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CC - Item 5G - City Council Designation and Appointment of Iterim Finance Director/Treasuer as a Retired Annuitant Position E M cd10 ° ROSEMEAD CITY COUNCIL çCIlDE STAFF REPORT r /1CORPORA7ED A4139 TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: GLORIA MOLLEDA, CITY MANAGER DATE: AUGUST 25, 2020 SUBJECT: CITY COUNCIL DESIGNATION AND APPOINTMENT OF INTERIM FINANCE DIRECTOR/TREASUER AS A RETIRED ANNUITANT POSITION SUMMARY The City has been trying to recruit a permanent Finance Director for several months. However, with the current COVID-19 issues and other factors, the City has been unable to fill the position. Until the City can fill the position, staff requests the City Council appoint a Retired Annuitant to the position of Interim Finance Director/Treasurer as authorized per California Government Code Sections 7522.56 and 21221(h) and to ensure adequate staffing during this state of emergency. STAFF RECOMMENDATION That the City Council: 1. Approve the position of Interim Finance Director/Treasurer and authorize the position as a Retired Annuitant Position per California Government Code Sections 7522.56 and 21221(h), and, 2. Approve the appointment and authorize the City Manager to sign the agreement on behalf of the City with Scott G. Miller as the Interim Finance Director/Treasurer. DISCUSSION In February 2020, the City retained the services of PHD E.D. Consulting (Dr. Scott G. Miller) to provide municipal finance support services. Due to the vacancy of the Finance Director position and the unprecedented COVID-19 pandemic that has affected the fiscal forecasting of the City, Dr. Miller's contract was extended and amended by the City Council on May 12, 2020. The Finance Director position has been difficult to fill and remains vacant. Dr. Miller has agreed to join the City as an appointed Retired Annuitant to the position of Interim Finance AGENDA ITEM 5.G City Council Meeting August 25,2020 Page 2 of 2 Director/Treasurer until the end of this year, which will allot the City more time to recruit for the vacant position. FISCAL IMPACT Any costs in this motion are already approved in the FY 20-21 Budget. STRATEGIC PLAN IMPACT -None PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Era M IS Q, O -M1WC1 C PRIDE 7 pRATEO c Attachment A Retired Annuitant Employment Agreement for the Position of Interim Finance Director/Treasurer RETIRED ANNUITANT EMPLOYMENT AGREEMENT FOR THE POSITION OF INTERIM FINANCE DIRECTOR/TREASURER CITY OF ROSEMEAD This Retired Annuitant Employment Agreement ("AGREEMENT") is made and entered into by and between the CITY OF ROSEMEAD, a Municipal Corporation of the State of California ("CITY"), and Scott Miller ("Miller"), an individual, on the following terms and conditions: RECITALS A. CITY lost their Finance Director and has been unable to fil the position for various reasons; B. Beginning on January 15, 2020 the CITY commenced two open recruitments for the permanent position of Finance Director and is continuing to review applications that come in but at this time no qualified applications have been received; C. The COVID-19 Emergency has put great strains on the City especially in its financial affairs causing staffing issues, internal control issues and providing needed services to the City and the Community and needs to ensure adequate staffing during this state of emergency; D. The CITY needs help in the Finance Department to train and mentor the Finance staff, run operations and do various financial projects as well as handle the financial needs and impacts during the COVID-19 and related emergencies and to provide the required legal and administrative functions while the City recruits to permanently fill the vacant position of Finance Director; E. MILLER has over 32 years of Municipal and Local Government Financial Experience including as a Chief Financial Officer and as a Finance Director and retired from the City of Riverside in August 2017. MILLER retired in the position of Chief Financial Officer from two Cities and is uniquely qualified and has the requisite specialized skills, training and experience to serve as INTERIM FINANCE DIRECTOR/TREASURER for the CITY; F. CITY desires to employ the specialized services of MILLER as INTERIM FINANCE DIRECTOR/TREASURER for CITY in consideration of and subject to the terms, conditions, and benefits set forth in this AGREEMENT and State Law; G. MILLER desires to accept Retired Annuitant employment as INTERIM FINANCE DIRECTOR/TREASURER in consideration of and subject to the terms, conditions, and benefits set forth in this AGREEMENT and State Law; H. MILLER represents that he is a retired annuitant of the California Public Employees' Retirement System ("Ca1PERS") within the meaning of Government Code § 21221(h) as of the effective date of this AGREEMENT. MILLER represents that he retired from 1 the Ca1PERS system at least 180 days prior to the effective date of this agreement. MILLER acknowledges that he is restricted to working no more than a combined 960 hours for CITY, a state agency, or other Ca1PERS contracting agencies (collectively "Ca1PERS Agencies") during CITY's 2020-2021 fiscal year except as may be exempted under the Governor's State of Executive Order N-25-20 which exempts Retired Annuitant's from the 960 hour combined maximum with proper notifications and that his compensation is statutorily limited as provided in Government Code § 21221(h). MILLER represents that he has not received any unemployment compensation from any Ca1PERS Agencies during the 12-month 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; I. This AGREEMENT was approved by CITY's City Council as a regular agenda item at a Council meeting held on August 25, 2020. OPERATIVE PROVISIONS THEREFORE, in consideration of the above recitals and promises and conditions contained herein, CITY and MILLER mutually agree as follows: 1. Position and Duties. 1.1 Position. MILLER accepts retired annuitant employment with CITY as INTERIM FINANCE DIRECTOR/TREASURER and shall perform all functions, duties and services of set position set forth in City Code and by direction of the City Manager. MILLER shall provide service at the direction and under the supervision of the City Manager. It is the intent of the parties that MILLER, as the INTERIM FINANCE DIRECTOR/TREASURER, shall keep the City Manager fully apprised. Toward that end, MILLER shall report directly to the City Manager and will periodically, or as may be otherwise specifically requested by the City Manager,provide status reports to the City Manager on his activities and those of the CITY. 1.2 Term. This AGREEMENT commences and is effective on August 25, 2020 ("COMMENCEMENT DATE") after being approved by the City Council both by MILLER and CITY's City Manager. Subject to the provisions set forth in Section 3 [Termination], MILLER shall be employed in the position of INTERIM FINANCE DIRECTOR/TREASURER for a term commencing on the COMMENCEMENT DATE. This AGREEMENT shall expire as of the first of the following to occur: (i) 6:00 p.m. on December 31, 2020 or (ii) upon termination of the AGREEMENT by either MILLER or CITY as provided in Section 3 [Termination] of this AGREEMENT. 1.3 At-Will. MILLER acknowledges that he is an at-will employee of CITY who shall serve at the pleasure of the City at all times during the period of his service hereunder and that his employment may be terminated at any time for any or no reason with or without cause as provided in Section 3 [Termination] of this AGREEMENT and/or by operation of California or federal law. 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 CITY to terminate his employment, except as is expressly provided 2 in Section 3 [Termination] of this AGREEMENT and/or by operation of California or federal law. Nothing contained in this AGREEMENT shall in any way prevent, limit or otherwise interfere with the right of CITY to terminate the services of MILLER as provided in Section 3 [Termination]. Nothing in the AGREEMENT shall prevent, limit or otherwise interfere with the right of MILLER to resign at any time from the position with CITY, subject only to the provisions set forth in Section 3 [Termination] of this AGREEMENT. The terms of the CITY's personnel rules, policies, procedures, ordinances, resolutions, or Municipal Code (collectively "PERSONNEL POLICIES") shall not apply to MILLER. 1.4 Duties. MILLER agrees to provide the follow services: Under the administrative direction of the City Manager MILLER will provide INTERIM FINANCE DIRECTOR/TREASURER services to the City's Finance Department and the City on an as- needed basis. MILLER will also perform all other legally permissible and proper duties and functions consistent with the City of Rosemead Finance Department, including those set forth in the Rosemead Municipal Code, the Personnel Rules and Regulations, and as the City Manager shall from time to time assign. 1.5 Hours of Work. MILLER shall devote the time necessary to adequately perform his duties as INTERIM FINANCE DIRECTOR/TREASURER. The parties anticipate that MILLER will work up to 35-40 hours per week during regular City Hall business hours. However, in no event shall MILLER be required or permitted to work in excess of 960 hours per during CITY's 2020-2021 fiscal year except as may be exempted under the Governor's State of Executive Order N-25-20 which exempts Retired Annuitant's from the 960 hour combined maximum with proper notifications. 1.6 Other Activity. In accordance with Government Code Section 1126, during the period of his employment, MILLER shall not accept, except current non-government clients, any other work without the express prior written consent of the City Manager, any other employment or engage, directly or indirectly, in any other business, commercial, or professional activity (except for Professional Activity or Educational Activities), whether or not for pecuniary advantage, that is or may be competitive with CITY, that might cause a conflict-of-interest with CITY, or that otherwise might interfere with the business or operation of CITY or the satisfactory performance of MILLERs duties as INTERIM FINANCE DIRECTOR/TREASURER. 1.7 Reimbursement. CITY shall reimburse MILLER for reasonable and necessary travel, subsistence and other business expenses incurred by MILLER in the performance of his duties. All reimbursements shall be subject to and in accordance with California and federal law and CITY's policies regarding reimbursement. 2. Compensation. 2.1 Rate of Pay. For all services performed by MILLER as the INTERIM FINANCE DIRECTOR/TREASURER under this AGREEMENT, CITY shall pay MILLER compensation at the rate of Eighty-Four dollars and Seventy-Three cents ($84.73) per hour. Such compensation shall be payable according to the scheduled paydays for CITY personnel. 3 2.1.1 Compliance with Ca1PERS Requirements. It is the intent of the parties to compensate MILLER only to the extent permitted under Government Code § 21221(h) and corresponding Ca1PERS regulations and policy statements. The Rate of Pay set forth above is based on the salary limitations established by Ca1PERS. The monthly base salary for the position of Finance Director as listed on a publicly available pay schedule is a minimum of $9,824 and a maximum of $13,557. The Rate of Pay is calculated by taking a monthly base salary of$13,557 and dividing it by 160 to equal an hourly rate of$84.73. 2.2 Recordation and Reporting of Hours Worked. MILLER will comply with all applicable Ca1PERS rules and regulations governing employment after retirement, including the recordation and reporting of all hours worked for CITY to Ca1PERS as may be required. CITY shall assist in any such reporting obligation to Ca1PERS. Additionally, MILLER shall keep CITY continually informed of any hours worked by MILLER for other Ca1PERS Agencies during the term of this Agreement. 2.3 Benefits. Pursuant to Government Code § 21221(h) and related Ca1PERS regulations and policy statements, MILLER shall not receive from CITY any benefits CITY commonly provides to its employees including, without limitation, medical, dental, vision, long term disability, life insurance, deferred compensation, or any paid personal time off such as vacation, sick leave, administrative leave, paid holidays or similar leave benefits. 3. Termination. 3.1 By City. CITY may terminate MILLER for any reason, and at any time, with or without cause, during the term of the AGREEMENT, by providing MILLER with written notice 5 working days before said termination date, by the CITY's City Manager. CITY'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. 3.2 By Employee. MILLER may terminate his employment for any reason, and at any time, with or without cause, during the term of the AGREEMENT, by providing the City Manager with seven (7) days advance written notice. CITY 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 pays MILLER all compensation as set forth in Section 2.1 [Rate of Pay] then due and owing him through the last day of MILLER's notice. MILLER shall not be entitled to any other severance under the AGREEMENT. It is understood and agreed that any notice of termination should be given as soon as practicable and in the best interest of the CITY. 3.3 No Notice for Expiration. Nothing in Section 3 [Termination] shall be construed to require either MILLER or CITY to give advance written notice in order for the AGREEMENT to expire as set forth in Section 1.2 [Term]. 3.4 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 4 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. 3.5 Termination Obligations. MILLER agrees that all property, all equipment, and other City Property, City Proprietary Information (as described Section 4) City records, and contracts shall be returned promptly to CITY upon termination of MILLER's employment. MILLER's obligations under this subsection shall survive the termination of his employment and/or the expiration of this AGREEMENT. 4. Proprietary Information. "Proprietary Information" is all non-public information pertaining in any manner to the business of CITY (or any CITY affiliate), its employees, clients, consultants, or business associates, which was produced by any employee of CITY in the course of his employment or otherwise produced or acquired by or on behalf of CITY. Proprietary Information shall include, without limitation, trade secrets, confidential financial data and formulae, attorney client- privileged information, confidential licensing information, software and other computer programs, copyrightable material, and other information exempt from production under the California Public Records Act and or the Federal Freedom of Information Act. All Proprietary Information not generally known outside of CITY's organization, and all Proprietary Information so known only through improper means, shall be deemed "Confidential Information."During his employment by CITY, MILLER shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of CITY 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. MILLER's obligations under this Section shall survive the termination of his employment and the expiration of this AGREEMENT. A disclosure of Proprietary Information or Confidential Information by MILLER in response to an order by a court of competent jurisdiction or in response to a subpoena by a Grand Jury or any state, federal or local law enforcement agency shall not be deemed a breach of this AGREEMENT. 5. Conflict Of Interest. MILLER represents and warrants to CITY that, to the best of his knowledge, 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. 6. General Provisions. 6.1 Recitals. The recitals, inclusive of all facts and representation, are incorporated into this AGREEMENT as if set forth in the Operative Provisions. 6.2 Notices. All notices, requests, demands and other communications under this AGREEMENT shall be in writing and shall be effective upon delivery by hand or four (4) business days after deposit in the United States mail, postage prepaid, certified or registered, and 5 addressed to CITY at the address below, and/or to the last known address maintained in MILLERs personnel file. MILLER agrees to notify CITY in writing of any change in his address during his employment with CITY. Notice of change of address shall be effective only when accomplished in accordance with this Section. CITY's Notice Address: City of Rosemead City Hall, Attn: City Manager 111 South First Street Rosemead, CA 91801 MILLER's Notice Address: [TBD] 6.3 Indemnification. In accordance with and to the extent provided by California's Tort Claims Act (Government Code Section 825 et seq.) and Government Code Section 995- 996.6, CITY shall defend and indemnify MILLER against and for all losses sustained by MILLER arising out of an act or omission occurring within the scope of his employment under this AGREEMENT. 6.4 Merger, Integration and Modification. This AGREEMENT is intended to be the final, complete, and exclusive statement of the terms of MILLER's Retired Annuitant employment by CITY under this AGREEMENT. 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, now or in the future, apply to MILLER and are inconsistent with the terms of this AGREEMENT, the provisions of this AGREEMENT shall control. This AGREEMENT may be modified only in a writing approved by the City Manager and signed by all the parties. 6.5 Waiver. Either party's failure to exercise any right under this AGREEMENT shall not constitute a waiver of such right. Waiver by any party hereto of any term, condition, or covenant of this AGREEMENT shall not constitute the waiver of any other term, condition, or covenant hereof. 6.6 Assignment. Neither this AGREEMENT, nor any interest in it, may be assigned or transferred by any party without the prior written consent of all the parties. Any such assignment will be subject to such terms and conditions as CITY may choose to impose. 6.7 Severability. In the event any portion of this AGREEMENT is declared void, such portion shall be severed from this AGREEMENT and the remaining provisions shall remain in effect, unless the result of such severance would be to substantially alter this AGREEMENT or the obligations of the parties, in which case this AGREEMENT shall be immediately terminated. 6 6.8 Attorneys' Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this AGREEMENT, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. 6.9 Governing Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, and any action in connection with or arising out of this AGREEMENT or any dispute between the parties shall be commenced and maintained in the Superior Court of the State of California for the County of Los Angeles or the United States District Court for the Central District of California. 6.10 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. 6.11 Binding Effect. The rights and obligations of this AGREEMENT shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors and assigns, and whenever the context so requires, the masculine gender and includes the feminine and neuter, and the singular number includes the plural. This AGREEMENT may be executed in any number of counterparts, each of which shall be considered as an original and be effective as such. 6.12 Further Assurances. Each party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate,to implement the terms of this AGREEMENT and the intent of the parties to this AGREEMENT. 7 IN WITNESS WHEREOF, CITY and MILLER has signed and executed this AGREEMENT. DATED: CITY: Gloria Molleda, City Manager DATED: MILLER: Scott MILLER ATTEST: APPROVED AS TO FORM: Ericka Hernandez, City Clerk Rachel Richman, City Attorney 8