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FROf BY: JAMES MCQUEEN, DIRECTOR OF HUMAN RESOURCE;7
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY AUTHORIZIN11
THE HIRING OF RETIRED ANNUITANT PURSUANT TO GOVERNMENT CODE SECTION 21221(h)
Current City Manager, Gilbert Livas, is retiring from employment with the City effectivt July 2, 2022. The position of City Manager is vital to the daily functions of the City and there is a need to fill this position on an interim basis while the City recruits for '? permanent replacement.
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Upon announcement of Mr. Livas's retirement, Council conducted interviews with candidates possessing prior experience serving as a City Manager in other public agencies. Through these interviews Mark Scott was selected to fill the position of Interim City Manager with the City. Mr. Scott has over 32 years of experience serving as a City Manager in other public agencies. Additionally, Mr. Scott has also served in a similar capacity as an Interim City Manager for two other agencies. Approval of this action will authorize Mr. Scott to serve in the capacity of interim appointee to the position of City Manager until the vacancy is filled on a permanent basis.
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ADOPTING RESOLUTION AUTHORIZING THE HIRING OF A RETIRED ANNUITANT I COMPLIANCE WITH GOVERNMENT CODE SECTION 21221 (h)
MAY 24, 2022
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Sufficient funding will be included in the fiscal year 2022/23 budget. This appointmej will result in a cost savings during the fiscal year due to the limited working hours a reduced benefits received by the interim appointment.
ATTACHMENT
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4 RESOLUTION NO. 22-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY
APPOINTING RETIRED ANNUITANT TO VACANT POSITION OF CITY MANAGER PURSUANT TO GOVERNMENT CODE SECTIONS 7522.56 & 21221(h) WHEREAS, the Downey City Council hereby appoints Mark Scott as an interim appointment retired annuitant to the vacant position of City Manager for the City of Downey under Government Code sections 7522.56 and 21221(h), effective June 27, 2022; and WHEREAS, pursuit to Government Code sections 7522.56 and 21221(h), a retired annuitant may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired annuitant has skills needed to perform work of limited duration; and WHEREAS, the Downey City Council has determined that Mark Scott possesses the specialized skills and knowledge needed to perform the work of City Manager and ensure the continuation of public business; and
WHEREAS, the City would like to retain Mark Scott's services as Interim City Manager to allow the City sufficient time to obtain a qualified replacement; and WHEREAS, an appointment under Government Code section 21221(h) requires an active recruitment for a permanent replacement; and
WHEREAS, this section 21221(h) appointment shall only be made once and therefore will end on June 30, 2023, or when the permanent City Manager enters the position, whichever occurs first; and
WHEREAS, the entire employment agreement, contract or appointment document between Mark Scott and the City of Downey has been reviewed by this body and is attached to this resolution; and
WHEREAS, the employment shall be limited to 960 hours or fewer; 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 salary for this position is $23,954.67 per month and the hourly equivalent is $138.20; and
WHEREAS, the hourly rate paid to Mark Scott will be $138.20; and WHEREAS, Mark Scott has not received and will not receive any other benefit, incentive, compensation in lieu of benefit or other form of compensation in addition to this hourly pay rate; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. All of the recitals above are true and correct and are hereby incorporated by reference herein.
SECTION 2. The City Council hereby certifies the nature of the appointment of Mark Scott as described herein and detailed in the attached employment agreement document and that this appointment is necessary to fill the critically needed position of City Manager for the City of Downey by June 27, 2022, because of the need to ensure the continued successful operation of public business.
SECTION 3. The employment agreement with Mark Scott, copy of which is attached as Attachment A, are approved by the City Council.
SECTION 4. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 24th day of May, 2022.
BLANCA PACHECO, Mayor
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at a regular meeting held on the 24th day of May, 2022, by the following vote, to wit:
AYES:
Council Members:
NOES:
Council Member:
ABSENT:
Council Member:
ABSTAIN:
Council Member:
MARIA ALICIA DUARTE, CMC
City Clerk
CITY OF DOWNEY
EMPLOYMENT AGREEMENT FOR INTERIM CITY MANAGER
THIS EMPLOYMENT AGREEMENT FOR INTERIM CITY MANAGER
("Agreement") is made and entered into as of this 24th day of May, 2022 by and between the City of Downey ("City") and Mark Scott ("Scott").
RECITALS
A. Pursuant to Government Code sections 7522.56(c) and 21221(h), City desires to employ Scott, a California Public Employees' Retirement System (CaIPERS) retiree, on an interim basis in the position of Interim City Manager for the City while the City actively recruits a permanent City Manager.
B. Pursuant to Government Code sections 7522.56(c) and 21221(h), the City Council finds that the position of Interim City Manager requires specialized skills and experience associated with city management and that Scott possesses the skills needed to perform the functions and duties of Interim City Manager.
C. Scott desires to accept appointment to the position of Interim City Manager under the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants contained herein, the parties agree as follows:
1. Duties. City hereby employs Scott as Interim City Manager for the City to perform the functions and duties of the City Manager, as specified by position job description, by Downey Municipal Code, Article 11, Chapter 2 and by ordinances and resolutions of City Council, and to perform such other legally permissible and proper duties and functions as the City Council may from time to time assign for the efficient management of the City.
2. Work Schedule. Scott is expected to engage in the hours of work that are necessary to fulfill the duties and obligations of the position. Normal work schedule will be 32 hours per week, subject to change as work needs may require.
Scott shall be available during normal City business hours and shall be available for attendance at City Council and other meetings during non -business hours as may be necessary. Scott acknowledges that his duties may require performance of services outside of normal business hours. Scott is expected to perform the majority his duties on City premises, but shall be allowed to telecommute as necessary.
3. Work Restrictions. It is the understanding of the parties that Scott is a retiree in the California Public Employees' Retirement System ("CaIPERS") and, consequently, he may not work more than 960 hours for all public agency members of CaIPERS within the fiscal year occurring during the term of this Agreement without impacting his retirement benefits and having to be enrolled in CaIPERS as an active employee. Accordingly, under no circumstances may Scott work more than 960 hours during any fiscal year, defined as the period beginning July 1st and ending June 30t" of each year, including any service to other CaIPERS employers. Scott shall keep accurate time records of his hours worked to ensure that he does not exceed 960 hours within any fiscal year that occurs during the term of this Agreement and for payroll purposes. Scott further represents that he will not perform work for any other public agency member of CaIPERS during the term of this Agreement. If a controversy arises between Scott and CaIPERS regarding the impact of this Agreement and the services provided for herein on the nature of CaIPERS retirement terms or benefits, the City shall have no obligation to intervene in or to defend or prosecute such dispute.
4. Term. Subject to earlier termination as provided for in this Agreement, Scott shall be employed for a term beginning June 27, 2022 and ending on June 30, 2023, or when a permanent City Manager assumes office, whichever is sooner. The term of this Agreement may not be extended, and Scott may not be reappointed as Interim City Manager after the term of this Agreement. It is understood by both parties that the outgoing City Manager will continue in office until June 30, 2022.
Scott's duties during this period will be limited to transitional orientation not to exceed the number of hours Scott has available under CaIPERS regulations for Fiscal Year 2021/22, ending June 30, 2022.
5. Compensation. For services rendered pursuant to this Agreement, City agrees to pay Scott compensation of $138.20 per hour, which amount is in conformance with the requirements of Government Code sections 21221(h) and 7522.56(d). This hourly rate is not more than the maximum, nor less than the minimum, of the monthly base salary paid to other previous employees performing comparable duties as listed on a publicly available pay schedule for the City Manager position, divided by 173.333. Scott shall not receive from the City any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate set forth herein. The hourly wages paid pursuant to this Agreement are subject to all applicable tax and income withholdings and deductions in accordance with applicable law.
6. Benefits. Scott hereby waives all benefits provided to City employees, including but not limited to, retirement contribution, health/medical insurance, dental insurance, life and disability insurance, sick leave, vacation, unemployment insurance and similar benefits. Scott recognizes that Government Code sections 21221(h) and 7522.56(d) provide that a retired person appointed to a vacant position pursuant to that subdivision may not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate.
7. Termination. The City may terminate this Agreement at any time with or without cause. Scott may terminate this Agreement at any time with or without cause, provided, however, that he shall endeavor to provide the City Council with at least thirty (30) days' advance written notice prior to the effective date of termination. Scott agrees that he shall not be entitled to any severance pay as the result of the termination of this Agreement for any reason whatsoever.
8. At -will Employment/FLSA Exempt. Scott shall serve at the will and pleasure of the City Council and understands he is an "at -will" employee subject to summary dismissal without any right of notice or hearing, including any so-called "Skelly" hearing. Scott will not acquire any property interest in the position of Interim City Manager and is employed solely on a temporary basis to perform specialized services in accordance with Government Code sections 7522.56(c) and 21221(h).
Scott further understands and agrees that his position is that of an exempt employee for purposes of the Fair Labor Standards Act.
9. Certification Regarding Prior Unemployment Benefits. In accordance with Government Code section 7522.56(e)(1), Scott certifies and warrants to City that he has not received any unemployment insurance payments for retired annuitant work for any public employer within the twelve months prior to his appointment date under this Agreement.
10. Adequate Retirement Period. In accordance with Government Code section 7552.56(f), Scott warrants to City that a period of 180 days or more has passed since the date of his most recent retirement with CaIPERS. Scott also warrants that he is above normal retirement age and has had a bona fide separation in service of at least 60 days as described in Title 2, California Code of Regulations, sections 586-586.2.
11. Reimbursable Expenses. Scott shall be entitled to reimbursement for reasonable costs or expenses incurred in the performance of his duties on behalf of the City that are supported by written documentation in accordance with established policies and customary practices of the City.
12. Conflicts Prohibited. During the term of this Agreement, Scott shall not engage in any business or transaction or maintain any financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of Scott's duties under this Agreement. Scott shall comply with all requirements of law, including but not limited to the Political Reform Act (Gov't Code § 87100, et seq.), Government Code sections 1090 and 1126, and all other similar statutory or administrative rules. Scott represents and warrants that he has no financial, contractual or other interest or obligation that conflicts with or is harmful to the performance of his obligations under this Agreement.
13. Indemnification. Except as provided in paragraph 20 below, for the purposes of indemnification and defense of legal actions that may be brought against Scott in the future arising from Scott's employment with the City, Scott shall be considered an employee of the City and shall be entitled to the same rights as other employees of the City as set forth in the Government Code.
14. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be personally served or sent by U.S. Mail, first class postage prepaid, to the following address:
To City: City of Downey
11111 Brookshire Ave
Downey, CA 90241
Attn: James McQueen, Director of Human Resources
To Scott: Mark Scott
11111 Brookshire Ave.
Downey, CA 90241
Notices shall be deemed given as of the date of personal service or upon the date of deposit in the United States Mail.
15. Entire Agreement. This Agreement supersedes any and all prior understandings or agreements, written or oral, between the parties, and contains all of the covenants and agreements between the parties regarding the subject matter herein. Each party acknowledges that no promises, representations, inducements or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not set forth herein. No modification to this Agreement shall be effective unless reduced to writing and signed by both parties.
16. Severability. In the event any provision of this Agreement is held to be unconstitutional, invalid or unenforceable, the remainder of this Agreement or portion thereof shall be deemed severable and shall not be affected and shall remain in full force an effect.
17. Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event.
18. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The exclusive venue for all disputes arising from or related to this Agreement shall be the Superior Court for the County of Los Angeles, Downey Courthouse.
19. Interpretation. Each party and its counsel (if sought) have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
20. Effect of Agreement on CalPERS Retirement Benefits. City makes no representation on the impact, if any, this Agreement shall or may have upon Scott's CalPERS retirement benefits, status, duties and/or obligations. Scott acknowledges that, in entering into this Agreement, he has not relied upon any such representations in assessing the CalPERS-related impact of his employment. Therefore, Scott releases City from any and all CalPERS-related claims or liabilities that may arise in connection with his employment pursuant to this Agreement.
21. Independent Legal Advice. City and Scott represent and warrant to each other that each has read and fully understands the terms and provisions hereof, has had an opportunity to review this Agreement with legal counsel, and has executed this Agreement based upon such party's own judgment and advice of independent legal counsel (if sought).
CITY OF DOWNEY
Blanca Pacheco, Mayor
ATTEST:
MARIA ALICIA DUARTE, CIVIC
City Clerk
MARK SCOTT