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HomeMy WebLinkAboutS33 - Recruitment and Selection of City Attorney PositionCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 533 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, 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 -_ 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 City Attorney 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. Citv 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 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. City Attorney 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: l� . �. HOMER L. BLUVAU City Manager Attachments: Resolution 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 .06/04/08 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 (S 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 130/066]51 -0023 928008.04 06/04;08 -2- 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 928008.04 a06/04/08 -3- 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 _, 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 928008 04 .06/04 /08 -4- 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 130066751 -0023 928008.04 a06/04108 -5- CITY OF NEWPORT BEACH By: Edward D. Selich, Mayor ATTEST: LaVonne M. Harkless, City Clerk City Attorney Replacement Process June 10, 2006 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: LAVONNEHARKLESS 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 any 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. W��- Robin Clauson City Attorney