RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF EAST PALO ALTO
APPOINTING A CITY MANAGER AND AUTHORIZING THE MAYOR TO EXECUTE AN
EMPLOYMENT AGREEMENT BETWEEN THE CITY OF EAST PALO ALTO AND MELVIN E. GAINES
WHEREAS, the City used Koff & Associates (now Gallagher) to conduct a recruitment for a new City Manager 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 Melvin E. Gaines, as City Manager, with a start date of January 30, 2023, and to appropriately compensate him for such services; and
WHEREAS, Melvin E. Gaines desires to accept employment as the City Manager 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 Melvin E. Gaines as the City Manager of the City of East Palo Alto; and
2. Authorizes the Mayor to execute the Employment Agreement for City Manager, attached as Exhibit A, between the City of East Palo Alto and Melvin E. Gaines, on behalf of the City Council.
PASSED AND APPROVED on this 17th day of January 2023 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Lisa Gauthier, Mayor
ATTEST: APPROVED AS TO FORM:
James Colin, City Clerk John D. Lê, City Attorney
1 CITY MANAGER EMPLOYMENT AGREEMENT
This CITY MANAGER EMPLOYMENT AGREEMENT ("AGREEMENT"), for reference dated January 17, 2023, is by and between MELVIN E. GAINES ("GAINES") and the CITY OF EAST PALO ALTO, a municipal corporation ("CITY"), is made with reference to the following facts:
RECITALS:
WHEREAS, the CITY conducted a search for a City Manager to perform all management and administrative services as required for the City of East Palo Alto; and WHEREAS, after a thorough review of all candidates GAINES emerged as the preferred one; and
WHEREAS, the CITY, acting by and through its City Council, desires to employ the services of GAINES as City Manager; and
WHEREAS, GAINES is agreeable to performing the duties of City Manager in accordance with the terms and conditions set forth in this AGREEMENT.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
AGREEMENT:
1. Employment. CITY hereby appoints GAINES, and GAINES hereby accepts employment with the CITY as the City Manager, to serve at the will of the City Council subject to the terms set forth in this AGREEMENT.
2. Scope and Duties.
a. GAINES hereby accepts such at-will status and agrees to perform all obligations and responsibilities diligently within the parameters indicated by the City Council, applying the highest degree of professionalism, ethics, integrity and competency to the discharge of every aspect of the obligations of the position of City Manager and/or described in this AGREEMENT.
b. The services to be provided by GAINES will include, but are not limited to, those enumerated under Chapter 2.12 and Section 2.08.180 of the East Palo Alto Municipal Code, as they may be amended from time to time, or as specifically enumerated in this AGREEMENT and any amendment thereto entered into by the mutual agreement of GAINES and the CITY.
3. Term. The term of this AGREEMENT shall commence at 8:00 am on January 30, 2023 (“Effective Date”) and shall extend for a period of two years, through January 30, 2025, Exhibit A
2 unless terminated sooner in accordance with the terms in this AGREEMENT.
4. Compensation. For and in exchange for the services provided herein, GAINES shall be compensated at an annual base salary of Two Hundred Thirty Thousand Dollars ($230,000.00) during the term of this AGREEMENT. GAINES shall be paid on a prorated basis bi-weekly in accordance with the CITY’s payroll practices and paid at the same time as other employees of the CITY are paid, effective the first full pay period after the Effective Date of this AGREEMENT.
5. Benefits. GAINES shall receive the same benefits provided to other Executive Management Employees of the City during the term of this AGREEMENT, including any changes or modifications to the benefits, except when such benefits are inconsistent with or contrary to provisions of this Agreement.
• Retirement: CalPERS Classic 2.5% at 55 formula. GAINES pays employee/member share contribution from gross salary per pay period (bi-weekly) and City pays employer share as determined by CalPERS.
• Medical: City pays 100% of GAINES Coverage towards the cost of the insurance premium elected by the GAINES, and 65% of GAINES’s Dependent Coverage. If GAINES declines to use the medical benefit, City will contribute 50% of the amount that would be spent on medical benefits to deferred compensation for GAINES. • Dental: City pays 100% of the cost of the insurance premium for GAINES. • Vision: City does not cover at this time. If City covers in future, GAINES shall be entitled to whatever other Executive Management Employees of the City are provided.
• Sick Leave: GAINES accrues 4 hours of sick leave per pay period (bi-weekly). If GAINES 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. • Vacation: GAINES (a) accrues 6.15 hours of vacation per pay period (bi-weekly). (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 GAINES has 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.
• Management Leave: GAINES accrues management leave at the same rate and upon the same terms as other Executive Management employees.
6. Automobile Allowance. GAINES shall be entitled to an automobile allowance of Three Hundred Dollars ($300.00) per month during the term of this AGREEMENT.
7. Professional Organization and Business Expenses. GAINES shall maintain membership in the International City/County Management Association (ICMA), remain a member in good standing, and shall comply with the ICMA Code of Ethics, which are incorporated herein by reference, during the term of this Agreement. City shall pay GAINES’ ICMA dues. City shall further pay for the dues of membership in other professional associations consistent with City policy and subject to the appropriation of funds through the annual budget appropriation 3 process. City will allow GAINES reasonable time away from the city to attend the meetings and annual conferences of such organizations. City shall reimburse GAINES for reasonable out-of-pocket business-related expenses to attend the meetings and conferences consistent with City policy. City will pay the cost of any fidelity or other bonds required by law for the City Manager.
8. Exclusive Employment. GAINES shall devote all his time, energy and efforts to the City, and shall accept no outside employment, but the foregoing shall not limit GAINES 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. GAINES shall not engage in any incompatible work for compensation.
9. Performance and Evaluation. Within 90 days of employment, the City Council and Gaines shall discuss and mutually agree on performance standards. The City shall review and evaluate the performance of GAINES at the initial six months of his employment and at least once annually at a time mutually agreed to between the City Council and GAINES, with a facilitator. The review and evaluation shall be conducted in accordance with procedures and forms and with respect to specific criteria to be developed jointly by GAINES 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 GAINES to take affirmative action to address weaknesses and areas needing improvement. If GAINES’ performance review shows that his performance is satisfactory to the City Council, the City Council may provide GAINES with a compensation increase.
10.At-Will Status. GAINES is, and at all times shall remain, an at-will employee of City.
GAINES understands and agrees that he has no constitutional or legally protected property or other interest in his appointment to City Manager and serves at the pleasure of the City Council. GAINES waives any and all rights to challenge or appeal any such termination from the position of City Manager or to invoke any due process rights or protections as a condition to the City’s right to terminate this Agreement.
11.Assignment and Subcontracting. The services to be provided hereunder shall be rendered by GAINES. GAINES agrees not to assign or subcontract to any other party the performance of any services described in this AGREEMENT.
12. Termination by City.
a. Consistent with Government Code Section 36506 the parties expressly agree that the position of City Manager is an "at-will" employee, and that the City Manager serves at the will and pleasure of the City Council. The City Council has the right, upon thirty (30) days advance written notice to GAINES, to terminate this AGREEMENT at any time during the term of this AGREEMENT with or without cause, and nothing in this AGREEMENT shall prevent, limit or otherwise interfere with the right of the City Council to terminate the AGREEMENT at any time without cause, subject only to the provisions set forth in this 4 section. If GAINES is terminated without cause after six months of employment, he shall receive severance pay equivalent to six months of total compensation.
To terminate GAINES’ employment, the City, acting through the City Council, shall give him 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 GAINES is terminated, he shall have no right of appeal or grievance procedure. b. Notwithstanding the foregoing, the City Council may immediately terminate the AGREEMENT at any time upon written notice for any one or more of the following causes:
1. Conviction of, or plea of guilty or nolo contendere to a felony, or a misdemeanor involving moral turpitude;
2. Violation of Government Code section 1090, or violation of any conflict-ofinterest laws or regulations as determined by a court or an administrative agency;
3. A final judicial or administrative decision finding that GAINES committed unlawful acts of sexual harassment or discrimination against a City official or employee;
4. Any material breach of this Agreement, if that breach continues for a period of thirty (30) business days from the date of his receipt of notice from the City Council specifying the acts or omissions deemed to be a material breach of this Agreement;
5. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code Section 53243.4;
6. Possession of, use of, or working while under the influence of alcoholic beverages or other non-prescribed controlled substances or abuse/misuse of lawfully prescribed controlled substances during working hours;
7. Violation of State or federal discrimination laws concerning race, religious creed, color, national origin, ancestry, physical or mental disability, marital status, sex or age concerning either members of the general public or City;
8. Repeated and protracted unexcused absences from work;
9. Any grossly negligent action or inaction by GAINES that materially and adversely:
(i) impedes or disrupts the operations of City or its organizational units; or
10. Refusal to comply with any lawful direction, decision or order given or made by a majority of the City Council.
5 13. Termination by GAINES. GAINES may, upon giving the CITY thirty (30) days advance written notice, resign from the position of City Manager; provided, however, that notice shall not be required in the event GAINES resigns pursuant to a request for resignation by the City Council. GAINES shall be compensated during the notice period. GAINES at the City Council's sole option may be directed not to report to work during all or any part of the resignation notice period.
14. Notices. All notices that are required to be given by one party to the other under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a U.S. Post Office for delivery by registered or certified mail addressed to the parties at the following addresses:
To CITY: Mayor and City Council
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
To GAINES: Melvin E. Gaines
2415 University Avenue
East Palo Alto, CA 94303
15.Insurance. GAINES shall obtain automobile insurance for the use of his personal automobile for City use, and maintain such insurance in force at all times during the term and performance of this AGREEMENT.
16.Indemnification.
a. The City shall defend, hold harmless and indemnify GAINES against any tort, professional liability claim or demand or other legal action arising out of any alleged act or omission arising out of GAINES's services to the CITY including, without limitation, claims arising out of personnel actions, but excluding liability arising from an (1) intentional tort or gross negligence committed outside the course and scope of employment; or (2) a criminal act. CITY shall defend, and may elect to compromise and settle any such claim or suit, and shall pay the amount of any settlement or judgment rendered thereon. Notwithstanding any other provision herein, CITY reserves the right to determine whether to indemnify for punitive damages.
b. Notwithstanding the foregoing, such indemnification shall be limited as follows: In accordance with California Government Code Sections 3511.1, 3511.2, 53243, 53243.1 and 53243.2, the following limitations apply to CITY's obligations to GAINES.
1. In the event GAINES is placed on paid leave pending an investigation, GAINES shall reimburse such pay to CITY if he is subsequently convicted of a crime that constitutes "abuse of office or position."
2. In the event City pays for GAINES's legal criminal defense, he shall fully reimburse such funds to the CITY if he is subsequently convicted of a crime that constitutes "abuse of office or position."
6 3. If this AGREEMENT is terminated, any cash settlement related to the termination that GAINES may receive from CITY must be fully reimbursed to CITY if he is subsequently convicted of a crime that constitutes "abuse of office or position."
4. For the purposes of this AGREEMENT, "abuse of office or position" shall be defined as in California Government Code Section 53243.4."
17.Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this AGREEMENT shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by both parties.
18. Governing Law and Venue. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California. GAINES and CITY agree that venue for any litigation arising out of this AGREEMENT shall be Superior Court for San Mateo County.
19.Counterparts. This AGREEMENT may be executed in counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument.
20. Severability Clause. Should any provision of this AGREEMENT ever be deemed to be legally void or unenforceable, all remaining provisions shall survive and be enforceable to the greatest extent permitted by law.
21. Ambiguity. The parties acknowledge that this is a negotiated AGREEMENT and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this AGREEMENT or any amendment or schedule hereto.
22. Headings. The section headings contained in this AGREEMENT are inserted for convenience only and shall not affect in any way the meaning or interpretation of this AGREEMENT.
23. Entire Agreement. This AGREEMENT constitutes the entire understanding and AGREEMENT between the parties as to those matters contained in it, and supersedes any and all prior or contemporaneous Agreements, representations and understandings of the parties.
24. Modification. This AGREEMENT may be amended at any time by mutual agreement of the parties, but any such amendment must be in writing, dated, and signed by the parties.
IN WITNESS WHEREOF, the parties have entered into this AGREEMENT on the day and year shown below the name of each of the parties.
7 CITY OF EAST PALO ALTO, MELVIN E. GAINES,
A municipal corporation An individual
BY: BY:
Lisa Yarbrough-Gauthier, Mayor Melvin E. Gaines
DATE: DATE:
ATTEST: APPROVED AS TO FORM:
James Colin, City Clerk Valerie J. Armento, Interim City Attorney
January 9, 2023