RESOLUTION NO. 2022-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
FULLERTON, CALIFORNIA APPROVING AN EMPLOYMENT
AGREEMENT RETAINING GREG PFOST AS INTERIM
DIRECTOR OF COMMUNITY DEVELOPMENT AND ECONOMIC
DEVELOPMENT
WHEREAS, Government Code S ection 21221(h) of the Public Employees’ Retirement Law permits the governing body to appoint a CalPERS retiree 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.
WHEREAS, the City of Fullerton desires to appoint Greg Pfost as an interim appointment retired annuitant to the vacant position of Director of Community and Economic Development for the City of Fullerton, under Gov ernment Code Section 21221(h), effective March 16, 2022.
WHEREAS, the Director of Community and Economic Development is the top executive level position in the Community and Economic Development Department and critical to the day-to-day operations as well as long term planning for the City’s Community and Economic Development Department.
WHEREAS, the City of Fullerton and Greg Pfost certify that Greg Pfost has not and will not receive a Golden Handshake or any other retirement-related incentive.
WHEREAS, an appointment under Government Code Section 21221(h) requires the City appoint the retiree into the interim appointment during recruitment for a permanent appointment.
WHEREAS, The City has a recruitment process for a Director of Community and Economic Development underway but expects to take a number of months to complete.
WHEREAS, Greg Pfost has expressed a desire to serve as an Interim Director of Community and Economic Development during the recruitment period.
WHEREAS, Greg Pfost has the specialized skills to plan, direct, manage and oversee the functions, programs and operations of the Community and Economic Development Department given his training and background as a Director and Deputy Director of Community Development.
WHEREAS, the compensation paid to retirees cannot equal 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.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FULLERTON RESOLVES AS FOLLOWS:
1. The City Council of the City of Fullerton does approve the attached City of Fullerton Employment Agreement retaining Greg Pfost as Interim Director of Community and Economic Development.
PASSED, APPROVED AND ADOPTED BY THE FULLERTON CITY COUNCIL ON MARCH 15, 2022.
Fred Jung
Mayor
ATTEST:
Lucinda Williams, MMC
City Clerk
CITY OF FULLERTON
AGREEMENT RETAINING EDDIE PFOST
AS INTERIM DIRECTOR OF COMMUNITY AND ECONOMIC
DEVELOPMENT
(Government Code section 21221(h) and 7522.56)
THIS INTERIM EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between the City of Fullerton, a California municipal corporation, (the "City") and Greg Pfost, an individual, (hereinafter referred to as " Pfost") to be effective the 16th day of March 2022 ("Effective Date"). The City and Pfost are sometimes hereinafter individually referred to as "party" and are hereinafter collectively referred to as the "parties."
The City has experienced significant impacts from COVID -19 including repeated closures of city hall, many local businesses, and financial impacts which have contributed to high levels of employees retiring or otherwise leaving the City’s employ. This has left several key management positions in the City vacant at a time when it is extremely difficult to fill such positions. In order to continue essential operations of the City and to provide staff to mitigate the effects of the COVID- 19 pandemic, the City Council has determined that among the essential positions of the City which must continue to be filled by a PERS’ retiree during the pandemic is that of Director of Community and Economic Development , a critical position necessary to help manage the community and economic development needs of the City during the pandemic, to aid in the application of numerous changes in state and federal law and regulations related to business assistance by the COVID -19 pandemic, as well as the day to day operations of to continue City services during the pandemic
.
A. The City desires to retain and appoint on an interim basis Pfost as the Interim Director of Community and Economic Development of the City to serve in thi s critical role to help mitigate the ongoing effects of the pandemic and pending the City's selection of a permanent Director of Community and Economic Development following completion of the ongoing recruitment process.
B. Pfost, a retired CalPERS annuitant, desires to serve as the duly appointed Interim Director of Community and Economic Development of the City to help the City mitigate the ongoing effects of the pandemic and to assist with meeting the critical pandemic - related community and economic development related challenges in the City pending the City's selection of a permanent Director of Community and Economic Development following completion of the ongoing recruitment, and Pfost understands that he shall hold office at the pleasure of the City Manager. Pfost has approximately 20 years of experience as a Director and Deputy Director of Community Development, most recently for the City of Laguna Beach, and he has the knowledge and experience required to serve as the Interim Director of Community and Economic Development pursuant to this Agreement.
NOW, THEREFORE, the parties agree as follows:
1.0 Appointment
1.1 The City hereby retains and appoints Jeff Pfost as Interim Director of Community and Economic Development of the City, and Pfost hereby accepts such employment and appointment with the City to perform the functions and duties of the Interim Director of Community and Economic Development as set forth in the Class Specification for Director of Community and Economic Development. This interim appointment is subject at all times to the terms and conditions of this Agreement and to perform other permissible and proper duties and functions consistent with the position of the Director of Community and Economic Development as the City Manager may from time to time assign. During the appointment, Pfost shall not work more than 960 hours in any one fiscal year for all CalPERS agencies except as expressly authorized by law, including Executive Order.
1.2 Pfost hereby agrees to perform fully and faithfully the functions and duties of the Interim Director of Community and Economic Development, as the duly appointed Interim Director of Community and Economic Development , as specified above and in accordance with the terms and conditions set forth herein.
2.0 Term of Agreement
The term of this Agreement shall commence on the Effective Date set forth above and shall continue in full force and effect for a period of up to three and one- half (3 1/2) months, ending the earlier of June 30, 2022 or the date a permanent Director commences work for the City , unless sooner terminated with or without cause or notice by the City Manager, or by Pfost with at least twenty four (2 4) hours advanced written notice to the City Manager provided in accordance with Section 11.2 of this Agreement.
3.0 Compensation
3.1 Pfost shall maintain time records in the City's timekeeping system for the services rendered pursuant to this Agreement.
3.2 Pfost will receive compensation at the rate of $84.00 per hour for all hours worked pursuant to this Agreement, minus any applicable payroll taxes required by state and federal law, payable in accordance with the City's established protocols and procedures used for City employees. Pfost shall not be entitled to any additional compensation or any severance pay upon termination of this Agreement. Pfost’s hourly rate is within the current salary range for the classification of Director of Community and Economic Development The hourly rate is calculated by taking the monthly salary for Director of Community and Economic Development and dividing by 173.333.
3.3 Subject to Section 4.0, Pfost is entitled to receive compensation only for hours worked, which includes all time spent on City related business, regardless of when or where performed and includes travel to and from City Hall to business related meetings.
Pfost may not invoice the City for travel to and from home to the City, or work unrelated to his work for the City, whether personal or professional, even if performed while at the City and during regular business hours of the City.
3.4 Pfost shall not be entitled to receive, and hereby waives, any benefits of employment whether provided to City's regular full-time or management employees or not, including, but not limited to, group health or medical benefits, life insurance, and vacation and other leave accruals. Pfost specifically acknowledges that his employment by the City under this Agreement is intended to be temporary and of limited duration, and that he will not be entitled to be a member of or accrue benefits under the California Public Employees Retirement System (CalPERS).
4.0 Hours of Work
The parties hereby expressly understand and agree that Pfost 's hours will not exceed the hours authorized by California Government Code section 21221 as they may be revised by law, regulation or executive order . Pfost shall be responsible for ensuring that he does not exceed the statutory fiscal year limit as may be established during the term of this Agreement . The City shall regularly audit Pfost 's hours to ensure compliance with Government Code section 21221. Pfost is expected to work approximately 30 hours a week, including attendance at City Council meetings as needed.
5.0 General Expenses
Pfost is not entitled to receive reimbursement for general expenses incurred, nor shall he be expected to incur such expenses, in the performance of his duties on behalf of the City pursuant to this Agreement. Notwithstanding the foregoing, if Pfost incurs an extraordinary expense related to the performance of his obligations pursuant to this Agreement and wishes to seek reimbursement from the City for such expense incurred, he shall do so by submitting a request for reimbursement to the Human Resources Director for approval. Any such request must be accompanied by a brief description of the expense and copies of receipts substantiating the expense.
6.0 Indemnification
Except for an act of misappropriation of public funds, or an indictment, the filing of an information, a plea of guilty or a plea of nolo contendre for a crime involving moral turpitude, City shall defend, hold harmless and indemnify Pfost against any action, claim, or liability, of whatever nature, which may be brought or imposed , whether groundless or otherwise, arising out of the City’s hiring of Pfost as Interim Director of Community and Economic Development to the maximum extent allowed by law. Pursuant to Government Code section 825(a), City reserves its rights not to pay a judgment, compromise, or settlement until it is established that the injury arose out of an act or omission relating to Pfost's employment.
7.0 Other Terms and Conditions
The City Manager, in consultation with Pfost , shall fix any such other terms and conditions, as it may determine from time to time, relating to the performance of Pfost, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, or any other applicable law.
8.0 Compliance with Law
Pfost shall comply with all applicable laws, ordinances, codes, and regulations of federal, state, and local government in the performance of the duties and obligations that are the subject of this Agreement.
9.0 Governing Law and Venue
This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. Any legal action arising under or related to this Agreement shall be brought and prosecuted in the Orange County Superior Court.
10 Certification Regarding Prior Unemployment Benefits
In accordance with Government Code section 7522.56(e)(1), Pfost 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.
11 General Provisions
11.1 This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the parties with respect to the subject matter hereof. No amendments or other modifications of this Agreement shall be binding unless executed in writing by both parties hereto, or their respective successors, assigns, or grantees. To the extent that other oral or written agreements exist or City Personnel Rules may apply to the relationship between City and Interim Director of Community and Economic Development , this Agreement supersedes all others.
11.2 Any notices requited by this Agreement shall be either given in person or mailed by first class mail with the postage prepaid and addressed as follows:
IFTO CITY:
IF TO INTERIM
DIRECTOR OF
COMMUNITY AND
ECONOMIC
DEVELOPMENT
303 W. Commonwealth Ave.
Fullerton, CA 92832
Attention: Human Resources Director
Jeff Pfost
[Address on file with HR Department]
11.3 If any provision, or any portion thereof, contained in this Agreement is held to be invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severed, shall not be affected and shall remain in full force and effect.
11.4 The provisions of this Agreement are subject to CalPERS rules and regulations regarding the employment of CalPERS retirees. Any provision, or any portion thereof, determined by CalPERS to be inconsistent with such rules and regulations shall be deemed struck from this Agreement and shall not affect the validity or enforceability of any other provision of this Agreement.
11.5 No modifications of this Agreement shall be effective.
11.6 City shall bear the full cost of any fidelity or other bonds, or insurance policies in lieu thereof, required of the Interim Director of Community and Economic Development under any law or ordinance.
IN WITNESS WHEREOF, the parties have executed and. entered into this Agreement as of the date first written above.
CITY OF FULLERTON
Jeff Collier, Acting City Manager
ATTEST:
Lucinda Williams, City Clerk
APPROVED AS TO FORM:
Richard D. Jones, City Attorney
JEFF PFOST