RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EAST PALO ALTO APPOINTING A
CITY ATTORNEY AND AUTHORIZING THE MAYOR TO EXECUTE AN EMPLOYMENT AGREEMENT BETWEEN THE CITY OF EAST PALO ALTO AND JOHN D. LÊ WHEREAS, the City used CPS HR Consulting to conduct a recruitment for a new City Attorney to perform all the legal duties identified in the City’s Municipal Code; and WHEREAS, the City Council desires to appoint and employ the services of John D. Lê, as City Attorney, with a start date of January 9, 2023, and to appropriately compensate him for such services; and
WHEREAS, John D. Lê desires to accept employment as the City Attorney of the City of East Palo Alto.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF EAST PALO ALTO HEREBY:
1. Appoints John D. Lê as the City Attorney of the City of East Palo Alto; and
2. Authorizes the Mayor to execute the Employment Agreement for City Attorney, attached as Exhibit A, between the City of East Palo Alto and John D. Lê, on behalf of the City Council.
PASSED AND APPROVED on this 6th day of December 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Ruben Abrica, Mayor
ATTEST: APPROVED AS TO FORM:
James Colin, City Clerk Valerie J. Armento, Interim City Attorney 1 EAST PALO ALTO
CITY ATTORNEY EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of this ___ day of _______ 2022 by and between the City of East Palo Alto, a municipal corporation, (hereinafter the "City"), and John D. Lê., (hereinafter the "City Attorney" or "Employee").
RECITALS
1. The City requires the services of a City Attorney for the City of East Palo Alto and the East Palo Alto City Council engaged in a recruitment process to select a City Attorney.
2. The “Employee” has the necessary education, experience, skills and expertise to serve as the City's City Attorney.
3. The City Council desires to employ “Employee” as the City Attorney and entered into negotiations with him for the purpose of entering into an employment agreement.
4. The “Employee” desires to accept the employment as City Attorney.
5. This Agreement is entered into pursuant to the authority of and subject to the provisions of Government Code Section 53260 et seq.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. Employment
City hereby appoints Employee as the City Attorney for the City of East Palo Alto to serve at the will of the City Council and to be subject to termination at any time with or without cause or prior notice and the Employee hereby accepts that appointment and employment. Term of Employment
D
This Agreement shall become effective as of December 6, 2022. Under this Agreement, Employee's term of employment as City Attorney shall be for three (3) years from 0RQGD\, January 9, 2023, and continue until January 9, 2026, unless sooner terminated as provided for in this Agreement.
E
The term and any extended term may be extended by mutual agreement of the parties.
On or before six months prior to the expiration of the term of this Agreement or any extended term, the City Council will consider an extension of the term of this Agreement. In the event that the City Council does not elect to extend the term of this
EXHIBIT A
2 Agreement or in the event that the term or any extended term is not extended by mutual agreement of the parties, this Agreement and the employment relationship shall end without further action by the City Council.
Salary and Benefits
D
City agrees to pay Employee an annual base salary of $227,468.84 payable at the same time and in the same manner that other City employees are paid. This salary shall be effective as of 0RQGD\, January 9, 2023, or such earlier date as Employee starts his employment with the City. Subject to a satisfactory performance evaluation (in accordance with Section 6 herein), Employee’s annual base salary shall be increased 3 -5% effective January 9, 2024. Subject to a satisfactory annual performance evaluation (in accordance with Section 6 herein), the City Council agrees to consider an increase to the Employee’s base salary on subsequent employment anniversary dates or as decided by mutual agreement of the parties. Employee's annual base salary may only be reduced at the same time and in the same percentage as any across-the-board reduction that is imposed upon other Executive Management employees in the City.
E
Employee shall receive the same Automobile allowance as other City Council appointees.
F
Employee shall be entitled to the same percentage increase in his pay as any inflation or similar adjustment that the City Council applies to all Executive Management personnel and/or City Council appointees.
G
Employee shall be entitled to receive all benefits as they now exist or may hereinafter be provided to other Executive Management employees of the City, including any changes or modifications to said benefits, except when such benefits are inconsistent with or contrary to provisions of this Agreement.
x Retirement: CalPERS 2.0% at 62 formula. Employee pays eight percent (6.25 %) contribution from gross salary per pay period (bi-weekly). x Medical: City pays 100% of Employee Coverage towards the cost of the insurance premium elected by the Employee, and 65% of Employee’s Dependent Coverage. x Dental: City pays 100% of the cost of the insurance premium for the employee. x Vision: City does not cover at this time. If City covers in future, Employee shall be entitled to whatever other Executive Management employees are provided. x Sick Leave: Employee accrues 4 hours of sick leave per pay period (bi-weekly). If Employee has insufficient accruals to cover approved vacation leave during the first eleven pay periods, up to 40 hours of sick leave may be used against future accruals.
x Vacation: Employee (a) accrues 6.15 hours of vacation per pay period (biweekly). (b) may maintain a maximum vacation balance of 320 hours (“accrual cap”), and (c) may cash out up to 40 hours of vacation per year through irrevocable election filed in December of the prior calendar year. If Employee has 3 insufficient accruals to cover approved vacation leave during the first six pay periods, up to 40 hours of vacation leave may be used against future accruals.
Cash out of a maximum of forty (40) hours is allowed in December of each year. x Management Leave: Employee accrues management leave at the same rate and upon the same terms as the City Manager.
4. Duties
(a) Employee shall serve as City Attorney and perform those duties and have those responsibilities that are commonly assigned to a City Attorney of a City in California.
The duties and responsibilities of the City Attorney shall include rendering legal services as may be requested by the City Council, the City Manager, Executive Management and Department Heads, as described in this Agreement. (b) Employee affirms that he is a member in good standing of the California State Bar, California Bar Number 253294, and that his continued California State Bar membership is a condition of his appointment and continued employment with the City. The services to be provided by Employee will include, but are not limited to, the following:
(1) Attend and provide legal counsel at all meetings of the City Council, except when on approved leave;
(2) Attend meetings of such other boards, commissions or committees, i.e., Planning Commission, Public Works & Transportation Commission, Rent Stabilization Board, Measure C Oversight Committee, and the Senior Advisory Committee of the City, as may be required;
(3) Act as chief legal counsel of the City government and exercise all duties and responsibilities of the City Attorney as specified by City ordinances and those duties as set forth in Chapter 2.16 of the East Palo Alto Municipal Code, and other legally permissible and proper duties and functions as assigned to him by the City Council;
(4) Be available to meet, in person or remotely, with City staff during regular office hours, and attend such additional meetings as may be required, including regular agenda setting meetings, conferring with the City Manager and department heads on legal matters;
(5) During the first year of employment, Employee will be present in City Hall no less than two days per week;
(6) Coordinate assigned activities with other City departments and outside agencies; provide highly responsible and complex legal advice and support to the City Manager's Office;
(7) Actively participate as a member of the City Manager's Executive Management team; Provide legal advice to City Council-appointed boards, and commissions and other appointed officials and outside counsel of the City; (8) Defend the City in litigation and/or oversee and coordinate outside counsel contracted to defend the City in litigation;
(9) Perform all statutory functions of the Office of City Attorney, any or all of which may be delegated to duly authorized designees, with approval of the City Council and as may be prescribed by City contracting requirements. 4 (c) Employee shall devote all necessary time and effort to fulfill the obligations of the City Attorney's position. The City acknowledges that Employee is reasonably expected to be available, in person or remotely, but does not have regularly set hours of work. Employee's work schedule will vary in accordance to the work required to be performed.
5. Exclusive Employment
Employee shall devote all of his time, energy and efforts to the City, and shall accept no outside employment, but the foregoing shall not limit Employee in teaching, writing, and lecturing, but only to the extent that such activities do not interfere with his duties as set forth in this Agreement.
6. Performance Evaluation
The City shall review and evaluate the performance of Employee at the initial six months of his employment and at least once annually at a time mutually agreed to between the City Council and Employee. The review and evaluation shall be conducted in accordance with procedures and forms and with respect to specific criteria to be developed jointly by Employee and the City Council. The review and evaluation shall be private and confidential, and the results shall be summarized and discussed in closed session, to the extent permitted by law, or through some other mutually acceptable closed format. The parties shall agree that the primary purposes of such evaluation are to facilitate open and frank discussion, define roles and expectations, identify performance strengths and weaknesses, and to provide an opportunity for the Employee to take affirmative action to address weaknesses and areas needing improvement.
7. Separation
(a) At Will Employment
Consistent with Government Code Section 36506 the parties expressly agree that the position of City Attorney is an "at-will" employee, and that the City Attorney serves at the will and pleasure of the City Council. Nothing in this Agreement, any statute, ordinance, regulation or rule shall prevent, limit, or otherwise interfere with the right of the City Council to terminate, with or without cause or reason, the employment of Employee.
The City Council may, in its absolute discretion, terminate the employment of Employee as City Attorney and terminate Employee's employment with the City. To terminate Employee's employment, the City, acting through the City Council, shall give Employee a written notice of the termination. The termination must be approved by three (3) members of the City Council at a regular or special meeting held in accordance with the Ralph M. Brown Act (California Government Code Section 54950 et seq.). The City Council is not required to provide a notice of causes or reasons for the termination and is not required to provide any type of hearing regarding the termination, including any type of "Skelly" hearing. If Employee is terminated, Employee shall have no right of appeal 5 or grievance procedure.
(b) Resignation
Employee may resign from his employment as City Attorney upon giving thirty (30) days prior written notice to the City Council; provided, however, that notice shall not be required in the event Employee resigns pursuant to a request for resignation by the City Council. Employee shall be compensated during the notice period. Employee at Employer's sole option may be directed not to report to work during all or any part of the resignation notice period.
(c) Automatic Termination
This Agreement, and Employee's employment, shall automatically terminate, and “Employee” shall not be entitled to any severance compensation upon the happening of any of the following events:
(1) Upon mutual agreement in writing by both parties to terminate this Agreement. (2) Upon resignation given to City by Employee, except if the resignation is in response to a request for resignation from the City Council. (3) Upon retirement from full time public service with the City, pursuant to applicable PERS laws, rules and regulations. If Employee retires, Employee will provide six (6) months advance notice.
(4) Upon death of Employee.
(5) When Employee has been unable to perform substantially all of the essential terms his position, with or without reasonable accommodation, due to illness or other disability for a period of three (3) months.
(6) Termination or removal for cause.
(7) Expiration of the term of this Agreement or any extended term. (d) Severance
In the event Employee is terminated for a reason set forth in sub paragraphs 7(d)(1)-(5) of this Agreement, City shall pay to Employee as severance compensation a sum equal to the lesser of Six (6) months base salary (“Severance Months”) or (ii) base salary for the number of months remaining on the term of this Agreement. (1) The City terminates Employee without cause.
(2) The City reduces Employee’s salary or other benefits in a greater percentage than applicable across-the-board reductions made by the City for other management employees in the City and Employee elects to give thirty (30) days written notice of his resignation to the City Council. The written notification of resignation must be given within thirty (30) days of the reduction in Employee's salary or other benefits.
(3) The City Council requests the resignation of Employee, and Employee resigns pursuant to that request.
6 (4) The city manager form of government is abandoned by action of the City Council, vote of the people, state legislation, or by any other means. (5) The position of city attorney is eliminated by action of the City Council, vote of the people, state legislation, or by any other means.
As required by Government Code Section 53260, the following provision is included in this Agreement. Regardless of the term of this Agreement, if it is terminated, the maximum cash settlement that employee may receive shall be an amount equal to his monthly salary multiplied by the number of months left on the unexpired term of this Agreement, and if the unexpired term of this Agreement is greater than six (6) months, the maximum cash settlement shall be an amount equal to the monthly salary of Employee multiplied by six (6).
The payment of severance compensation pursuant to this paragraph shall, at the option of Employee, be in a lump sum, or shall be payable in equal monthly installments with the number of monthly installments equal to the number of months of severance compensation pay to which Employee is entitled by this paragraph.
Employee and his dependents shall not receive continuing health insurance plan coverage for the duration of the Severance Months from the effective date of the termination. However, Employee will be eligible, at his own expense, to continue to receive benefits under COBRA.
(e) Termination or Removal for Cause
Notwithstanding any provision of this Agreement to the contrary, City may terminate Employee's employment for cause at any time, and if Employee is terminated or removed for cause, he shall not be entitled to payment of severance compensation or any other compensation or damages. "Cause" shall include the following reasons. (1) Conviction of a crime, whether misdemeanor or a felony, involving moral turpitude, or under the Political Reform Act, or under Government Code Section 1090 et. seq. For purposes of this paragraph, a plea of nolo contendere shall also be considered a conviction.
(2) Immoral or unprofessional conduct.
(3) Any act of dishonesty, fraud, or misrepresentation. (4) Failure to competently discharge the duties of the City Attorney. (5) Willful abandonment of the duties of the City Attorney. (6) Willful and intentional failure to carry out clear direction or order of the City Council.
(7) Evident unfitness for service.
(8) Continued abuse of drugs or alcohol that materially affects the performance of the City Attorney’s duties.
(9) Repeated and protracted unexcused absences from the City Attorney’s office and duties.
(10) Any significant act or omissions determined by the City Council to render Employee unfit to continue employment with the City.
7 8. Compliance with Government Code Section 53243 et seq.
In the event City determines to place Employee on paid leave pending an investigation, Employee shall fully reimburse such pay to the City if he is subsequently convicted of a crime involving the abuse of his office or position.
(a) In the event the City determines to fund all or part of a legal criminal defense for Employee, he shall fully reimburse such funds to the City if he is subsequently convicted of a crime involving an abuse of his office or position. (b) Regardless of the term of this Agreement, if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City if Employee is convicted of a crime involving an abuse of his office or position.
(c) For purposes of this section, "abuse of office or position" shall be as defined in Government Code Section 53243.4.
9. Indemnification
City agrees to defend, hold harmless, and indemnify Employee against any claims, demands or legal actions, whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope and during the course of Employee's employment with the City, subject to Employee cooperating in good faith with the City with respect to defense of such claims, demands, or legal actions in accordance with the provisions of California Government Code Sections 825 and 825.6. City may compromise and settle any such claim, demand, or action and pay the amount of any settlement or judgment rendered therefrom. This covenant shall survive the termination of this Agreement.
10. Notices
Any notice to be given hereunder by either party to the other in writing may be effected either by personal delivery or by mail. Mailed notices shall be addressed to the address of the parties to be notified which appears below, but each party may change its address by written notice given in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated and received as of five (5) calendar days following the date of mailing of the notice.
CITY: City Manager
City of East Palo Alto
2415 University Ave., Second Floor
East Palo Alto, CA 94303
EMPLOYEE: John D. Lê
348 Olive Avenue
Piedmont, CA 94611
8 11. Entire Agreement
This Agreement represents the entire agreement between the parties and supersedes any and all agreements, either oral or in writing, between the parties with respect to the employment of Employee by City and contains all of the covenants and agreements between the parties with respect to that employment. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either party, or anyone acting on behalf of either party, which is not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding on either party.
12. Modifications
Any modifications to this Agreement shall be effective only if in writing and signed by both the parties hereto.
13. 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, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.
14. Partial Inval idity
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
15. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California in full force and effect as of the date of execution.
16. Attorney's Fees
In the event of any legal action between the parties hereto to enforce the provisions of this Agreement, the prevailing party shall be entitled to attorney's fees and costs.
17. Representations
City and Employee each represent and warrant to the other that each has received legal advice from independent and separate legal counsel with respect to this Agreement, or has knowingly declined to obtain such legal advice, and further represent and warrant to 9 each other that each has carefully reviewed this Agreement and each and every term hereof.
This Agreement shall not be construed against the party or its representatives who draft it or any portion hereof.
18. Counterparts
This Agreement may be executed on separate copies, any one of which need not contain signatures of more than one party but all of which taken together shall constitute one and the same Agreement.
(SIGNATURES ARE ON THE FOLLOWING PAGE)
10 IN WITNESS WHEROF, the parties have executed this Agreement, effective as of the day and year first above written.
CITY OF EAST PALO ALTO,
a municipal corporation
By: Ruben Abrica, Mayor
APPROVED AS TO FORM:
By: Valerie J. Armento By: John D. Lê