By Michael G. Stogner
According to Jennifer Phan, The Council has not agreed to hire Kevin Miller, and that is why the City is having a special meeting to consider the item on September 1, 2021. I must admit after reading the document below it sure looks like all the details have been worked out by both parties to me. What do the residents of Foster City think of this behavior?
Jennifer Phan <jphan@fostercity.org>To:Michael Stogner Thu, Sep 9 at 11:48 AM
Hi Michael,
Thanks for your patience. I have heard back from our City Attorney, Benjamin Stock, and he confirmed that the Council was the one to request the closed session at the previous meeting. Our City Attorney was present at both meetings. The Council has not agreed to hire Kevin Miller, and that is why the City is having a special meeting to consider the item on September 1, 2021.
Jenn
OAK #4833-7819-1353v5 1EMPLOYMENT AGREEMENT For INTERIM CITY/DISTRICT MANAGER SERVICES This Employment Agreement (“Agreement”) is made and entered into this 13th day of September 2021 (“Effective Date”), by and between the CITY/DISTRICT OF FOSTER CITY/DISTRICT/ESTERO MUNICIPAL IMPROVEMENT DISTRICT, a municipal corporation authorized and existing under the laws of the State of California (hereinafter referred to as “City/District/District”) and KEVIN MILLER (“MILLER”), an individual, on the following terms and conditions. City/District/District and Miller may be collectively referred to herein as the “Parties.” This Agreement is made in consideration of the following facts, among others.RECITALSA. CITY/DISTRICT desires to employ the services of MILLER as its Interim City/District Manager, temporarily, to carry out the duties and responsibilities of City/District Manager as provided for by the Foster City/District/Estero Municipal Improvement District Codes, in consideration of and subject to the terms, conditions, and benefits set forth in this Agreement. B. CITY/DISTRICT has commenced an open recruitment to permanently fill the vacant position of CITY/DISTRICT Manager and this recruitment was active prior to execution of this Agreement. During the recruitment period, the City/District has an immediate need for an Interim CITY/DISTRICT Manager position involving specialized skills and training and which is critically necessary to the on-going duties and functions of the CITY/DISTRICT. C. MILLER represents that he is a retired annuitant and person receiving a benefit from and enrolled in the California Public Employees’ Retirement System (“CalPERS”) within the meaning of Government Code §§ 7522.56 and 21221(h). MILLER acknowledges that he is restricted to working no more than a combined 960 hours for CITY/DISTRICT, a state agency, or other CalPERS contracting agencies (collectively “CalPERS Agencies”) during CITY/DISTRICT’s 2021-2022 fiscal year, and that his compensation is statutorily limited as provided in Government Code § 21221(h). MILLER represents, and by execution of this Agreement, certifies that he has not received any unemployment compensation from any CalPERS Agencies during the 12-month period preceding the effective date of this Agreement. MILLER further represents his CalPERS retirement date became effective prior to the 180-day period preceding the effective date of this Agreement; that he has not received a retirement incentive upon retirement within the meaning of Government Code § 7522.56(g), and that he has attained normal retirement age within the meaning of Government Code § 21220.5. MILLER further represents that he has not been appointed as an interim employee by the CITY/DISTRICT to a vacant position during the recruitment for a permanent replacement.OAK #4833-7819-1353v5 2D. MILLER desires to accept employment as Interim City/District Manager in consideration of and subject to the terms, conditions, and benefits set forth in this Agreement.E. CITY/DISTRICT has determined that it is necessary to hire MILLER by virtue of his significant experience as both City/District Manager and interim City/District Manager in other cities. OPERATIVE PROVISIONSIn consideration of the promises and covenants contained herein, the parties agree as follows:1. Position and Duties.1.1 Position. MILLER accepts employment with CITY/DISTRICT as its Interim City/District Manager and shall perform all functions, duties and services set forth in Section 1.4 [Duties] of this Agreement. MILLER shall provide service at the direction and under the supervision of the City/District Council. It is the intent of the parties that MILLER, as the Interim City/District Manager, shall keep the City/District Council fully apprised of all significant ongoing operations of CITY/DISTRICT. Toward that end, MILLER shall report directly to the City/District Council and will periodically, or as may be otherwise specifically requested by the City/District Council, provide status reports to the City/District Council on his activities and those of CITY/DISTRICT. 1.2 Term. MILLER shall commence the performance of his duties as the Interim City/District Manager on September 14, 2021 (“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/District Manager employed by CITY/DISTRICT; (ii) upon MILLER working his 960th hour for CITY/DISTRICT including hours worked for other CalPERS Agencies during CITY/DISTRICT’s 2021-2022 fiscal year as a retired annuitant; or upon termination of the Agreement by either MILLER or CITY/DISTRICT as provided in Section 4 [Termination] of this Agreement. 1.3 At-Will. MILLER acknowledges that he is an at-will, temporary employee of CITY/DISTRICT who shall serve at the pleasure of the City/District Council at all times during the period of his service hereunder. The terms of CITY/DISTRICT’s personnel rules, policies, regulations, procedures, ordinances, and resolutions (collectively “Personnel Policies”), as they may be amended or supplemented from time to time, shall not apply to MILLER, and nothing in this Agreement is intended to, or does, confer upon MILLER 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/District Council to terminate his employment, except as is expressly provided in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. Nothing contained in this Agreement shall in any way prevent, limit or otherwise interfere with the right of CITY/DISTRICT to terminate the services of MILLER, as provided in Section 1.2 [Term] or Section 4 [Termination]. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of MILLER to OAK #4833-7819-1353v5 3resign at any time from this position with CITY/DISTRICT, subject only to the provisions set forth in Section 1.2 [Term] or Section 4 [Termination] of this Agreement. This at-will Employment Agreement shall be expressly subject to the rights and obligations of CITY/DISTRICT and MILLER, as set forth in Section 1.2 [Term] or Section 4 [Termination] below.1.4 Duties. MILLER shall serve as the Interim City/District Manager and shall be for the term of this Agreement vested with the powers, duties and responsibilities of the City/District Manager as set forth in ordinances and resolutions of the City/District, including without limitation, those set forth in the Foster City/District Municipal Code and to perform other legally permissible and proper duties and functions as the City/District Council may from time to time assign. It is the intent of the City/District Council for the Interim City/District Manager to function as the chief executive officer of CITY/DISTRICT’s organization. Without additional compensation, MILLER shall provide such other services as are customary and appropriate to the position of Interim City/District Manager. MILLER shall devote his best efforts and full-time attention to the performance of these duties.1.5 Hours of Work. MILLER shall devote the time necessary to adequately perform his duties as Interim City/District Manager. The parties anticipate that MILLER will work approximately thirty (30) to forty (40) hours per week allocated between regular business hours and hours outside of regular business hours including, without limitation, attendance at regular and special City/District Council meetings, attendance at such community events and CITY/DISTRICT functions as the Council may direct. Toward that end, MILLER shall be allowed reasonable flexibility in setting his own office hours, provided the schedule of such hours provides reasonable availability to the City/District Council, City/District staff, and members of the community during regular CITY/DISTRICT business hours and for the performance of his duties and of CITY/DISTRICT business. The position of Interim City/District Manager shall be deemed an exempt position under California wage and hour law. 1.6 Other Activity. In accordance with Government Code Section 1126, during the period of his employment, MILLER shall not accept, without the express prior written consent of the City/District Council, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity, whether or not to pecuniary advantage, that is or may be competitive with CITY/DISTRICT, that might cause a conflict-of-interest with CITY/DISTRICT, or that otherwise might interfere with the business or operation of CITY/DISTRICT or the satisfactory performance of MILLER’s duties as Interim City/District Manager. 1.7 Reimbursement. CITY/DISTRICT shall reimburse MILLER for reasonable and necessary travel, and other job-related expenses incurred by MILLER in the performance of his duties. All reimbursements shall be subject to and in accordance with California law and applicable CITY/DISTRICT reimbursement policies. 1.8 Equipment and Supplies. CITY/DISTRICT shall provide MILLER with any office equipment, technological tools, including but not limited to laptop computer, high-OAK #4833-7819-1353v5 4speed internet access, advanced cellular phone (smart phone), and supplies, and all other facilities and services adequate and necessary for MILLER to perform his required duties,2. Compensation.2.1 Rate of Pay. For all services performed by MILLER as the Interim City/District Manager under this Agreement, CITY/DISTRICT shall pay MILLER compensation at the rate One Hundred Thirteen Dollars ($113) per hour according to the payroll schedule in place for CITY/DISTRICT employees paid bi-monthly subject to the limitations provided below. MILLER shall submit all itemized requests for payment to the City/District’s Finance Director who shall approve all requests for payment under this Agreement.2.2 Compliance with CalPERS Requirements. It is the intent of the parties to compensate MILLER only to the extent permitted under Government Code §§ 21221(h) and 7522.56(d) and corresponding CalPERS regulations and policy statements. The parties acknowledge and agree that the rate of pay set forth above does not exceed the salary limitations established by CalPERS based on the salary as set forth in the CITY/DISTRICT’s publicly available salary schedule. The Rate of Pay set forth above is based on the salary limitations established by CalPERS. The monthly base salary for the position of City/District Manager as listed on a publicly available pay schedule is Nineteen Thousand Five Hundred Eighty-Three Dollars ($19,583). The Rate of Pay is calculated by taking the monthly base salary of Nineteen Thousand Five Hundred Eighty-Three Dollars ($19,583) and dividing it by 173.333 to equal an hourly rate of One Hundred Thirteen Dollars ($113.00) rounded to the nearest dollar.2.32.3.1 Recording and Reporting of Hours Worked. MILLER will comply with all applicable CalPERS regulations governing employment after retirement including recording and reporting of all hours worked for CITY/DISTRICT to CalPERS as may be required. CITY/DISTRICT shall assist in any such reporting obligations to CalPERS. Additionally, MILLER shall keep CITY/DISTRICT continually apprised of any hours worked by MILLER for other CalPERS Agencies during the term of this Agreement. 2.4 Benefits.2.4.1 No Benefits. MILLER shall not receive from CITY/DISTRICT any benefits CITY/DISTRICT commonly provides to its employees including, without limitation, health, dental, or vision insurance coverage, life insurance, employee assistance programs, and similar benefits. The CITY/DISTRICT will make no contribution on behalf of MILLER to any tax-deferred retirement plans, such as a 401(a) plan. 3. Vacation and Leave.OAK #4833-7819-1353v5 53.1 No Leave. MILLER and CITY/DISTRICT agree that MILLER shall not be provided or accrue any personal time off, vacation, sick leave, administrative leave, paid holidays or similar leave benefits. 4. Termination. 4.1 By CITY/DISTRICT. This Agreement may be terminated by CITY/DISTRICT for any reason. CITY/DISTRICT’s only obligation in the event of such termination will be payment to MILLER of all compensation then due and owing as set forth in Section 2.1 [Rate of Pay] up to and including the effective date of termination. However, this Agreement may be terminated immediately if necessitated by changes to CalPERS statutory or regulatory requirements.4.2 By MILLER. This Agreement may be terminated by MILLER for any reason thirty (30) days after notice in writing to CITY/DISTRICT of such termination. CITY/DISTRICT shall have the option, in its complete discretion, to make MILLER’s termination effective at any time prior to the end of such period, provided CITY/DISTRICT pays MILLER all compensation as set forth in Section 2.1 [Rate of Pay] then due and owing him through the last day actually worked.4.3 No Notice for Expiration. Nothing in this Section 4 [Termination] shall be construed to require either party to give advance written notice in order for the Agreement to expire as set forth in Section 1.2 [Term].4.4 Termination Obligations. MILLER agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, records, notes, contracts, and computer-generated materials furnished to or prepared by him incident to his employment belongs to CITY/DISTRICT and shall be returned promptly to CITY/DISTRICT upon termination of MILLER’s employment. MILLER’s obligations under this subsection shall survive the termination of his employment and the expiration of this Agreement.4.5 No Benefits Upon Termination. MILLER agrees that he shall be entitled to no benefits upon termination.5. City/District Council Commitments. Except for the purpose of inquiry, the City/District Council and its members shall deal with all subordinate CITY/DISTRICT employees, officers, contractors, and consultants solely through the City/District Manager or the City/District Manager’s designee, and neither the City/District Council nor any member thereof shall give direction to any subordinate of the City/District Manager, either publicly or privately. No member of the City/District Council will order the appointment or removal of any person to any office or employment under the supervision and control of the City/District Manager. Neither the City/District Council nor any of its members shall interfere with the execution of the powers and duties of the City/District Manager, as OAK #4833-7819-1353v5 6specified in the City/District Municipal Code, this Agreement, or any other lawfully adopted and authorized document.6. Proprietary Information. “Proprietary Information” is all information, including confidential attorney/client privileged communications, and any idea pertaining in any manner to the business of CITY/DISTRICT (or any CITY/DISTRICT affiliate), its employees, clients, consultants, or business associates, which was produced by any employee or consultant of CITY/DISTRICT in the course of his/her employment or otherwise produced or acquired by or on behalf of CITY/DISTRICT. All Proprietary Information not generally known outside of CITY/DISTRICT’s organization, and all Proprietary Information so known only through improper means, shall be deemed “Confidential Information.” During his employment by CITY/DISTRICT, MILLER shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY/DISTRICT and as is or may be necessary to perform his job responsibilities under this Agreement. Following termination, MILLER shall not use any Proprietary Information and shall not disclose any Confidential Information, except with the express written consent of CITY/DISTRICT. MILLER’s obligations under this Section shall survive the termination of his employment and the expiration of this Agreement.7. Conflict Of Interest. 7.1 MILLER represents and warrants to CITY/DISTRICT that he presently has no interest, and represents that he will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or interfere in any way with performance of his services under this Agreement. 7.2 During the term of this Agreement, MILLER shall comply with the CITY/DISTRICT Conflict of Interest Code and shall comply with all requirements of law, including but not limited to, Sections 87100 et seq., 1090 and 1125 of the Government Code, and all other similar statutory and administrative rules. 8. General Provisions.8.1 Recitals. The recitals, inclusive of all facts and representations, are incorporated into this Agreement as if set forth in the Operative Provisions. 8.2 Vehicle Operation. MILLER shall operate any vehicle used in connection with the performance of his duties as Interim City/District Manager in a safe manner and otherwise in observance of all established traffic safety laws and ordinances and shall maintain a valid California automobile’s driver’s license during the period of employment. 8.3 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be effective upon delivery by hand or email or three (3) business days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to CITY/DISTRICT at the address below, and/or at the last known address maintained in MILLER’s personnel file. MILLER agrees to notify CITY/DISTRICT in writing of any change in his address during his employment with OAK #4833-7819-1353v5 7CITY/DISTRICT. Notice of change of address shall be effective only when accomplished in accordance with this Section.As to City/District:Attn: Human Resource Director610 Foster City Blvd.Foster City, CA 94404msaguisag-sid@fostercity.orgWith Copy to City Attorney, Benjamin L. Stock181 Third StreetSuite 200San Rafael, CA 94901-6587bstock@bwslaw.comInterim City/District Manager’s Address: Kevin Miller [Address on file]8.4 Indemnification. Subject to, in accordance with, and to the extent provided by the California Tort Claims Act [Government Code Section 810 et seq.] CITY/DISTRICT will indemnify, defend, and hold MILLER harmless from and against any action, demand, suit, monetary judgment or other legal or administrative proceeding, and any liability, injury, loss or other damages, arising out of any act or omission occurring during MILLER’s tenure as Interim City/District Manager. 8.5 Integration. This Agreement is intended to be the final, complete, and exclusive statement of the terms of MILLER’s employment by CITY/DISTRICT. This Agreement supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of MILLER, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of CITY/DISTRICT, now or in the future, apply to MILLER and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control.8.6 Amendments. This Agreement may not be amended except in a written document signed by MILLER, approved by the City/District Council and signed by CITY/DISTRICT’s Mayor. 8.7 Waiver. Failure to exercise any right under this Agreement shall not constitute a waiver of such right.8.8 Assignment. MILLER shall not assign any rights or obligations under this Agreement. CITY/DISTRICT may, upon prior written notice to MILLER, assign its rights and obligations hereunder.OAK #4833-7819-1353v5 88.9 Severability. If a court or arbitrator holds any provision of this Agreement to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.8.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, with venue proper only in San Mateo County, State of California.8.11 Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, cancelled superseded or changed by any oral agreement, course of conduct, waiver or estoppel.8.12 Acknowledgment. MILLER acknowledges that he has had the opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained in this Agreement. 8.13 AB 1344. Assembly Bill 1344, which was subsequently enacted as Government Code Sections 53243 – 53244, sought to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. These statutes, generally require that certain contracts between local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency for the certain forms of payment, including but not limited to the following: (i) criminal defense costs; (ii) cash settlement payments; and (iii) any non-contractual settlement payments. Accordingly, the Parties agree that it is their mutual intent to fully comply with these Government Code sections and all other applicable law as it exists as of the date of execution of this Agreement and as such laws may be amended from time to time thereafter. Specifically, the following Government Code sections are called out and hereby incorporated by this Agreement:§ 53243.1. Reimbursement of legal criminal defense upon conviction of crime involving office or position. § 53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position. § 53243.3. Reimbursement of noncontractual payments upon conviction or crime involving office or position. § 53243.4. “Abuse of office or position” defined.OAK #4833-7819-1353v5 98.14 Effect of Conviction on Termination. If MILLER is convicted of a crime involving an abuse of his office or position, as defined in Government Code section 53243.4, the following restrictions will apply: (i) any paid leave given to MILLER pending an investigation shall be fully reimbursed to City, (ii) any funds expended by City for the legal criminal defense of MILLER shall be fully reimbursed to City, (iii) any cash settlement paid to MILLER shall be fully reimbursed. Upon conviction of a covered felony under Government Code sections 7522.72 or 7522.74, MILLER may forfeit the benefits in accordance with those sections. 8.15 Execution of Agreement. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be signed electronically in accordance with the City’s policy regarding electronic signatures. [SIGNATURES ON NEXT PAGE]OAK #4833-7819-1353v5 10IN WITNESS WHEREOF, CITY/DISTRICT and MILLER agree to the foregoing and have directed their authorized representative to execute this Agreement. City of Foster City/ MILLEREstero Municipal Improvement District__________________________ ________________________Sanjay Gehani, Mayor/President Kevin MillerAttest:_________________________Priscilla Schaus, City Clerk/District SecretaryApproved as to Form:_________________________Benjamin L. Stock, City Attorney/District Legal Counsel B
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