Loading...
HomeMy WebLinkAboutMcMahon, Cindie K.; 2023-10-11;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." RECITALS 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 -2 - 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. -3 - 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 -4 - 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 -5 - 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, -6 - 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 -7 - 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 - 8 -