HomeMy WebLinkAboutCity Attorney - Approve Process for Appointment of City Atto ,< °�1� 1N. Urion�cMAN} APON
�.a TY OF HUNTINGTON BEAC 0, [�_ - G •
MEETING DATE: August 5, 2002 DEPARTMENT ID NUMBER:
Council/Agency Meeting Held: 08 -05-0'2
Deferred/Continued to:
Approved ❑ Conditionally Approved ❑ Denie City Clerk's ignature
A,nS 14tg l'n(
Council Meeting Date: August 5, 2002 Department ID Number:
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION a
SUBMITTED TO: HONORABLE MAYOR AND CITY O N MEMBERS
SUBMITTED BY: RAY SILVER, City Administrator
PREPARED BY: WILLIAM P. WORKMAN, Assistant City Administrator
SUBJECT: APPROVE PROCESS FOR APPOINTMENT OF A CITY-ATTORNEY
FOR REMAINDER OF UNEXPIRED TERM
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue: The elected City Attorney has submitted her written resignation,
effective September 30, 2002. The candidate who is elected on November 5, 2002, will be
sworn into office on December 2, 2002.
Funding Source: Funds are contained in the proposed FY 2002-2003 Budget.
Recommended Action: That the City Council determine the process to select a City
Attorney to be in charge of the City Attorney's Office for the remainder of the unexpired term.
Analysis: The City Attorney has submitted her resignation.I Section 312 (a) of the City of
Huntington Beach Charter states "Vacancies. A vacancy in the City Council or in any other
office designated as elective by this Charter, from whatever cause arising, shall be filled by
appointment by the City Council." And Section 312 (c) of the City of Huntington Beach
Charter states "Replacement. In the event it shall fail to fill a vacancy by appointment within
60 days after such office shall become vacant, the City Council shall forthwith cause an
election to be held to fill such vacancy for the remainder of the unexpired term."
There is a need to appoint a City Attorney to carry on the respective duties of the elective
office as identified in the Charter for the remainder of the current term, which expires on
December 2, 2002. Since there are two Assistant City Attorney positions, there is no single
individual in charge in the chain of command to make the necessary decisions. r
G:\SILVER\RCAs\City Attorney Selection rev1.doc 7/31/2002 4:50 PM
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A
REQUEST FOR COUNCIL ACTI
MEETING DATE: August 5, 2002 DEPARTMENT ID NUMBER:
In order to have someone in charge of the City Attorney's Office, there are three basic .
choices for the City Council to assure the most effective operation of the City Attorney's
Office during the remainder of the unexpired term. They are: 1) Appoint a member of the City
Attorney's Office legal staff to serve as City Attorney; or 2) Go through a selection process to
appoint someone other than a staff attorney; o 3 Appoint City Attorney Gail Hutton to serve
,`the remainder of the term:;
If the City Council chooses Alternative 2, it is recommended that the City invite applications
from Wednesday, August 7 to Friday, August 23, 2002. The City Council would then
interview the qualified candidates the week of September 3, 2002, and make an appointment
at a special meeting the week of September 30, 2002. The City Council cannot officially
appoint a City Attorney until the current City Attorney leaves office.
*If the Cty Council chooses Alternative 3the contract that was approved for early retirement
and transitional consultant legal services at the July 15, 2002 meeting would have to be
rescinded (Attachment 1) and a salary and benefits resolution prepared for City Council
approval. While this option was,initially understood to not be possible without jeopardizing
the retirement benefits of City Attorney Hutton, a letter dated July 30, 2002, from CaIPERS
indicates that a break in service would qualify as an exclusion per Government Code section
20322 (Attachment 2). This would require City Attorney Hutton to officially retire on
September 28, 2002 (instead of September 30 as previously submitted). Since the first city
council meeting following this date is not until October 7, 2002, Ms. Hutton could be
appointed at a special meeting the week of September 30, 2002, and could begin serving in
her new appointed capacity on that date.
Alternative Action(s): 1) The City Council may wish to continue this matter to a
subsequent meeting and then decide what process to follow to appoint a City Attorney for the
two-month period.
2) Do not appoint a City Attorney to oversee and manage the City
Attorney's Office for the remainder of the unexpired term.
Attachment(s):
City clerk?s
o - N,umbera ® - o m
1 FCalPlERS
2002 Council Action
2 letter dated Jul 30, 2002
RCA Author:
G:\SILVER\RCAs\City Attorney Selection revl.doc ;3- 8/1/2002 8:41 AM
ATTACHMENT # 1
71
Council/Agency Meeting Held:
Deferred/Continued to:
[Approved ❑ Conditionally Approved ❑ Denied W, Ity C e 's Signature
Council Meeting Date: July 15, 2002 Department ID Number: CA 02-07
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL. ACTION
c-
SUBMITTED TO: H NORABLE MAYOR AND CITY COUNCIL MEMBERS '
r�
SUBMITTED BY: �Il-
IL HUTTON, City Attorney
PREPARED BY: HUTTON, City Attorney ' D
7g
SUBJECT: Approve Agreement for Gail C. Hutton for Early Retirement and
Transitional Consultant Legal Services
E
tement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue:
Whether to approve the Agreement between the City of Huntington Beach and Gail C. Hutton
for early retirement and transitional consultant legal services.
Funding Source:
General Fund, Contract Legal Services, Account No. 10015301.69375.
Recommended Action:
Approve Agreement between the City of Huntington Beach and Gail C. Hutton for early
retirement and transitional consultant legal services, and authorize the Mayor to execute and
the City Clerk to attest to the Agreement.
Alternative Action(s):
Do not approve agreement.
REQUEST FOR COUNCIL ACTION
MEETING DATE: July 15, 2002 DEPARTMENT ID NUMBER: CA 02-07
Analysis: Gail C. Hutton has served Huntington Beach as its City Attorney for over 24
years. First elected to office in 1978, Mrs. Hutton previously served the City of Santa Ana for
five years as a Deputy City Attorney. Mrs. Hutton's current term of office expires December
2, 2002.
Mrs. Hutton has indicated a desire to participate in the City's Workforce Reduction Incentive
Program, and accept the City's offer of two additional years of Public Employee Retirement
System (PERS) service credit in exchange for early retirement. Mrs. Hutton's anticipated
early retirement date is September 30, 2002.
However, due to the complex duties and requirements of her position as City Attorney, it is
necessary for the City to retain Mrs. Hutton for an additional period following her early
retirement, in order to provide the most efficient transition to the new City Attorney. Pursuant
to the proposed contract (attached hereto as Attachment No. 1), Mrs. Hutton will provide
consultant legal services to the City for the two month period following her early retirement,
and assist in the transition that will follow the election of the new City Attorney in November
2002.
Environmental Status: Not Applicable
Attachment(s):
3 1. Agreement Between the City of Huntington Beach and Gail C. Hutton
for Early Retirement and Provision of Transitional Consultant Legal
Services
RCA Author: GCH
G:\AGREEMTW02\GCH.doc -2- 7/3/2002 4:48 PM
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ATTA
CHMENT l
AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
GAIL C.HUTTON
FOR
EARLY RETIREMENT AND PROVISION OF TRANSITIONAL
CONSULTANT LEGAL SERVICES
THIS AGREEMENT ("Agreement") is made and entered into this day of
2002,by and between the City of Huntington Beach, a municipal
corporation of the State of California,hereinafter referred to as "CITY," and GAIL C. HUTTON,
an individual, hereinafter referred to as "HUTTON."
WHEREAS, HUTTON is now, and has been, the elected City Attorney of the City of
Huntington Beach since April 17, 1978, for a period of over twenty-four(24)years; and
CITY is, by contract, a member of the California Public Employees Retirement System,
herein called "PERS'; and
CITY has heretofore incorporated the provisions of Government Code § 20903, relating
to Additional Service Credit, within the Agreement between PERS and CITY; and
CITY has,by Resolution, certified that it is electing to exercise the provisions of Section
20903, to offer two additional years of service credit to eligible employees as an inducement for
early retirement, and to abolish at least one vacancy in any position in any Department or other
organizational unit, thereby resulting in an overall reduction in the CITY'S workforce; and
HUTTON'S term of office expires on December 2, 2002; and
HUTTON is eligible for, and desires to accept, such Additional Service Credit in
exchange for early retirement; and
HUTTON and CITY mutually desire to formulate an agreement that provides for
H�(U�TTON'S early retirement with no monetary gain or loss to HUTTON either in current income
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or in future benefits; and without forfeiture by HUTTON of currently vested retirement benefits;
and
The parties mutually acknowledge that an exact exchange of benefits and duties would be
difficult to accomplish and therefore the following agreement constitutes a mutually arrived-at
compromise of competing interests,
NOW, THEREFORE, it is agreed by CITY and HUTTON as follows:
1. ADDITIONAL SERVICE CREDIT; EARLY RETIREMENT
HUTTON will participate in the City's Workforce Reduction Incentive Program
and accept the City's offer of Additional Service Credit, and take an early retirement from the
CITY'S service effective September 30, 2002.
2. TERM
Commencing October 1, 2002,HUTTON shall be employed by CITY as an
independent contractor in the capacity of a special legal advisor, the term of such employment to
continue until December 2, 2002.
3. DUTIES
During the term of this Agreement, HUTTON, as an independent contractor, shall
provide legal services, consultation and advice to CITY on legal matters related to an orderly
transition on an "as needed" basis, under the general direction and control of the City Attorney or
Acting City Attorney.
The City Attorney or Acting City Attorney may allocate the total hours under this
Agreement in any manner compatible with the needs of the CITY,provided that HUTTON is
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otherwise available to provide such services. The parties agree to use their best efforts to arrive
at a satisfactory schedule.
4. COMPENSATION
HUTTON shall be compensated for such services by payment from the CITY of a
retainer fee of$12,100 per month, for a total of$24,200. In addition,HUTTON shall be paid a
car allowance of$500.00 per month for a total sum of$1,000.00. The total sum for services and
car allowance shall be S25,200. In consideration of CITY'S cash-flow difficulties, payment of
said retainer fee shall be made to HUTTON on January 2,2003. HUTTON shall invoice the
CITY on December 3,2002 for services performed during the employed period and for car
allowance.
5. FAITHFUL PERFORMANCE
HUTTON shall at all times faithfully, industriously, and to the best of her ability,
experience and talent,perform all duties that may be required of and from her pursuant to the
express and implicit terms hereof, to the reasonable satisfaction of the City Attorney or Acting
City Attorney.
HUTTON shall not make any contracts, ]eases or other commitments for or on
behalf of CITY without the express written consent of CITY, excepting the engagement of
expert witnesses, court stenographers and for other services incidental to CITY Iitigation.
HUTTON will be provided office space on CITY premises and CITY shall provide necessary
office telephone and other facilities at CITY'S own cost and expense.
6. AMENDMENTS AND MODIFICATIONS TO BE IN WRITING
No waiver or modification of this Agreement or of any covenant, condition, or
limitation herein contained shall be valid unless in writing and duly executed by the party to be
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charged therewith. Furthermore,no evidence of any waiver or modification shall be offered or
received in evidence in any proceeding, arbitration, or litigation between the parties arising out
of or affecting this agreement, or the rights or obligations of any party hereunder, unless such
waiver or modification is in writing, duly executed as aforesaid. The provisions of this
paragraph may not be waived except as herein set forth.
7. DISCLAIMERS OF REPRESENTATION
Each party acknowledges that this Agreement was negotiated by HUTTON on
behalf of herself, and by the City Administrator on behalf of CITY. This Agreement document
has been prepared by the Assistant City Attorney, who represents CITY and who does not
represent or advise HUTTON. No representations are expressed or implied concerning the legal
or tax consequences of this Agreement as to HUTTON. HUTTON acknowledges that she has
been advised that she should consult with her own advisors as to such matters.
HUTTON has been self-represented as to the preparation of this Agreement.
HUTTON is a duly admitted attorney and counselor-at-law. In no way did HUTTON act in her
official capacity in the preparation or negotiation of this agreement, it having been fully
disclosed to CITY that HUTTON acted entirely in her own interest and adverse to the interest of
the CITY in the negotiation and preparation of this Agreement.
8. CONTINUATION OF FRINGE BENEFITS UNTIL DECEMBER 31, 2002;
GRATIS PARTICIPATION IN CERTAIN GROUP PLANS.
From and after HUTTON'S September 30, 2002 retirement, until December 31,
2002, HUTTON and her spouse may participate in all CITY group medical, dental, life
insurance, and vision coverage at no cost to HUTTON, to the extent such benefits at that time are
afforded to CITY'S elected officers who also are entitled to receive the benefits set forth in
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CITY'S Non-Associated Employee Benefits Resolution, or its successor. If such benefits are
provided at a cost to the member(as deductibles),then HUTTON shall in like manner bear the
cost.
9. TERMINATION OF SERVICES
All work required hereunder shall be performed in a good and workmanlike
manner. CITY may terminate HUTTON'S services hereunder at any time with or without cause,
provided,however, that the retainer fee referenced in Section 4 above shall be paid regardless of
whether CITY terminates HUTTON'S services as set forth herein. Any termination of
HUTTON'S services by CITY shall be made in writing,notice of which shall be delivered to
HUTTON as provided herein. In the event of termination, all finished and unfinished
documents, exhibits,report, and evidence shall, at the option of CITY,become its property and
shall be promptly delivered to it by HUTTON.
10. ASSIGNMENT AND DELEGATION
This Agreement is a personal service contract and the work hereunder shall not be
assigned, delegated or subcontracted by HUTTON to any other person or entity without the prior
express written consent of CITY.
11. COPYRIGHTS/PATENTS
CITY shall own all rights to any patent or copyright on any work, item or material
produced as a result of this Agreement.
12. CITY EMPLOYEES AND OFFICIALS
HUTTON shall employ no CITY official nor any regular CITY employee in the
work performed pursuant to this Agreement. No officer or employee of CITY shall have any
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financial interest in this Agreement in violation of the applicable provisions of the California
Government Code.
13. NOTICES
Any notices, certificates, or other communications hereunder shall be given either
by personal delivery to HUTTON or to CITY as the situation shall warrant, or by enclosing the
same in a sealed envelope,postage prepaid, and depositing the same in the United States Postal
Service,to the addresses specified below. CITY and HUTTON may designate different
addresses to which subsequent notices, certificates or other communications will be sent by
notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified
mail-return receipt requested:
TO CITY: TO HUTTON:
City of Huntington Beach Gail C. Hutton
ATTN: Clay Martin or Dan Villella 16761 Coral Cay,Lane
2000 Main Street Huntington Beach, CA 92649
Huntington Beach, CA 92648
14. CONSENT
When CITY'S consent/approval is required under this Agreement, its
consent/approval for one transaction or event shall not be deemed to be a consent/approval to
any subsequent occurrence of the same or any other transaction or event.
15. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid
unless in writing and duly executed by both parties.
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16. SECTION HEADINGS
The titles, captions, section,paragraph and subject headings, and descriptive
phrases at the beginning of the various sections in this Agreement are merely descriptive and are
included solely for convenience of reference only and are not representative of matters included
or excluded from such provisions, and do not interpret, define, limit or describe, or construe the
intent of the parties or affect the construction or interpretation of any provision of this
Agreement.
17. INTERPRETATION OF THIS AGREEMENT
The language of all parts of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining
covenants and provisions of this Agreement. No covenant or provision shall be deemed
dependent upon any other unless so expressly provided here. As used in this Agreement, the
masculine or neuter gender and singular or plural number shall be deemed to include the other
whenever the context so indicates or requires. Nothing contained herein shall be construed so as
to require the commission of any act contrary to laNv, and wherever there is any conflict between
any provision contained herein and any present or future statute, law, ordinance or regulation
contrary to which the parties have no right to contract, then the latter shall prevail, and the
provision of this Agreement which is hereby affected shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law.
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18. DUPLICATE ORIGINAL
The original of this Agreement and one or more copies hereto have been prepared
and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of
the date of its execution and delivery,be deemed an original. Each duplicate original shall be
deemed an original instrument as against any party who has signed it.
19. IMMIGRATION
HUTTON shall be responsible for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply with the provisions of the
United States Code regarding employment verification.
20. LEGAL SERVICES'SUBCONTRACTINGPROHIBITED
HUTTON and CITY agree that CITY is not liable for payment of any
subcontractor workinvolving legal services, and that such legal services are expressly outside
the scope of services contemplated hereunder. HUTTON understands that pursuant to
Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for
CITY; and CITY shall not be liable for payment of any legal services expenses incurred by
HUTTON.
21. ATTORNEY'S FEES
In the event suit is brought by either party to construe, interpret and/or enforce the
terms and/or provisions of this Agreement or to secure the performance hereof, each party shall
bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its
attorney's fees from the non-prevailing party.
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22. SURVIVAL
Terms and conditions of this Agreement,which by their sense and context survive
the expiration or termination of this Agreement, shall so survive.
23. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of
the State of California.
24. ENTIRETY
The parties acknowledge and agree that they are entering into this Agreement
freely and voluntarily following extensive arm's length negotiation, and that each has had the
opportunity to consult with legal counsel prior to executing this Agreement. The parties also
acknowledge and agree that no representations, inducements, promises, agreements or
warranties,oral or otherwise, have been made by that party or anyone acting on that party's
behalf, which are not embodied in this Agreement, and that that party has not executed this
Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or
circumstance not expressly set forth in this Agreement. This Agreement contains the entire
agreement between the parties respecting the subject matter of this Agreement, and supercedes
REST OF PAGE INTENTIONALLY NOT USED
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all prior understandings and agreements, whether oral or in writing,between the parties
respecting the subject matter hereof.
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed
by and through their authorized officers the day, month and year first above written.
HUTTON CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of California
Gail-C. Hutton 2 Void Mayor
ATTEST: APPROVED AS TO FORM:
-7 ,
City Clerk A Assistant City Attorney
REVIEWED AND APPROVED:
City A inistrator
(3
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ATTAC H M E N T #2
30/2002 09:52 9163412330 CALPERS PAGE 02/03
Actuarial & Employer Services Division
P.O. Box 942709
Sacramento, CA 94229-2709
Telecommunications Device for the Deaf- (916)326-3240
CalPERS (916)326-3420 FAX (916)326-3005
July 30, 2002 Employer Code#0097
Reply to Section 104 GT
Ms. Gail Hutton By Fax: (714) 374-1590
City Attorney
City of Huntington Beach
2000 Main Street, 4th Floor
Huntington Beach, CA 92648
Dear Ms. Hutton:
SUBJECT: City Attorney— 554-58-1547 —Working After Retirement
This will confirm our telephone conversations during the week of July 15, 2002 regarding
your intent to retire with a golden handshake from.the City of Huntington Beach on
September 30, 2002. This will also confirm receipt of your fax.transmittal of your
contract of July 15, 2002 with the City of Huntington Beach for legal services from
October 1, 2002 to December 2, 2002.
The City of Huntington Beach contracts for Government Code section 20903, and
Sharon Hennigan of your personnel office informed me that as part of the City's
Workforce Reduction Incentive Program, the City Council recently approved a resolution
granting two extra years of service credit for those who retire within the window period of
July 2, 2002 through September 30, 2002.
If you retire on September 28, 2002 instead of September 30, 2002, you will receive a
couple more days of retirement compensation for the month of September 2002. Your
employer must submit a Member Action Request form (AESD-1) with a separation date
of Friday, September 27, 2002 in order for you to retire on Saturday, September 28,
2002. (Gov. Code sec. 21252.) You must also submit your retirement application with a
separation date of September 27, 2002 and a retirement date of September 28, 2002.
After this separation from your current city attorney position, any future election or
appointment to a city attorney position will not fall under the category of"elective officer"
for CaIPERS purposes. Government Code section 20322 excludes city attorneys from
the definition of "elective officer" when the city attorney was first employed, elected, or
appointed on or after July 1, 1994, or after a break in service from the city attorney
position held on June 30, 1994.
California Public Employees'Retirement System .
Lincoln Plaza-400 P Street-Sacramento, CA 95814
JUL-30-2002 10:26 9163412330 9e% P•02
,30/2002 09: 52 9163412330 CALPERS PAGE 03/03
Ms. Gail Hutton - 2 - July 30, 2002
If you are reappointed as the Huntington Beach city attorney, you will be subject to the
960-hour retired annuitant employment restriction found in Government Code
section 21221(h). Government Code section 21221(h) states that a retired person may
serve without reinstatement from retirement, or loss or interruption of benefits as follows-
(h) Upon appointment by the governing body of a contracting agency to a
position deemed by the governing body to be of a limited duration and
requiring specialized skills or during an emergency to prevent stoppage of.
public business. These appointments, in addition to any made pursuant to
Section 21224, shall not exceed a total for all employers of 960-hours in
any calendar year. When an appointment is expected to, or will, exceed
960-hours in any calendar year, the governing body shall request approval
from the board to extend the temporary employment. The governing body
shall present a resolution to the board requesting action to allow or disallow
the employment extension. The resolution shall be presented prior to the
expiration of the 960-hour maximum for the calendar year. The
appointment shall continue until notification of the board's decision is
received by the governing body. The appointment shall be deemed
approved if the board fails to take action within 60 days of receiving the
request. Appointments under this subdivision may not exceed a total of
one year.
As I had informed you over the telephone, CalPERS would not treat such reappointment
as an independent contractor position after retirement.
I hope this letter has satisfactorily answered your questions regarding your retirement.
If you have any further questions regarding this letter or your eligibility to work as a
retired annuitant, please call me at (916) 326-3314.
Sincerely,
Gloria Tsunekawa
Retirement Program Specialist
Actuarial & Employer Services Division
cc: Sharon Hennigan, Personnel Fax: (714) 960-8804
Administrative Services Department
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
JUL-30-2002 10;26 9163412330 98% P.03