreement at anytime during the term of this Agreement, Clauson shall be furnished one written notice stating the Council's intention to terminate this Agreement at least ninety (90) days prior to the effective date of termination and shall be paid for an additional three months after such effective date of termination, unless terminated because of criminal conduct, malfeasance in office, or a gross abuse of discretion. • SECTION 5: Employee Benefits /Special Provisions. n U A. Except as otherwise provided in this Agreement or a Resolution of the City Council adopted prior to the effective Date of this Agreement, Clauson shall be entitled to and receive as compensation the same benefits, such as flex leave, medical cafeteria plan, disability, retirement or other similar benefits, and protections as are provided to other top level management employees of City. The personnel rules and regulations of the City that are applicable to other management employees shall apply to Clauson except to the extent they are inconsistent with this Agreement. (1) Clauson shall receive one hundred twenty (120) hours of administrative leave per calendar year. Administrative leave shall not accrue from year to year. Clauson shall not be entitled to any compensation, or compensatory time off, for overtime. (2) Clauson shall have the right to participate in any supplemental retirement or health insurance program that becomes effective prior to her retirement date provided the (i) she satisfies conditions to participation that are applicable to other management employees; or (ii) her participation will not, because of additional employee contributions or otherwise, cause the City to incur greater costs than they would with respect to other participants. 2 10 0 B. Clauson may undergo an annual physical examination and City shall reimburse • Clauson for the actual cost of the examination up to a maximum of $750.00. SECTION 6: Business Expenses. City shall reimburse Clauson for all reasonable business expenses, actually incurred by Clauson in the performance of services pursuant to this Agreement. Reimbursement shall be in accordance with any relevant City Council policy. SECTION 7: Meetings and Conferences. Clauson shall, at City's expense, be entitled to attend a reasonable number of local or state conferences that provide continuing education or training relevant to the services she 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 and reimbursement for expenses shall be in accordance with any relevant City Council policy. SECTION 8: General Provisions. A. Clauson 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 any relevant provision of State or local law. B. This Agreement shall be binding upon, and inure to the benefit of, the heirs, executors, and assigns of Clauson. 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 and may be modified only by a writing signed by the party to be charged. CITY OF NEWPORT BEACH, By: Dated: Ed Selich, Mayor CLAUSON By: Dated: • Robin Clauson ,City Attorney 3 0 • 0 ATTEST By: Dated:. LaVonne Harkless, City Clerk • E