HomeMy WebLinkAboutS18 - Contract Updates: Police Chief Jay Johnson and Fire Chief Scott PosterQ ��W PpRT
CITY OF
s NEWPORT BEACH
cIt,FORCity Council Staff Report
November 10, 2015
Agenda Item No. S18
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, City Manager
949-644-3001, dkiff@newportbeachca.gov
PREPARED BY: Dave Kiff, City Manager
TITLE: Contract Updates: Police Chief Jay Johnson and
Fire Chief Scott Poster
ABSTRACT:
The contracts of the Police Chief and Fire Chief should be updated and approved by the
City Council to reflect the results of recent comments from Cal -PERS as to: (1) how
holiday work requirements are considered (whether they are deemed special
compensation); and (2) reflect a lower limit on the value of the uniform allowance
reported as special compensation for Chief Poster.
RECOMMENDATION:
Authorize the City Manager to execute the first amended and restated contracts for the
Fire Chief and Police Chief.
FUNDING REQUIREMENTS:
The Council's approval of the contract language does not change the assumptions we
have been working within for either Chief's pay or the PERS-ability of said pay.
DISCUSSION:
When Police Chief Jay Johnson and Fire Chief Scott Poster were hired by the City (July
3, 2010 and February 6, 2012 respectively), the employment agreements included
certain holiday pay and uniform allowance provisions. Both Chief Johnson and Chief
Poster have received paid holidays (twelve per year) since their date of hire, similar to
that of other city employees.
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Police Chief and Fire Chief Contracts
November 10, 2015
Page 2
The Police Chief's initial employment negotiations included an assumption that the
Chief, like his predecessors as well as the members of his line and command staff, is
generally required to work on holidays. Therefore, he selected and was assigned a
payroll practice of having holiday hours apportioned per paycheck, and is directed to
take time off typically using flex time or administrative leave. As with other employees
in the Police Department (and prior chiefs), the holiday pay has been considered
"special compensation" by the City and is considered part of his "PERS-able" wages.
This was not the same understanding management had with the Fire Chief's
employment.
The Police Chief's holiday requirement and pay practice is consistent with the practice
of the Police Management Association (PMA), whereby sergeants and lieutenants
typically receive holiday compensation paid in cash along with the employee's regular
bi-weekly check. The PMA MOU requires that this amount be reported to PERS as
special compensation (Section 2, Part G of the MOU).
A recent audit by the Cal -PERS system noted that the PERS-ability of holiday pay must
be specifically designated in the Chief's contract, and approved by the City Council.
A second finding in the audit related to the Fire Chief and a cap on the amount of
reportable Uniform Allowance the Fire Chief receives, resulting in the need for the City
to reduce the amount of allowance reported to PERS as special compensation for the
Fire Chief.
Therefore, this agenda item would ask for Council approval of the current practices for
both chiefs, regarding holiday pay being considered as special compensation for the
Police Chief (and PERS-able), and lowering the amount reported to PERS for the
Uniform Allowance for the Fire Chief.
The contracts are provided in modified redline — the underlined sections are sections
that were changed, including:
To reflect the chiefs' current salaries in base wages (older contracts had the
initial pay amount). The salary noted has not gone up via the approval of this
contract.
2. To address a lower level of the Uniform Allowance's PERS-ability in the Fire
Chief's contract, but not to reduce the amount of Uniform Allowance he receives.
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Police Chief and Fire Chief Contracts
November 10, 2015
Page 3
3. To note a fixed amount of pension contributions made so that the chiefs are no
longer tied to PMA or FMA actions — this is important because the PMA and FMA
contracts have or may have salary increases associated with greater pension
pickup, and those salary increases may put the chiefs above the salary range for
the positions. Therefore, we determined that any increases in pay or pickup
should be done solely via the chiefs' contract amendment each time, at which
time the salary ranges could be changed.
4. To reflect new addresses of the Civic Center.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find that this action is not subject to the California
Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A - Proposed First Amended and Restated Employment Agreement —
Police Chief Jay Johnson
Attachment B - Proposed First Amended and Restated Employment Agreement —
Fire Chief Scott Poster
Attachment C - Existing Employment Agreement — Police Chief Jay Johnson
Attachment D - Existing Employment Agreement — Fire Chief Scott Poster
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Attachment A
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of November, 2015 and is entered into by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and Charter city,
("Employer" or "City") and JAY R. JOHNSON, ("Employee") an individual (sometimes
collectively referred to herein as "the Parties").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. Employee has been continuously employed by City as Chief of Police since July 3,
2010 under an Employment Agreement dated that same date ("Employment
Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement, and that upon execution of this Agreement, the
Employment Agreement shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
SECTION 1: Term
Unless sooner terminated as provided in this Agreement, this Agreement shall be
effective November 10, 2015 ("Effective Date") and shall continue until Employer or
Employee terminate this Agreement under the terms provided herein.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as Chief of Police to exercise the powers and
authority and to perform the functions and duties of that position as specified in the
Newport Beach City Charter and Municipal Code and all relevant resolutions, rules,
regulations, procedures, and state codes, as they currently or may in the future exist,
specifically including but not limited to those set forth in the "Police Chief' description
attached hereto as Exhibit A and incorporated herein by this reference. Employee shall
exercise such power and authority and perform such other functions and duties, not
inconsistent with this Agreement, as Employer, by the City Manager, may legally assign.
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SECTION 3: Compensation
A. Employer agrees to pay Employee an Annual Base Salary of $230,940.00 (Two
Hundred and Thirty Thousand, Nine Hundred Forty Dollars and 00/100), subject
to deduction and withholding of any and all sums required for federal or state
income tax, pension contributions, and all other taxes, deductions or withholdings
required by then current state, federal or local law, prorated and paid on
Employer's normal paydays for the City Manager, City Attorney, City Clerk, and
any Department Directors not covered by collective bargaining agreements
("Executive Management Employees"). Employer shall also deduct sums
Employee is obligated to pay because of participation in plans or programs
described in Section 4 of this Agreement. The annual base salary of Employee
is within the approved salary range adopted by resolution of the City Council.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the manner in which Executive Management Employees are
paid.
B. Uniform Allowance. Employer shall provide Employee an annual allowance of
One Thousand, Three Hundred Fifty Dollars ($1,350.00) toward the cost of
Employee's official Newport Beach Police Department police uniforms and
related equipment, which amount shall be allocated to Employee in equal
installments included in his biweekly paycheck and which shall be reported to
PERS as special compensation paid to Employee. This Agreement shall be
deemed amended whenever the City approves a new uniform allowance via a
Memorandum of Understanding or Side Letter Agreement with the PMA.
C. If Employee is required to serve as a juror, Employee shall be entitled to leave
with pay and all benefits for a period of up to sixty (60) days so long as his
presence is legally required.
D. Employer, by the City Manager, shall conduct annual evaluations on or about
July 3, or consistent with that of other management team members.
SECTION 4: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan ("Compensation Plan"), Executive
Management category, Years of Continuous Service, 15 and over, at the current
rate of 9.69 hours per pay period. The amount of Employee's accrued Flex
Leave may not exceed a total of 755.82 hours, and no Flex Leave shall further
accrue beyond the maximum total of 755.82 hours.
The right to sell back accumulated Flex Leave shall be consistent with the "Leave
Sellback" provision of the Compensation Plan.
Employees may use up to Y2 of Flex Leave accrued per year to provide care for
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any member of the employee's immediate family in need of care due to illness or
injury.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan in regards to: (i) the amount of Flex
Leave accrued per pay period; (ii) the maximum allowable balance of Flex Hours
that can be accrued; (iii) provisions related to the use of Flex Leave to provide
dependent care; or (iv) Leave Sellback.
B. Administrative Leave. Employee shall be entitled to eighty (80) hours of
administrative leave per calendar year. Consistent with the Compensation Plan,
there is no right to sell back any accumulated Administrative Leave.
C. Holidays. As has been the practice since the beginning of his employment,
consistent with the Chief's obligation to work on multiple holidays, and consistent
with the Police Management Association's Holiday Pay and practices, employee
shall accrue holiday time at the rate of three point seven (3.7) hours per pay
Period. Holiday compensation shall continue to be paid in cash along with the
employee's regular bi-weekly check, and will continue to be reported to PERS as
a special compensation in addition to employee's bi-weekly base salary.
D. Other Leaves. Employee shall be entitled to the same Bereavement Leave,
Worker's Compensation Leave, and Medical Treatment for Industrial Injuries
Leave as received by members of the PMA. This Agreement shall be deemed
amended whenever the City alters said leaves via a Memorandum of
Understanding or Side Letter Agreement with the PMA.
E. Except as expressly set forth herein, Employee shall receive the medical, dental
and vision insurance benefits, LIUNA Supplemental Pension, Retiree Medical
Benefits, and be entitled to participate in plans and programs such as IRS
Section 125 Flexible Spending Accounts, Employee Assistance Program, short
term and long term disability plans, life insurance plans, and deferred
compensation plans, as are available to Executive Management employees of
the City, as provided in the Compensation Plan. Specifically:
1. City has implemented an IRS qualified Cafeteria Plan for certain benefits.
City's contribution towards the Cafeteria Plan for Employee shall be the
equivalent of what is provided to employees within the Police
Management Association (PMA) or the Key and Management group,
whichever is greater. Employee shall have the option of allocating
Cafeteria Plan contributions towards the City's existing medical, dental
and vision insurance/programs. Unused Cafeteria Plan funds shall be
payable to the employee as taxable cash back. Employee shall be allowed
to change coverage in accordance with plan rules and during regular open
enrollment periods. If Employee does not want to enroll in any medical
plan offered by the City, Employee must provide evidence of group
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medical insurance coverage, and execute an opt -out agreement releasing
the City from any responsibility or liability to provide medical insurance
coverage, on an annual basis.
2. Employee shall be eligible to participate in the LIUNA Supplemental
Pension program noted in section C (3) of the "Benefits" portion of the
Compensation Plan.
3. Employee shall be eligible to participate in the Retirement Health Savings
Plan or ("RHS") formerly known as the Medical Expense Reimbursement
Plan (MERP) noted in section D of the "Benefits" portion of the
Compensation Plan as a Category 1 employee hired after January 1,
2006.
4. City shall provide term life insurance for Employee in the face value of
Fifty Thousand Dollars ($50,000.00).
This Agreement shall be deemed amended as to these benefits, and these
benefits only, whenever the City Council adopts a resolution or takes action
changing these benefits under the Compensation Plan.
F. Employee shall be eligible for the "3% at 50" retirement formula noted in Section
4, D, (1) of the "Benefits" portion of the PMA Memorandum of Understanding.
Employee shall pay a total of 12.80% of the Employee's retirement costs (9%
employee normal member contribution ["EE side"l, 3.8% payment pursuant to
Government Code Section 20516(f) f"ER sidel on a pre-tax basis pursuant to
IRS Code Section 414(h)(2). The Parties agree that the City will not report the
value of an Employer Paid Member Contribution as special compensation.
G. Annual Physical Exam. Employee shall undergo an annual physical examination
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of One Thousand Dollars
($1,000.00).
H. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee
with a vehicle that may be used for City -related business purposes. City
anticipates that the vehicle provided to Employee may be a Chevy Tahoe, but the
make and model of the vehicle shall remain in the City's sole discretion. City
shall pay for reasonable maintenance of the vehicle and gasoline. It is
contemplated by the parties that Employee will use the vehicle principally for
City -related business, however, to the extent that Employee uses the vehicle for
any incidental personal business, Employee shall pay for gasoline for all such
personal use.
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I. City to Provide Cell Phone. Employee shall be entitled to the same phone
allowance as provided to any Executive Management member.
J. Key and Management Group, Executive Management Category. Except as
expressly provided herein, Employee shall be treated as a member of the City's
Key and Management Group, Executive Management category. As such, the
benefits, terms and conditions of the Compensation Plan shall apply to Employee
as provided more specifically above, provided however, in the event of a conflict
between the provisions of this Agreement and the Compensation Plan, this
Agreement shall prevail.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees to either pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Manager. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, airfare (where applicable), ground transportation and meals.
Reasonable expenses will also include the reasonable and actual cost of lodging
for meetings outside of Orange County.
C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Manager. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and Newport Beach Municipal
Code Chapter 2.12.020, Employee is appointed by, and serves at the pleasure
of, the City Manager. Nothing in this Agreement shall prevent, limit or otherwise
interfere with the right of Employer to terminate this Agreement and the
employment of Employee at any time, with or without cause. Employer shall pay
Employee for all services through the Effective Date of termination and Employee
shall have no right to any additional compensation or payment, except as
provided in Section 7, below. Nothing herein shall be construed to limit the rights
and obligations of City and Employee provided in the Public Safety Officers
Procedural Bill of Rights Act, codified at Government Code section 3300, et seq.
(POBRA).
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer.
SECTION 7: Severance and Benefit Payoff at Termination
A. If Employer terminates this Agreement (thereby terminating Employee's
Employment) without cause, as determined by the City Manager, Employer shall
provide Employee with fourteen (14) calendar day's written notice and, if
Employee signs, delivers to the City, and does not revoke, the General Release
Agreement in the form attached hereto as Exhibit B, Employer shall pay
Employee a lump sum benefit equal to six (6) months of his then applicable base
salary, and shall provide six (6) months of medical benefits as provided under the
Compensation Plan beginning on the effective date of termination (collectively
"Severance").
B. If Employer terminates this Agreement (thereby terminating Employee's
Employment) with cause, as determined by the City Manager, Employee shall
not be entitled to any severance. As used in this Agreement, cause shall mean
any of the following:
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted direction of the City Manager or the
policy decisions of the City Council made by the City Council as a body;
and
6. Any other intentional or grossly negligent action or inaction by Employee
that materially and substantially: (a) impedes or disrupts the operations of
Employer or its organizational units; (b) is detrimental to Employee or
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public safety; (c) violates properly established rules or procedures of
Employer causing a material and substantial adverse impact on Employer;
or (d) has a material and substantial adverse effect on Employer's
interests as clearly defined and delineated by properly established City
Council action taken by the Council as a body, policy, regulations,
ordinances, or Charter provisions of Employer.
C. Any dispute as to whether severance is excused under Section 7, Paragraph B
above, shall be resolved consistent with then current City policies, rules and
procedures and with Employer's and Employee's rights and obligations under
POBRA.
D. If Employee terminates this Agreement (thereby terminating Employee's
Employment), Employee shall not be entitled to any severance.
E. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accrued
but unused Administrative Leave.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including occasional as -needed attendance at City
Council meetings). Employee's base salary includes compensation for all hours worked
and Employee shall be classified as an exempt employee for purposes of overtime and
shall not be entitled to any form of compensation for overtime. In recognition of the
significant time Employee will need to devote outside normal office hours to business
activities of Employer and the exempt, salaried nature of the employment, employee is
permitted to exercise a flexible work schedule. However, consistent with this flexibility
and Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at the Newport Beach Police Department, Monday
through Friday during normal business hours.
SECTION 9: Confidentiality
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
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shall not disclose the Confidential Information to others without the express
written consent of City. All Confidential Information shall be promptly returned to
the City immediately upon the effective date of any severance of employment.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, the city management staff, nor the Employee shall make any written,
oral, or electronic statement to any member of the public, the press, or any City
employee concerning the Employee's termination except in the form of a joint
press release or statement, which is mutually agreeable to City and Employee.
The joint press release or statement shall not contain any text or information that
is disparaging to either Party. Either Party may verbally repeat the substance of
the joint press release or statement in response to any inquiry.
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
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Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
100 Civic Center Drive
Newport Beach, California 92660
With a courtesy copy to:
City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Jay Johnson
at the home address then shown in Employer's files
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable in civil judicial practice. Notice shall be deemed given
as of the date of personal service or as of the date of deposit of such written notice in
the course of transmission in the United States Postal Service as provided by law.
SECTION 14: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive
agreement between Employer and Employee relating to the employment of
Employee by Employer. Any prior discussions or representations by or between
the parties are merged into this Agreement or are otherwise rendered null and
void. The parties by mutual written agreement may amend any provision of this
Agreement during the life of the Agreement. Such amendments shall be
incorporated and made a part of this Agreement. The foregoing notwithstanding,
Employee acknowledges that, except as expressly provided in this Agreement,
his employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Manager.
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B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee 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, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement.
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH, EMPLOYEE
A Municipal Corporation
By: By:
David Kiff, City Manager Jay R. Johnson
Date: Date:
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APPROVED AS TO FORM
Office of he City Attorney
By: Ce �4
—
Adrdn C. Harp,
City Attorney
Date:
ATTEST:
By:
Leilani Brown,
City Clerk
Attachments: Exhibit A, Police Chief Job Description
Exhibit B, General Release Agreement
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EXHIBIT A
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CITY OF NEWPORT BEACH
POLICE CHIEF
DEFINITION: Under direction of the City Manager, the Police Chief is responsible for
the administration, development, and advancement of the City's full service Police
Department; to oversee and implement all programs and procedures related to crime
prevention, law enforcement, and related policing services; to serve as a member of the
City Manager's Executive Management Team; and to provide highly responsible and
professional staff assistance to the City Manager and City Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative
direction from the City Manager. Exercises general supervision over the entire
department and direct supervision over division managers and
professional/administrative support staff.
CLASSIFICATION CHARACTERISTICS: The Police Chief is expected to exercise
independent judgment, wisdom, and innovation in establishing and administering all
Police Department operations, consistent with the City Manager's expectations and with
concern for the entire City government organization. As an inspiring leader, the Police
Chief must demonstrate integrity and promote ethical standards within the department,
advocate collaboration with the community, and be a team member with the City
organization. The Police Chief must be politically astute, but apolitical.
EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the
following:
Essential Job Duties
• Advancing the interests of the department and the City, plans, directs, and
oversees a variety of programs designed for the maintenance of law and order and
protection of life and property within the City of Newport Beach; develops
comprehensive plans to satisfy needs for departmental services to ensure the
highest possible quality of life for residents and visitors;
• Ensuring the optimum and most efficient and effective use of staffing and
resources, administers the overall operation of a full service police department,
including hiring, personnel administration, office operations, budgeting, and
community relations; serves as a member of the City's Executive Management
Team and collaborates with other departments to resolve city-wide problems;
• Demonstrating a strong working knowledge of the legal system, confers with legal
advisors and City officials regarding law enforcement issues; provides professional
and technical advice and assistance to the City Manager and City Council on
matters related to law enforcement services; represents the City as a witness in
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legal proceedings;
• Exhibiting exceptional communication skills, prepares and presents staff reports
and related materials for City Council or public response; resolves issues raised by
City Council members, community groups, employee associations, and the public;
advocates the City's position in negotiations with various regulatory agencies to
satisfy requirements;
• Building cohesive and collaborative departmental working relationships, plans,
organizes, selects and supervises the work of departmental staff; establishes
accountability throughout the department; promotes employee development
through staff training and succession planning; ensures consistent application of
City personnel policies and employee agreements;
• Demonstrating stewardship of public funds, directs the preparation and
administration of the Police Department budget; participates in the forecast of
revenue, expenses and additional funds needed; guides subordinate managers in
developing and administering fiscally responsible budgets; carries out police
functions in the most cost effective ways;
• Promoting a strong community policing program, establishes and maintains
collaborative working relationships with property owners, community groups,
business districts, and the public; represents the Police Department and the City at
community and civic events; and
• Performs related duties as assigned.
QUALIFICATIONS: To perform this job successfully, an individual must be able to perform
each essential function. The requirements listed below are representative of the knowledge,
skill, and/or ability required.
Knowledge of:
Advanced principles and practices of crime prevention and law enforcement,
including criminal investigation and identification, patrol, traffic control, animal
control, records management, care and custody of persons and property and
environmental protection;
Principles and practices of organization, administration and personnel
management, and leadership of a law enforcement agency;
Principles and techniques of municipal budget development and administration;
Applicable Federal, State and local laws, ordinances, codes and regulations;
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Principles of supervision, training and performance evaluation;
Current technological and communication equipment and software applicable to the
delivery of departmental services to internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
Ability to:
Effectively direct, plan and organize the activities of a comprehensive city-wide
full service police department;
Critically analyze problems, identify alternative solutions, and implement
recommendations in support of goals;
Understand the needs of a tourism -based community and its impact on public
safety;
Promote collaboration and innovation;
Provide a stabilizing influence during periods of change;
Weigh risks and consequences and make clear decisions;
Equitably interpret and apply City policies, procedures, rules and regulations;
Diffuse conflict and gain cooperation through discussion and persuasion;
Motivate, select, supervise, and evaluate personnel;
Promote fiscal responsibility in administering a departmental budget;
Develop and maintain effective partnerships with community groups;
Build loyalty within the organization and advocate accessibility and
responsiveness to the community;
Effectively and persuasively communicate, both orally and in writing; and
Establish and maintain cooperative working relationships with those contacted in
the course of work.
S18-18
EXPERIENCE AND TRAINING: Any combination of experience and training that would
likely provide the required knowledge and abilities is qualifying. A typical way to obtain
the knowledge and abilities would be:
Experience: Seven years of increasingly responsible managerial and
supervisory law enforcement experience, including at least three years at the
rank of Captain or above.
Training: Equivalent to completion of a Bachelor's degree in criminal justice, law,
management, public administration, business administration, or a related field
from an accredited college or university. A Master's degree or Juris Doctorate is
desirable.
LICENSE OR CERTIFICATE:
Possession of P.O.S.T. Management Certificate at time of appointment. Possession of
P.O.S.T Executive Certificate desirable.
Possession of a valid California driver's license.
Completion of Federal Bureau of Investigation's National Academy is desirable.
Additional Requirement: Prior to employment, the prospective candidate must
successfully complete a thorough background review, including being fingerprinted by
Newport Beach Police Department.
Key and Management Group — Executive Management
Revised BR 2/2007
Revised MWD: 2/17/2010 & CSB Approved 3/1/10
S18-19
Exhibit B
S18-20
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
JAY JOHNSON ("Employee") and CITY OF NEWPORT BEACH ("Employer"), in light of
the following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with his legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to him through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether he signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee acknow-
ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of
all amounts that are due and owing to him as a result of his employment by Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to him, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the First Amended and Restated Employment
Agreement effective November 10, 2015, less applicable deductions, and shall provide
the months of medical benefits as provided in that same Section 7 ("Severance").
S18-21
Employee acknowledges that the Severance is in excess of all amounts due and owing
him as a result of his employment by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
his employment with Employer which he now has, or ever had, including but not limited
to any rights, claims, causes of action or damages arising under Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Family and Medical
Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the
Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family
Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and
Housing Act, any other federal, state, or local employment practice legislation, or any
federal or state common law, including wrongful discharge, breach of express or implied
contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which he does not know or suspect to exist in his favor.
Employee further acknowledges that he has read this General Release and that
he understands that this is a general release, and that he intends to be legally bound by
the same.
S18-22
4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover his/its reasonable attorneys' fees and costs.
Dated , 20 CITY OF NEWPORT BEACH
Dated: , 20_
DAVID KIFF
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By: C .
Aaron C. Harp, City Attorney
Date:
ATTEST:
By:
Leilani Brown,
City Clerk
Date:
S18-23
Attachment B
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made effective as of November 10, 2015 and is entered into by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and Charter city,
("Employer" or "City") and LAURENCE SCOTT POSTER, ("Employee") an individual
(sometimes collectively referred to herein as "the Parties").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. Employee has been continuously employed by City as the Fire Chief since
February 6, 2012 under an Employment Agreement dated that same date
("Employment Agreement").
C. The Parties mutually agree that they intend for this Agreement to supersede the
Employment Agreement, and that upon execution of this Agreement, the
Employment Agreement shall have no force or effect.
D. The Parties also mutually agree that this form of Agreement reflects the terms and
conditions under which the Parties intend and desire to continue Employee's
employment.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
SECTION 1: Term
Unless sooner terminated as provided in this Agreement, this Agreement shall be
effective November 10, 2015 ("Effective Date") and shall continue until Employer or
Employee terminate this Agreement under the terms provided herein.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as Fire Chief to exercise the powers and
authority and to perform the functions and duties of that position as specified in the
Newport Beach City Charter and Municipal Code and all relevant resolutions, rules,
regulations, procedures, and state codes, as they currently or may in the future exist,
specifically including but not limited to those set forth in the "Fire Chief' description
attached hereto as Exhibit A and incorporated herein by this reference. Employee shall
exercise such power and authority and perform such other functions and duties, not
inconsistent with this Agreement, as Employer, by the City Manager, may legally assign.
S18-24
SECTION 3: Compensation
A. Employer agrees to pay Employee an Annual Base Salary of Two Hundred
Twenty Eight Thousand, Sixty Seven Dollars and 63/100 or $228,067.63) ("Base
Sala subject to deduction and withholding of any and all sums required for
federal or state income tax, pension contributions, and all other taxes, deductions
or withholdings required by then current state, federal or local law, prorated and
paid on Employer's normal paydays for the City Manager, City Attorney, City
Clerk, and any Department Directors not covered by collective bargaining
agreements ("Executive Management Employees"). Employer shall also deduct
sums Employee is obligated to pay because of participation in plans or programs
described in Section 4 of this Agreement. The annual base salary of Employee
is within the approved salary range adopted by resolution of the City Council.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the manner in which Executive Management Employees are
paid; however, the Base Salary shall not be adjusted unless this Agreement is
amended in writing.
B. Uniform Allowance. Employer shall provide Employee an annual allowance of
One Thousand, Seven Hundred Nineteen Dollars and No/Cents ($1,719.00)
toward the cost of Employee's official Newport Beach Fire Department fire
uniforms and related equipment, which amount shall be allocated to Employee in
equal installments included in his biweekly paycheck. One Thousand, Five
Hundred Nineteen Dollars and No/Cents ($1,519.00) shall be reported to PERS
as special compensation paid to Employee. This Agreement shall be deemed
amended whenever the City approves a new uniform allowance via a
Memorandum of Understanding or Side Letter Agreement with the Fire
Management Association ("FMA").
C. If Employee is required to serve as a juror, Employee shall be entitled to leave
with pay and all benefits for a period of up to sixty (60) days so long as his
presence is legally required.
D. Employer, by the City Manager, shall conduct annual evaluations on or about
February 6, or consistent with that of other management team members.
SECTION 4: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan ("Compensation Plan"), Executive
Management category, Years of Continuous Service, 15 and over, at the current
rate of 9.69 hours per pay period. The amount of Employee's accrued Flex
Leave may not exceed a total of 400 hours, and no Flex Leave shall further
accrue beyond the maximum total of 400 hours.
The right to sell back accumulated Flex Leave shall be consistent with the "Leave
S18-25
Sellback" provision of the Compensation Plan.
Employees may use up to Y2 of Flex Leave accrued per year to provide care for
any member of the employee's immediate family in need of care due to illness or
injury.
This Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the Compensation Plan in regards to: (i) the amount of Flex
Leave accrued per pay period; (ii) provisions related to the use of Flex Leave to
provide dependent care; or (iii) Leave Sellback.
B. Administrative Leave. Employee shall be entitled to a minimum of forty (40)
hours and a maximum of eighty (80) hours of administrative leave per calendar
year, as determined by the City Manager in his or her sole discretion.
Administrative leave shall not accrue from calendar year to calendar year and
must be used or lost at the conclusion of each calendar year. Consistent with the
Compensation Plan, there is no right to sell back any accumulated Administrative
Leave.
C. Holidays. Employee shall be entitled to eleven (11) paid holidays and one (1)
floating holiday, for a total of twelve (12) paid holidays, per calendar year, as
identified more specifically in section A of the Leaves provision of the
Compensation Plan.
D. Other Leaves. Employee shall be entitled to the same Bereavement Leave,
Worker's Compensation Leave, and Medical Treatment for Industrial Injuries
Leave as received by members of the FMA. This Agreement shall be deemed
amended whenever the City alters said leaves via a Memorandum of
Understanding or Side Letter Agreement with the FMA.
E. Except as expressly set forth herein, Employee shall receive the medical, dental
and vision insurance benefits, LIUNA Supplemental Pension, Retiree Medical
Benefits, and be entitled to participate in plans and programs such as IRS
Section 125 Flexible Spending Accounts, Employee Assistance Program, short
term and long term disability plans, life insurance plans, and deferred
compensation plans, as are available to Executive Management employees of
the City, as provided in the Compensation Plan. Specifically:
1. City has implemented an IRS qualified Cafeteria Plan for certain benefits.
City's contribution towards the Cafeteria Plan for Employee shall be the
equivalent of what is provided to employees FMA or the Key and
Management group, whichever is greater. Employee shall have the option
of allocating Cafeteria Plan contributions towards the City's existing
medical, dental and vision insurance/programs. Unused Cafeteria Plan
funds shall be payable to the employee as taxable cash back. Employee
shall be allowed to change coverage in accordance with plan rules and
S18-26
during regular open enrollment periods. If Employee does not want to
enroll in any medical plan offered by the City, Employee must provide
evidence of group medical insurance coverage, and execute an opt -out
agreement releasing the City from any responsibility or liability to provide
medical insurance coverage, on an annual basis.
2. Employee shall be eligible to participate in the LIUNA Supplemental
Pension program noted in section C (3) of the "Benefits" portion of the
Compensation Plan.
3. Employee shall be eligible to participate in the Retirement Health Savings
Plan or ("RHS") formerly known as the Medical Expense Reimbursement
Plan ("MERP") noted in section D of the "Benefits" portion of the
Compensation Plan as a Category 1 employee hired after January 1,
2006.
4. City shall provide term life insurance for Employee in the face value of
Fifty Thousand Dollars ($50,000.00).
This Agreement shall be deemed amended as to these benefits, and these
benefits only, whenever the City Council adopts a resolution or takes action
changing these benefits under the Compensation Plan.
F. Employee shall be eligible for the "3% at 50" retirement formula noted in Section
4, C, (1) of the "Fringe Benefits" portion of the FMA Memorandum of
Understanding. Employee shall pay 9% of the Employee's Normal retirement
costs pursuant to Government Code Section 20678 on a pre-tax basis pursuant
to IRS Code Section 414(h)(2). The Parties agree that the City will not report the
value of an Employer Paid Member Contribution as special compensation.
G. Annual Physical Exam. Employee shall undergo an annual physical examination.
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of One Thousand Dollars
($1,000.00).
H. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee
with a vehicle that may be used for City -related business purposes. City shall
pay for reasonable maintenance of the vehicle and gasoline. It is contemplated
by the parties that Employee will use the vehicle principally for City -related
business, however, to the extent that Employee uses the vehicle for any
incidental personal business, Employee shall pay for gasoline for all such
personal use.
S18-27
City to Provide Cell Phone. Employee shall be entitled to the same phone
allowance as provided to any Executive Management member.
J. Key and Management Group, Executive Management Category. Except as
expressly provided herein, Employee shall be treated as a member of the City's
Key and Management Group, Executive Management category. As such, the
benefits, terms and conditions of the Compensation Plan shall apply to Employee
as provided more specifically above, provided however, in the event of a conflict
between the provisions of this Agreement and the Compensation Plan, this
Agreement shall prevail.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees to either pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Manager. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, airfare (where applicable), ground transportation and meals.
Reasonable expenses will also include the reasonable and actual cost of lodging
for meetings outside of Orange County.
C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Manager. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and Newport Beach Municipal
Code Chapter 2.12.020, Employee is appointed by, and serves at the pleasure
of, the City Manager. Nothing in this Agreement shall prevent, limit or otherwise
interfere with the right of Employer to terminate this Agreement and the
S18-28
employment of Employee at any time, with or without cause. Employer shall pay
Employee for all services through the Effective Date of termination and Employee
shall have no right to any additional compensation or payment, except as
provided in Section 7, below. Nothing herein shall be construed to limit the rights
and obligations of City and Employee provided in the Firefighters Procedural Bill
of Rights Act, codified at Government Code section 3250, et seq. ("FPBRA").
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer.
SECTION 7: Severance and Benefit Payoff at Termination
A. If Employer terminates this Agreement (thereby terminating Employee's
Employment) without cause, as determined by the City Manager, Employer shall
provide Employee with fourteen (14) calendar day's written notice and, if
Employee signs, delivers to the City, and does not revoke, the General Release
Agreement in the form attached hereto as Exhibit B, Employer shall pay
Employee a lump sum benefit equal to six (6) months of his then applicable base
salary, and shall provide six (6) months of medical benefits as provided under the
Compensation Plan beginning on the effective date of termination (collectively
"Severance").
B. If Employer terminates this Agreement (thereby terminating Employee's
Employment) with cause, as determined by the City Manager, Employee shall
not be entitled to any severance. As used in this Agreement, cause shall mean
any of the following:
Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted direction of the City Manager or the
policy decisions of the City Council made by the City Council as a body;
and
6. Any other intentional or grossly negligent action or inaction by Employee
that materially and substantially: (a) impedes or disrupts the operations of
Employer or its organizational units; (b) is detrimental to Employee or
public safety; (c) violates properly established rules or procedures of
S18-29
Employer causing a material and substantial adverse impact on Employer;
or (d) has a material and substantial adverse effect on Employer's
interests as clearly defined and delineated by properly established City
Council action taken by the Council as a body, policy, regulations,
ordinances, or Charter provisions of Employer.
C. Any dispute as to whether severance is excused under Section 7, Paragraph B
above, shall be resolved consistent with then current City policies, rules and
procedures and with Employer's and Employee's rights and obligations under
FPBRA.
D. If Employee terminates this Agreement (thereby terminating Employee's
Employment), Employee shall not be entitled to any severance.
E. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accrued
but unused Administrative Leave.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including occasional as -needed attendance at City
Council meetings). Employee's base salary includes compensation for all hours worked
and Employee shall be classified as an exempt employee for purposes of overtime and
shall not be entitled to any form of compensation for overtime. In recognition of the
significant time Employee will need to devote outside normal office hours to business
activities of Employer and the exempt, salaried nature of the employment, employee is
permitted to exercise a flexible work schedule. However, consistent with this flexibility
and Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at the Newport Beach Fire Department, Monday through
Friday during normal business hours.
SECTION 9: Confidentiality
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
S18-30
written consent of City. All Confidential Information shall be promptly returned to
the City immediately upon the effective date of any severance of employment.
B. Except as otherwise required by law, in the event the City terminates Employee
with or without Cause, the City and Employee agree that no member of the City
Council, the city management staff, nor the Employee shall make any written,
oral, or electronic statement to any member of the public, the press, or any City
employee concerning the Employee's termination except in the form of a joint
press release or statement, which is mutually agreeable to City and Employee.
The joint press release or statement shall not contain any text or information that
is disparaging to either Party. Either Party may verbally repeat the substance of
the joint press release or statement in response to any inquiry.
C. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Sections 53243 through 53243.3 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
S18-31
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
100 Civic Center Drive
Newport Beach, California 92660
With a courtesy copy to:
City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
(2) EMPLOYEE: Laurence Scott Poster
at the home address then shown in Employer's files
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable in civil judicial practice. Notice shall be deemed given
as of the date of personal service or as of the date of deposit of such written notice in
the course of transmission in the United States Postal Service as provided by law.
SECTION 14: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive
agreement between Employer and Employee relating to the employment of
Employee by Employer. Any prior discussions or representations by or between
the parties are merged into this Agreement or are otherwise rendered null and
void. The parties by mutual written agreement may amend any provision of this
Agreement during the life of the Agreement. Such amendments shall be
incorporated and made a part of this Agreement. The foregoing notwithstanding,
Employee acknowledges that, except as expressly provided in this Agreement,
his employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
S18-32
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Manager.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Conflict with City Charter or Municipal Code. The City personnel ordinances,
resolutions, rules and policies shall apply to Employee 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, or this
Agreement and the Municipal Code, the City Charter or the Municipal Code shall
prevail over this Agreement.
F. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH, EMPLOYEE
A Municipal Corporation
By:
David Kiff, City Manager Laurence Scott Poster
Date:
Date:
S18-33
APPROVED AS TO FORM
Office of e City Attorney
By: —
Aaron C. Harp,
City Attorney
Date:
ATTEST:
In
Leilani Brown,
City Clerk
Attachments: Exhibit A, Fire Chief Job Description
Exhibit B, General Release Agreement
S18-34
EXHIBIT A
S18-35
CITY OF NEWPORT BEACH
DEFINITION: To serve as the executive director of the Fire Department; to plan,
organize, direct and coordinate the fire suppression and prevention, emergency medical
services, ocean safety, hazardous waste mitigation, and disaster preparedness
programs and activities of the department; to serve as a member of the City Manager's
executive management team; and to provide highly responsible and professional staff
assistance to the City Manager and City Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative
direction from the City Manager. Exercises direct supervision over management,
supervisory, professional, technical and clerical personnel.
EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the
following:
Essential Job Duties
• Plan, direct, and review the operation, services and activities of the Fire
Department, including fire suppression, hazardous material mitigation, fire and life
safety code compliance, emergency medical services, ocean lifeguards, citywide
disaster preparedness and response; administer the overall operation of the
department, including hiring, personnel administration, budgeting, and community
relations; assess community service expectations and requirements and develop
appropriate methods to meet service requirements; ensure the maximum utilization
of manpower, equipment, and supplies;
• Develop, plan and implement departmental goals and objectives; develop,
recommend and administer approved policies and procedures; coordinate
departmental activities with those of other City departments and outside agencies
and organizations; provide professional and technical advice and assistance to the
City Manager and City Council on matters related to departmental functions;
Prepare and present staff reports and answer questions;
• Plan, organize, select and supervise the work of departmental staff; coach,
motivate, monitor, correct and evaluate staff performance; serve as the second
level supervisor of staff supervised by division managers and review performance
evaluations prepared by subordinate managers; develop and implement staff
training programs and plans; recommend employee recognition, discipline and
termination; ensure that City personnel policy and employee agreements are
implemented and applied consistently within the department;
S18-36
Fire Chief
Page 2
City of Newport Beach
• Supervise and participate in the development of the departmental budget;
participate in the forecast of revenue, expenses and additional funds needed for
staffing, equipment, materials, and supplies; administer the approved departmental
budget and guide subordinate managers in developing and administering division
and unit budgets;
• Represent the City and participate in professional and public meetings and
organizations, as appropriate; attend staff meetings; participate in mandated
training and staff development; respond to and meet with property owners,
homeowner groups, business districts, and the public; meet with, provide
information and negotiate with various regulatory agencies to satisfy their
requirements; represent the City as a witness in legal actions;
• Oversee and direct departmental office operations; maintain appropriate records
and files; coordinate workflow; prepare reports, agenda items memoranda, letters
and other forms of correspondence; and
• Perform related duties as assigned.
QUALIFICATIONS:
Knowledge of:
Advanced principles and practices of fire suppression and prevention,
emergency medical services, disaster preparedness, training, and ocean
lifeguard programs and services;
Principles and practices of organization, administration and personnel
management and leadership, particularly as applied to the analysis and
evaluation of programs, policies and operational needs;
Principles and techniques of budget development and administration;
Applicable Federal, State and local laws, ordinances, codes and regulations;
Principles of supervision, training and performance evaluation;
Current technological and communication equipment and software applicable to the
delivery of departmental services to internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
S18-37
Fire Chief
Page 3
Ability to:
City of Newport Beach
Direct, plan and organize the activities of a comprehensive citywide Fire
Department, including fire suppression and prevention, emergency medical
services, disaster preparedness, personnel training, and ocean lifeguard
programs and services;
Analyze problems; identify alternative solutions, project consequences of
proposed actions and implement recommendations in support of goals;
Interpret and apply City policies, procedures, rules and regulations;
Develop and administer sound departmental policies and procedures;
Stay abreast of new trends, innovations, standards and guidelines in the fields of
fire suppression and prevention, emergency medical services, disaster
preparedness, hazardous material mitigation and ocean lifeguard services and
safety;
Provide leadership to a diverse work force; meeting City objectives while
maintaining positive employee morale;
Gain cooperation through discussion and persuasion;
Select, supervise, train and evaluate personnel;
Prepare and administer a departmental budget;
Maintain confidentiality of medical and other privileged information;
Communicate clearly and concisely, both orally and in writing;
Appear for work on time;
Follow directions from a supervisor;
Understand and follow posted work rules and procedures;
Accept constructive criticism; and
Establish and maintain cooperative working relationship with those contacted in
the course of work.
This position may be required to work overtime hours as needed.
S18-38
Fire Chief
Page 4
City of Newport Beach
EXPERIENCE AND TRAINING: Any combination of experience and training that would
likely provide the required knowledge and abilities is qualifying. A typical way to obtain
the knowledge and abilities would be:
Experience: Ten years of increasingly responsible fire suppression and
prevention experience, including at least five years of responsible management
and supervisory experience.
Training: Completion of coursework leading to a bachelor's degree in fire
administration or a closely related field. A master's degree in public
administration, fire administration or a related field is desirable.
LICENSE OR CERTIFICATE:
Possession of, or ability to obtain, a valid and appropriate California driver's license is
required.
Key and Management Group — Executive Management
Revised 10/31/02
S18-39
Exhibit B
S18-40
GENERAL RELEASE AGREEMENT
This General Release Agreement ("Agreement") is entered into by and between
LAURENCE SCOTT POSTER ("Employee") and CITY OF NEWPORT BEACH
("Employer"), in light of the following facts:
A. Employee's employment with Employer concluded on
B. Certain disputes have arisen between Employer and Employee.
C. Employer and Employee each deny any liability whatsoever to the other.
D. Employer and Employee wish to fully and finally resolve any and all
disputes they may have with each other.
E. Employee is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. Employer hereby advises Employee to consult
with his legal counsel before signing this Agreement.
F. Employee acknowledges that for a period of seven (7) days following the
signing of this Agreement ("Revocation Period"), he may revoke the Agreement. This
Agreement shall not become effective or enforceable until the day the Revocation
Period has expired.
G. Employee acknowledges that the Salary Payment referenced in paragraph
1 of this Agreement represents all compensation, including salary, accrued benefit
balances and reimbursed expenses, due and payable to him through the date of
employment termination. Employee also acknowledges that Employer has made this
Salary Payment without regard to whether he signs this Agreement. The Salary
Payment does not constitute consideration for this Agreement. Employee acknow-
ledges that the Severance referenced in paragraph 2 of this Agreement is in excess of
all amounts that are due and owing to him as a result of his employment by Employer.
1. Receipt of Salary Payment. Employee hereby acknowledges receipt of a
check or checks for all compensation owing to him, including salary, accrued benefit
balances and reimbursed expenses ("Salary Payment") from Employer.
2. Severance. Within ten (10) days following Employee's signing, delivering
to the City Council, and not revoking this Agreement, City shall pay Employee the gross
amount provided for in Section 7 of the First Amended and Restated Employment
Agreement effective November 10, 2015, less applicable deductions, and shall provide
the months of medical benefits as provided in that same Section 7 ("Severance").
S18-41
Employee acknowledges that the Severance is in excess of all amounts due and owing
him as a result of his employment by Employer.
3. General Release. In consideration of the Severance to be paid and
provided to Employee, and other good and valuable consideration, Employee hereby
releases and discharges Employer and its past and present City Council Members,
employees, representatives and agents, from all rights, claims, causes of action, and
damages, both known and unknown, in law or in equity, concerning and/or arising out of
his employment with Employer which he now has, or ever had, including but not limited
to any rights, claims, causes of action or damages arising under Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Older Workers Benefits Protection Act, the Family and Medical
Leave Act of 1993, the Domestic Partners Act of 2003, the California Labor Code, the
Private Attorneys General Act of 2004, the California Moore -Brown -Roberti Family
Rights Act, the California Unruh Civil Rights Act, the California Fair Employment and
Housing Act, any other federal, state, or local employment practice legislation, or any
federal or state common law, including wrongful discharge, breach of express or implied
contract, or breach of public policy.
Employee hereby waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of California. Employee understands and acknowledges
the significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California states as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Employer and its past and
present City Council Members, employees, representatives and agents, Employee
expressly acknowledges that this General Release is intended to include in its effect,
without limitation, all claims which he does not know or suspect to exist in his favor.
Employee further acknowledges that he has read this General Release and that
he understands that this is a general release, and that he intends to be legally bound by
the same.
S18-42
4. Fees and Costs. Employee and Employer agree that in the event of
litigation relating to this General Release Agreement, the prevailing party shall be
entitled to recover his/its reasonable attorneys' fees and costs.
Dated .20 CITY OF NEWPORT BEACH
LM
Dated: , 20_
DAVID KIFF
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
C
B -1Y:
Aaron C. Harp, City Attorney
Date:
/-1lkr**f
By:
Leilani Brown,
City Clerk
Date:
S18-43
Attachment C
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of July 3, 2010
and is entered into by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and Charter city, ("Employer" or "City") and JAY R. JOHNSON,
("Employee") an individual.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of Califomia and the Charter of City.
B. Pursuant to Sections 504(a) and 600 of the City Charter, and in accordance with
Newport Beach Municipal Code ("NBMC") section 2.24.100, the City Manager has
directed an open recruitment and screened all qualified applicants and other
qualified persons known by the City Manager to be available for the position of
Chief of Police.
C. Following an open recruitment and an extensive competitive examination,
interviewing, and screening process of numerous candidates, the City Manager
believes Employee to be the best qualified on the basis of executive and
administrative qualifications, with special reference to the experience and
knowledge of accepted practice with respect to the duties of the Chief of Police as
contemplated by and in conformity with NBMC section 2.24.100 and Civil Service
Board Rules & Regulations ("CSBR&R") section 701.
D. The City desires to employ Employee as Chief of Police and to enter into an
Agreement with Employee upon the terms and conditions in this Agreement.
E. Employee is willing to accept such employment on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
SECTION 1: Term
Unless sooner terminated as provided in this Agreement, this Agreement shall be
effective from July 3, 2010 ("Effective Date") and shall continue until Employer or
Employee terminate this Agreement under the terms provided herein.
SECTION 2: Duties and Authority
Employer agrees to employ Employee as Chief of Police to exercise the powers and
authority and to perform the functions and duties of that position as specified in the
Newport Beach City Charter and Municipal Code and all relevant resolutions, rules,
regulations, procedures, and state codes, as they currently or may in the future exist,
specifically including but not limited to those set forth in the "Police Chief description
attached hereto as Exhibit A and incorporated herein by this reference. Employee shalt
exercise such power and authority and perform such other functions and duties, not
inconsistent with this Agreement, as Employer, by the City Manager, may legally assign.
SECTION 3: Compensation
A. Effective July 3, 2010, Employer agrees to pay Employee an Annual Base Salary
of $204,500.00 (Two Hundred and Four Thousand, Five Hundred Dollars). In the
event that the Newport Beach Police Management Association ("PMA") agrees to
a pre-tax payroll deduction for retirement contribution, that deduction shall apply
to Employee in the same percentage of base pay as it does to PMA employees
and for the same duration. This deduction from Employee's Annual Base Salary
is contemplated as an offset to a portion of the Employee's share paid by the City
to the California Public Employee Retirement System ("PERS" or "CaIPERS") for
the "3% at 50" retirement plan. This pre-tax payroll deduction is made pursuant
to IRS Code Section 414(h)(2). As currently contemplated, the deduction is
proposed at three and one-half percent (3.5%) of Annual Base Salary. Three
and one-half percent of Employee's Annual Base Salary amounts to $7,157.50
per year, resulting in an Annual Base Salary of $197,342.50 after the 3.5% pre-
tax payroll deduction described herein ("Adjusted Pre -Tax Salary'), Adjusted
Pre -Tax Salary shall also be subject to deduction and withholding of any and all
sums required for federal or state income tax, social security tax and all other
taxes, deductions or withholdings required by then current state, federal or local
law, prorated and paid on Employer's normal paydays for other management
employees. Employer shall also deduct sums Employee is obligated to pay
because of participation in plans or programs described in Section 4 of this
Agreement. This Agreement shall be deemed amended whenever the City
Council adopts a resolution changing the manner (but not the amount) in which
management employees are paid.
B. Employer, by the City Manager, shall conduct an initial evaluation of Employee's
performance promptly following the six (6) month anniversary of the Effective
Date of this Agreement, with annual evaluations beginning at the one year
anniversary of the Effective Date of this Agreement.
SECTION 4: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 30 days per year or 9.23 hours per
pay period. The amount of Employee's accrued Flex Leave may not exceed a
total of 648.18 hours, and no Flex Leave shall further accrue beyond the
maximum total of 648.18 hours. The right to sell back accumulated Flex Leave
Page 2 of 10
18-45
shall be consistent with the "Leave Sellback" provision of the Compensation
Plan.
B. Administrative Leave. Employee shall be entitled to eighty (80) hours of
administrative leave per calendar year. For the 2010 calendar year only,
Employee shall be entitled to forty (40) hours of administrative leave.
Administrative leave will not accrue from calendar year to calendar year and
must be used or lost at the conclusion of each calendar year. Consistent with the
Compensation Plan, there is no right to sell back any accumulated Administrative
Leave.
C. Holidays. Employee shall be entitled to twelve (12) paid holidays and one (1)
floating holiday per calendar year, as identified more specifically in section A of
the Leaves provision of the Compensation Plan.
D. Additional Benefits. Employee shall receive the same health insurance and
retirement benefits, and be entitled to participate in plans and programs such as
short term and long term disability plans, life insurance plans, and deferred
compensation plans, as are available to Executive Management employees of
the City, as provided in the Compensation Plan. Specifically:
1. City has implemented an IRS qualified Cafeteria Plan for certain
benefits as provided in section A of the "Benefits" portion of the
Compensation Plan. City's contribution towards the Cafeteria Plan for
Employee shall be One Thousand, Forty -Nine Dollars ($1,049.00) per
month. In addition, if Employee elects to participate in a City -
sponsored medical plan, Employee shall be entitled to the minimum
CaIPERS participating employer contribution toward medical
insurance, currently set at One Hundred and Five Dollars ($105.00)
per month for the 2010 calendar year, subject to annual adjustment on
January 1 of each succeeding year.
2. Employee shall be eligible for the "3% t@ 50" retirement formula noted
in section C(1) of the `Benefits" portion of the Compensation Plan.
3. Employee shall be eligible to participate in the LIUNA Supplemental
Pension program noted in section C(2) of the "Benefits" portion of the
Compensation Plan.
4. Employee shall be eligible to participate in the Medical Expense
Reimbursement Plan (MERP) noted in section D of the `Benefits"
portion of the Compensation Plan as a Category 1 employee hired
after January 1, 2006.
5. City shall provide term life insurance for Employee in the face value of
Fifty Thousand Dollars ($50,000.00).
Page 3 of 10
This Agreement shall be deemed amended as to these benefits, and these benefits
only, whenever the City Council adopts a resolution or takes action changing these
benefits under the Compensation Plan.
E. Annual Physical Exam. Employee shall undergo an annual physical examination
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of One Thousand Dollars
($1,000.00).
F. Uniform Allowance. Employer shall provide Employee an annual allowance of
One Thousand, Three Hundred Fifty Dollars ($1,350.00) toward the cost of
Employee's official Newport Beach Police Department police uniforms and
related equipment, which amount shall be allocated to Employee in equal
installments included in his biweekly paycheck and which shall be reported to
PERS as additional compensation paid to Employee.
G. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee
with a vehicle that may be used for City -related business purposes. City
anticipates that the vehicle provided to Employee may be a Chevy Tahoe, but the
make and model of the vehicle shall remain in the City's sole discretion. City
shall pay for reasonable maintenance of the vehicle and gasoline. It is
contemplated by the parties that Employee will use the vehicle principally for
City -related business, however, to the extent that Employee uses the vehicle for
any incidental personal business, Employee shall pay for gasoline for all such
personal use.
H. City to Provide Cell Phone. City shall provide a City -owned cell phone for
Employee's use for City -related business purposes, which shall be similar to cell
phones and use plans provided to City's Key and Management employees.
Employee acknowledges that City may change the manner in which it provides
cell phone access to Key and Management employees, which may include a
change in policy to provide a cell phone allowance to such employees, and
Employee understands that he will be subject to any such change in City's policy.
I. Key and Management Group, Executive Management Category. Employee shall
be a member of the City's Key and Management Group, Executive Management
category. As such, the benefits, terms and conditions of the Compensation Plan
shall apply to Employee as provided more specifically above, provided however,
in the event of a conflict between the provisions of this Agreement and the
Compensation Plan, this Agreement shall prevail.
Page 4 of 10
18-47
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees to either pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Manager. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, airfare (where applicable), ground transportation and meals.
Reasonable expenses will also include the reasonable and actual cost of lodging
for meetings outside of Orange County.
C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Manager. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and Newport Beach Municipal
Code Chapter 2.12.020, Employee is appointed by, and serves at the pleasure
of, the City Manager. Nothing in this Agreement shall prevent, limit or otherwise
interfere with the right of Employer to terminate this Agreement and the
employment of Employee at any time, with or without cause. Employer shall pay
Employee for all services through the Effective Date of termination and Employee
shall have no right to any additional compensation or payment, except as
provided in Section 7, below. Nothing herein shall be construed to limit the rights
and obligations of City and Employee provided in the Public Safety Officers
Procedural Bill of Rights Act, codified at Government Code section 3300, et seq.
("POBAR").
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer.
Page 5 of 10
SECTION 7: Severance and Benefit Payoff at Termination
A. If Employer terminates this Agreement (thereby terminating Employee's
Employment) without cause, as determined by the City Manager, Employer shall
provide Employee with fourteen (14) calendar days written notice and shall pay
Employee severance as follows:
If termination is effective on or before July 3, 2012, Employer shall pay
Employee a lump sum severance benefit equal to twelve (12) months of
his then applicable Annual Base Salary, and provide twelve (12) months of
medical benefits as provided under the Compensation Plan beginning on
the Effective Date of termination.
2. If termination is effective on July 4, 2012 or any date thereafter, Employer
shall pay Employee a lump sum severance benefit equal to six (6) months
of his then applicable Annual Base Salary, and provide six (6) months of
medical benefits as provided under the Compensation Plan beginning on
the Effective Date of termination.
B. If Employer terminates this Agreement (thereby terminating Employee's
Employment) with cause, as determined by the City Manager, Employee shall
not be entitled to any severance. As used in this Agreement, cause shall mean
any of the following:
Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Willful abandonment of duties;
4. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted direction of the City Manager or the
policy decisions of the City Council made by the City Council as a body;
and
5. Any other intentional or grossly negligent action or inaction by Employee
that materially and substantially: (a) impedes or disrupts the operations of
Employer or its organizational units; (b) is detrimental to Employee or
public safety; (c) violates properly established rules or procedures of
Employer causing a material and substantial adverse impact on Employer;
or (d) has a material and substantial adverse effect on Employer's
interests as clearly defined and delineated by properly established City
Council action taken by the Council as a body, policy, regulations,
ordinances, or Charter provisions of Employer.
Page 6 of 10
C. Any dispute as to whether severance is excused under Section 7, Paragraph B
above, shall be resolved consistent with then current City policies, rules and
procedures and with Employer's and Employee's rights and obligations under
POBAR.
D. If Employee terminates this Agreement (thereby terminating Employee's
Employment), Employee shall not be entitled to any severance.
E. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accred
but unused administrative leave.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including occasional as -needed attendance at City
Council meetings). Employee's base salary includes compensation for all hours worked
and Employee shall be classified as an exempt employee for purposes of overtime and
shall not be entitled to any form of compensation for overtime. In recognition of the
significant time Employee will need to devote outside normal office hours to business
activities of Employer and the exempt, salaried nature of the employment, employee is
permitted to exercise a flexible work schedule. However, consistent with this flexibility
and Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at the Newport Beach Police Department, Monday
through Friday during normal business hours.
SECTION 9: Confidentiality
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City. All Confidential Information shall be promptly returned to
the City immediately upon the effective date of any severance of employment.
B. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
Page 7 of 10
18-50
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
With a courtesy copy to:
City Attorney
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
Page 8 of 10
18-51
(2) EMPLOYEE: Jay Johnson
at the home address then shown in Employer's files
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable in civil judicial practice. Notice shall be deemed given
as of the date of personal service or as of the date of deposit of such written notice in
the course of transmission in the United States Postal Service as provided by law.
SECTION 14: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive
agreement between Employer and Employee relating to the employment of
Employee by Employer. Any prior discussions or representations by or between
the parties are merged into this Agreement or are otherwise rendered null and
void. The parties by mutual written agreement may amend any provision of this
Agreement during the life of the Agreement. Such amendments shall be
incorporated and made a part of this Agreement. The foregoing notwithstanding,
Employee acknowledges that, except as expressly provided in this Agreement,
his employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Manager.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
Page 9 of 10
18-52
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: C"yt
Dav—iiifff, City Manager
Date: (r2 --_'3O >rot'n�
APPROVED AS TO FORM
Office of the City Attorney
By:
yne . Be champ,
Assistant City Morney
Date: dt bo
ATTEST:
(� n
By: V�
Leilani Brown,
City Clerk
EMPLOYEE
,moi.
,►
&-28-2.0(0
A f 0-00033 —Johnson Employment 06.26.10 CLEW MOSIGM
Page 10 of 10
18-53
CITY OF NEWPORT BEACH
POLICE CHIEF
DEFINITION: Under direction of the City Manager, the Police Chief is responsible for
the administration, development, and advancement of the City's full service Police
Department; to oversee and implement all programs and procedures related to crime
prevention, law enforcement, and related policing services; to serve as a member of the
City Manager's Executive Management Team; and to provide highly responsible and
professional staff assistance to the City Manager and City Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative
direction from the City Manager. Exercises general supervision over the entire
department and direct supervision over division managers and
professional/administrative support staff.
CLASSIFICATION CHARACTERISTICS: The Police Chief is expected to exercise
independent judgment, wisdom, and innovation in establishing and administering all
Police Department operations, consistent with the City Manager's expectations and with
concern for the entire City government organization. As an inspiring leader, the Police
Chief must demonstrate integrity and promote ethical standards within the department,
advocate collaboration with the community, and be a team member with the City
organization. The Police Chief must be politically astute, but apolitical.
EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the
following:
Essential Job Duties
• Advancing the interests of the department and the City, plans, directs, and
oversees a variety of programs designed for the maintenance of law and order and
protection of life and property within the City of Newport Beach; develops
comprehensive plans to satisfy needs for departmental services to ensure the
highest possible quality of life for residents and visitors;
• Ensuring the optimum and most efficient and effective use of staffing and
resources, administers the overall operation of a full service police department,
including hiring, personnel administration, office operations, budgeting, and
community relations; serves as a member of the City's Executive Management
Team and collaborates with other departments to resolve city-wide problems;
• Demonstrating a strong working knowledge of the legal system, confers with legal
advisors and City officials regarding law enforcement issues; provides professional
and technical advice and assistance to the City Manager and City Council on
matters related to law enforcement services; represents the City as a witness in
18-54
legal proceedings;
• Exhibiting exceptional communication skills, prepares and presents staff reports
and related materials for City Council or public response; resolves issues raised by
City Council members, community groups, employee associations, and the public;
advocates the City's position in negotiations with various regulatory agencies to
satisfy requirements;
• Building cohesive and collaborative departmental working relationships, plans,
organizes, selects and supervises the work of departmental staff; establishes
accountability throughout the department; promotes employee development
through staff training and succession planning; ensures consistent application of
City personnel policies and employee agreements;
• Demonstrating stewardship of public funds, directs the preparation and
administration of the Police Department budget; participates in the forecast of
revenue, expenses and additional funds needed; guides subordinate managers in
developing and administering fiscally responsible budgets; carries out police
functions in the most cost effective ways;
Promoting a strong community policing program, establishes and maintains
collaborative working relationships with property owners, community groups,
business districts, and the public; represents the Police Department and the City at
community and civic events; and
• Performs related duties as assigned.
QUALIFICATIONS: To perform this job successfully, an individual must be able to perform
each essential function. The requirements listed below are representative of the knowledge,
skill, and/or ability required.
Knowledge, of:
Advanced principles and practices
including criminal investigation anc
control, records management, care
environmental protection;
of crime prevention and law enforcement,
identification, patrol, traffic control, animal
and custody of persons and property and
Principles and practices of organization, administration and personnel
management, and leadership of a law enforcement agency;
Principles and techniques of municipal budget development and administration;
Applicable Federal, State and local laws, ordinances, codes and regulations;
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Principles of supervision, training and performance evaluation;
Current technological and communication equipment and software applicable to the
delivery of departmental services to internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
Ability to:
Effectively direct, plan and organize the activities of a comprehensive city-wide
full service police department;
Critically analyze problems, identify alternative solutions, and implement
recommendations in support of goals;
Understand the needs of a tourism -based community and its impact on public
safety;
Promote collaboration and innovation;
Provide a stabilizing influence during periods of change;
Weigh risks and consequences and make clear decisions;
Equitably interpret and apply City policies, procedures, rules and regulations;
Diffuse conflict and gain cooperation through discussion and persuasion;
Motivate, select, supervise, and evaluate personnel;
Promote fiscal responsibility in administering a departmental budget;
Develop and maintain effective partnerships with community groups;
Build loyalty within the organization and advocate accessibility and
responsiveness to the community;
Effectively and persuasively communicate, both orally and in writing; and
Establish and maintain cooperative working relationships with those contacted in
the course of work.
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EXPERIENCE AND TRAINING: Any combination of experience and training that would
likely provide the required knowledge and abilities is qualifying. A typical way to obtain
the knowledge and abilities would be:
Experience: Seven years of increasingly responsible managerial and
supervisory law enforcement experience, including at least three years at the
rank of Captain or above.
Training: Equivalent to completion of a Bachelor's degree in criminal justice, law,
management, public administration, business administration, or a related field
from an accredited college or university. A Master's degree or Juris Doctorate is
desirable.
LICENSE OR CERTIFICATE:
Possession of P.O.S.T. Management Certificate at time of appointment. Possession of
P.O.S.T Executive Certificate desirable.
Possession of a valid California driver's license.
Completion of Federal Bureau of Investigation's National Academy is desirable.
Additional Requirement: Prior to employment, the prospective candidate must
successfully complete a thorough background review, including being fingerprinted by
Newport Beach Police Department.
Key and Management Group — Executive Management
Revised BR 2/2007
Revised MWD: 2/17/2010 & CSB Approved 3/1/10
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Attachment D
EMPLOYMENT AGREEMENT
FOR LAURENCE SCOTT POSTER
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of
February 6, 2012 and is entered into by and between the CITY OF NEWPORT BEACH,
a California municipal corporation and Charter city ("Employer" or "City") and
LAURENCE SCOTT POSTER ("Employee"), an individual.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. Pursuant to Sections 504(a) and 600 of the City Charter, and in accordance with
Newport Beach Municipal Code ("NBMC") section 2.24.100, the City Manager has
directed an open recruitment and screened all qualified applicants and other
qualified persons known by the City Manager to be available for the position of Fire
Chief.
C. Following an open recruitment and an extensive competitive examination,
interviewing, and screening process of numerous candidates, the City Manager
believes Employee to be the best qualified on the basis of executive and
administrative qualifications, with special reference to the experience and
knowledge of accepted practice with respect to the duties of the Fire Chief as
contemplated by and in conformity with NBMC section 2.24.100 and Civil Service
Board Rules & Regulations ("CSBR&R") section 701.
D. The City desires to employ Employee as its Fire Chief and to enter into an
Agreement with Employee upon the terms and conditions in this Agreement.
E. Employee is willing to accept such employment on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
SECTION 1: Term
Unless sooner terminated as provided in this Agreement, this Agreement shall be
effective from February 6, 2012 ("Effective Date") and shall continue until Employer or
Employee terminate this Agreement under the terms provided herein.
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SECTION 2: Duties and Authority
Employer agrees to employ Employee as the Fire Chief to exercise the powers and
authority and to perform the functions and duties of that position as specified in the City
Charter and NBMC and all relevant resolutions, rules, regulations, procedures, and
state codes, as they currently or may in the future exist, specifically including but not
limited to those set forth in the "Fire Chief' description attached hereto as Exhibit A and
incorporated herein by this reference. Employee shall exercise such power and
authority and perform such other functions and duties, not inconsistent with this
Agreement, as Employer, by the City Manager, may legally assign.
SECTION 3: Compensation
A. On the Effective Date of this Agreement, Employer agrees to pay Employee an
Annual Base Salary of $204,984.00 (Two Hundred and Four Thousand, Nine
Hundred Eighty Four Dollars and Zero Cents). In the event the Newport Beach
Fire Management Association ("FMA") agrees to any contribution toward
retirement greater than the three and one-half percent (3.5%) referenced below
including, but not limited to, contributions made toward the CalPERS benefit
pursuant to Government Code Section 20678, this Agreement shall be deemed
amended and Employee will be subject to the same formula or percentage
contribution as it applies to FMA employees and for the same duration. This
deduction from Employee's Annual Base Salary is contemplated as an offset to a
portion of the Employee's share paid by the City to the California Public
Employee Retirement System ("PERS" or "CalPERS") for the "3% at 50"
retirement plan. This pre-tax payroll deduction is made pursuant to IRS Code
Section 414(h)(2). The deduction is currently at three and one-half percent
(3.5%) of Employees Annual Base Salary. Three and one-half percent of
Employee's Annual Base Salary amounts to $7,174.44 per year, resulting in an
Annual Base Salary of $197,809.56 after the 3.5% pre-tax payroll deduction
described herein ("Adjusted Pre -Tax Salary"). ' Adjusted Pre -Tax Salary shall also
be subject to deduction and withholding of any and all sums required for federal
or state income tax, social security tax and all other taxes, deductions or
withholdings required by then current state, federal or local law, prorated and
paid on Employer's normal paydays for other management employees.
Employer shall also deduct sums Employee is obligated to pay because of
participation in plans or programs described in Section 4 of this Agreement. This
Agreement shall be deemed amended whenever the City Council adopts a
resolution changing the manner (but not the amount) in which management
employees are paid.
B. Employer, by the City Manager, shall conduct an initial evaluation of Employee's
performance promptly following the six (6) month anniversary of the Effective
Date of this Agreement, with annual evaluations beginning at the one year
anniversary of the Effective Date of this Agreement.
Laurence Scott Poster Employment Agreement Page 2
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SECTION 4: Employee Benefits
A. Flex Leave. Employee shall accumulate Flex Leave as provided in the City's Key
and Management Compensation Plan, Executive Management category
("Compensation Plan"), at the current rate of 30 days per year or 9.23 hours per
pay period. The amount of Employee's accrued Flex Leave may not exceed a
total of four hundred (400) hours, and no Flex Leave shall further accrue beyond
the maximum total of four hundred (400) hours. Upon Employee's first day of
employment with the City, Employee will receive a bank of one hundred (100)
Flex Leave hours. The right to sell back accumulated Flex Leave shall be
consistent with the Leave Sellback" provision of the Compensation Plan.
B. Administrative Leave. Employee shall be entitled to a minimum of forty (40)
hours and a maximum of eighty (80) hours of administrative leave per calendar
year, as determined by the City Manager in his or her sole discretion. For
calendar year 2012, Employee shall be allocated seventy-four (74) hours of
administrative leave. Administrative leave will not accrue from calendar year to
calendar year and must be used or lost at the conclusion of each calendar year.
Consistent with the Compensation Plan, there is no right to sell back any
accumulated Administrative Leave.
C. Holidays. Employee shall be entitled to eleven (11) paid holidays and one (1)
floating holiday, for a total of twelve (12) paid holidays, per calendar year, as
identified more specifically in section A of the Leaves provision of the
Compensation Plan.
D. Additional Benefits. Employee shall receive the same health insurance and
retirement benefits, and be entitled to participate in plans and programs such as
short term and long term disability plans, life insurance plans, and deferred
compensation plans, as are available to Executive Management employees of
the City, as provided in the Compensation Plan. Specifically:
1. City has implemented an IRS qualified Cafeteria Plan for certain
benefits as provided in section A of the "Benefits" portion of the
Compensation Plan. City's contribution towards the Cafeteria Plan for
Employee shall be One Thousand, Two Hundred Forty -Nine Dollars
($1,249.00) per month. Any unused Cafeteria Plan funds shall be
payable to Employee as taxable cash back. If Employee does not
want to enroll in any health insurance plan offer by the City, Employee
shall provide evidence of group medical insurance coverage that is
acceptable to the City and execute an opt -out agreement releasing the
City from any responsibility or liability to provide health insurance
coverage on an annual basis. In addition, if Employee elects to
participate in a City -sponsored medical plan, Employee shall be
entitled to the minimum CalPERS participating employer contribution
toward medical insurance, currently set at One Hundred and Twelve
Laurence Scott Poster Employment Agreement Page 3
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Dollars ($112.00) per month for the 2012 calendar year, subject to
annual adjustment on January 1 of each succeeding year in
accordance with the Compensation Plan. The City's contributions set
forth in this paragraph shall adjust automatically to correspond to the
City's contributions to Executive Management as set forth in the
Compensation Plan.
2. Employee shall be eligible for the "3% @ 50" retirement formula noted
in section C(1) of the "Benefits" portion of the Compensation Plan.
3. Employee shall be eligible to participate in the LIUNA Supplemental
Pension program noted in section C(2) of the "Benefits" portion of the
Compensation Plan.
4. Employee shall be eligible to participate in the Medical Expense
Reimbursement Plan (MERP) noted in section D of the "Benefits"
portion of the Compensation Plan as a Category 1 employee hired
after January, 1, 2006.
5. City shall provide term life insurance for Employee in the face value of
Fifty Thousand Dollars ($50,000.00).
This Agreement shall be deemed amended as to these benefits, and these benefits
only, whenever the City Council adopts a resolution or takes action changing these
benefits under the Compensation Plan.
E. Annual Physical Exam. Employee shall undergo an annual physical examination
by a Board-certified medical doctor and City shall reimburse Employee for the
actual cost of the examination up to a maximum of One Thousand Dollars
($1,000.00).
F. Uniform Allowance. Employer will pay the entire costs of providing, each
component of the uniform and will report the value of the same as One
Thousand, Seven Hundred Nineteen Dollars ($1,719.00) to PERS as additional
compensation paid to Employee.
G. City to Provide Automobile. Employee's duties require him to be available to
respond to the demands of City business at all times and outside of regular
business hours, including weekends. Therefore, City shall provide Employee
with a vehicle that may be used for City -related business purposes. City shall
periodically assess the condition of the assigned vehicle and, if warranted, City
will replace the assigned vehicle. City shall pay for reasonable maintenance of
the vehicle and gasoline. It is contemplated by the parties that Employee will use
the vehicle principally for City -related business, however, to the extent that
Employee uses the vehicle for any incidental personal business, Employee shall
pay for gasoline for all such personal use.
Laurence Scott Poster Employment Agreement Page 4
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H. City Cell Phone Stipend. Employee shall be eligible to receive a cell phone
stipend pursuant to City's Administrative Procedure AP -004 — Cell Phone Stipend
Program Policy.
Key and Management Group, Executive Management Category. Employee shall
be a member of the City's Key and Management Group, Executive Management
category. As such, the benefits, terms and conditions of the Compensation Plan
shall apply to Employee as provided more specifically above, provided however,
in the event of a conflict between the provisions of this Agreement and the
Compensation Plan, this Agreement shall prevail.
SECTION 5: General Business Expenses
A. Employer recognizes that Employee may incur expenses of a non -personal, job
related nature that are reasonably necessary to Employee's service to Employer.
Employer agrees to either pay such expenses in advance or to reimburse the
expenses, so long as the expenses are incurred and submitted according to
Employer's normal expense reimbursement procedures or such other procedure
as may be designated by the City Manager. To be eligible for reimbursement, all
expenses must be supported by documentation meeting Employer's normal
requirements and must be submitted within time limits established by Employer.
B. Employer agrees to budget and to reimburse or pay for reasonable costs for
attendance and participation in meetings, institutes, training programs,
conferences, conventions and similar gatherings that support leadership
development and the advancement of Employer and Employee's mutually
agreed upon goals, and which are related to Employee's duties or Employer's
operations and held in the continental United States. For purposes of this
paragraph, reasonable expenses are limited to the reasonable and actual cost of
registration, airfare (where applicable), ground transportation and meals.
Reasonable expenses will also include the reasonable and actual cost of lodging
for meetings outside of Orange County.
C. The expenses to be budgeted and paid in this Section 5, Paragraphs A and B
above, are exclusive of reasonable expenses related to events, participation in
organizations, or attendance at events or meetings on behalf of the City as
required by the City Manager. Employer will separately budget and pay for
membership and participation in community, civic or other organizations or
events in which Employer requires Employee to participate.
SECTION 6: At -Will Employment Relationship
A. Consistent with Section 504 of the City Charter and NBMC Chapter 2.12,
Employee is appointed by, and serves at the pleasure of, the City Manager.
Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
Laurence Scott Poster Employment Agreement Page 5
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of Employer to terminate this Agreement and the employment of Employee at
any time, with or without cause. Employer shall pay Employee for all services
through the Effective Date of termination and Employee shall have no right to any
additional compensation or payment, except as provided in Section 7, below. In
addition to the basis listed in Section 7, Paragraph B below, cause shall also
include a failure to implement the goals or policies, or both, of the City, as
determined by the City Council or City Manager, or for reasons including, but not
limited to, incompatibility of management styles or as a result of a change in
administration. Nothing herein shall be construed to limit the rights and
obligations of City and Employee provided in the Firefighters Procedural Bill of
Rights Act, codified at Government Code section 3250, et seq. ("FPBRA").
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right
of Employee to resign from his employment with Employer.
SECTION 7: Severance and Benefit Payoff at Termination
A. If Employer terminates this Agreement (thereby terminating. Employee's
Employment) for any reason other than one or more of those reasons listed in
Section 7, Paragraph B below, as determined by the City Manager, Employer
shall provide Employee with fourteen (14) calendar days written notice and shall
pay Employee a lump sum severance benefit equal to six (6) months of his then
applicable Annual Base Salary, and provide six (6) months of medical benefits as
provided under the Compensation Plan beginning on the Effective Date of
termination.
B. If Employer terminates this Agreement (thereby terminating Employee's
Employment) for any reason or reasons listed below, as determined by the City
Manager, Employee shall not be entitled to any severance.
1. Conviction of a felony;
2. Conviction of a misdemeanor arising out of Employee's duties under this
Agreement and involving a willful or intentional violation of law;
3. Conviction of any crime involving an "abuse of office or position," as that
term is defined in Government Code section 53243.4;
4. Willful abandonment of duties;
5. A pattern of repeated, willful and intentional failure to carry out materially
significant and legally constituted direction of the City Manager or the
policy decisions of the City Council made by the City Council as a body;
and
Laurence Scott Poster Employment Agreement Page 6
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6. Any other intentional or grossly negligent action or inaction by Employee
that materially and substantially: (a) impedes or disrupts the operations of
Employer or its organizational units; (b) is detrimental to Employee or
public safety; (c) violates properly established rules or procedures of
Employer causing a material and substantial adverse impact on Employer;
or (d) has a material and substantial adverse effect on Employer's
interests as clearly defined and delineated by properly established City
Council action taken by the Council as a body, policy, regulations,
ordinances, or Charter provisions of Employer.
C. Any dispute as to whether severance is excused under Section 7, Paragraph B
above, shall be resolved consistent with then current City policies, rules and
procedures and with Employer's and Employee's rights and obligations under
FPBRA.
D. If Employee terminates this Agreement (thereby terminating Employee's
Employment), Employee shall not be entitled to any severance.
E. Upon termination (regardless of reason), Employee shall be compensated for all
accrued but unused Flex Leave. No compensation shall be paid for any accrued
but unused administrative leave.
SECTION 8: Employee's Obligations and Hours of Work
Employee shall devote his full energies, interest, abilities and productive time to the
performance of this Agreement and utilize his best efforts to promote Employer's
interests. Employee's duties may involve expenditures of time in excess of the regularly
established workday or in excess of a forty (40) hour workweek and may also include
time outside normal office hours (including attendance at City Council meetings).
Employee's base salary includes compensation for all hours worked and Employee shall
be classified as an exempt employee for purposes of overtime and shall not be entitled
to any form of compensation for overtime. In recognition of the significant time
Employee will need to devote outside normal office hours to business activities of
Employer and the exempt, salaried nature of the employment, employee is permitted to
exercise a flexible work schedule. However, consistent with this flexibility and
Employee's participation in activities out of the office, Employee will generally be
expected to keep office hours at the Newport Beach Fire Department, Monday through
Friday during normal business hours.
SECTION 9: Confidentiality
A. Employee acknowledges that in the course of his employment contemplated
herein, Employee will be given or will have access to confidential and proprietary
documents and information, relating to the City, its residents, businesses,
employees, and customers ("Confidential Information"). Such Confidential
Information may include, but is not limited to, all information given to or otherwise
Laurence Scott Poster Employment Agreement Page 7
S18-64
accessible to Employee that is not public information or would be exempt from
public disclosure as confidential, protected, exempt or privileged information.
Employee shall hold the Confidential Information in trust for City's benefit, and
shall not disclose the Confidential Information to others without the express
written consent of City. All Confidential Information shall be promptly returned to
the City immediately upon the effective date of any severance of employment.
B. The obligations of Employer and Employee under this Section 9 shall survive the
termination of this Agreement.
SECTION 10: Outside Activities
Employee shall not engage in any activity, consulting service or enterprise, for
compensation or otherwise, which is actually or potentially in conflict with or inimical to,
or which materially interferes with his duties and responsibilities to Employer.
SECTION 11: Indemnification
Consistent with the California Government Code, Employer shall defend and indemnify
Employee, using legal counsel of Employer's choosing, against expense or legal liability
for acts or omissions by Employee occurring within the course and scope of Employee's
employment under this Agreement. In the event there is a conflict of interest between
Employer and Employee in such a case so that independent counsel is required for
Employee, Employer may select the independent counsel after having considered the
input of Employee and shall pay the reasonable fees of such independent counsel
consistent with City litigation guidelines and standard rates received by City from its
chosen special counsel.
Notwithstanding the foregoing, and consistent with Assembly Bill 1344, adding Article
2.6 (commencing with Section 53243), of Chapter 2 of Part 1 of Division 2 of Title 5 of
the Government Code, Employee shall be required, if convicted of a crime involving an
abuse of his office or position, to fully reimburse the City for: (1) any paid leave salary
offered by the City to the Employee; (2) any funds provided for the legal criminal
defense of the Employee; (3) any cash settlement related to the termination that
Employee may receive; and (4) any other payments received by Employee from City
that in any way relate to the foregoing.
SECTION 12: Other Terms and Conditions of Employment
Employer may fix other terms and conditions of employment, as it may determine from
time to time, relating to the performance of the Employee, provided such terms and
conditions are not inconsistent with or in conflict with the provisions of this Agreement or
applicable law.
Laurence Scott Poster Employment Agreement Page 8
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SECTION 13: Notices
Notice pursuant to this Agreement shall be given by depositing written notification in the
custody of the United States Postal Service, postage prepaid, addressed as follows:
(1) EMPLOYER:
City of Newport Beach
c/o City Clerk
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92658-8915
With a courtesy copy to:
City Attorney
City of Newport Beach
3300 Newport Blvd.
PO Box 1768
Newport Beach, California 92668-8915
(2) EMPLOYEE: Laurence Scott Poster
at the home address then shown in Employer's files
Alternatively, notice required pursuant to this Agreement may be personally served in
the same manner as is applicable in civil judicial practice. Notice shall be deemed given
as of the date of personal service or as of the date of deposit of such written notice in
the course of transmission in the United States Postal Service as provided by law.
SECTION 14: General Provisions
A. Integration: This Agreement sets forth the final, complete and exclusive
agreement between Employer and Employee relating to the employment of
Employee by Employer. Any prior discussions or representations by or between
the parties are merged into this Agreement or are otherwise rendered null and
void. The parties by mutual written agreement may amend any provision of this
Agreement during the life of the Agreement. Such amendments shall be
incorporated and made a part of this Agreement. The foregoing notwithstanding,
Employee acknowledges that, except as expressly provided in this Agreement,
his employment is subject to Employer's generally applicable rules and policies
pertaining to employment matters, such as those addressing equal employment
opportunity, sexual harassment and violence in the workplace, as they currently
or may in the future exist, and his employment is, and will continue to be, at the
will of the City Manager.
B. Binding Effect: This Agreement shall be binding on the Employer and the
Employee as well as their heirs, assigns, executors, personal representatives
and successors in interest.
Laurence Scott Poster Employment Agreement Page 9
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C. Choice of Law: This Agreement shall be interpreted and construed pursuant to
and in accordance with the laws of the State of California and all applicable City
Charter provisions, Codes, Ordinances, Policies and Resolutions.
D. Severability: if any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all other
circumstances.
E. Employee's Independent Review: Employee acknowledges that he has had the
opportunity and has conducted an independent review of the financial and legal
effects of this Agreement. Employee acknowledges that he has made an
independent judgment upon the financial and legal effects of this Agreement and
has not relied upon any representation of Employer, its officers, agents or
employees other than those expressly set forth in this Agreement. Employee
acknowledges that he has been advised to obtain, and has availed himself of,
legal advice with respect to the terms and provisions of this agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates reflected below each signature.
EMPLOYER
CITY OF NEWPORT BEACH,
A California Municipal Corporation
By:
David- iff, City Manager
Date: I -- 1r3- D--0I'L
APPROVED AS TO FORM
City Attorney's Office
By:
Aaron C. Harp,
City Attorney
Date: HI
ATTEST: 0
Ty
-f/By:
,'`Leifani I. Brown,
EMPLOYEE
Laurence Scott Poster
Date: i� I
Laurence Scott Poster Employment Agreement Page 10
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City Clerk
ATTACHMENTS: Exhibit A: Fire Chief Description
A10-01358 — Scott Poster Employment Agreement
Laurence Scott Poster Employment Agreement Page 11
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FIRE CHIEF
DEFINITION: To serve as the executive director of the Fire Department; to plan, organize, direct
and coordinate the fire suppression and prevention, emergency medical services, ocean safety,
hazardous waste mitigation, and disaster preparedness programs and activities of the
department; to serve as a member of the City Manager's executive management team; and to
provide highly responsible and professional staff assistance to the City Manager and City
Council.
SUPERVISION RECEIVED AND EXERCISED: Receives general administrative direction from
the City Manager. Exercises direct supervision over management, supervisory, professional,
technical and clerical personnel.
EXAMPLES OF ESSENTIAL DUTIES: Duties may include, but are not limited to, the following:
Essential Job Duties
Plan, direct, and review the operation, services and activities of the Fire Department,
including fire suppression, hazardous material mitigation, fire and life safety code
compliance, emergency medical services, ocean lifeguards, citywide disaster
preparedness and response; administer the overall operation of the department, including
hiring, personnel administration, budgeting, and community relations; assess community
service expectations and requirements and develop appropriate methods to meet service
requirements; ensure the maximum utilization of manpower, equipment, and supplies;
Develop, plan and implement departmental goals and objectives; develop, recommend
and administer approved policies and procedures; coordinate departmental activities with
those of other City departments and outside agencies and organizations; provide
professional and technical advice and assistance to the City Manager and City Council on
matters related to departmental functions; Prepare and present staff reports and answer
questions;
Plan, organize, select and supervise the work of departmental staff; coach, motivate,
monitor, correct and evaluate staff performance; serve as the second level supervisor of
staff supervised by division managers and review performance evaluations prepared by
subordinate managers; develop and implement staff training programs and plans;
recommend employee recognition, discipline and termination; ensure that City personnel
policy and employee agreements are implemented and applied consistently within the
department;
Supervise and participate in the development of the departmental budget; participate in
the forecast of revenue, expenses and additional funds needed for staffing, equipment,
materials, and supplies; administer the approved departmental budget and guide
subordinate managers in developing and administering division and unit budgets;
o Represent the City and participate in professional and public meetings and organizations,
as appropriate; attend staff meetings; participate in mandated training and staff
development; respond to and meet with property owners, homeowner groups, business
Laurence Scott Poster Employment Agreement Page 13
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districts, and the public; meet with, provide information and negotiate with various
regulatory agencies to satisfy their requirements; represent the City as a witness in legal
actions;
Oversee and direct departmental office operations; maintain appropriate records and files;
coordinate workflow; prepare reports, agenda items memoranda, letters and other forms of
correspondence; and
V Perform related duties as assi
QUALIFICATIONS:
Knowledge of:
Advanced principles and practices of fire suppression and prevention, emergency
medical services, disaster preparedness, training, and ocean lifeguard programs and
services;
Principles and practices of organization, administration and personnel management and
leadership, particularly as applied to the analysis and evaluation of programs, policies
and operational needs;
Principles and techniques of budget development and administration;
Applicable Federal, State and local laws, ordinances, codes and regulations;
Principles of supervision, training and performance evaluation;
Current technological and communication equipment and software applicable to the delivery
of departmental services to internal and external customers;
Modern office practices, procedures, methods and equipment; and
The use of a PC and applicable software.
Ability to:
Direct, plan and organize the activities of a comprehensive citywide Fire Department,
including fire suppression and prevention, emergency medical services, disaster
preparedness, personnel training, and ocean lifeguard programs and services;
Analyze problems; identify alternative solutions, project consequences of proposed
actions and implement recommendations in support of goals;
Interpret and apply City policies, procedures, rules and regulations;
Develop and administer sound departmental policies and procedures;
Laurence Scott Poster Employment Agreement Page 14
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Stay abreast of new trends, innovations, standards and guidelines in the fields of fire
suppression and prevention, emergency medical services, disaster preparedness,
hazardous material mitigation and ocean lifeguard services and safety;
Provide leadership to a diverse work force; meeting City objectives while maintaining
positive employee morale;
Gain cooperation through discussion and persuasion;
Select, supervise, train and evaluate personnel;
Prepare and administer a departmental budget;
Maintain confidentiality of medical and other privileged information;
Communicate clearly and concisely, both orally and in writing;
Appear for work on time;
Fallow directions from a supervisor;
Understand and follow posted work rules and procedures;
Accept constructive criticism; and
Establish and maintain cooperative working relationship with those contacted in the
course of work.
This position may be required to work overtime hours as needed.
EXPERIENCE AND TRAINING: Any combination of experience and training that would likely
provide the required knowledge and abilities is qualifying. A typical way to obtain the knowledge
and abilities would be:
Experience: Ten years of increasingly responsible fire suppression and prevention
experience, including at least five years of responsible management and supervisory
experience.
Training: Completion of coursework leading to a bachelor's degree in fire administration
or a closely related field. A master's degree in public administration, fire administration
or a related field is desirable.
LICENSE OR CERTIFICATE:
Possession of, or ability to obtain, a valid and appropriate California driver's license is required.
Laurence Scott Poster Employment Agreement Page 15
S18-72