date of adoption.
PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this _____ day of _______, 202_, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
APPROVED:
ATTEST:
Mayor of said City
City Clerk thereof
Council Special Meeting, 12/15/2023, Item No. 3., Item Page 7, Packet Page 830 Council
Agenda Report
№08/22
FROM: Hans Uslar, City Manager
Prepared By: M.K. Salameh, Human Resources Analyst
SUBJECT: Appoint Andrew Miller as Interim Fire Chief and Authorize the City Manager to Execute the Employment Contract (Not a Project under CEQA Article 20, Section 15378 and under General Rule Article 5, Section 15061) RECOMMENDATION:
That the City Council adopt the attached resolution to appoint Andrew Miller as the Interim Fire Chief, effective December 31, 2023, and authorize the City Manager to sign the attached employment agreement.
VALUE DRIVERS:
Provide sufficient resources and support to develop, retain, and recruit a high quality city workforce.
POLICY IMPLICATIONS:
City Council appointment of an Interim Fire Chief is the preference held by CalPERS and is consistent with Government Code sections 21221(h). Under City Charter section 5.1, the City Manager shall appoint and remove all officers and employees of the City.
FISCAL IMPLICATIONS:
There is no fiscal implication as the existing auxiliary budget will cover the expense of the interim position.
ENVIRONMENTAL DETERMINATION:
The City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CCR, Title 14, Chapter 3 (“CEQA Guidelines), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project. Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability.
Date: 12/15/2023
Item No.: 4.
Council Special Meeting, 12/15/2023, Item No. 4., Item Page 1, Packet Page 831 ALTERNATIVES CONSIDERED:
The Council could not approve this action, however it is not recommended, as an Interim Fire Chief is needed to maintain continuity of fire services for our constituents.
DISCUSSION:
Current Fire Chief Gaudenz Panholzer announced his retirement from the City of Monterey on December 11, 2023, effective December 30, 2023. Staff recommends the appointment of Andrew Miller as Interim Fire Chief, effective December 31, 2023.
Government Code section 21221(h) provides the following parameters for this interim appointment:
(h) Upon interim appointment by the governing body of a contracting agency to a vacant position during recruitment for a permanent appointment and deemed by the governing body to require specialized skills or during an emergency to prevent stoppage of public business. A retired person shall only be appointed once to this vacant position. These appointments, including any made concurrently pursuant to Section 21224 or 21229, shall not exceed a combined total of 960 hours for all employers each fiscal year. The compensation for the interim appointment shall not exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on a publicly available pay schedule for the vacant position divided by 173.333 to equal an hourly rate. A retired person appointed to a vacant position pursuant to this subdivision shall not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate. A retired annuitant appointed pursuant to this subdivision shall not work more than 960 hours each fiscal year regardless of whether he or she works for one or more employers.
HU/mks
Attachments: 1. Resolution with Exhibit A, Draft Employment Contract Writings distributed for discussion or consideration on this matter within 72 hours prior to the meeting, pursuant to Government Code § 54957.5, will be made available at the following link:
https://monterey.org/Submitted-Comments
Council Special Meeting, 12/15/2023, Item No. 4., Item Page 2, Packet Page 832 RESOLUTION NO. __-___ C.S.
A RESOLUTION OF THE COUNCIL OF THE CITY OF MONTEREY
№010/23
APPOINTING ANDREW MILLER AS INTERIM FIRE CHIEF AND AUTHORIZING THE CITY
MANAGER TO EXECUTE AN EMPLOYMENT CONTRACT
WHEREAS, in compliance with Government (Gov.) Code section 21221(h) of the Public Employees’ Retirement Law, the City Council must provide CalPERS this certification resolution when hiring a retiree before hiring into a vacant interim position; WHEREAS, Andrew Miller, CalPERS ID 1640642399, retired from the City of Monterey in the position of Fire Chief, effective July 9, 2013; WHEREAS, Gov. Code section 7522.56(f) requires that post-retirement employment commence no earlier than 180 days after the retirement date; WHEREAS, the City of Monterey and Andrew Miller certify that Andrew Miller did not accept or receive a retirement-related incentive;
WHEREAS, an appointment under Gov. Code section 21221(h) requires the retiree is appointed into the interim appointment during recruitment for a permanent appointment; WHEREAS, the City Manager has authorized the search for a permanent appointment on December 15, 2023;
WHEREAS, the City Council hereby appoints Andrew Miller as an interim appointment retired annuitant to the vacant position of Fire Chief for the City of Monterey under Gov. Code section 21221(h), effective December 31, 2023. Andrew Miller has the special skills and knowledge required to perform this work of limited duration; WHEREAS, this Gov. Code section 21221(h) appointment shall only be made once; WHEREAS, the entire employment agreement, contract or appointment document between Andrew Miller and the City of Monterey has been reviewed by this body and is attached herein;
WHEREAS, the employment shall be limited to 960 hours per fiscal year for all CalPERS employers;
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;
WHEREAS, the base salary for this position is $20,010.00 per month and the hourly equivalent is $115.45;
WHEREAS, the hourly rate paid to Andrew Miller will be $115.45; Council Special Meeting, 12/15/2023, Item No. 4., Item Page 3, Packet Page 833 2 WHEREAS, Andrew Miller has not and will not receive any other benefit, incentive, compensation in lieu of benefit or other form of compensation in addition to this hourly pay rate; and
WHEREAS, the City of Monterey determined that the proposed action is not a project as defined by the California Environmental Quality Act (CEQA) (CCR, Title 14, Chapter 3 (“CEQA Guidelines), Article 20, Section 15378). In addition, CEQA Guidelines Section 15061 includes the general rule that CEQA applies only to activities which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Because the proposed action and this matter have no potential to cause any effect on the environment, or because it falls within a category of activities excluded as projects pursuant to CEQA Guidelines section 15378, this matter is not a project.
Because the matter does not cause a direct or any reasonably foreseeable indirect physical change on or in the environment, this matter is not a project. Any subsequent discretionary projects resulting from this action will be assessed for CEQA applicability;
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY that the above recitals are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.
NOW, THEREFORE, BE IT FURTHER RESOLVED BY THE COUNCIL OF THE CITY OF MONTEREY hereby certifies the nature of the employment of Andrew Miller as described herein, that it requires special skills, and as detailed in the attached employment agreement / contract / appointment document and that this appointment is necessary to fill the critically needed position of Fire Chief for the City of Monterey by December 31, 2023 because the City’s current Fire Chief is retiring effective December 30, 2023. The City Manager is authorized to execute the employment contract.
PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF MONTEREY this _____ day of _______, 202_, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
APPROVED:
ATTEST:
Mayor of said City
City Clerk thereof
Council Special Meeting, 12/15/2023, Item No. 4., Item Page 4, Packet Page 834
EXHIBIT A
1 AGREEMENT FOR PROFESSIONAL SERVICES
ANDREW MILLER
INTERIM FIRE CHIEF
THIS AGREEMENT, made and entered into this 31st day of December, 2023, by and between the CITY OF MONTEREY, a municipal corporation of the State of California, "City", and Andrew Miller, “Interim Fire Chief”, herein referred to as "Employee." WITNESSETH:
WHEREAS, City requires specialized skills in the performance of certain administrative and professional services for the position of "Interim Fire Chief" for a limited duration; and
WHEREAS, Employee is qualified to furnish such services in accordance with the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the mutual terms; covenants, and conditions contained herein, the parties hereto agree as follows:
1. Contract Appointment
Employee is hereby retained in the position of "Interim Fire Chief", and as such shall perform the duties and services of that position as more particularly described in the City's job description for Fire Chief. It is agreed that in fulfilling the duties and services of this job, Employee shall be employed on an hourly basis, working not more than 960 hours in any fiscal year. Employee shall be solely responsible for monitoring the number of hours worked, ensuring that Employee works no more than 960 hours in a fiscal year.
Employee may engage in outside consulting or training projects as long as those projects will not conflict with the duties of this position.
2. Status
Employee shall serve at the pleasure of the City Manager, subject to the terms and conditions hereof, and shall not acquire a property interest in employment or a right to continuing employment with the City of Monterey. The terms, covenants, and conditions of Employee's employment with the City are expressly limited by and to the terms, covenants and conditions of this Agreement. Employee shall be considered an Executive Management Employee.
Council Special Meeting, 12/15/2023, Item No. 4., Item Page 5, Packet Page 835
EXHIBIT A
2 3. Compensation
Employee shall receive compensation for the performance of the above described services at an hourly rate equal to the semi-monthly rate specified for the position of Fire Chief in the City's Salary Schedule, with said published semi-monthly rate currently TenThousand Five dollars ($10,005), for an actual hourly rate of One-Hundred and Fifteen dollars and forty-five cents ($115.45), at the inception of this agreement.
Employee shall not be entitled to overtime. Employee shall not receive any employee compensation not expressly set forth in this paragraph 3.
4. PERS Compliance
Employee shall adhere to all California laws and PERS regulations and requirements related to legal employment after retirement. Employee shall waive any claims against the City of Monterey and hold the City of Monterey harmless from any cause of action related to non-compliance with California laws and PERS regulations and requirements related to legal employment after retirement.
5. Term
The term of this agreement shall commence on December 31, 2023, and shall continue through no later than January 2, 2025. The agreement may not be extended without City Council amendment of Resolution 15-067 C.S.
6. Termination
Either party may terminate this Agreement without cause upon giving the other party not less than thirty (30) days prior written notice. Notwithstanding anything to the contrary, Employee shall, upon Notice of Termination, deliver to City a written status report of all projects or matters in which Employee is involved. In the event of such termination, all rights and obligations of the parties hereto shall thereupon cease. The provisions of this paragraph shall not be deemed a limitation upon the respective rights or remedies of the parties hereto which may accrue to them.
7. Standard of Performance
All services to be performed by Employee pursuant to paragraph 1, hereof, shall be performed in accordance with all applicable ordinances, policies, and rules and regulations of the City.
Council Special Meeting, 12/15/2023, Item No. 4., Item Page 6, Packet Page 836
EXHIBIT A
3 8. Non-assignability
Employee shall not sub-contract, assign, sell, mortgage, hypothecate, or otherwise transfer Employee's interests, rights, duties or obligations hereunder in any manner, without the express prior written consent of the City.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first hereinabove written.
City of Monterey, a
Municipal Corporation of the
State of California
BY: __________________________________
Hans Uslar, City Manager
BY: __________________________________
Andrew Miller, Interim Fire Chief
Council Special Meeting, 12/15/2023, Item No. 4., Item Page 7, Packet Page 837