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HomeMy WebLinkAboutC-4307 - Interim Employment Agreement - Police ChiefAMENDMENT NO. ONE TO �• INTERIM EMPLOYMENT AGREEMENT THIS AMENDMENT NO. ONE TO INTERIM EMPLOYMENT AGREEMENT effective as of the day of November, 2009, by and between the CITY OF NEWPORT BEACH, a municipal corporation and a charter city ( "City "), and ROBERT M. LUMAN, an individual ( "Luman ") is made with reference to the following: RECITALS: A. Effective July 10, 2009, City and Luman entered into an Interim Employment Agreement, hereinafter referred to as "Agreement," under which Luman was hired as Interim Chief of Police for City. B. City desires to enter into this Amendment to extend the term of the Agreement and to provide for agreed upon compensation. C. On November 10, 2009, City Council passed Resolution 2009 - :5 approving the extension of Luman's employment in accordance with Government Code section 21221(h) for a period not to exceed 960 hours from January 10, 2010 ( "Resolution "). D. CITY and LUMAN mutually desire to amend Agreement, hereinafter referred to as "Amendment No. One," as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Subject to earlier termination as provided in the Agreement, Luman shall be employed as Interim Chief of Police for the period from January 11, 2010 through June 30, 2010. Said employment shall be subject to all applicable rules and regulations for temporary employment under CalPERS as a retired annuitant, and shall not exceed 960 hours during this term, in accordance with Government Code section 21221(h) and the Resolution. 2. BASE COMPENSATION City shall pay Luman a base salary of $120,000 payable in bi- weekly installments during the term of this Amendment No. One. City shall have the right to deduct or withhold from Luman's base salary any and all sums required for federal or state income tax, and all other taxes, deductions or withholdings required by then current state, federal or local law. City shall also deduct sums Luman is obligated to pay because of participation in plans or programs described in Section 6 of the Agreement. The City shall issue a W -2 Form for Luman's employment as required by law. During his employment, Luman shall devote such time, interest and effort to the performance of the functions and duties set forth in the Agreement as may be fairly and reasonably necessary. However, absent emergencies or exceptional circumstances, it is agreed by the parties that Luman shall be reasonably expected to devote thirty-six (36) hours weekly to the performance of his functions and duties. In no event shall Luman work more than 960 hours during the term of this Amendment No. One. 3. TERMINATION AND SEVERANCE PAY The provisions of Section 4 of the Agreement shall apply during the term of this Amendment No. One, except that Luman shall receive severance pay equal to two (2) months of his base compensation (calculated as one -third of $120,000, or a total of $40,000.00) as of the date of termination by City, unless he is terminated because of criminal conduct, malfeasance or a gross abuse of discretion. 4. EMPLOYEE BENEFITS A. Luman shall be entitled to the paid holidays that occur during the term of this Amendment No. One as set forth in the Holiday Leave section of the current City of Newport Beach Key and Management Employees Compensation Plan for 2007 -2010. Those holidays anticipated to occur during the term of this Amendment No. One include: Martin Luther King Birthday, Washington's Birthday, and Memorial Day. B. Luman shall be entitled to 80 hours of administrative leave during the term of this Amendment No. One. Said administrative leave shall not accrue, and any unused administrative leave hours shall expire upon the termination of the Agreement as extended by this Amendment No. One, and shall not be subject to redemption for compensation, or "cashing -out." 6. NOTICE Section 9(B) of the Agreement is amended to substitute David Kiff as City Manager in place of Homer Bludau for purposes of addressing all notices, demands, requests or approvals from Luman to City. Accordingly, all notices demands, requests or approvals from Luman to City shall be addressed to City at: David Kiff, City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 2 6. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. One on the dates noted below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: nette U. B c 'a p, Assistant City Attorney Dated: / ( /( D ATTEST: By: Pt� Yln' Leilani I. Brown, Ci Clerk Dated: 1( 1� Loq 1 A 3 CITY OF NEWPORT BEACH A Municipal Corporation By:C'_ Da id Kiff, City Manag r Dated: t 1- 1-4 Oft EMPLOYEE: IL L IWU - • .;'_rt Dated: CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 4 November 10, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager 949 - 644 -3000, dkiffcDnewportbeachca.4ov Terri L. Cassidy J.D., Human Resources Director 949 - 644 -3303, tcassidv(anewportbeachca.gov SUBJECT: Resolution 2009 -_ Requesting Approval from the California Public Employees' Retirement System (CaIPERS) Board of Administration to Extend the Employment of Interim Police Chief ISSUE: Shall the City Council adopt a Resolution requesting the California Public Employees' Retirement System (CaIPERS) Board of Administration approve an extension of the temporary employment of Interim Police Chief Robert Luman in accordance with Government Code section 21221(h)? RECOMMENDATION: Staff recommends the following: 1. City Council adopt the Resolution requesting the employment extension per Government Code section 21221(h) for Interim Police Chief Robert Luman to expire no later than June 30, 2010. 2. Authorize the City Manager to renew the employment agreement between the City of Newport Beach and Robert Luman complying with Government Code section 21221(h). DISCUSSION: Government Code section 21221(h) permits the appointment of a retired member by the governing body of a contracting CaIPERS agency to a position deemed by the governing body to be of limited duration and requiring specialized skills or during an emergency to prevent stoppage of public business. The appointments generally are Extension of Interim Police Chief Employment November 10, 2009 Page 2 used for, as in this situation, "Interim" positions pending recruitment of a permanent appointment to fill the vacancy. Robert Luman retired from a CalPERS agency, City of Redondo Beach, May 1, 2006. He was appointed Interim Police Chief of Newport Beach on Friday, July 10, 2009 to temporarily fill the vacancy created by Chief John Klein's retirement. Government Code section 21221(h) limits appointments to 960 hours in a fiscal year. Staff anticipates Chief Luman will reach the 960 hours on or about January 10, 2010. Government Code section 21221(h) permits the governing body to request the CalPERS Board of Administration permit an extension of the retired member's employment beyond the 960 hours but no more than twelve (12) months in the position. Chief Luman's Interim employment contract with the City of Newport Beach may, therefore, not extend beyond June 30, 2010. Chief Luman was selected for the Interim appointment because of his distinguished professional career which spans four decades and includes extensive experience working in a large police department (Long Beach) and a medium department (Redondo Beach). Since his appointment, Chief Luman has performed well in the leadership role and established good relations with the Police Department, City staff and the community members. Chief Luman has continued to develop community— oriented solutions to public safety problems /challenges. Earlier this year the Civil Service Board (CSB) commissioned an investigation into the past police promotional processes. The confidential report was recently submitted to the CSB for review and includes recommendations that will affect the police promotional process and future development of leaders in the Newport Beach Police Department. Chief Luman will face important decisions with respect to implementing changes to make certain the process is impartial. The timing of the investigation report will not permit Chief Luman to implement all the changes needed prior to January 10, 2010 . and it is beneficial to have him remain to see these put into practice. Chief Luman has done an outstanding job while working to develop employees and increase morale within the Police Department. He has moved the department forward and is continuing to build public confidence in our law enforcement service. Chief Luman's continued employment will ensure a smooth transition period until a new Chief is selected and takes office. Environmental Review: This is not a project under CEQA. Public Notice: Seventy -two hours notice has been given pursuant to the Brown Act. No further, notice is legally required. Extension of Interim Police Chief Employment November 10, 2009 Page 3 Funding Availability: Money is budgeted for a Chief of Police position in the department staffing for fiscal year 2009 -2010. Alternatives: The Council can choose to: 1. Adopt the Resolution as recommended. 2. Not adopt the Resolution and if so, the City will terminate the services of Robert Luman; or 3. Ask questions and /or give direction for staff to develop further recommendations. Submitted by: Dave Kfff City Manager jVC, � - 0�� b/, - -L� � � Terri L. Cassidy, J.D. Human Resources Director Attachments: Resolution 2009 -_ (Exhibit A) 3 RESOLUTION NO. 2009- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REQUESTING EMPLOYMENT EXTENSION PER GOVERNMENT CODE SECTION 21221(H) (INTERIM POLICE CHIEF) WHEREAS, Robert Luman, retired from the City of Redondo Beach in the position of Police Chief on May 1, 2006; and WHEREAS, the City of Newport Beach appointed Robert Luman to the position of Interim Police Chief under Government Code section 21221(h), a position deemed to be of limited duration and requiring specialized skill, effective July 10, 2009; and WHEREAS, Robert Luman is expected to reach his maximum 960 hours this fiscal year on or about January 10, 2010; and WHEREAS, the City anticipates the appointment of a new Police Chief in June 2010. WHEREAS, Robert Luman's expertise in the overall leadership and management of a Police Department has been crucial in establishing good relations with the Police Department, City staff and community members, and it is beneficial to continue Robert Luman in this position for the remainder of the transition period until the new chief arrives, and WHEREAS, additional time is necessary to implement contemplated changes desired by the City and undertaken by Robert Luman. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that the CalPERS Board of Administration be requested to approve an extension in accordance with Government Code section 21221(h) for the temporary employment of Robert Luman for a period not to exceed 960 hours from January 10, 2010. An appointment made under this section of this subdivision may not exceed a total of twelve (12) months. ADOPTED on this 10" day of November, 2009. EDWARD D. SELICH Mayor ATTEST: LEILANI I. BROWN City Clerk t-1 INTERIM EMPLOYMENT AGREEMENT This INTERIM EMPLOYMENT AGREEMENT ( "Agreement ") effective as of the L4�dLa—y of July 2009, by and between the CITY OF NEWPORT BEACH, a municipal corporation and charter city ( "City "), and ROBERT M. LUMAN, an individual ( "Luman ") is made with reference to the following: RECITALS A. Through a Mutual Separation Agreement, John Klein retired from service as Chief of Police effective close of business July 10, 2009 ( "Separation Date "). B. The City will be conducting recruitment for a permanent Chief of Police. C. The City Manager, pursuant to his authority under the Charter, the Employee Policy Manual and the Civil Service Board Rules & Regulations, has selected a qualified candidate to succeed John Klein on an interim basis as the Interim Chief of Police. D. The City Manager may authorize and approve an interim Appointment to fill a permanent vacancy (separation or retirement). In accordance with the City's Employee Policy Manual, adopted by Resolution 2001 -100, Interim Appointments expire in six (6) months but may be extended an additional six (6) months at the discretion of the City Manager. E. Luman and City desire to enter into an Interim Employment Agreement for the position of Interim Chief of Police for the City of Newport Beach. THEREFORE, the parties mutually agree to the terms set forth in this Employment Agreement. SECTION 1. Employment as Interim Chief of Police. City shall employ Luman as Interim Chief of Police for the City of Newport Beach to perform the functions and duties of that position as specified in the City Charter, Municipal Code and all applicable state laws, including but not limited to those set forth in the "Police Chief' description attached hereto as Exhibit A and incorporated herein by this reference. Luman shall not provide Chief of Police services for any entity other than City during the term of this Agreement. SECTION 2. Effective Date/Term. Subject to earlier termination as provided for in this Agreement, Luman shall be employed for a six (6) month term beginning on July 10, 2009 and shall remain in effect until January 10, 2010 unless terminated pursuant to Section 4 of this Agreement or extended at the sole discretion of the City Manager. Said employment shall be subject to the all applicable rules and regulations for temporary employment under CalPERS as a retired annuitant, and shall not exceed nine - hundred sixty (960) hours in any fiscal year. SECTION 3. Base Compensation. City shall pay Luman a base salary of $110,000 payable in bi- weekly installments during the term of this Agreement. City shall have the right to deduct or withhold from Luman's base salary any and all sums required for federal or state income tax, and all other taxes, deductions or withholdings required by then current state, federal or local law. City shall also deduct sums Luman is obligated to pay because of participation in plans or programs described in Section 6 of this Agreement. The City shall issue a W -2 form for Luman's employment as required by law. During his employment, Luman shall devote such time, interest and effort to the performance of this Agreement as may be fairly and reasonably necessary. However, absent emergencies or exceptional circumstances, it is agreed by the parties that Luman shall be reasonably expected to devote thirty -six (36) hours weekly to the performance of his duties. In no event shall Luman work more than 960 hours in fiscal year 2009 -2010 under this Agreement. SECTION 4. Termination and Severance Pay. Luman may terminate this Agreement by giving the City at least sixty (60) days prior written notice of termination. City may terminate Luman, without cause, at the City Manager's discretion. Luman shall be furnished with written notice stating the City's intention to terminate this Agreement, and any reasons for termination, if appropriate, at least sixty (60) days prior to the effective date of termination. Luman shall receive severance pay equal to two (2) months of his base compensation (calculated as one -third of $110,000, or a total of $36,666.66) as of the date of termination by City, unless he is terminated because of criminal conduct, malfeasance or a gross abuse of discretion. SECTION 5. Employee Benefits. A. Luman shall be entitled to the paid holidays that occur during the term of this Agreement as set forth in the Holiday Leave section of the current City of Newport Beach Key and Management Employees Compensation Plan for 2007- 2010. Those holidays anticipated to occur during the term of this Agreement include: Labor Day, Veteran's Day, Thanksgiving Day, Day After Thanksgiving, Christmas Eve (last half of working day), Christmas Day, New Year's Eve (last half of working day), and New Year's Day. B. Luman shall be entitled to 80 hours of administrative leave during the term of this `a Agreement. Said administrative leave shall not accrue, and any unused administrative leave hours shall expire upon the termination of this Agreement, and shall not be subject to redemption for compensation, or "cashing- out ". C. The City personnel ordinances, resolutions, rules and policies shall apply to Luman in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, the City Charter shall prevail. D. Luman's duties require him to be available to respond to the demands of City business after regular work hours and on weekends. Luman shall be provided with an automobile that may be used for City business as well as for personal use within a 100 -mile radius of the City; however, Luman shall purchase gasoline for the automobile when used for reasons other than City business in the event such use fall outside the 100 -mile radius of the City. Luman shall report all such personal use to the City Manager when the latter occurs. The automobile shall be selected at the sole discretion of the City. Reasonable maintenance for the automobile shall be provided by City. E. Luman shall be provided with the required complete Police uniforms and related equipment consistent with his responsibilities. F. Luman shall be provided with a cell phone for City business during the term of this Agreement. SECTION 6. Business Expenses. City shall reimburse Luman for all reasonable, authorized City related business expenses actually incurred by Luman in the performance of services pursuant to this Agreement. Luman shall, to the extent possible, use a City- issued credit card issued to pay for business expenses. Luman shall comply with City Council policies for expense and travel reimbursement. SECTION 7. Evaluation. To ensure the City's needs and expectations are met, the City Manager, or the City Manager's designee, may meet with Luman on a regular basis, but not less than once a month, to evaluate Luman's performance, set goals, and provide feedback on Luman's performance of the duties set forth herein and in the attached Exhibit A. Upon the termination of this Agreement, Luman or the City Manager may request a written evaluation of Luman's performance of the duties set forth herein and in the attached Exhibit A, a copy of which shall be provided to Luman. 3 SECTION 8. Indemnification By City. City shall, to the maximum extent permitted by law, indemnify and hold Luman harmless for any acts or decisions made by him in the course and scope of employment. To the same extent, City shall pay and advance all expenses, including reasonable attorney's fees and costs of court- approved settlements, actually and necessarily incurred by City in connection with any appeal, which has been brought against Luman by reason of his performance of services as an officer or agent of the City. SECTION 9. General Provisions. A. Luman shall serve at the pleasure of the City Manager and may be terminated "at will' and without specification of cause, subject only to the procedural requirements specified in this Agreement, the Brown Act and /or relevant provisions of the City Charter or City ordinance. 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 after three business days when properly addressed and deposited in the United States mail, registered or certified, with postage prepaid and return receipt requested. All notices, demands, requests or approvals from Luman to City shall be addressed to City at: Homer Bludau, City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 All notices from City to Luman shall be addressed to Luman at: Robert M. Luman 4219 Linden Avenue Long Beach, CA 90807 C. This Agreement represents the entire understanding of the parties and any modification is effective only if it is in writing and signed by the parties and approved as to form by the City Attorney. D. The provisions of this Section shall survive the expiration of this Agreement. In Witness to Agreement of the Above Provisions, the Parties have affixed their signatures on the dates noted below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: - David R. Hunt, City Attorney Dated: �I ATTEST: By:Ja/�' - Il�� Leilani I. Brown, C6 Clerk Dated: 31)Oq r7d Pill --, �,7a 5 CITY OF NEWPORT BEACH A Municipal Corporation By: omer Bludau, y Manager Dated: 3 oda EMPLOYEE: Dated: U °�