•
® CITY COUNCIL
AGENDA ❑ COMMUNITY DEVELOPMENT COMMISSION
REPORT ❑ SUCCESSOR AGENCY
❑ BUENA SANITATION DISTRICT
❑ JOINT POWERS FINANCING AUTHORITY
Department: City Attorney Item No: C7
Prepared by: Kathy Valdez, City Clerk Meeting Date: August 23, 2022 Approved by: Patrick Johnson, City Manager Agenda Location: Consent Calendar SUBJECT: APPOINTMENT OF CITY ATTORNEY
RECOMMENDATION: Adopt City Council Resolution No. 2022- , appointing Walter Chung as City Attorney.
CORRELATION TO CITY COUNCIL GOALS: Routine operational item not directly corresponding to a specific City Council goal.
PRIOR ACTION: On May 24, 2022, adopted City Council Resolution No. 2022-74, appointing Walter Chung as Acting City Attorney (Vote: 5-0).
STATEMENT ON THE SUBJECT: On June 3, 2022, Darold Pieper retired as the City Attorney. On May 24, 2022, the City Council appointed Walter Chung as the Acting City Attorney beginning upon Darold Pieper's retirement. The City Council has determined that Walter Chung has the necessary background, education, and experience to serve as the City's next City Attorney.
Walter Chung has been an attorney for 30 years. Over half of that time, Mr. Chung has practiced municipal law in San Diego County. He has extensive litigation and transactional experience.
Furthermore, Walter Chung has earned the professional distinction of being named one of the top twenty- five municipal lawyers in the State of California.
At this time, the City Council desires to enter into an employment agreement, formally appointing Mr.
Chung as the City of Vista's City Attorney.
FISCAL IMPACT: The annualized salary for Mr. Chung will be $250,000. Sufficient funds are available in the City Attorney Salary expense account (0010140.511000).
EXHIBITS:
1. City Council Resolution No. 2022- , appointing Walter Chung as City Attorney
2. Employment Agreement with Walter Chung
ACTION: Approved above recommendation, adopted City Council Resolution No. 2022-127.
Vote: 5-0
Clerk/Se retary
08/23/2022 C7 Page 1 of 16
RESOLUTION NO. 2022-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF VISTA,
CALIFORNIA, APPOINTING WALTER CHUNG AS CITY ATTORNEY
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. The former Vista City Attorney, Darold Pieper, retired on June 3, 2022.
B. Walter Chung has been the Acting City Attorney since June 3, 2022.
C. Walter Chung has the requisite background, education and experience for the position of City Attorney.
D. The City Council desires to appoint Walter Chung as City Attorney.
2. Action.
A. The City Council appoints Walter Chung as City Attorney at the annualized salary of$250,000.
B. The Mayor is authorized to execute the employment agreement with Walter Chung.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on August 23, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
JUDY RITTER, MAYOR
APPROVED AS TO FORM: ATTEST:
WALTER C. CHUNG,ACTING CITY ATTORNEY KATHY VALDEZ, CITY CLERK By: By:
APPROVED
Walter Chung
201606823084206
001086871 EXHIBIT 1
08/23/2022 C7 Page 2 of 16
CITY ATTORNEY EMPLOYMENT AGREEMENT
between the
City of Vista
and
Walter Chung
1. Parties and Date
This Agreement is entered into as of August 23, 2022 by and between the City of Vista, California, a municipal corporation (the "City"), and Walter Chung, an individual ("Chung"). The City and Chung are sometimes individually referred to as a "Party" and collectively as "Parties."
A. The City requires the services of a City Attorney and City Prosecutor.
B. Chung has the necessary education, experience, skills and expertise to serve as the City's City Attorney and City Prosecutor; and
C. The City Council of the City (the "City Council") desires to employ Chung to serve as the City Attorney and City Prosecutor of City.
D. The Parties desire to execute this Agreement pursuant to the authority of and subject to the provisions of Government Code Section 53260 et seq.
E. In consideration of these Recitals and the performance by the Parties of the promises, covenants, and conditions herein contained, the Parties agree as provided in this Agreement.
2. Employment
The City hereby employs Chung as its City Attorney and City Prosecutor (hereinafter collectively, "City Attorney"), and Chung hereby accepts such employment.
3. Commitments and Understandings
A. Chung's Commitments
(1) Duties and Authority
(a) Chung shall be the City Attorney of the City and be responsible to the City Council for the proper administration of the offices of City Attorney and City Prosecutor.
(b) Chung shall perform all of the duties of City Attorney and City Prosecutor as set forth in Chapter 7 of Division 3 of Title 4 of the California Government Code, and applicable provisions of the 001084871 EXHIBIT 2
08/23/2022 C7 Page 3 of 16
Vista Municipal Code (the "Municipal Code"), and City policies and procedures approved by the City Council, as may be provided from time to time.
(c) Chung will review all components of the City Attorney's budget by October 2006 with the goal of then effectuating a ten percent reduction in budget expenditures.
(2) Hours of Work
(a) Chung is an exempt employee but is expected to engage in those hours of work that are necessary to fulfill the obligations of Chung's position. Chung does not have set hours of work as Chung is expected to be available at all times.
(b) It is recognized that Chung must devote a great deal of time to the business of the City outside of the City's customary office hours, and to that end Chung's schedule of work each day and week shall vary in accordance with the work required to be performed.
Chung shall spend sufficient hours on site to perform Chung's duties; however, Chung has discretion over Chung's work schedule and work location.
(c) The City recognizes continuous civic, community and professional involvement by Chung consistent with community service, professional growth and responsibility as a member of the State Bar of California. The City acknowledges that Chung may be called upon from time to time for consultation purposes by other government related entities, either directly or though a contractual relationship with a law firm serving such entities. The City also acknowledges that Chung serves as a legal instructor or seminar presenter from time to time. Chung agrees that he shall not engage in any such activities or legal services that conflict with his full-time employment by the City.
(3) Disability or inability to perform
(a) In the event Chung becomes mentally or physically incapable of performing Chung's functions and duties with reasonable accommodation and it reasonably appears such incapacity will last for more than six months, the City Council may terminate Chung. If the City Council does elect to terminate Chung due to incapacity, Chung shall receive all severance benefits provided in Section 7.0 below.
001084871
08/23/2022 C7 Page 4 of 16
B. City Commitments
(1) The City shall provide Chung with the compensation, incentives and benefits, specified elsewhere in this Agreement.
(2) The City shall provide Chung with a private office, secretary, staff, office equipment, supplies, automobile allowance, and all other facilities and services adequate for the performance of Chung's duties. (3) The City shall pay for or provide Chung reimbursement for all actual business expenses in accordance with City policy.
(4) The City agrees to pay the professional dues and subscriptions on behalf of Chung which are necessary for Chung's continuation and full participation in national, regional, state, or local associations and organizations necessary and desirable for the good of the City, and for Chung's continued professional participation and advancement. (5) The City agrees to pay the travel and subsistence expenses of Chung to pursue official and other functions for the City, and meetings and occasions to continue the professional development of Chung, including, but not limited to, national, regional, state, and local conferences, and governmental groups and committees upon which Chung serves as a member.
(6) The City also agrees to pay for the travel and subsistence expenses of Chung for short courses, institutes and seminars that are necessary for the good of the City or for the professional development of Chung. (7) The City recognizes the desirability of representation in and before local civic and other organizations, and Chung is authorized to become a member of civic clubs or organizations, for which the City shall pay membership dues.
(8) Given the importance of technological tools to the effective and efficient business of City government, the City shall provide desktop computer, laptop computer, high-speed internet access, cellular phone allowance, electronic calendar, fax, copy machine and similar devices or services to Chung at the City's expense at Chung's office.
(9) The City's commitments under this Section 3.B shall be subject to a budget adopted by the City Council, which budget shall consider the principles and requirements of this Agreement.
C. City Council Commitments
(1) The City Council sets policy for the governance and administration of the City.
001084871
08/23/2022 C7 Page 5 of 16
(2) The City Council recognizes that to meet the challenges facing the City they must exercise decisive policy leadership. As one step in carrying out this leadership responsibility, the City Council commits to spending time each year outside of regular City Council meetings to work with Chung and staff on setting goals and priorities for the City government, and to work on issues that may be inhibiting the maximal achievement of City goals.
(3) Except for the purpose of inquiry, the City Council and its members shall deal with all subordinate City Attorney employees and consultants solely through Chung or Chung's designee, and neither the City Council nor any member thereof shall give orders to any subordinate of Chung, either publicly or privately.
(4) The City Council agrees none of its individual members will order the appointment or removal of any person to any office or employment under the supervision and control of Chung.
(5) The City Council agrees that any criticism of a City Attorney staff member shall be done privately through Chung.
(6) Neither the City Council nor any of its members shall interfere with the execution of the powers and duties of Chung. Chung is responsible to the City Council as a whole, and only the City Council, when it is sitting as a body in a lawfully held meeting, may give him binding directions.
D. Mutual Commitments
(1) Performance Evaluation
The City Council shall conduct an evaluation of Chung's performance at least once each year. The City Council and Chung agree that performance evaluations, for the purpose of mid-course corrections, may occur quarterly or several times during each calendar year. The Parties may use an outside facilitator paid by City funds to assist them in conducting this evaluation, at the option of the City Council. The City Council shall also determine as part of its evaluation whether or not Chung's compensation or benefits should be increased as a result of his performance.
4. COMPENSATION
The City agrees to provide the following compensation to Chung during the term of the agreement:
001084871
08/23/2022 C7 Page 6 of 16
A. Compensation & Reauired Employer Costs
(1) Base Salary
The monthly salary for the position of City Attorney shall initially be $20,833.33.
(a) Chung shall be paid at the same intervals and in the same manner as regular City employees.
(b) Notwithstanding the City's salary table or general City management salary reductions, the annual salary of Chung shall never be less than the second highest salary paid to any City employee (excluding overtime and any incentive compensation). (c) The City shall not at any time during the term of this Agreement reduce the base salary, compensation or other financial benefits of Chung, unless as part of a general City management salary reduction, and then in no greater percentage than the average reduction of all City department heads.
(2) Reauired Employer Costs
(a) Federal Insurance Contributions Act(FICA) (if applicable). (b) Unemployment Compensation.
(c) The City will pay City's share for participation in the Public Employees' Retirement System (PERS), and Chung will pay Employee's share.
(d) The cost of any fidelity or other bonds required by law for Chung. (e) The cost to defend and indemnify Chung as provided in Section
8.E below.
(f) Workers Compensation.
B. Basic Benefits
(1) Plan Benefits
Chung shall be entitled to all benefits, rights, and privileges accorded under the City's Management and Confidential Employee Compensation Plan for Appointed Management Employees as the same may be increased, but not decreased, from time to time, except as otherwise provided in this Agreement. If there is any conflict between this Agreement and any subsequent Management and Confidential Employee 001084871
08/23/2022 C7 Page 7 of 16
Compensation Plan, this Agreement shall control. In the event of material modifications to the Management and Confidential Employee Compensation Plan that would negatively affect the benefits of the City's management employees to a material degree, Chung and the City Council will reevaluate the scope of this provision.
(2) Vacation Leave Allowance
Chung shall be given 80 hours of vacation leave credit effective upon the execution of this Agreement, and Chung shall thereafter accrue vacation leave at the maximum annual rate applicable to any Appointed Management Employee.
(3) Administrative Leave Allowance
Chung shall be given 76 hours of administrative leave credit effective upon the execution of this Agreement, and Chung shall thereafter accrue administrative leave at the maximum annual rate applicable to any Appointed Management Employee.
(4) Automobile
Chung shall be provided a monthly automobile allowance of$500 in exchange for making a vehicle available for Chung's own use and for City-related business and/or functions during, before and after normal work hours. Chung, in making Chung's personal automobile available for use, is not precluded from using City vehicles for City business during, before, and after the normal workday on occasion, when appropriate.
(5) Cellular Telephone Allowance
Chung shall be provided a monthly cellular telephone allowance of$50 in exchange for making a cellular telephone available for Chung's own use and for City-related business.
(6) Retirement Health
City will contribute $10,000 annually to an ICMA-RC Vantagecare Retirement Health Savings Program established by City for Chung. The initial contribution shall be made upon the establishment of the program and thereafter in January of each calendar year during the term of this Agreement.
001084871
08/23/2022 C7 Page 8 of 16
5. SECURITY
A. Basic Benefits
Chung shall be entitled to all benefits, rights, and privileges accorded under the City's Management and Confidential Employee Compensation Plan for Appointed Management Employees as the same may be increased, but not decreased, from time to time, except as otherwise provided in this Agreement.
If there is any conflict between this Agreement and any subsequent Management and Confidential Employee Compensation Plan, this Agreement shall control.
B. Pensions
(1) Public Employees Retirement System (PERS)
For the purposes of PERS reporting, the City shall incorporate into the reported base pay as compensation earnable, but only to the extent, if any, that PERS will consider it to be compensation earnable, all payments to Chung for the following: cafeteria plan contributions, and deferred compensation, as well as Section 4.A(1) base pay. (2) Deferred Compensation
The City will make deferred compensation programs available to all Management employees.
C. Insurance
(1) Life Insurance
The City will endeavor to obtain a term life insurance in the amount of $500,000 with the premium to be paid by the City. The policy shall be structured such that Chung, at Chung's own expense, may purchase additional coverage at the same or more favorable rates. In the event that this level of life insurance is not attainable due to Chung's health condition, age, or other factors beyond the City's control, this benefit shall be obtained at lesser amount that is attainable, or the City may elect to reimburse Chung for his existing private life insurance premiums.
6. [RESERVED]
7. SEPARATION
A. Resianation/Retirement
Chung may resign at any time and agrees to give the City at least 60 days advance written notice of the effective date of Chung's resignation, unless the 001084871
08/23/2022 C7 Page 9 of 16
Parties otherwise agree in writing. If Chung retires from full time public service with the City, Chung may provide six months' advance notice. Chung's actual retirement date will be mutually established.
B. Termination & Removal
(1) Chung is an at-will employee serving at the pleasure of the City Council as provided in Government Code Section 36506.
(2) The City Council may remove Chung at any time, with or without cause, by a majority vote of its members. Notice of termination shall be provided to Chung in writing. Termination as used in this shall also include request that Chung resign, a reduction in salary or other financial benefits of Chung (including a general City Management salary reduction), a material reduction in the powers and authority of Chung, or the elimination of Chung's position. Any such notice of termination or act constituting termination shall be given at or effectuated at a duly noticed regular meeting of the City Council.
(3) Chung shall not be removed during the 90-day period preceding or following any City election for membership on the City Council, or during the 90-day period following any change in membership of the City Council, except upon unanimous vote of the City Council. (4) Given the at-will nature of the position of City Attorney, an important element of the employment agreement pertains to termination. It is in both the City's interest and that of Chung that any separation of Chung is done in a professional manner.
C. Severance Pav
(1) In the event Chung is terminated by the City Council during such time that Chung is willing and able to perform Chung's duties under this Agreement, then in that event the City agrees to pay Chung a lump sum cash payment equal to twelve months' base salary then in effect as provided in 4.A(1) above.
(2) In addition, the City shall extend to Chung the right to continue health insurance as may be required by and pursuant to the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act Of 1986 (COBRA).
(3) In the event the City refuses, following written notice of non-compliance, to comply with any provision in this Employment Agreement benefiting Chung, or Chung resigns following a suggestion, whether formal or informal, by a majority of the City Council that Chung resign, then, in that event, Chung may, at Chung's option, be deemed to be "terminated" as of the date of such refusal to comply or suggestion to resign and this 001084871
08/23/2022 C7 Page 10 of 16
severance pay provision shall be actuated.
(4) All payments required under Sections 7.C(1), (2), and (3) are subject to and shall be interpreted to comply with the limitations set forth in Government Code Section 53260.
D. Involuntary Resignation
(1) In the event that the City Council formally or a majority of the City Council informally asks Chung to resign, then Chung shall be entitled to resign and still receive the severance benefits provided in Section 7.0 above. (2) Chung has relied upon the provisions of the Municipal Code upon entering into this Agreement, as it pertains to the City Attorney's role, powers, duties, authority, responsibilities, compensation and benefits. In the event the City Council adds, deletes or amends the Municipal Code without the consent of Chung, and such addition, deletion or amendment is inconsistent with the terms of this Agreement and the City Attorney's role, powers, duties, authority, responsibilities, compensation and benefits as currently provided, then Chung shall have the right, at Chung's sole option, to give the City Council notice that such amendment(s) constitute a request by the City Council for Chung's involuntary resignation. (3) Upon receipt of such notice the City Council shall have thirty days in which to do one of the following: (a) rescind the amendment(s); (b) renegotiate this Agreement to Chung's satisfaction; (c) confirm that Chung is being asked to involuntarily resign; or (d) take no action. In the event that either (c) or (d) occurs, or the City is unable to accomplish (b), then Chung shall be entitled to resign and still receive the severance benefits provided in Section 7.0 above.
E. Separation for Cause
(1) Notwithstanding the provisions of Section 7.C, Chung may be terminated for cause. As used in this section, "cause" shall mean only one or more the following:
(a) Conviction of a felony;
(b) Continued abuse of non-prescription drugs or alcohol that materially affects the performance of the City Attorney's duties; or (c) Failure or refusal to carry out lawful duties assigned to the City Attorney.
(2) In the event the City terminates Chung for cause, then the City may terminate this Agreement immediately, and Chung shall be entitled to only the compensation accrued up to the date of termination, payments 001084871
08/23/2022 C7 Page 11 of 16
required by Section 7.F below, and such other termination benefits and payments as may be required by law. Chung shall not be entitled to any severance benefits provided by Section 7.C.
(3) In the event the City terminates Chung for cause, the City and Chung agree that neither Party shall make any written or oral statements to members of the public or the press concerning Chung's termination except in the form of a joint press release that is mutually agreeable to both Parties. The joint press release shall not contain any text or information that would be disparaging to either Party. Provided, however, that either Party may verbally repeat the substance of any such press release in response to inquiries by members of the press or public.
F. Payment for Unused Leave Balance
(1) On separation from City employment, Chung shall be entitled to all benefits, rights, and privileges accorded under the City's Management and Confidential Employee Compensation Plan for Appointed Management Employees as the same may be increased, but not decreased, from time to time, except as otherwise provided in this Agreement. If there is any conflict between this Agreement and any subsequent Management and Confidential Employee Compensation Plan, this Agreement shall control.
(2) In the event Chung dies while employed by the City under this Agreement, Chung's beneficiaries or those entitled to Chung's estate, shall be entitled to Chung's earned salary, and any in-lieu payments for accrued benefits, including compensation for the value of all accrued leave balances.
8. MISCELLANEOUS PROVISIONS
A. Term
(1) Initial Term
The Initial Term shall be for a period of 36 months commencing on August 23, 2022, and continuing until August 22, 2025, (the initial "Termination Date").
(2) Subseauent Terms
This Agreement shall automatically renew as provided herein unless the City gives Chung timely notice of non-renewal. The City must give Chung written notice of non-renewal at least 12 calendar months prior to the initial Termination Date or any succeeding Termination Date. Unless such notice of non-renewal is timely given, this Agreement shall automatically renew for an additional three-year Term, and a new 001084871
08/23/2022 C7 Page 12 of 16
Termination Date shall be accordingly established.
B. Provisions that Survive Termination
Many sections of this Agreement are intended by their terms to survive Chung's termination of employment with the City, including but limited to Sections 7 and
8.E. These sections, and the others so intended, shall survive termination of employment and termination of this Agreement.
C. Amendments
This Agreement may be amended at any time by mutual agreement of the City and Chung. Any amendments are to be negotiated, put in writing, and adopted by the City Council.
D. Conflict of Interest
(1) Chung shall not engage in any business or transaction or shall have a financial or other personal interest or association, direct or indirect, which is in conflict with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. Personal as distinguished from financial interest includes an interest arising from blood or marriage relationships or close business, personal, or political associations. This section shall not serve to prohibit independent acts or other forms of enterprise during those hours not covered by active City employment, providing such acts do not constitute a conflict of interest as defined herein.
(2) Chung shall also be subject to the conflict of interest provisions of the California Government Code and any conflict of interest code applicable to Chung's City employment.
(3) Chung is responsible for submitting to the City Clerk the appropriate Conflict of Interest Statements at the time of appointment, annually thereafter, and at the time of separation from the position.
E. Indemnification
(1) To the full extent of the law as provided by the California Torts Claims Act (Government Code Section 810 et seq.) and the indemnity provisions of this Agreement, whichever shall provide the greatest protection to Chung, the City and the Community Development Commission, jointly and severally, shall defend and indemnify Chung against and for all losses sustained by Chung in direct consequences of the discharge of Chung's duties on the City's behalf for the period of Chung's employment. (2) The City shall defend, save harmless and indemnify Chung against any tort, professional liability claim or demand or other legal action, whether 001084871
08/23/2022 C7 Page 13 of 16
groundless or otherwise, arising out of an alleged act or omission occurring in the performance of Chung's duties as City Attorney. The City may compromise and settle any such claim or suit and pay the amount of any settlement or judgment rendered thereon.
(3) Whenever Chung shall be sued for damages arising out of the performance of Chung's duties, the City shall provide defense counsel for Chung in such suit and indemnify Chung from any judgment rendered against Chung; provided that such indemnity shall not extend to any judgment for damages arising out of any willful wrongdoing. This indemnification shall extend beyond termination of employment and the otherwise expiration of this Agreement to provide protection for any such acts undertaken or committed in Chung's capacity as City Attorney, regardless of whether the notice of filing of a lawsuit occurs during or following employment with the City. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies that Chung may have under the law.
(4) The City and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against Chung, while acting within the scope of Chung's duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the City or any party affiliated with or otherwise claiming under or through it, regardless of any prior, concurrent, or subsequent active or passive negligence by Chung.
(5) In the event that Chung shall serve as the attorney of other City-related legal entities then each provision of this Section 8.E shall be equally applicable to each City-related legal entity as though set forth in an indemnity agreement between Chung and that legal entity. The City hereby guarantees the performance of this indemnity obligation by the City-related legal entity, and shall indemnify and hold Chung harmless against any failure or refusal by City-related legal entity to perform its obligations under this Section 8.E.
F. Severability
If any clause, sentence, part, section, or portion of this Agreement is found by a court of competent jurisdiction to be illegal or unenforceable, such clause, sentence, part, section, or portion so found shall be regarded as though it were not part of this Agreement and the remaining parts of this Agreement shall be fully binding and enforceable by the Parties hereto.
G. Jurisdiction and Venue
This Contract shall be construed in accordance with the laws of the State of California, and the Parties agree that venue shall be in San Diego County, California.
001084871
08/23/2022 C7 Page 14 of 16
H. Entire Agreement
This Contract represents the entire agreement of the Parties, and no representations have been made or relied upon except as set forth herein. This Contract may be amended or modified only by a written, fully executed agreement of the Parties.
I. Notice
Any notice, amendments, or additions to this Agreement, including change of address of either party during the term of this Agreement, which Chung or the City shall be required, or may desire, to make shall be in writing and shall be sent by prepaid First Class mail or hand-delivered to the respective Parties as follows:
(1) If to the City:
Mayor
City of Vista
200 Civic Center Dr.
Vista, California 92084
with a copy to the City Manager
(2) If to Chung:
4251 Pilon Pt.
San Diego, CA 92130
001084871
08/23/2022 C7 Page 15 of 16
9. EXECUTION
IN WITNESS WHEREOF the Parties have executed this Agreement as of the day and year first above written.
CITY OF VISTA, a chartered municipal WALTER CHUNG, an individual corporation
By: By:
JUDY RITTER, MAYOR WALTER CHUNG
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
APPROVED AS TO FORM:
By:
APPROVED
Walter Chung
208915823084206
001084871
08/23/2022 C7 Page 16 of 16