CITY OF LOMITA
CITY COUNCIL REPORT
TO: Mayor Waite and City Councilmembers
FROM: Trevor Rusin, City Attorney
Ryan Smoot, City Manager
MEETING DATE: December 5, 2023
SUBJECT: Discussion and Consideration of a Resolution Approving an Employment Agreement with Joe Hoefgen to Serve as Interim City Manager
RECOMMENDATION
Adopt Resolution 2023-30 approving an Employment Agreement with Joe Hoefgen to serve as Interim City Manager.
DISCUSSION
City Manager Ryan Smoot has announced his resignation from his position effective January 1, 2024. After careful consideration and discussion, by the City Council it is recommended that Joe Hoefgen be appointed to serve as Interim City Manager starting January 2, 2024, while the City conducts a search for its next permanent City Manager.
Mr. Hoefgen is currently a retired annuitant after serving as the City Manager in the cities of Redondo Beach and Palos Verdes Estates among other local government experience.
In total, Mr. Hoefgen brings more than 30 years of local government experience in various capacities. He is familiar with the City of Lomita and its operations, and familiar with the South Bay. Most recently Mr. Hoefgen also served as the Interim City Manager in the City of Signal Hill.
At the City Council’s direction, the attached Resolution and Employment Agreement have been negotiated and prepared for consideration. If approved, the agreement would provide Mr. Hoefgen with compensation at an hourly rate equivalent to that of the current City Manager (currently $120.19 per hour) – Pursuant to CalPERS regulations, the City cannot pay any less nor any more than the approved hourly rate in the existing salary schedule for the same position. The Agreement stipulates that Mr. Hoefgen is not entitled to any other fringe benefits provided to other City Employees, with the exception that he may participate in the City’s 457(b) plan at his own cost and with no contribution from the City. As a retired annuitant, Mr. Hoefgen is limited in the total number of hours he may Item No. SCH 9b
work for the City to 960 total hours in a fiscal year, and the agreement stipulates that it will terminate upon the appointment of a permanent City Manager, or upon reaching 960 hours. The City has begun the process of searching for a permanent City Manager and expects that process to be complete within the next few months.
FISCAL IMPACT
The hourly rate provided for in the agreement is the same as that of the current City Manager ($120.19). The City will see savings budgetary savings as it Mr. Hoefgen is not entitled to the same benefits provided as part of the employment agreement with the current City Manager.
ATTACHMENTS
1. Resolution with Exhibit A – Agreement for Interim City Manager Position Reviewed by: Approved by:
______________________
Gary Y. Sugano Ryan Smoot
Assistant City Manager City Manager
RESOLUTION NO. 2023-30
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LOMITA, CALIFORNIA, APPOINTING JOE HOEFGEN AS
INTERIM CITY MANAGER AND APPROVING AN
EMPLOYMENT AGREEMENT
WHEREAS, Government Code Section 21221(h) permits the City Council to appoint a retired annuitant 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; and WHEREAS, As of January 2, 2024, the position of City Manager will be vacant; and WHEREAS, the Lomita City Council desires to appoint Joe Hoefgen as an interim appointment retired annuitant to the vacant position of City Manager for the City of Lomita under Government Code Section 21221(h), effective January 1, 2024; and WHEREAS, Joe Hoefgen has over 30 years of municipal government experience, which includes more than 10 years of experience serving as a City Manager in other, local communities in the South Bay and surrounding southern California cities; and WHEREAS, an appointment under Government Code Section 21221(h) requires an active, publicly posted recruitment for a permanent replacement, and as of the date of this Resolution, the City has a notice posted on its website that it is recruiting for a permanent City Manager. The City is and will abide by Section 21221(h) and will take further steps to actively recruit for a permanent City Manager; and WHEREAS, Government Code Section 7522.56(f) requires that post-retirement employment commence no earlier than 180 days after the retirement date, and Joe Hoefgen satisfies this requirement, in that he has been retired from public service since November, 2021; and
WHEREAS, this Section 21221(h) appointment shall only be made once and therefore will end on the date immediately preceding the date on which the regular replacement for the vacant position of City Manager for the City of Lomita commences his or her employment or, if earlier, the date that this appointment is terminated by the City or Joe Hoefgen; 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 minimum hourly rate for this position is $120.19, and the maximum hourly rate for this position is $120.19; and
Attachment No. 1
2 Resolution No. 2023-29
WHEREAS, the hourly rate to be paid to Joe Hoefgen is $120.19; and WHEREAS, Joe Hoefgen has not and will not receive any other benefit, incentive compensation in lieu of benefits or any other form of compensation in addition to this hourly pay rate.
WHEREAS, the entire employment agreement between Joe Hoefgen and the City of Lomita has been reviewed by this body and is attached hereto as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lomita, as follows:
SECTION 1. The City Council has considered the full record before it, which may include but is not limited to such things as the agenda staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.
SECTION 2. The City Council hereby appoints Joe Hoefgen as interim City Manager effective January 1, 2024, pursuant to the authority provided under Government Code Section 21221(h) and 7522.56, during the recruitment, selection and employment of a regular City Manager, to provide the critically-needed, specialized skills necessary to run the City of Lomita.
SECTION 3. The employment agreement with Joe Hoefgen, a copy of which is incorporated herein as Exhibit A, is approved by the City Council, effective December 5, 2023.
SECTION 4. The Mayor is authorized to execute said agreement on behalf of the City, with such technical amendments as may be deemed appropriate by the City Manager and City Attorney.
SECTION 5. This Resolution shall take effect immediately upon its adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Lomita, California, at a regular meeting held on this 5 th day of December 2023.
Bill Uphoff, Mayor
ATTEST:
Kathleen Horn Gregory, MMC, City Clerk
APPROVED AS TO FORM:
Trevor Rusin, City Attorney
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CITY OF LOMITA
AGREEMENT FOR
INTERIM CITY MANAGER POSITION
THIS AGREEMENT (“Agreement”), is made and entered into this 5th day of December, 2023, by and between the City of Lomita (“CITY”) and Joe Hoefgen (“RETIREE”) (collectively, the “Parties”). In consideration of the mutual covenants and agreements set forth herein, the Parties agree as follows:
RECITALS
This Agreement is made and entered into with respect to the following facts:
A. CITY seeks to engage RETIREE on an interim basis in the position of City Manager, to serve for a definite period of time, in accordance with the terms set forth in this Agreement; and
B. The parties wish to have RETIREE perform the services of Interim City Manager, while CITY conducts its recruitment for a permanent City Manager, and will terminate such services upon CITY’s selection and hiring of a permanent City Manager; and C. RETIREE desires to accept employment as City Manager on an interim basis in consideration of and subject to the terms, conditions and benefits set forth in this Agreement; and D. Government Code Sections 7522.56 and 21221(h) permit retired annuitants under the California Public Employees’ Retirement System (“CalPERS”) to be employed without reinstatement from retirement upon appointment by a public agency to fill a vacant position on an interim basis during the recruitment to permanently fill the vacant position, if approved by the Governing Board;
E. RETIREE represents that he is a retired annuitant of CalPERS within the meaning of Government Code §§7522.56 and 21221(h) (“Statutes”) and acknowledges that his compensation is statutorily limited as provided in Government Code §21221(h). RETIREE understands that he can work up to 960 hours total for CITY, a state agency or other CalPERS contracting agencies (collectively “CalPERS Agencies”) during a fiscal year. RETIREE will make CITY aware of all hours he has worked this fiscal year for any CalPERS agencies. With the execution of this Agreement, RETIREE affirms that he has not received unemployment compensation arising from work pursuant to Government Code Section 7522.56 during the 12- month period preceding the effective date of this Agreement. RETIREE further affirms that his CalPERS retirement date became effective prior to the 180-day period preceding the Commencement Date, as that term is defined in Section 3 of this Agreement; and F. CITY has determined that it is necessary to hire RETIREE, a retired annuitant, because of his extensive knowledge of, skills, and experience in the position of a City Manager at a public entity, which skills are necessary for the successful operation of CITY.
NOW, THEREFORE, CITY and RETIREE, in consideration of the mutual covenants and agreements herein contained, agree as follows:
Exhibit A
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1. APPOINTMENT. In accordance with Resolution No. _____, RETIREE is appointed City Manager of CITY effective January 2, 2024, on an interim basis under the terms of this Agreement.
2. POSITION AND DUTIES. RETIREE is appointed by the City Council of CITY as City Manager of CITY on an interim basis to perform, on the basis set forth in Paragraph 4 below, the duties and functions of the City Manager, and to perform other legally permissible duties and such functions as the City Council shall from time to time assign. The City Council shall have the authority to determine the specific duties and functions which RETIREE shall perform under this Agreement. RETIREE agrees to devote the time, skill, attention, and best efforts necessary to the discharge of the duties and functions of the City Manager position and any other duties assigned to him by the City Council.
3. TERM, TERMINATION AND AT-WILL STATUS. This Agreement shall become effective upon the date executed both by RETIREE and CITY, which date shall be the date first referenced above. RETIREE shall commence the performance of his duties under this Agreement on January 2, 2024, or at such later date as the parties hereto shall agree in writing (“Commencement Date”). This Agreement shall expire as of the first of the following to occur: (i) upon the employment commencement date of a permanent City Manager; (ii) upon RETIREE working 960 hours combined for any CalPERS Agencies during fiscal year 2023-2024 or 960 hours in any subsequent fiscal year; or (iii) upon termination of the Agreement by either RETIREE or CITY as provided below.
RETIREE acknowledges that he is an at-will, temporary employee of CITY who shall serve at the pleasure of the City Council at all times during the period of his service hereunder and shall be subject to termination by the City Council at any time without advance notice and without cause. Nothing in this Agreement is intended to, nor does, confer upon RETIREE any right to any property interest in continued employment, or any due process right to a hearing before or after a decision by the City Council to terminate his employment. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of RETIREE and nothing in this Agreement shall prevent, limit or otherwise interfere with the right of RETIREE to resign at any time from his position with CITY.
4. COMPENSATION. CITY agrees to provide the following compensation to RETIREE for the services of Interim City Manager:
Beginning as of the Commencement Date, CITY agrees to pay to RETIREE for services rendered under this Agreement, $120.19 per hour, which amount is in conformance with the requirements of Government Code Section 7522.56(d). The hourly rate is not more than the maximum nor less than the minimum monthly base salary paid to other employees performing comparable duties as listed on CITY’s publicly approved pay schedule, reflected as an hourly rate by dividing the monthly base pay by 173.333. Because RETIREE is paid on an hourly basis, and in accordance with the FLSA, if RETIREE works over 40 hours per workweek, RETIREE will be paid for additional hours at the legally required overtime rate. RETIREE shall not be entitled to any additional compensation. CITY shall not pay for vacation or holidays, nor shall RETIREE be entitled to any fringe benefits. Notwithstanding the foregoing, if allowed by law, RETIREE will be authorized to voluntarily participate in CITY's 457(b) supplemental retirement savings plan, provided, however, that CITY shall not make any contributions thereto.
5. SUPPORT SERVICES AND EQUIPMENT. RETIREE shall be provided office space and the equipment needed to perform his duties and sufficient to fulfill obligations 65265.00001\41842843.1
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under this Agreement, as determined by the City Council. In accordance with Government Code Section 21221(h), personal use of such equipment is not permitted.
6. EXPENSES. CITY shall reimburse RETIREE for authorized, reasonable and necessary travel expenses incurred by RETIREE in the performance of his duties pursuant to this Agreement. RETIREE shall document and claim said reimbursement for such travel in the manner and forms required by CITY. All reimbursements shall be for actual expenses and shall be subject to and in accordance with California and federal law and CITY’s adopted reimbursement policies.
RETIREE will not be compensated or reimbursed for commuting. Other than as specifically provided herein, RETIREE shall receive no other compensation or reimbursements for expenses incurred by him in performance of this Agreement. Reimbursements are not compensation and shall not be reported to CalPERS.
7. PROPRIETARY INFORMATION. “Proprietary Information” is all information and any idea pertaining in any manner to the business of CITY (or any CITY affiliate), its employees, consultants, or business associates, which was produced by any employee of CITY in the course of his or her employment or otherwise produced or acquired by or on behalf of CITY.
Proprietary Information shall include, without limitation, trade secrets, product ideas, inventions, processes, formulae, data, know-how, software and other computer programs, copyrightable material, marketing plans, strategies, sales, financial reports, forecasts, and customer lists. All Proprietary Information not generally known outside of CITY, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” During his employment by CITY, RETIREE shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY and as is, or may be, necessary to perform his job responsibilities under this Agreement. Following termination, RETIREE shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of CITY. RETIREE’S obligations under this Section shall survive the termination of his employment and the expiration of this Agreement.
8. NON-ASSIGNMENT OF AGREEMENT. This Agreement is intended to secure the individual services of the RETIREE and is not assignable or transferable by RETIREE to any third party.
9. GOVERNING LAW/VENUE. This Agreement shall be interpreted according to the laws of the State of California. Venue for any action or proceeding regarding this contract shall be in Los Angeles County.
10. ENFORCEABILITY. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
11. CONFLICT OF INTEREST. RETIREE agrees that during the term of this Agreement, he will not maintain any financial interest or engage in any other contract employment, occupation, work, endeavor or association, whether compensated or not, that would in any way conflict with, or impair RETIREE’S ability to perform the duties described in this Agreement. Any work performed for CITY outside the terms of this Agreement must be approved in advance in writing by the City Council. RETIREE agrees to disclose whether he is performing work for any other CalPERS public agency employer during the term of this Agreement. 65265.00001\41842843.1
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12. NOTICE. Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified or by delivery of same to the custody of the United States Postal Service, or its lawful successor, postage prepared and addressed as follows:
CITY
City of Lomita
24300 Narbonne Ave.
Lomita, CA 90717
Attention: City Clerk
RETIREE
Joe Hoefgen
[ADDRESS ON FILE]
13. HOURS OF WORK. RETIREE shall devote the time necessary to adequately perform his duties as City Manager on an interim basis. The parties anticipate that RETIREE will work the following schedule: 7:30 AM to 5:30 PM, Monday through Thursday, and 8:00 to 5:30 PM alternating Fridays, unless an alternate schedule is agreed to by CITY and RETIREE. However, in no event shall RETIREE be required to work in excess of 960 hours in fiscal year 2023-2024 and 960 hours per each subsequent fiscal year for CITY, including hours worked for other CalPERS Agencies during such fiscal years.
RETIREE will comply with all applicable CalPERS regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to CalPERS as may be required. CITY shall assist in any such reporting obligations to CalPERS. Additionally, RETIREE shall keep CITY continually apprised of any hours worked by RETIREE for other CalPERS Agencies during the term of this Agreement.
14. WAIVER. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver.
15. INDEMNIFICATION. In accordance with and subject to the limitations of the California Government Claims Act, the California Government Code and California Labor Code, CITY shall defend, save harmless and indemnify RETIREE against any tort, professional liability, claim or demand or other legal action, arising out of an alleged act or omission occurring in the performance of RETIREE’s services as City Manager on an interim basis, except that this provision shall not apply with respect to any intentional tort or crime committee by RETIREE, or any actions outside the course and scope of his employment as City Manager on an interim basis.
16. NO PRESUMPTION OF DRAFTER. The Parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the Parties, and this Agreement reflects their mutual agreement regarding the subject matter of this Agreement.
Because of the nature of such negotiations and discussions, it would be inappropriate to deem any Party to be the drafter of this Agreement and, therefore, no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement.
17. ASSISTANCE OF COUNSEL. Each party to this Agreement warrants to the other party that the party has either had the assistance of counsel in negotiation for, and preparation 65265.00001\41842843.1
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of, this Agreement or could have had such assistance and voluntarily declined to obtain such assistance.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement of the parties considering the subject matter hereof and all prior agreements or understanding, oral or written, are hereby merged herein. This Agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment, signed, and acknowledged by both of the parties thereto. If any portion or provision hereof is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement or portion thereof shall be deemed severable and shall be effective and shall remain in full force and effect.
CITY OF LOMITA
By: _______________________________ Date: _______________________________ Barry Waite, Mayor
RETIREE
By: _______________________________ Date: _______________________________ Joe Hoefgen
Approved as to Form:
By: _______________________________ Date: _______________________________ Trevor Rusin
City Attorney
City of Lomita