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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of December 2, 2024 by and between the CITY OF BARSTOW, California, a Municipal Corporation, hereinafter called the “City” or “Employer,” and Andrew Espinoza, Jr. hereinafter called “Employee.”
RECITALS
WHEREAS, the City thanks Employee for his service as Interim City Manager, Director of Public Safety, and Policy Chief; and
WHEREAS, the City having employed a permanent City Manager, now desires, to retain the services of Employee in the position of Police Chief, and Employee desires employment as Police Chief for the City of Barstow; and
WHEREAS, the City Council further desires to:
1) Retain the services of Employee as Police Chief.
2) Encourage the highest standards of fidelity and public service on the part of Employee.
3) Provide a just means for terminating Employee’s employment and this Agreement if and when City and Employee may desire to do so.
WHEREAS, the parties further desire to establish the Employee’s conditions of employment.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained the parties agree as follows:
1. Duties. Pursuant to Section 3(b) of City and Employee’s February 5, 2024 Employment Agreement for City Manager services, as amended, and within the City’s power under the Barstow Municipal Code and applicable law, Employee is hereby reinstated and shall resume his duties as the Police Chief with all the rights and protections of that position, with an effective date as of the date of appointment of a permanent City Manager. Employee shall perform the functions and duties of the Police Chief as specified in the City’s Municipal Code and applicable state law and to perform such other legally permissible and proper duties and functions as the City Manager may assign to Employee. Employee agrees to perform faithfully, industriously, and to the best of Employee’s ability, experience, and talents, all of the duties and functions required and expected of Employee, to the reasonable satisfaction of the City Manager.
2. Hours of Work. Employee is an exempt employee under the Fair Labor Standards Act and shall maintain a regular work schedule as set by the City Manager. Employee’s duties may involve expenditures of time in excess of forty (40) hours per week and may also include time outside normal office hours such as attendance at City Council meetings or as needed to respond to emergencies. Employee shall be exempt from paid overtime compensation and shall not be entitled to additional compensation for such time. To ensure responsiveness in the event of an emergency, Employee agrees to reside within sixty minutes’ response time to City Hall. - 2 -
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3. Term. The term of this Agreement is for three (3) years. This Agreement shall terminate three years after the effective date, unless extended or amended by the parties under Section 5 or terminated earlier under Section 16.
4. Exclusivity. Employee agrees to remain in the exclusive employment of the Employer during the term of this Agreement. Employee agrees to devote Employee’s full time and effort to the performance of this Agreement and to remain in the exclusive employ of City and not to become otherwise employed nor engage in any consulting or outside business activities while this Agreement is in effect without the prior approval of the City Manager. For purposes of this Agreement, outside business activities means any outside employment or any outside commercial activity which interferes with or poses a conflict with Employee’s position as Police Chief, unless otherwise required under state or federal law.
5. Extension of Agreement. At least 90 days prior to the expiration of the term, Employee may submit a written proposal to Employer for the extension of the provisions of this Agreement and in that event, the parties shall enter into good faith negotiations with respect to such proposal. Prior to this time, Employer shall exercise its best efforts to advise Employee whether or not this Agreement shall be extended or revised either as result of such negotiations, or, if no proposal is submitted by Employee, on such terms as Employer may determine to be appropriate. Nothing contained herein shall be construed to (1) require the Employer to extend the term of revise this Agreement, or (2) require an automatic renewal of this agreement.
6. Salary. Under this Employment Agreement City shall pay Employee for the performance of Employee’s duties as Police Chief a monthly base salary of $21,833.33 per month ($262,000 annually), payable in installments at the same time as other management employees of the Employer are paid, less customary and legally required payroll deductions. This salary constitutes Employee’s “base wage rate.” The City will pay an additional 3% per month above his base wage rate as educational incentive pay because Employee possesses a Master’s Degree). In addition to the educational incentive pay, the City will also pay the Employee an additional 2.5% per month above his base wage rate as the Employee possesses the POST Executive Management Certificate.
A. Employee shall also be eligible to receive any step increases or performance bonus or POST certificate or educational special comps, as set forth in the Unit 8 MOU ( to include the Basic, Intermediate, and Advanced certificate and the Supervisory and Management certificates), or any successor MOU with the Barstow Police Department Management Association.
B. Employee shall receive salary cost of living increases to the extent granted to other management employees of the City pursuant to Unit 8 Memorandum of Understanding (“MOU”), or any successor MOU with the Barstow Police Management Association.
C. The City does not participate in the Social Security system; accordingly, Employee shall be exempt from Social Security taxes other than the mandatory Medicare portion of such taxes. The City’s medicare portion will be paid by the City as set forth in the Unit 8 MOU or any successor MOU with the Barstow Police Management Association. - 3 -
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7. Retirement and Deferred Compensation.
A. City participates in the California Public Employees Retirement System (CalPERS) and will provide the Employee with the 3% at 50 public safety retirement plan.
Furthermore, with regard to handling the retirement program for Employee, the City shall abide by the retirement program provisions as outlined in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association as may be amended from time to time.
This includes all retirement benefits, health insurance programs, and the distribution of holiday and sick leave.
B. Upon completion of 10 years of employment with the City (whether or not the years of employment were in consecutive order), if Employee retires from the City through CalPERS, he will be eligible to participate in the City-funded retirement health insurance reimbursement program, to the extent the same is offered to other management employees as set forth in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association.
C. City agrees to pay two percent (2%) of Employee’s base salary annually, paid one time a year, on behalf of Employee into a 457 Deferred Compensation Plan, which plan is made available to other management employees. The 457 Deferred Compensation Plan payment shall be pro-rated for any year in which Employee is not employed by the Employer for the entire year.
8. Medical, Dental and Vision Insurance. Employee shall be provided medical, dental, and vision insurance benefits on the same terms and conditions as afforded other City management employees in Unit 8. Subject to the limit applicable to other members of the management group (Unit 8), City shall pay the monthly premiums for medical, dental and vision insurance for Employee and Employee’s dependents in an amount sufficient to cover most plans offered by the City and not less than the amount afforded other City management employees in Unit 8. The employee shall receive the cafeteria plan benefits as set forth in the Unit 8 MOU.
9. Other Benefits. City shall provide to Employee any other benefits mandated by state or federal law. City shall provide Employee with $100,000 term life insurance through the same insurance company providing life insurance to other management employees pursuant to the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association. Employee shall also receive short and long-term disability insurance coverage to the same extent that such coverage is afforded management employees, as set forth in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association.
The City will pay the premium for Employee and Employee’s dependents to participate in the City’s Employee Assistance Program.
10. General Expenses and Business Equipment. City recognizes that certain expenses of a non-personal and job-related nature may be incurred by Employee. City agrees to reimburse Employee for reasonable expenses which are authorized by the City budget and which are supported by expense receipts, statements or personal affidavits, and audit thereof in like manner as other demands against the City. Any purchases of supplies or other tangible items must be - 4 -
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delivered to City Hall or other City facilities to be eligible for reimbursement. City shall bear the full cost of any fidelity or other bonds as may be required of Employee under any law, policy of ordinance.
11. Official and Professional Development Expenses. City shall pay reasonable sums, as approved by the City Manager, for expenses necessary for Employee’s continued professional training, growth, and advancement and for professional dues and subscriptions for Employee necessary for Employee’s continued participation in associations and organizations, which memberships are necessary and desirable for the continued professional development of Employee and for the good of the City, such as the California League of Cities, San Bernardino County Chiefs of Police Association, California Chiefs of Police Association, and the International Association of Chiefs of Police.
12. Performance Evaluation. The City Manager shall review and evaluate the performance of Employee by December 31, 2025 and annually thereafter. This evaluation shall be in accordance with specific criteria developed by the City Manager in consultation with Employee, which criteria may be altered as the City Manager may determine after consultation with Employee. Further, the result of each evaluation shall be memorialized in writing and provided to Employee. It shall be Employee’s responsibility to initiate this performance evaluation each year. The City Manager may annually define, in consultation with Employee, such written and prioritized goals and objectives as the City Manager determines necessary for the proper operation of the City of Barstow and the attainment of the City Council’s policy objectives. These goals and objectives shall be reasonably attainable within the time and appropriations provided.
13. Indemnification. City shall defend, hold harmless and indemnify Employee against any claim, demand, judgment, or action of any type or kind arising within the course and scope of Employee’s employment to the extent required by Government Code Sections 825 and 995.
14. Other Terms and Conditions of Employment.
A. The provisions of the City’s Personnel Rules and Regulations (“Rules”) shall apply to Employee to the extent that they apply to Department Heads, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail.
Without limiting the generality of the exception noted in the previous sentence, however, no provision of the Rules or this Agreement shall confer upon Employee a property right in his employment or a right to be discharged only upon cause. Employee is an at-will employee serving at the pleasure of the City Manager and may be dismissed at any time with or without cause, subject only to the Barstow Municipal Code, the provisions of this Agreement, and the Public Safety Officers Procedural Bill of Rights Act.
Except as otherwise provided in this Agreement, Employee’s accrual of vacation shall be the same as that for other management employees, as set forth in the schedule within the Unit 8 MOU. Employee must provide sufficient notice of his intended vacation absence so that the City Manager may approve such absence in order to avoid an extended absence of Employee during critical time-periods. Employee’s accrual and use, to include cash-outs, of sick, holiday, vacation, - 5 -
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and management or special leave shall be the same as that for other management employees, as set forth in the schedule within the Unit 8 MOU. Employee shall also retain all current sick, vacation, holiday, and executive leave balances earned in prior City employment as the Public Safety Director/Chief of Police/Interim City Manager.
B. Upon retirement or other end of employment, Employee shall be entitled to compensation for 100% of accumulated and unused vacation leave and special leave, 600 hours of sick leave at Employee’s then-current salary, and offer the employee the option of converting unused sick leave to credit as service time for retirement purposes as set forth in the schedule within the Unit 8 MOU. Holiday will be paid out as set forth in the Unit 8 MOU.
C. All other personal leave, management leave, special leave, holiday leave, family leave, bereavement leave, sick leave, jury leave, military leave, or other special leave time shall be as provided to other management employees of the City, as set forth in the Unit 8 MOU, or any successor MOU with the Barstow Police Department Management Association.
15. General Provisions.
A. The parties agree to fully comply with Government Code sections that are part of Assembly Bill 1344, Statutes 2011, Chapter 692, and other applicable law as it relates to reimbursement by an employee upon conviction of a qualifying crime or abuse of office as defined, including the following:
i. Gov’t Code sec. 53243. Reimbursement of paid leave salary required upon conviction of crime involving the office or position. ii. Gov’t Code sec. 53243.1. Reimbursement of legal criminal defense upon conviction of a qualifying crime involving the office or position. iii. Gov’t Code sec. 53243.2. Reimbursement of cash settlement upon conviction of a qualifying crime involving the office or position. iv. Gov’t Code sec. 53243.3. Reimbursement of non-contractual payments upon conviction of a qualifying crime involving the office or position. v. Gov’t Code sec. 53243.4 Abuse of office or position defined.
B. This Agreement constitutes the entire agreement between the parties. City and Employee hereby acknowledge that they have neither made nor accepted any other promise or obligation with respect to the subject matter of this Agreement. This Agreement may be amended only by a writing signed by Employee, approved by the City Council, and executed on behalf of the City.
C. If any provision or any portion of this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of the Agreement shall be deemed severable and shall not be affected and shall remain in full force and effect.
16. Termination.
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A. Employee recognizes and acknowledges that he is an at-will employee and serves as Police Chief for the City of Barstow at the pleasure of the City Manager, capable of removal at will by the City Manager, but subject to the requirements of the City Manager to consult with the Mayor and whole City Council per Barstow Municipal Code section
2.08.070(3), and subject to Employee’s rights under the Public Safety Officers Procedural Bills of Rights and the requirements of Section 17 regarding severance.
B. Employee shall only be removed after the City Manager consults with the Mayor and whole City Council in a duly noticed open or closed session council meeting, as required by applicable law and per Barstow Municipal Code section 2.08.070(3).
C. Employee shall not be removed from office during or within a period of 90 days next succeeding any general municipal election held in the City at which election a member of the City Council is elected, except by a four-fifths vote of the Mayor and whole City Council.
Additionally, Employee shall not be removed from office, except for cause, during or within a period of 90 days next succeeding the appointment of a City Manager.
D. Notwithstanding the forgoing, this Agreement shall automatically terminate on the death or permanent disability of Employee and Employee agrees to make best efforts to give City not less than 60 days written notice of resignation or retirement.
E. Upon termination, Employee shall return any City-issued property, including any electronic devices, computers, or telephones, and shall further make any privately owned electronic devices, computers, or telephones used by Employee for City business available to the City’s Communications Department to confirm the erasure of any City information or data.
17. Severance. If City terminates Employee without cause, as defined in this paragraph, or asks the Employee to resign, then City shall pay Employee twelve (12) months’ salary and benefits severance pay, to include all incentive pays as set forth in this contract, or such lesser amount as required by Government Code Section 53260. The City shall have cause to terminate Employee without payment of severance if the City Manager, in consultation with the Mayor and whole City Council under Barstow Municipal Code section 2.08.070(3), finds that Employee engaged in any of the following conduct:
A. Conviction of a felony or conviction of a misdemeanor involving moral turpitude or adversely reflecting on Employee’s fitness to perform assigned duties (a conviction following a plea of guilty or nolo contendere shall be deemed a conviction for purposes of this Agreement);
B. Intoxication on duty due to alcohol, cannabis, or a controlled substance, or continued abuse of “controlled substances,” as that term is defined in the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 as amended to date that materially affects the performance of the Employee’s duties;
C. Inexcusable absence without leave;
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D. Habitual and willful neglect of duty;
E. Documented and confirmed violation of local, state, and federal laws which prohibit discrimination including, but not limited to, discrimination based on race, religion, national origin, ancestry, physical handicap, marital status, sex, sexual orientation, age, gender identity, gender expression, or any other category protected by local, state or federal law, involving either members of the general public or City employees;
F. Retaliation against any other City officer or employee or member of the public who in good faith reports, discloses, divulges, or otherwise brings to the attention of any appropriate authority any facts or information relative to actual or suspected violations of any law occurring on the job directly related thereto;
G. Verifiable actions or behaviors that create a hostile work environment or demonstrate any form of harassment prohibited by local, state, or federal law; H. Willful violation of any local, state, or federal conflict of interest or incompatibility of office laws;
I. Engaging in any outside business activities without the prior approval of the City Manager;
J. Failure to comply with lawful directives of the City Manager; K. Theft, destruction, or unauthorized use of City property, City funds, or City equipment;
L. Refusal to take or subscribe any oath or affirmation which is required by law; M. Acceptance by Employee of any valuable consideration from any person or entity other than the City for the regular performance of Employee’s duties; and
N. Any violation of the Rules, to the extent they explicitly apply to the position of Police Chief, except that if the specific provisions of this Agreement conflict with the Rules, the terms of this Agreement shall prevail.
18. Notice shall be given in writing to City, either by personal service or by registered or certified mail, postage prepaid, addressed to City as follows:
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City Manager
City of Barstow
220 E. Mountain View Street, Suite A
Barstow, CA 92311.
With a courtesy copy to:
Matthew T. Summers
City Attorney, City of Barstow
Colantuono Highsmith & Whatley,
790 E. Colorado Blvd. Suite 850
Pasadena, CA 91101-2109.
Any notice to Employee shall be given in a like manner, and, if mailed, shall be addressed to Employee at the address then shown in City’s personnel records. For the purpose of determining compliance with any time limit stated in this Agreement, a notice shall be deemed to have duly given (a) on the date of delivery, if served personally on the party to whom notice is to be given, or (b) on the second (2nd) calendar day after mailing, if mailed in the manner provided in this section to the party to whom notice is to be given.
19. A waiver of any of the terms and conditions of this Agreement shall not be construed as a general waiver by the City and the City shall be free to enforce any term or condition of this Agreement with or without notice to Employee notwithstanding any prior waiver of that term or condition.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the City of Barstow has caused this Agreement to be signed on its behalf, and duly attested, and Andrew Espinoza Jr. signed this Agreement as of the day and year first above written.
EMPLOYEE
______________________________
Andrew Espinoza, Jr.
CITY OF BARSTOW
______________________________
Dr. Paul Anthony Courtney
Mayor
City of Barstow
ATTEST:
______________________________
Andrea Flores
City Clerk
City of Barstow
Approved as to form:
______________________________
Matthew T. Summers
City Attorney
City of Barstow