HomeMy WebLinkAbout2023-10-10; City Council; Resolution 2023-256RESOLUTION NO. 2023-256
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING THE AMENDED AND RESTATED CITY ATTORNEY
EMPLOYMENT AGREEMENT WITH CINDIE K. MCMAHON AND
CORRESPONDING AMENDMENTS TO THE APPOINTED OFFICIALS SALARY
RANGE SCHEDULE
WHEREAS, the City Council of the City of Carlsbad, California desires to approve the amended
and restated City Attorney Employment Agreement with Cindie K. McMahon (Attachment A); and
WHEREAS, the amended and restated City Attorney Employment Agreement adjusts the City
Attorney's annual base pay by 3.6% to $290,080, the City Attorney's monthly vehicle allowance to
$1,000, and life insurance benefit to $500,000; and
WHEREAS, the amended and restated City Attorney Employment Agreement allows the City
Attorney to work a 9-day/80-hour work schedule in accordance with Administrative Order No. 57 and
revises the Section IV -Separation from Employment provisions to be consistent with Section IV -
Separation from Employment provisions in the Amended and Restated City Manager Employment
Agreement with Scott Chadwick; and
WHEREAS, the City Council desires to amend the Appointed Officials Salary Range Schedule to
indicate the City Attorney's revised maximum monthly salary of $24,173.33.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.That the above recitations are true and correct.
2.That the amended and restated City Attorney Employment Agreement with Cindie K.
McMahon in Attachment A is approved.
3.That the Mayor of the City of Carlsbad is authorized to execute the amended and
restated City Attorney Employment Agreement with Cindie K. McMahon on behalf of
the City of Carlsbad.
4.That the amended Appointed Officials Salary Range Schedule in Attachment B is
approved.
5.That the fiscal year 2023-2024 impact of $13,100 will be funded by the existing General
Fund budget.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 10th day of Oct., 2023, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
Blackburn, Bhat-Patel, Acosta, Burkholder.
None.
None.
Luna.
KEITHBLAJ�
SHERRY FREISINGER, City Clerk
(SEAL)
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Attachment A
CITY OF CARLSBAD
CITY ATTORNEY EMPLOYMENT AGREEMENT
This Amended and Restated City Attorney Employment Agreement ("Agreement") is
entered into as of the date this Agreement is approved by the City Council for the City of
Carlsbad, by and between the City of Carlsbad, California, a municipal corporation (the "City"),
and Cindie K. McMahon, an individual (the "City Attorney"). The City and the City Attorney are
sometimes individually referred to as a "Party" and collectively as the "Parties."
REC ITALS
WHEREAS, Chapter 2.14 of the Carlsbad Municipal Code provides for the Office of the
City Attorney who shall be appointed and retained by the City Council wholly on the basis of her
legal ability and experience, particularly in the municipal law field, and shall hold that office for
and during the pleasure of the City Council; and
WHEREAS, on July 26, 2022, the City Council adopted Resolution No. 2022-193
establishing an employment agreement with Cindie K. McMahon as City Attorney, effective
Augu~2,2022;and
WHEREAS, on August 29, 2023, the City Council conducted a performance review of
Cindie K. McMahon and on September 12, 2023, the City Council authorized changes to her
employment agreement; and
WHEREAS, it is the desire of the Parties to act as a deterrent against malfeasance or
dishonesty for personal gain on the City Attorney's part and to provide for terminating her
services at such time as she may be unable to fully discharge her duties or when the City
Council may otherwise desire to terminate her employment; and .
WHEREAS, it is the desire of the Parties to enter into this Agreement on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the Parties agree as follows:
SECTION I -DUTIES
The City Council agrees to employ Cindie K. McMahon as City Attorney and to exercise the
powers, duties and responsibilities set forth in Carlsbad Municipal Code Chapter 2.14 and
applicable state law and such other applicable ordinances and resolutions now in effect or
subsequently adopted by the City Council. Cindie K. McMahon as City Attorney is subject to and
shall comply with Government Code Sections 53243-53244, which address consequences for
conviction of a crime for abuse of office or position.
SECTION II -TERM
Cindie K. McMahon is appointed as City Attorney, effective on August 2, 2022, and shall
continue in that capacity and shall continue to fulfill the powers, functions and duties of City
Attorney and shall serve in that capacity until such time as this Agreement is terminated
pursuant to Section IV below. The purpose of this paragraph is to ensure compliance with
California Government Code Sections 53260-53264. Nothing in this Agreement shall prevent,
limit or otherwise interfere with the right of the City Attorney to resign at any time subject only
to the provisions set forth in Section IV below. The City Attorney agrees to remain in the
exclusive employ of the City and neither to accept other employment nor to become employed
by any other employer without the express written permission of the City Council; provided,
nothing contained in this Agreement shall be construed or interpreted to prohibit the City
Attorney from engaging in such occasional activity as teaching, writing, or consulting, which
activity shall only be conducted apart from her normal and regular functions and duties.
SECTION Ill -COMPENSATION
A. Base Salary
Effective as of July 1, 2023, the annual base salary for the City Attorney shall be increased by
3.6% to $290,080, which shall be paid bi-weekly, $11,156.92 per completed pay cycle. This
includes the compensation for the additional positions of General Counsel for the Housing
Authority/Community Development Commission; General Counsel for the Carlsbad Municipal
Water District, Public Financing Authority, and Industrial Development Authority; and all other
boards or commissions that assemble and require the services of General Counsel.
B. Work Schedule
The City Attorney may work a 9/80 work schedule as provided for in Administrative Order No.
57.
c. Deferred Compensation
The City shall make an annual contribution on behalf of t he City Attorney to a Section 457
Deferred Compensation Plan in the maximum amount allowable, prorated over the number of
pay periods in the calendar year.
D. Retirement
City Attorney will be enrolled in the miscellaneous CalP ERS retirement system under the City's
"Tier 1," which consists of a 3% at 60 years of age formula with a one-year final highest earnings
and pensionable compensation cap. The City Attorney will be responsible for the CalPERS
employee contribution.
SECTION IV -SEPARATION FROM EMPLOYMENT
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A. Termination of Employment
Upon termination of City Attorney's employment by the City for any reason other than
City Attorney's voluntary resignation, the City shall pay City Attorney the sum of
$3,500 to compensate City Attorney for costs incurred by City Attorney in obtaining
legal review, benefits review, or other professional advisory or personal counseling
services which City Attorney elects to utilize in connection with the termination,
including the review and negotiation of any separation related agreements with the
City.
B. Resignation /Retirement
City Attorney may resign at any time and agrees to give the City at least 60 days'
advance written notice of the effective date of City Attorney's resignation, unless the
Parties otherwise agree in w riting. If City Attorney retires from full-time public service
with t he City, City Attorney may provide six months' advance notice. City Attorney's
actual retirement date will be mutually established.
C. Termination & Removal
1. City Attorney 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 City Attorney at any time, with or without cause, by
a majority vote of its members. Notice of termination shall be provided to City
Attorney in writing. Termination, as used in this section, shall also include a request by
City Council for City Attorney to resign, a reduction in salary or other financial benefits
of City Attorney, a material reduction in the powers and authority of City Attorney, or
the elimination of City Attorney's position. Any such notice of terminat ion or act
constituting termination shall be given at or effectuated at a duly noticed meeting of
the City Council.
3. The City Attorney shall not be removed during the 120-day period preceding or
following any City election for membership on the City Council, or during the 120-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 City Attorney that any separation of City Attorney is done in a professional
manner. The part ies agree that, except as otherwise required by law, any public
statement made related to the separation will be made by mutual agreement. No
further statements will be made. Should the City violate this provision, t he City shall
compensate City Attorney in the amount of $5,000 per instance.
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D. Severance Pay
1. In the event the City Council terminates this Agreement during such time as City
Attorney is ready, willing and able to perform City Attorney's duties under this
Agreement, the City agrees either to pay City Attorney a lump sum cash payment
equal to 12 months' base salary and benefits in effect at the time of separation or to
continue the City Attorney's base salary and benefits (i.e., health, dental, vision,
deferred compensation) for a period of 12 months. This decision will be made upon
mutual agreement of the parties.
2. The City shall extend to City Attorney 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 1985 (COBRA). The City agrees to pay City
Attorney's COBRA coverage for the same number of months for which City Attorney is
entitled to a lump sum cash payment or until City Attorney either secures full-time
employment or obtains other health insurance, whichever of these events first occurs.
City Attorney shall notify the City within five days of securing new full-time
employment or insurance.
3. In the event the City refuses, following written notice of non-compliance, to
comply with any provision in this Agreement benefiting City Attorney, or City Attorney
resigns following a suggestion, whether formal or informal, by a majority of the City
Council that City Attorney resign, then City Attorney may, at City Attorney's option, be
deemed to be terminated as of the date of such refusal to comply or suggestion to
resign and this severance pay provision shall be actuated.
4. All payments required under this agreement are subject to and shall be
interpreted to comply with the limitations set forth in Government Code Section
53260.
5. The Parties agree that if the City were to fail or refuse to promptly and fully
provide and pay to City Attorney all of the severance and other benefits due upon
termination as provided by this Agreement, City Attorney would sustain material
damages. These damages could include, among other losses: the loss of the
opportunity to transition employment, the loss of alternate employment
opportunities, the loss of income, the loss of opportunities for retraining or further
education, the erosion of personal investments and savings, the loss of retirement
benefits, physical displacement or the loss of a residence, the loss of insurance and
medical benefits, expenses for professional counseling, the loss of standard of living
including educational opportunities for children, and the resultant emotional distress
to City Attorney and City Attorney's family. These damages are, and will continue to
be, impracticable and extremely difficult to ascertain. Accordingly, in the event that
the City shall fail or refuse to promptly and fully provide and pay to City Attorney all of
the severance benefits or other benefits due upon termination as provided by this
Agreement, then the City shall pay to City Attorney, as liquidated damages, a lump
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sum cash payment equal to 18 months' current base salary as provided above in
addition to all other severance benefits provided by this Agreement. Any such
payments shall constitute liquidated damages only and not additional severance pay
or benefits subject to the provisions of Government Code Section 53260.
E. Involuntary Resignation
1. In the event that the City Council formally or a majority of the City Council
informally asks City Attorney to resign, then City Attorney shall be entitled to resign
and still receive the severance benefits provided above.
2. City Attorney has relied upon the provisions of the Carlsbad Municipal Code upon
entering into this Agreement, as it pertains to City Attorney's role, powers, duties,
authority, responsibilities, compensation and benefits. If the City Council adds, deletes
or amends the Carlsbad Municipal Code related to City Attorney's duties and
responsibilities without the consent of City Attorney, and such addition, deletion or
amendment is inconsistent with the terms of this Agreement and City Attorney's role,
powers, duties, authority, responsibilities, compensation and benefits as currently
provided, then City Attorney shall have the right, at City Attorney's sole discretion, to
give the City Council notice that such amendment(s) constitute a request by the City
Council for City Attorney's involuntary resignation.
3. Upon receipt of such notice the City Council shall have 30 days in which to do one
of the following:
a. rescind the amendment(s);
b. renegotiate this Agreement to City Attorney's satisfaction;
c. confirm that City Attorney is being asked to involuntarily resign; or
d. take no action.
If either c. or d. occurs, or the City is unable to accomplish b., then City Attorney shall
be entitled to resign and still receive the severance benefits provided above.
F. Separation for Cause
1. Notwithstanding the provisions above, City Attorney may be terminated for
cause. As used in this section, "cause" shall mean only one or more of 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
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c. Failure or refusal to carry out lawful dut ies assigned to t he Ci t y Attorney.
2. If the City terminates City Attorney for cause, then the City may terminate this
Agreement immediately, and City Attorney shall be entitled to only the compensation
accrued up to the date of termination, payment s required by Section G below, and
such other t ermination of benefits and payments as may be required by law. City
Attorney shall not be entitled to any severance benefits provided above.
3. If the City terminates City Attorney for cause, the City and City Attorney agree
that, except as otherwise required by law, neither Party shall make any written or oral
statements to members of the public or the press concerning City Attorney's
termination except in the form of a joint press release which 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.
G. Payment for Unused Leave Balance
On separation from City employment, City Attorney shall be entitled to all benefits,
rights, and privileges related to the payout of all unused leaves during the course of
his employment with the City of Carlsbad .
SECTION V-VEHICLE ALLOWANCE OR PROVISION OF VEHICLE
The City Attorney's functions and duties require her to have use of an automobile during her
employment with the City. The City shall provide the City Attorney the monthly sum of $1,000
for the expense of owning, operating and maintaining and insuring her personal automobile.
The City Attorney shall keep and maintain in full force and effect personal liability and property
damage insurance in the minimum amounts of $250,000 per person and $500,000 per
occurrence and property damage of $100,000 and shall name the City of Carlsbad as an
additional insured. The amounts received under t his section are in addition to the base salary
and shall be considered as part of the total cash compensation discussed in Section Ill above.
SECTION VI -OTHER SUPPLEMENTAL BENEFITS
The City Attorney shall accrue vacation leave and sick leave as provided for under existing City
policy. The City Attorney shall be credited for twenty years of service credit in calculating leave
accrual ra tes and City Attorney shall be permitted to earn and accrue up to 400 hours of
vacation. All other actions taken by t he City Council relating to fringe benefits for management
employees shall be considered actions granting the same to the City Attorney, except that the
City Attorney may decline any fringe benefits to the extent permitted or authorized by law, City
policy, or this Agreement. As used in this Agreement, "fringe benefits" include but are not
limited to vacation, sick leave, educational benefits as they existed on the date of the approval
of this Agreement, holidays, retirement (Cal PERS) benefits and payments, health insurance,
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dental insurance, long-term disability insurance and life insurance as set forth in the
Management Compensation and Benefits Plan and elsewhere. The City Attorney may elect to
participate in any of the medical insurance programs offered by the City. The City will provide
for a life insurance benefit of $500,000 for the City Attorney.
SECTION VII -ANNUAL REVIEW
The City Council shall review and evaluate the performance of the City Attorney in July of each
year. This review and evaluation of performance and salary shall be in accordance with the
criteria developed jointly by the City Council and the City Attorney. The Mayor shall provide the
City Attorney with a summary written statement of the findings of the City Council and provide
an adequate opportunity for the City Attorney to discuss her evaluation with the City Council.
The Mayor shall report out and authorize the Human Resources Director to make changes to
the salary or other agreed benefits to this or subsequent employment contracts in accordance
with all applicable laws.
SECTION VIII -STRATEGIC PLAN
On October 11, 2022, the City Council approved its first 5-year strategic plan. It is the duty and
responsibility of the City Attorney to provide necessary legal advice to assist the City Manager
in ensuring the City follows the strategic plan in compliance with applicable laws and
regulations.
SECTION IX -PROFESSIONAL AND ORGANIZATIONAL DEVELOPMENT
All normal business expenses, such as state and local bar association dues, attendance at
League of California Cities conferences and committee meetings, League of California Cities City
Attorney Department meetings, International Municipal Lawyers Association events, San Diego
City Attorneys' Association meetings and conferences as well as business lunches, dinners, and
the like, will be provided for separately in the operating budget of the City Attorney's Office.
The City Council continues to support and encourage continuing development and
professionalism of the City organization and its employees. As such, the City Council supports
the City Attorney's organizational development efforts, including but not limited to, employee
development, department development, and organization-wide development. These efforts
shall support the City Council's strategic plan and goals and provide for the ongoing
development of a high-performing organization.
SECTION X -EFFECTIVE DATE
The effective date of this Agreement is the date this Agreement is execu ted by all parties.
SECTION XI -SEVERAB ILITV
If any clause, sentence, part, section, or portion of t his 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
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remaining parts of this Agreement shall be fully binding and enforceable by the Parties.
SECTION XII -NOTICES
Notices pursuant to this Agreement shall be given by deposit in the custody of the United States
Postal Service, postage prepaid, addressed as follows or as such address may be changed from time to time upon written notice to the other:
CITY
City of Carlsbad Mayor
City Hall
1200 Carlsbad Village Drive Carlsbad, CA 92008
CITY ATTORNEY
Cindie K. McMahon City Hall
1200 Carlsbad Village Drive Carlsbad, CA 92008
IN WITNESS WHEREOF, the City and the City Attorney have caused this Agreement to be
executed on \\�day of Oct. , 2023.
CITY OF CARLSBAD
A Municipal Corporation
By (� Keith Blackburn, Mayor
ATTEST:
�
By: fv Sherry Freisinger, City Clerk
CITY ATTORNEY
� (L. /vi�By: -----------Cindie K. McMahon
APPROVED AS TO FORM:
By WQ)_� Ronald Kemp Sr. Assistant City Attorney
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Appointed Officials Salary Range Schedule
Effective July 1, 2023
Monthly Salary
Min Max
City Manager --- 27,229.67
City Attorney --- 24,173.33
Attachment B