TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: JAMES MCQUEEN, DIRECTOR OF HUMAN RESOURCES
DATE: SEPTEMBER 12, 2023
SUBJECT: APPOINTMENT OF CITY ATTORNEY AND ADOPTION OF RESOLUTION
APPROVING THE CITY ATTORNEY'S EMPLOYMENT AGREEMENT
EXECUTIVE SUMMARY
The City Council will consider adopting a Resolution and approving an employment agreement with John Funk as the Downey City Attorney.
RECOMMENDATION
That the City Council:
Adopt Resolution No. 23- 8193 appointing John Funk as the City Attorney and approving the employment agreement between him and the City.
BACKGROUND
The City Attorney position is currently filled on an interim basis due to the departure of the prior City Attorney in May of 2022. The City has recently completed a nationwide search for a new City Attorney.
ANALYSIS
As part of the City Council's approval of the attached Resolution No. 23- 8193, Senate Bill (SB) 1436 requires local agencies to report certain information before changing the compensation or benefits of their "executives." Under this law, legislative bodies for agencies must orally report a summary of a recommendation for changes in salaries or benefits before voting for the changes. The votes must be taken in the open session portion of the meeting.
Upon the departure of the prior City Attorney, a nationwide search began for a new City Attorney, conducted through the executive recruitment firm Bob Murray and Associates.
The City received a total of seven applications for this position. The City Council then interviewed the most qualified applicants with significant prior experience.
APPOINTMENT OF CITY ATTORNEY AND ADOPTION OF RESOLUTION APPROVING
EMPLOYMENT AGREEMENT
SEPTEMBER 12, 2023
PAGE 2
Through this selection process, Mr. John Funk was selected to fill the position of City Attorney with the City. Mr. Funk has over 24 years of related legal experience working for different municipal agencies. Mr. Funk currently serves as the Chief Assistant City Attorney for the City of Santa Ana.
The employment agreement with Mr. Funk includes the following provisions:
• Salary - $238,442 per year, consistent with the established salary range. • Auto Allowance- $300 per month.
• Severance Provision — Lump sum payment of the value of nine months of the employee's base salary and medical benefits for termination without cause. • Fringe Benefits - All other fringe benefits, including leaves, holidays, retirement, health, dental, life, and long-term disability, are consistent with those provided to the City's Executive Employees as established by resolution.
Approval of this resolution and employment agreement will appoint Mr. Funk to serve as City Attorney, effective September 18, 2023.
CITY COUNCIL PRIORITIES
Fiscal Responsibility
FISCAL IMPACT
Approval of the recommended actionwill result in an expenditure of approximately $238,442 from the General Fund, City Attorney budget, Account No. 10-4-1120 as previously approved in the Fiscal Year 2023-2024 operating budget.
ATTACHMENT
Attachment A: Resolution
Attachment B: Employment Agreement
N
RESOLUTION NO. 23-8193
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY
APPOINTING JOHN FUNK AS THE CITY ATTORNEY AND APPROVING
EMPLOYMENT AGREEMENT
WHEREAS, the City of Downey desires to appoint John Funk to the position of City Attorney for the City of Downey, effective September 18, 2023, and, WHEREAS, the entire employment agreement between John Funk and the City of Downey has been reviewed by this body and is attached herein; and,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Effective September 18, 2023, John Funk shall be appointed City Attorney of the City of Downey.
SECTION 3. The employment agreement with John Funk, a copy of which is attached as Exhibit B, is approved by the City Council. The City Manager is authorized to make further amendments to the agreement to make technical corrections and comply with applicable laws.
SECTION 4. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 12 th day of September 2023.
CLAUDIA FROMETA, Mayor
ATTEST:
MARIA ALICIA DUARTE, CMC
City Clerk
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 12 th day of September, 2023, by the following vote, to wit:
AYES:
Council Members:
NOES:
Council Member:
ABSENT:
Council Member:
ABSTAIN:
Council Member:
MARIA ALICIA DUARTE, CMC
City Clerk
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered on this 18t" day of September, 2023, by and between the City of Downey, a charter city and municipal corporation ("CITY"), and John Funk ("EMPLOYEE"). CITY and EMPLOYEE are sometimes referred to herein as the "Parties."
RECITALS
WHEREAS, the City, acting through its City Council, desired to hire EMPLOYEE to perform the duties and responsibilities of City Attorney outlined under Section 703 of the CITY Charter and the CITY Municipal Code; and
WHEREAS, the Parties desire to enter into this Agreement to establish the terms of EMPLOYEE'S continued employment relationship with the CITY.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:
AGREEMENT
Section 1: EMPLOYMENT
A. Continued Employment.
The CITY hereby agrees to employ EMPLOYEE as the City Attorney of the City of Downey in an at -will status, subject to the terms of this Agreement, to perform the functions and duties specified under the CITY'S Charter, Ordinances and Resolutions of the CITY, the policies of the CITY, and California law, and to perform such other legal, permissible and proper duties and functions as the City Council shall from time to time assign.
B. Term.
Term of Employment
The term of this Agreement shall commence upon adoption by the City Council and shall remain in effect unless sooner terminated as provided for in Section 6 of this Agreement.
2. At -Will Status
During the terms of this Agreement, EMPLOYEE shall serve at the pleasure of the CITY. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the CITY to terminate the services of EMPLOYEE for any reason, subject only to the provisions set forth in Section 6. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of EMPLOYEE to voluntarily 65186.00209\41561368.3
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resign at any time from his/her position as City Attorney with the CITY, subject only to the provisions set forth in Section 6.
3. Exclusive Employ
EMPLOYEE agrees to remain in the exclusive employment of CITY and not to become otherwise employed while this Agreement is in effect without the express written consent of the City Council.
Section 2: DUTIES AND POWER OF EMPLOYEE
A. Employment Duties.
EMPLOYEE shall function as the City Attorney of the CITY, and shall be vested with the powers, duties and responsibilities set forth in Section 703 of the CITY Charter, the CITY Municipal Code and California law as they now exist and may be amended hereafter, the terms of which are incorporated herein by reference.
In addition, EMPLOYEE shall perform such duties as may be assigned by the City Council and which are consistent with the position of City Attorney, without additional compensation because the City Attorney is an overtime -exempt executive position.
B. Hours of Work.
EMPLOYEE is expected to devote necessary time outside normal office hours to business of the CITY. To that end, EMPLOYEE shall be allowed flexibility in setting his/her own office hours, provided that EMPLOYEE shall work as necessary during customary business hours to satisfactorily perform his/her duties and responsibilities as City Attorney.
Section 3: COMPENSATION AND BENEFITS OF EMPLOYEE
A. Annual Base Salary.
CITY agrees to pay EMPLOYEE for his/her services rendered pursuant hereto an annual base salary of $238,442.25 dollars, payable in bi-weekly installments, in accordance with the pay range established by the City for the position of City Attorney and paid in the same manner and at the same time as other employees of the CITY are paid. EMPLOYEE'S salary shall be subject to State and Federal withholding taxes and other employee payroll deductions as herein specified in Section3(13).
Pay Range Increases. All across the board pay range increases shall be in the same amount or percentage as adopted by the City Council for non - safety classifications designated as Executive Management.
2. Movement on the Pay Range/Merit Increases. In addition to EMPLOYEE receiving the same amount or percentage as an increase in base salary above, the EMPLOYEE'S salary may be adjusted upward as a merit adjustment in the same manner and within the same Personnel Rules of -2-
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the CITY as other classifications designated as Executive Management, provided the salary adjustment does not exceed the top of the salary range designated for the position of City Attorney.
B. Benefits.
EMPLOYEE shall be entitled to all benefits, including but not limited to, medical or qualified medical opt out allowance, Section 125 cafeteria plan, dental, vacation, sick leave, executive leave, vehicle allowance, long-term disability and life insurance in accordance with the enclosed Salary and Benefits Payable to Employees in the Classifications Designated as Executive Management pursuant to resolution of the City Council, the current resolution attached hereto and incorporated herein by reference. These benefits may be modified from time to time after the date of this Agreement at the discretion of the CITY.
Professional License Dues; Organization Membership. CITY shall pay for EMPLOYEE'S California State Bar dues. CITY shall also pay for membership dues in traditional and/or civic organizations of benefit to a City Attorney and the City, including, the League of California Cities or Cal Cities ("LCC"), and other organizations as determined by EMPLOYEE, and subject to approval by the City Manager, as necessary and appropriate for the professional enrichment of the City Attorney and benefit to the City, subject to the authorized Department budget.
2. Continuing Legal Education: CITY shall also pay for the expenses of EMPLOYEE to attend and complete required Continuing Legal Education (CLE) courses, including, but not limited to, institutes and seminars that are required to comply with the California State Bar CLE requirements and are necessary for his/her professional development and for the good of the CITY.
3. Conferences. CITY shall pay for registration, travel, room accommodations, meals, etc., as necessary for EMPLOYEE'S attendance at conferences deemed reasonably necessary for EMPLOYEE'S professional development and subject to the departmental budget.
C. Covenant Against Decrease. Excluding any EMPLOYEE voluntary benefit payroll deduction as specified in Section 313(1) and B(2) respectively, the CITY agrees not to reduce the base salary or other benefits of EMPLOYEE at any time during the term of this Agreement, except as the CITY may impose an across the board deduction in benefits for employees designated as Executive Management.
D. All provisions of the Municipal Code, City Charter, Resolutions and Personnel Rules relating to fringe benefits as now exist or hereinafter may be amended shall apply to EMPLOYEE in like manner as they apply to Executive Management employees of City.
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Section 4: INDEMNIFICATION AND ABUSE OF OFFICE
A. Indemnification:
Subject to the California Government Code §§ 825-825.6 and 995.2-995.8 and any other applicable law, the CITY shall defend, hold harmless, and indemnify EMPLOYEE against any tort, professional liability claim, or demand, or civil rights or other legal action, arising out of any act, event or omission occurring in the course and scope of EMPLOYEE'S performance of his/her professional duties as City Attorney. This Section will survive termination of the Agreement.
B. Abuse of Office.
To the extent CITY provides: (i) paid leave to EMPLOYEE pending an investigation; (ii) funds for the legal criminal defense of the EMPLOYEE and/or (iii) a cash settlement to EMPLOYEE related to the termination of the EMPLOYEE pursuant to this Agreement and Government Code Section 53243 et seq., EMPLOYEE shall fully reimburse the City for any and all amounts paid by the CITY which fall within subsections (i) through (iii) of this section in the event that the EMPLOYEE is convicted of a crime involving the abuse of office or position.
Section 5: PERFORMANCE EVALUATION
A. Performance Evaluation:
The CITY shall review and evaluate the performance of EMPLOYEE in March of each calendar year. The CITY will timely cause to be placed on the City Council agenda each year a "closed session" for the purpose of the performance evaluation.
Evaluation Report. Contingent upon a satisfactory performance evaluation each year, the Mayor will document the satisfactory performance evaluation in a written report, with a copy given to Human Resources to place in EMPLOYEE'S personnel file and for administering any applicable base salary adjustments as directed by the City Council.
C+'r--TqtCTitIM9:17►yillz1-,'%9relzK97;W_Trl:7:1=1P 1:1L,k1 Termination and Resignation.
A. EMPLOYEE'S employment with the City is on an at -will basis.
Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the City Council to terminate, by a majority vote of the City Council, the services of EMPLOYEE without cause, at any time, subject only to the City providing written notice to Employee, and complying with the Downey Charter and Downey Municipal Code. Specifically, City may terminate this agreement for any reason by submitting thirty (30) days' written notice to the EMPLOYEE stating the Council's intention to terminate this Agreement and remove him as City Attorney and the reasons therefor. CITY shall comply with the requirements of Section 701 of the CITY Charter. Notwithstanding the foregoing, notice of termination shall not be given during or within -4-
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a period of ninety (90) days succeeding any general or special municipal election held in the City at which a member of the City Council is elected.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of EMPLOYEE to resign from their position, subject only to EMPLOYEE providing thirty (30) days prior written notice to the City. EMPLOYEE'S resignation shall be deemed accepted upon delivery of a written resignation to the Mayor, or if the Mayor is unavailable, the Mayor Pro Tem.
C. Notwithstanding the provisions of Paragraph A of this Section 6.1, in the event Employee is terminated by City for "cause," then City may terminate this Agreement and Employee shall be entitled to only the compensation accrued up to the date of termination.
As used in this section, "cause" shall mean any of the following:
(1) Conviction of any felony.
(2) Conviction of a misdemeanor arising directly out of the City Attorney's duties pursuant to this Agreement involving a willful and intentional violation of law.
(3) Conviction of any crime involving moral turpitude.
(4) Removal from office by the Grand Jury.
(5) Willful abandonment of duties.
D. In the event EMPLOYEE is terminated by the City Council at any time that EMPLOYEE is still willing and able to perform the duties of City Attorney, and the termination is without cause as "cause" is defined in Paragraph C above, then, and upon delivery to the City of an executed Separation Agreement and release of all claims in a form acceptable to the City within 30 days of the termination, the City shall pay EMPLOYEE a severance payment equal to the aggregate of nine (9) months of EMPLOYEE'S base annual salary and monthly medical benefit premium then in effect pursuant to this Agreement as of the last day of employment. EMPLOYEE agrees that in the event of his voluntary resignation from his position with the City, he is not entitled to the severance payment specified herein.
The word "termination" in this paragraph 6.1.D. shall include a reduction in salary (other than an across-the-board reduction applicable to all senior level employees) or other financial benefits of EMPLOYEE or EMPLOYEE'S resignation, if preceded by a formal request by a majority of the membership of the City Council that they resign.
E. Effect of Payment of Severance/Release.
(1) It is understood and agreed by the parties hereto that EMPLOYEE is employed at will, and that upon the City's full payment of severance benefits to EMPLOYEE, any right of EMPLOYEE to continued employment with City is terminated and EMPLOYEE releases and discharges CITY and its officers, agents and employees from any claim, demand, or cause of action or damages for wrongful termination. -5-
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(2) This Section does not otherwise affect, waive, nor release any other rights EMPLOYEE may have under this Agreement, or applicable law. (3) This Section will survive termination of the Agreement.
Section 7: MISCELLANEOUS PROVISIONS
A. Administration:
This Agreement shall be administered by the CITY'S City Manager ("Administrator"). All correspondence from EMPLOYEE to the CITY shall be directed to or through the Administrator or his or her designee.
B. Notices:
All notices pertaining to this Agreement shall be sent to:
EMPLOYEE: John Funk
At the most recent address on file in his/her Personnel file held by the CITY
CITY: City Manager
City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Such notice shall be deemed made when personally delivered, transmitted by fax, or when mailed, 48 hours after deposit in the U.S. Mail, first class postage.
C. Conflict of Interest:
EMPLOYEE warrants that he/she presently does not have and will not acquire any direct or indirect financial interest that would conflict with his/her performance of this Agreement.
D. Assignment Prohibited:
The Parties may not assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect.
E. Documents:
All documents provided to EMPLOYEE by the CITY and all reports and supporting data prepared by EMPLOYEE for the CITY are the sole property of the CITY and shall be delivered to the CITY upon termination of this Agreement or at the CITY'S written request. All confidential reports, information, exhibits and data, including but not limited to, electronic data, prepared or assembled by EMPLOYEE while he/she serves as City Attorney are confidential until release by the CITY to the -6-
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public, and EMPLOYEE shall not make any of these unreleased documents or information available to any individual or organization, without prior written consent of the City Council.
F. Effect of Waiver:
The failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of that term, covenant, or condition, and no waiver or relinquishment of any right or power of any subsequent occasions.
G. Integration of Agreement:
The text herein shall constitute the entire Agreement between the Parties. This Agreement incorporates the entire understanding between EMPLOYEE and the CITY, recites the sole considerations for the promises exchanged herein, and fully supersedes any and all prior agreements or understandings, written or oral or implied, between the Parties pertaining to the subject matter hereof. In reaching this Agreement, no Party has relied upon any representation or promise except those expressly set forth herein. This Agreement cannot be modified by the Parties except in a writing that is signed by both Parties, ratified by City Council, and that expressly states that it intends to modify this Agreement.
H. Successors and Assigns:
This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of the Parties.
I. Severability:
If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected and shall remain in full force and effect.
Attorneys' Fees:
In the event that either Party to this Agreement brings a lawsuit to enforce or interpret any provisions of this Agreement, each Party shall bear its own attorneys' fees, expenses, and costs.
K. Governing Law and Venue:
This Agreement shall be governed by the laws of the State of California and the parties agree that venue shall be in the state court in the County of Los Angeles, California.
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L. Interpretation:
The Parties agree that any ambiguity in this Agreement shall not be construed or interpreted against, or in favor of, either Party.
M. Amendments.
This Agreement may be changed or amended by the mutual written consent of City and Employee. Any benefits to Employee under this Agreement may be increased or added to by motion of the City Council without formal amendment to this Agreement.
In witness whereof, the CITY has caused this Agreement for Employment to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, and EMPLOYEE has signed and executed this Agreement for Employment this 12th day of September 2023.
EMPLOYEE
d4 ?w -Fi, 9-7-23
John Funk Date
ATTEST:
Maria Alicia Duarte, City Clerk
Lauren Langer, Interim City Attorney
Date
Enclosure: City of Downey Resolution No. 23-8155
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CITY OF DOWNEY
Claudia M. Frometa, Mayor Date
Employment Agreement - City Attorney
September 18, 2023
L. Iriterrtetion
The Parties agree that any ambiguity in this Agreement shall not be construed or interpreted against, or in favor of, either Party.
K Amendments;
This Agreement may be changed or emended by the mutual written consent of City and Employee. Any benefits to Employee under this Agreement may b increased or added to by motion of the City Council without formal amendment t this Agreement.
In witness s ereof„ the CITY has caused this Agreement for Employment to be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, and EMPLOYEE has signed and executed this Agreement for Employment this 121h day of September 2023,
EMPLOYEE CITY OF DOWNEY
John Funk Date Claudia i . Frometa, Mayor Date
ATTEST:
Maria Alicia Curie, City Clerk Clete
APPROVED AS TO FORM:
Lu ��Lar, interim City Attorney