AGENDA
ITEM
1 EB BRIE AGENDA STAFF REPORT
CALEXICO
DATE: January 4, 2022
TO: Mayor and City Council
APPROVED BY: Miguel Figueroa, City Manager ME
PREPARED BY: Best Best & Krieger LLP, City Attorney
SUBJECT: Appointment of Gonzalo Gerardo as Interim Police Chief Pursuant to Government Code sections 7522.56 and 21221(h)
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Recommendation:
It is recommended that the City Council adopt Resolution 2022-01 appointing Gonzalo Gerardo as interim Police Chief effective January 5, 2022 and authorizing the City Manager to execute the employment agreement.
Background:
Following notification by Chief Gerardo of his intention to retire as Police Chief effective December 31, 2021, the City Council immediately initiated the recruitment process for a new Police Chief. Although the process is well underway, it is estimated that the recruitment will continue through the first quarter of 2022. Thus, in order to ensure that the Calexico Police Department continues to be effectively managed without interruption while the City recruits for a regular appointment to the Police Chief position, the City Manager has concluded that it would be in the City's best interest to have Chief Gerardo return after his retirement as interim Police Chief.
Upon his retirement, Chief Gerardo will be a CaPERS retiree and, as such, his appointment must comply with the working after retirement rules set forth in the Government Code and CaPERS regulations.
Discussion AGENDA
ITEM
Government Code section 21221(h) permits the City Council to appoint a CaPERS retiree to a vacant position requiring specialized skills during recruitment for a regular appointment, and provides that such appointment will not subject the retiree to reinstatement from retirement 81211.00807134640931.1
or loss of benefits so long as it is a single appointment that does not exceed 960 hours, inclusive of hours worked for other CaPERS employers during the same period, in a fiscal year, excluding hours worked pursuant to Executive Order N-25-20 to ensure adequate staffing during the state of emergency declared as a result of the COVID-19 pandemic. That waiver continues in effect.
It is imperative for the City to have continuous leadership in its police department in order to address the challenges created by the COVID-19 pandemic. As such, all hours worked by Chief Gerardo in his role as Interim Police Chief would be subject to the waiver of the 960 hour limit and will not count toward the 960-hour per fiscal year limit so long as the COVID-19 state of emergency remains in effect.
The rate of pay for an Interim Police Chief who is retired from CaPERS is dictated by law and governed by Government Code sections 21221(h) and 7522.56. Specifically, Section 7522.56(d) - which supersedes Section 21221(h) to the extent of conflicts - provides that "the rate of pay for the employment shall not be less than the minimum, not exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate." Section 21221(h) further provides that this rate must be "listed on a publicly available pay schedule for the vacant position."
The hourly rate to be paid to Chief Gerardo for his service as interim Police Chief will be $66.91. He will not receive any other compensation or benefits, unless required by federal or state law.
Section 21221(h) further requires that the appointment to a vacant position be made by the City Council. As such, this agenda item includes a resolution appointing Chief Gerardo as interim Police Chief effective January 5, 2022 and authorizes the City Manager to execute an employment agreement for interim Police Chief services with Chief Gerardo consistent with the requirements of Section 21221(h) and the terms set forth in the resolution.
The term of Chief Gerardo's appointment as Interim Police Chief will end when the regular appointment to the Police Chief position begins his or her employment with the City, unless Chief Gerardo's interim appointment is terminated earlier by the City or Chief Gerardo.
Key terms of the Interim Police Chief appointment include the following:
• The term of the employment will be from January 5, 2022 to the date immediately preceding the day on which the regular Police Chief begins work, unless sooner terminated by the City or Chief Gerardo.
• Hourly rate will be $66.91.
• No other compensation or benefits, including leave, will be provided, unless required by state or federal law.
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• Works hours will not be limited while the COVID-19 waiver to the 960 hour limitation remains in effect.
Fiscal Impact:
Adoption of the resolution will not have an added fiscal impact to the City as the funds required to compensate Chief Gerardo consistent with the working after retirement rules are already included in the budget.
Attachments:
1) Resolution No. 2022-
2) Employment Agreement
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RESOLUTION 2022-01
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CALEXICO APPOINTING GONZALO GERARDO AS
INTERIM POLICE CHIEF AND APPROVING
EMPLOYMENT AGREEMENT
WHEREAS, Government Code Section 21221(h) permits the City Council to appoint a retired annuitant to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that such appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and WHEREAS, the position of Police Chief will become vacant at close of business on December 30, 2021; and
WHEREAS, the Calexico City Council desires to appoint Gonzalo Gerardo, who will retire from the City of Calexico from the position of Police Chief, effective December 31, 2021, as an interim appointment retired annuitant to the vacant position of Police Chief for the City of Calexico under Government Code Section 21221(h), effective January 5, 2022; and
WHEREAS, Gonzalo Gerardo has over 30 years of experience serving in the Calexico Police Department with an extensive history in police department management, including as the current Police Chief for the City of Calexico; and WHEREAS, an appointment under Government Code Section 21221(h) requires an active, publicly posted recruitment for a permanent replacement; and WHEREAS, the City has retained the recruitment firm of Koff & Associates to conduct the recruitment for the City's next Police Chief and a review of candidates is anticipated to take place on January 24, 2022; and
WHEREAS, although Government Code Section 7522.56(f) requires that post- retirement employment commence no earlier than 180 days after the retirement date, Government Code Section 7522.56(f)(4) provides for an exception that allows for immediate employment of retirees in public safety positions; and WHEREAS, the Police Chief position is a public safety position and, therefore, the 180 day waiting period under Government Code section 7522.56(f) shall not apply unless Gonzalo Gerardo accepts any retirement-related incentive; and WHEREAS, the Calexico City Council, the City of Calexico, and Gonzalo Gerardo certify that he has not and will not receive a Golden Handshake or any other retirement-related incentive; and
WHEREAS, this Section 21221(h) appointment shall only be made once and therefore will end on the date immediately preceding the date on which the regular replacement for the vacant position of Police Chief for the City of Calexico commences his or her employment or, if earlier, the date that this appointment is terminated by the City or Gonzalo Gerardo; and
WHEREAS, although Government Code sections 7522.56(d) and 21221(h) impose a 960 hour per fiscal year limit on any CaPERS retiree that is appointed to a position subject to the working after retirement rules, this requirement has been waived pursuant to Executive Order N-25-20 for any appointment made to ensure adequate staffing during the COVID-19 state of emergency; and
WHEREAS, the Police Chief position is a critical positon in the City's efforts to address the challenges created by the COVID-19 pandemic and, as such, the 960 hour limitation set forth in Government Code sections 7522.56(d) and 21221(h) shall not apply so long as the waiver to the 960 hour per fiscal year limitation under Executive Order N-25-20 remains in effect; and
WHEREAS, the compensation paid to retirees cannot be less than the minimum nor exceed the maximum monthly base salary paid to other employees performing comparable duties, divided by 173.333 to equal the hourly rate; and WHEREAS, the minimum hourly rate for this position is $55.05, and the maximum hourly rate for this position is $66.91; and
WHEREAS, the hourly rate to be paid to Gonzalo Gerardo is $66.91; and WHEREAS, Gonzalo Gerardo has not and will not receive any other benefit, incentive compensation in lieu of benefits or any other form of compensation in addition to this hourly pay rate.
WHEREAS, the entire employment agreement between Gonzalo Gerardo and the City of Calexico has been reviewed by this body and is attached hereto as Exhibit A; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Calexico, as follows:
SECTION 1. The City Council has considered the full record before it, which may include but is not limited to such things as the agenda staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it.
Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
SECTION 2. The City Council hereby appoints Gonzalo Gerardo as interim Police Chief effective January 5, 2022 pursuant to the authority provided under Government Code Section 21221(h) and 7522.56, during the recruitment, selection and employment of a regular Police Chief, to provide the critically-needed, specialized skills necessary to run the Calexico Police Department.
SECTION 3. The employment agreement with Gonzalo Gerardo, a copy of which is incorporated herein as Exhibit A, is approved by the City Council, effective January 5, 2022.
SECTION 4. The City Manager is authorized to execute said agreement on behalf of the City, with such technical amendments as may be deemed appropriate by the City Manager and City Attorney.
SECTION 5. This Resolution shall take effect immediately upon its adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Calexico, California, at a regular meeting held on this 4th day of January, 2022.
AYES:
NOES:
ABSENT:
ABSTAIN:
Javier Moreno, Mayor
ATTEST:
Gabriela Garcia, City Clerk
APPROVED AS TO FORM:
Carlos Campos, City Attorney
State of California)
County of Imperial ) s.s.
City of Calexico
1, Gabriela T. Garcia, City Clerk of the City of Calexico do hereby certify the above Resolution No. 2022- _ was approved at a regular City Council meeting held on the 4th day of January 2022, by the following vote to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
Gabriela T. Garcia, City Clerk
EXHIBIT A
EMPLOYMENT AGREEMENT FOR
INTERIM POLICE CHIEF SERVICES
RETIRED ANNUITANT EMPLOYMENT AGREEMENT
For the Position Of
INTERIM POLICE CHIEF
This Employment Agreement ("Agreement") is made and entered into this th day of _ 2022, by and between the CITY OF CALEXICO ("CITY"), a general law city and municipal corporation, and Gonzalo C. Gerardo ("GERARDO"), an individual, on the following terms and conditions:
RECITALS
A. CITY desires to employ the services of GERARDO as its Interim Police Chief, temporarily, to carry out the duties and responsibilities of Police Chief, in consideration of and subject to the terms, conditions, and benefits set forth in this Agreement.
B. GERARDO desires to accept employment as Interim Police Chief in consideration of and subject to the terms, conditions, and benefits set forth in this Agreement.
C. On March 4, 2020, Governor Newsom issued a Proclamation of State of Emergency related to COVID-19 and on March 18, 2020, the City of Calexico City Council declared a local emergency due to the COVID-19 pandemic.
D. Effective on or about December 30, 2021, the City's current Police Chief is scheduled to retire, and an Interim Police Chief is needed to ensure adequate staffing during the state of emergency until a permanent chief can be hired.
E. GERARDO represents that beginning January 1, 2022, he is a retired annuitant of CaPERS within the meaning of Government Code §21221(h) and acknowledges that his compensation is statutorily limited as provided in Government Code §21221(h). GERARDO acknowledges that a retiree is normally restricted to working no more than 960 hours in a fiscal year for the CITY, a state agency or other CaPERS contracting agencies (collectively "CaPERS Agencies"). However, given the current state of emergency, and with the Governor's Executive Order N-25-20 and CaPERS Circular Letter: 200-016-20 which suspends the 960-hour limitation during the state of emergency to ensure adequate staffing during the state of emergency, any hours worked by GERARDO to ensure adequate staffing during the state of emergency will not be counted toward the 960-hour limit for the fiscal year.
F. GERARDO also represents that he has not received unemployment compensation from any CaPERS agencies during the 12-month period preceding the effective date of this Agreement.
G. CITY has determined that it is necessary to hire GERARDO, a retired annuitant, because the position of Interim Police Chief is required for adequate staffing in emergency response and recovery, and GERARDO, by virtue of his significant experience as Police Chief of the City of Calexico, has those special skills.
OPERATIVE PROVISIONS
In consideration of the promises and covenants contained herein, the parties agree as follows:
1. Position and Duties
1.1. Position. GERARDO accepts employment with CITY as its Interim Police Chief and shall oversee the Police Department and perform all functions, duties and services set forth in Section 1.4
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[Duties] of this Agreement. GERARDO shall provide service at the direction and under the supervision of the City Manager. It is the intent of the parties that GERARDO, as the Interim Police Chief, shall keep the City Manager fully apprised of all significant ongoing operations of the Police Department.
1.2. Term. This Agreement shall become effective when executed both by GERARDO and the City Manager, which date shall be the date first referenced above. GERARDO shall commence the performance of his duties as the Interim Police Chief on January 5, 2022, 12:00 am, or at such later date as the parties hereto shall agree in writing ("Commencement Date"). This Agreement shall expire as of the first of the following to occur: (i) upon the employment commencement date of a permanent Police Chief employed by CITY; or (ii) upon termination of the Agreement by either GERARDO or CITY as provided in Section 4 [Termination] of this Agreement.
1.3. At-Will. GERARDO acknowledges that he is an at-will, temporary employee of CITY who shall always serve at the pleasure of the City Manager during the period of his service hereunder.
Nothing in this Agreement is intended to, or does, confer upon GERARDO any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Manager to terminate his employment, except as is expressly provided in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. Nothing contained in this Agreement shall in any way prevent, limit, or otherwise interfere with the right of CITY to terminate the services of GERARDO, as provided in Section 1.2 [Term] or Section 4 [Termination]. Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of GERARDO to resign at any time from this position with CITY, subject only to the provisions set forth in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. This at-will employment Agreement shall be expressly subject to the rights and obligations of CITY and GERARDO, as set forth in Section 1.2 [Term] or Section 4 [Termination] below.
1.4. Duties. GERARDO shall serve as the Interim Police Chief and shall for the term of the Agreement perform the duties set forth in Government Code sections 41601-41612. In addition, at the City Manager's direction, GERARDO shall cooperate with any organizational audit of the Police Department as authorized by the City Council and, participate in community discussions, including police reform and make recommendations to the City Manager regarding re-allocation of police resources to address residents' concerns about under and over policing in certain areas of the CITY. GERARDO shall provide service at the direction and under the supervision of the City Manager. GERARDO shall also do an organizational assessment to provide recommendations regarding stabilizing and rebuilding police services to best serve the overall community. It is the intent of the parties that the Interim Police Chief shall keep the City Manager fully apprised of all significant ongoing operations of Police Department. GERARDO shall devote his best efforts and full-time attention to the performance of his duties.
1.5. Hours of Work. GERARDO shall devote the time necessary to adequately perform his duties as Interim Police Chief. The parties anticipate that GERARDO will work a sufficient number of hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special City Council meetings and such community meetings as the City Manager may direct. Toward that end, GERARDO shall be allowed reasonable flexibility in setting his own office hours, provided the schedule of such hours provides a significant presence at the Police Department, reasonable availability to the City Council, City Manager, CITY staff, and members of the community during regular CITY business hours and for the performance of his duties and of CITY business.
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2. Compensation
2.1. Rate of Pay. For all services performed by GERARDO as the Interim Police Chief under this Agreement, CITY shall pay GERARDO compensation at the rate of $66.91 per hour according to the payrate for the Police Chief position set forth in the CITY's publicly available pay schedule.
Compensation shall be paid bi-weekly subject to the limitations provided below.
2.1.1. Compliance with CaPERS requirements. It is the intent of the parties to compensate GERARDO only to the extent permitted under Government Code § 21221(h) and corresponding CaPERS regulations and policy statements. The Rate of Pay is within the established salary range for Police Chief. GERARDO acknowledges that he will be compensated the rate of $66.91 per hour and will not receive any benefits, incentives, compensation in-lieu of benefits, or any other form of compensation.
2.1.2.Recordation and Reporting of Hours Worked and Rate of Pay. GERARDO and the CITY will comply with all applicable CaPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY and the Rate of Pay to CaPERS as required. Additionally, GERARDO shall keep CITY continually apprised of any hours worked by GERARDO for other CalPERS Agencies during the term of this Agreement.
GERARDO will be responsible for keeping track of his hours worked, including during the period in which the Governor's Executive Order N-25-20 and CaPERS Circular Letter 200- 016-20, suspending the 960-hour limitation during the state of emergency, are in effect.
GERARDO will submit his timesheets to the CITY in accordance with City payroll procedures. The CITY shall maintain these approved timesheets in a legal file and they shall not be disclosed except and unless as required by law or GERARDO and/or the CITY need to defend themselves against any legal claims, including but not limited to by CaPERS.
2.1.3.Indemnity for CaPERS Claimed Overpayments. The CITY agrees to defend and indemnify GERARDO for any fees, fines, penalties, contributions or other monetary damages claimed, asserted, or alleged against GERARDO by CalPERS as a result of his employment with the CITY upon a finding that the CITY failed to keep or report GERARDO 's accurate hours
2.2. Benefits
2.2.1.No Benefits. Pursuant to Government Code §21221(h) and related CaPERS regulations and policy statements, GERARDO shall not receive from CITY any benefits CITY commonly provides to its employees, including without limitation health, dental, or vision insurance coverage, life insurance, employee assistance programs, and similar benefits.
3. Vacation and Leave
3.1. No Leave. GERARDO, in accordance with Government Code Section 21221(h) and related CaPERS regulations and policy statements, shall not be provided or accrue any personal time off, vacation, sick leave, administrative lease, paid holidays or similar leave benefits.
4. Termination
4.1. By CITY. This Agreement may be terminated by CITY for any reason thirty (30) days after providing written notice to GERARDO of such termination. CITY's only obligation in the event of such termination will be payment to GERARDO of all compensation then due and owing as set forth in Section 2.1 [Rate of Pay] up to and including the last day actually worked. However, this
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Agreement may be terminated immediately if necessitated by changes to CaPERS statutory or regulatory requirements.
4.2. By GERARDO. This Agreement may be terminated by GERARDO for any reason thirty (30) days after providing written notice to CITY of such termination. CITY shall have the option, in its complete discretion, to make GERARDO 's termination effective at any time prior to the end of such period, provided CITY pays GERARDO all compensation as set forth in Section 2.1 [Rate of Pay] then due and owing him through the last day actually worked.
4.3. No Notice for Expiration. Nothing in this Section 4 [Termination] shall be construed to require either party to give advance written notice for the Agreement to expire as set forth in Section 1.2 [Term].
4.4. Termination Obligations. GERARDO agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to him employment belongs to CITY and shall be returned promptly to CITY upon termination of GERARDO's employment. GERARDO 's obligations under this subsection shall survive the termination of him employment and the expiration of this Agreement.
5. Conflict of Interest
In accordance with Government Code Section 1126, during the period of his employment, GERARDO shall not accept, without the express prior written consent of the City Manager, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity, whether or not to pecuniary advantage, that is or may be competitive with CITY, that might cause a conflict of interest with CITY, or that otherwise might interfere with the business or operation of CITY or the satisfactory performance of GERARDO's duties as Interim Police Chief.
6. Expenses
CITY agrees to pay job related expenses incurred by GERARDO for any out of area business and travel expenses incurred in the course of his duties as approved by the City Manager. These amounts shall not be reported to CaPERS as they do not constitute compensation.
7. General Provisions
7.1. Recitals. The recitals, inclusive of all facts and representations, are incorporated into this Agreement as if set forth in the Operative Provisions.
7.2. Vehicle Operation. GERARDO shall comply with CITY's administrative policies regarding operation of a vehicle on official business. GERARDO shall not receive an automobile allowance but shall be eligible for reimbursement for mileage when using his personal vehicle for CITY business in accordance with CITY policy.
7.3. Notices. All notices required under this Agreement shall be in writing and either given in person or delivered by first class mail with postage prepaid and addressed as follows:
City's Notice Address:
City of Calexico
Attn: Miguel Figueroa, City Manager
608 Heber Avenue
Calexico, CA 92231
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Interim Police Chief Address:
Address on file with Human Resources Department
7.4. Indemnification. Subject to, in accordance with, and to the extent provided by the California Government Claims Act [Government Code Section 81 O et seq.], CITY will indemnify, defend, and hold GERARDO harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any act or omission occurring during GERARDO's tenure as Interim Police Chief.
7.5. Bonding. CITY shall bear the full cost of any fidelity or other bonds required of the Interim Police Chief under any law or ordinance.
7.6. Integration. This Agreement is intended to be the final, complete, and exclusive statement of the terms of GERARDO 's appointment as Interim Police Chief by CITY. This Agreement supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of GERARDO as Interim Police Chief, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of CITY, now or in the future, apply to GERARDO and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control.
7.7. Amendments. This Agreement may not be amended except in a written document signed by GERARDO, approved by the City Council and signed by City Manager.
7.8. Waiver. Failure to exercise any right under this Agreement shall not constitute a waiver of such right.
7.9. Assignment. GERARDO shall not assign any rights or obligations under this Agreement. CITY may, upon prior written notice to GERARDO, assign its rights and obligations hereunder.
7.10. Severability. If a court or arbitrator holds any provision of this Agreement to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
7.11. Attorneys' Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
7.12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, with venue proper only in Imperial County, State of California.
7.13. Interpretation. This Agreement shall be construed, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means.
Each party waives their future right to claim, contest or assert that this Agreement was modified, cancelled superseded or changed by any oral agreement, course of conduct, waiver or estoppel.
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7.14. Acknowledgment. GERARDO acknowledges that he has had the opportunity to consult legal counsel regarding this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on him own judgment and not on any representations or promises other than those contained in this Agreement.
7.15. Outside/Other Employment. GERARDO has the right to have outside/other employment if it does not conflict with the CITY's operations.
IN WITNESS WHEREOF, CITY has caused this Agreement to be signed and executed on its behalf by its City Manager and GERARDO has signed and executed this Agreement, as of the date first indicated above.
City of Calexico Interim Police Chief
Miguel Figueroa Gonzalo C. Gerardo
City Manager
Approved as to Form:
City Attorney
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