HomeMy WebLinkAboutA4294 - JUDITH SUMICH RETIREMENT AGR Judith Sumich
. Retirement Agr
PALM AGREEMENT #4294
pF ,& `r0 Approved by Motion in Closed
Session 11-1-00
.f ,.N City of Palmi
Office of the City Clerk
3200 Tahqmtz Canyon Way • Palm Springs,California 92262
f FO RN TEL:(760)323-8204 • TDD.(760)864-9527
DATE: April 1, 1999
TO: Rob Parkins, City Manager
FROM: Judith Sumich, City Clerk
The Charter provides that I am entitled to all benefits upon termination, and as Henry
Weiss is about to do, and others have done before me, I plan to begin exhausting my
leave time in anticipation of my retirement next year. Since I will still be on the city
books, I expect to continue to accrue benefits that any other department head or
member of the executive group is entitled to (salary changes, insurance, leave time,
etc., and hopefully, paid retirees health insurance will come along during this period as
well). My anticipated time schedule is, as follows:
July 6, 1999 - July 26, 1999 15 days Adm Leave
July 27, 1999 - June 30, 2000 1,952 hours
(exhaust sick leave & holidays first, followed by vacation time)
July 1, 2000 - Nov. 29, 2000 856 hours
(exhaust holidays, remaining vacation, and accruals)
1 will be available for institutional memory at any time, and specifically will offer back
up to 8 hours per month to assist in whatever way I can. The optical imaging system
has been so long in getting off the ground, I know that my memory would be helpful in
getting a jump start on it in terms of city property and redevelopment deeds. I also
appreciate that the election process will just begin in July, and it will take some time to
fill whatever vacancy is left by my absence, and some training assistance might be
needed in that regard. There might also be emergencies which would cause the Council
meetings to be "un-clerk'd".
JUDITH S J H
City Clerk -01
APPROVED
�Ciry anage
Post Office Box 2743 0 Palm Springs, California 92263-2743
PALM Sp City of Palm Springs
OF A�
� y
h C
V N
x oeroua��,
A MEMORANDUM
o^crFoaN�r
Date: November 1, 2000
To: Honorable Mayor and Members of the City Council
From: David Aleshire, City Attorney ,
Subject: Rectification of RetirecnentAgreements
RECOMMENDATION
That the City Council consider ratification of two retirement agreements with Henry Weiss and Judy
Suinich, and authorize that they be carried out in accordance with their terms.
INTRODUCTION
On or about April 1, 1999, then City Manager Rob Parkins executed an agreement with the City
Clerk, Judy Sumich, in contemplation of her anticipated retirement in 2000. Ms. Sumich, an
employee of some 40 years with the City, had the following vested benefits on the City's books as
of July 6, 1999,the effective date of the Agreement: Vacation time-947.47 hours,and Sick Leave-
1,324.00 hours. These benefits had a cash value of$100,408, based on 1999 dollars.
Rather than paying Ms. Sumich this value in cash, the agreement provided that she would stay on
the City payroll for the period of time it took to use up those accrued leaves, receiving regular City
payroll checks every two weeks. One effect of this arrangement was that during the period of the
Agreement,from July 1999 to November 2000,Ms. Sumich continued to accrue additional vacation
and sick leave benefits. Moreover, during this period,Ms. Sumich was still a City employee and as
such, continued to receive the same cost of living increases as other employees, even though she
was not expected to return to work, pending her November 2000 retirement date. The value of the
additional accruals and benefits during the seventeen(17)month period totaled$33,000, or a 33%
increase above the initial value of the benefits on the books. Although payment was in 1999 dollars,
the time was accrued over her entire career.
1
• •
With respect to Henry Weiss, a 21-1/2-year employee, on January 20, 1999 a similar contractual
arrangement was entered into with him, although it was approved by the Library Board rather than
the City Manager. By this Agreement, the Library Board approved a job title change to "The
Director of the Department of Library Services" and a 15% salary increase for Mr. Weiss effective
January 1, 1999. The value of this increase was $1,190 per month. Per the Agreement, the value
of the salary increase was to be paid by the Library Trust Fund, and the balance by the Library
Activity in the General Fund. In reality,a spot check of the records shows that Mr. Weiss was paid
entirely out of the Library Activity in the General Fund through May 1999, then totally out of the
Library Trust Fund from May through December 1999. Thereafter, from January 1, 2000 to the
present, Mr. Weiss was again paid out of the General Fund.
The agreement provided that during the first period, January 1, 1999 through May 3, 1999, Mr.
Weiss would serve as a contract employee performing the duties of City Librarian. During the
second period, May 4, 1999 through December 31, 1999, Mr. Weiss would perform certain
consulting services for the Board. Thereafter, the agreement provided that Mr. Weiss would be a
City employee until all his accrued vacation and sick leave were used, similarly to Ms. Sumich,
during which time he would continue to accrue vacation and sick leave,and receive benefits and pay
increases available to all of the Executive ("EX") employees of the City.
In Mr. Weiss's case, the value of his benefits on the books as of January 1, 2000 was $142,279
(Vacation - 2,154 lus. and Sick Leave - 622 hours). The added value of additional accruals and
cost-of living increases over the 23-month period he will have remained on the City payroll is about
$40,000.
Finally,the City has an adopted Position Allocation and Compensation Plan designating all positions
in the City service. The current version of this resolution is Resolution No. 19885. Under the Plan,
there is only one position listed for City Clerk and one position for City Librarian.
Although Judy Sumich and Henry Weiss occupied these positions, on May 3, 1999, City Manager
Rob Parkins approved Margaret Roades' promotion to City Librarian at a salary of$6,124 per
month,the lowest step on the pay range for the City Librarian, as provided by the City's Persormel
Rules. On July 1, 1999,City Manager Parkins approved Trisha Sanders'appointment to the position
of Acting City Clerk,to continue until November 2000,when her status was to change to City Cleric.
The movement to Acting City Clerk increased Ms. Sanders' salary to the lowest step of the City
Clerk's range,per the Persomlel Rules. On December 14, 1999,after City Manager Rob Parkins left
the City,Interim City Manager Dallas Flicek approved Trisha Sanders'title change from Acting City
Clerk to City Clerk on her amiiversary date of December 14, 1999, with a 5% step increase, in
recognition that "she, in fact, was doing the work of the City Clerk, and there was no expectation
that Ms. Sumich would be returning to work".
On or about August 10, 2000, after Ms. Sumich requested that she receive the cost-of-living
approved for other employees effective June 25, 2000, Dallas Flicek requested that the City
Attorney's office evaluate the validity of these agreements.
2
ANALYSIS
We have discussed this matter with Mr. Parkins,the Library Board,and the retired employees. Mr.
Parkins asserts that he believed he had the authority to enter such agreements. The employees stated
that they were only being paid for benefits accrued over many years of service, that the City
benefitted from avoiding large lump sum cash payments, and that other departing employees had
received such packages in the past.
It is true that Article 2.08.010, Section 2,et seq., of the Palm Springs Municipal Code(PSMC)vests
broad power in the City Manager to administer the City's personnel system. This authority includes
appointment, discipline and dismissal of all department heads, all subordinate officers and
employees of the City, the power "to transfer employees from one department to another, and to
consolidate or combine offices,positions,departments, or units raider his jurisdiction"and"control
overall departments and divisions of City govermnent,and overall appointed officers and employees
thereof." It is also true that the Library Board has legal authority independent of the City, and that
a portion of the funding for Mr. Weiss's package came from the Library Trust Fund. In terms of
alleged similar agreements with other former employees, we have not been able to document such
agreements, but they may have existed.
Significant legal issues impacting the question ofthe validity ofthese retirement agreements include:
1. Under Palm Springs Municipal Code(PSMC),Section 3.12.290,the City Manager may only
authorize contracts of less than $5,000. Other contracts require Council approval, which
these did not receive. The value of each of these contracts exceeded$5,000,even if only the
value of the additional accruals is considered.
2. Confusion arises under the Position Allocation and Compensation Plan, since the City had
two persons occupying each of these positions at one time. Neither the City Manager nor
the Library Board could create additional positions in the Plan.
3. Although the Library Board has some independent authority, its authority over employees
on the City's payroll is limited. (See City of Ukiah v Board of Trustees (1961) 195 Cal.
App. 2d 344, holding that a library employee is an employee of the City and subject to
City's personnel rules). Moreover, the Library Board has contracted away much of its
authority in its existing Agreement with the City (Contract Services Agreement for
Municipal Public Library Services, Agreement No.3716,approved October 2, 1996),which
provides that"the City Librarian and the Library staff shall remain employees of the City of
Palm Springs. . . ."
4. Under the doctrine of equitable estoppel, or detrimental reliance, where a public entity has
entered into contracts with apparent authority and appears to treat the contracts as valid, and
the employee relies on such contracts,the public entity is estopped from later contesting the
validity of the contracts. Longshore v Coumty of Ventura (1979) 25 Cal 3d 14. Several
factors point to the potential application of this doctrine in the current case.
3
CONCLUSION
The validity of these two agreements without Council approval is in question. Although the City
Manager,the Library Board, and the retiring employees thought what they were doing was proper,
we believe such contracts required Council approval. However,under the doctrine of estoppel,the
good faith of the persons involved in these transactions would probably preclude the City's
disavowal of these agreements, or at least involve significant legal controversy should the Council
wish to pursue such inquiries.
In light of the foregoing, we have placed these contracts on Council's agenda for ratification to
clarify any questions concerning their validity. The attached proposed two(2)Minute Orders would
accomplish that.
David J ylleshire, City Attorney
Attachments:
1. Professional Employee Services Agreement (Henry Weiss)
2. Letter Agreement dated April 1, 1999 (Judith Sumich)
3. & 4. Two (2) proposed Minute Orders
DJA:mme
4
CITY OF PALM SPRINGS BOARD OF LIBRARY TRUSTEES
PROFESSIONAL EMPLOYEE SERVICES AGREEMENT FOR
DIRECTOR of the DEPARTMENT OF LIBRARY SERVICES
THIS EMPLOYEE SERVICES AGREEMENT (herein "Agreement") is made and entered into
this-twentieth (20th) day of January, 1999, by and between Henry A. Weiss (herein "Employee) and the
City of Palm Springs Board of Library Trustees (herein "Board") to be effective January 1, 1999 through
and including December 31, 1999.
NOW THEREFORE,the parties hereto agree as follows:
1.0 SERVICES OF EMPLOYEE
1.1 Scope of Services. In compliance with all of the terms and conditions of this
Agreement, the Employee shall perform the work and/or services set forth in the "Scope of Service"
attached hereto as Exhibit"A" and incorporated herein by this reference. Employee warrants that all work
and services set forth in Exhibit "A" will be performed in a professional, competent and satisfactory
manner.
1.2 Compliance with Law. All work and services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules, and regulations of the Board of Library
Trustees,City of Palm Springs and any Federal,State or local government agency of competent jurisdiction.
1.3 Licenses Permits. Fees and Assessments. Employee shall obtain such licenses as
may be required by law for the performance of the services required by this Agreement. Fees and
assessments under the control of the Board shall be waived.
2.0 COMPENSATION
2.1 Agreement Sum. For the services rendered pursuant to this Agreement, Employee
shall be compensated in accordance with the"Schedule of Compensation" attached hereto as Exhibit"B"
and incorporated herein by this reference. Said compensation may be allocated from either the Library
Operational Fund or the Library Trust Fund at the discretion of the Board.
3.0 COORDINATION OF WORK
3.1 Reoresentative of Employee. The Employee is hereby designated to solely represent
himself and act on his behalf with respect to the work and services specified herein, and to make all
decisions in connection therewith. -
3.2 Agreement Officer. The President of the Board of Library Trustees is hereby
designated to be the representative of the Board and is authorized to act on its behalf with respect to the
work and services specified herein and make all decisions in connection therewith (as "Agreement
Officer"). The President of the Board shall have the right to designate another Agreement Officer by
providing written notice to the Employee.
3.3 Prohibition Against Subcontracting or Assignment. Employee shall not contract
with any entity to perform in whole, or in part the work or services required hereunder without the express
written approval of the Agreement Officer. Neither this Agreement nor any interest herein may be assigned
or transferred, voluntarily or by operation of law, without the prior written approval of the Agreement
Officer. Any such prohibited assignment or transfer shall be void.
1
3.4 Not an Independent Contractor. During the term of this Agreement,Employee shall
remain an executive ("EX") employee of the City of Palm Springs, California and, therefore, fully eligible
to receive any and all compensation adjustments and/or benefits assigned to that unit of employees. At the
conclusion of .this Agreement, Employee may use, at his sole discretion (either via "lump sum"
compensation or payroll compensation), any or all of his accrued benefits (including, but not limited to:
health insurance, disability insurance, Public Employee Retirement System benefits, vacation leave and
accrual, and sick leave accrual). Employee shall remain an executive("EX") employee of the city of Palm
Springs until all of his assigned vacation and sick leave have expired (including additional accrual which
shall be allocated in accordance with all other executive("EX")employees of the city).
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance and Indemnification. Under the terms of this Agreement,Employee will be
fully insured and indemnified by the City of Palm Springs to the same extent as other department heads of
the City for all work, actions and services performed in accordance with this Agreement. Employee shall
remain fully insured and indemnified by the City of Palm Springs until all vacation and leave accruals have
expired after the term of this Agreement(after December 31, 1999).
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall continue in full force and effect from January 1, 1999 until December 31, 1999.
5.2 Termination Prior to the Expiration Of Term. This Agreement shall remain in full
force during the entire term listed in Section 5.1 above and may only be modified, terminated or extended
by the mutual written consent of both the Employee and the Board. Any termination will require at least
thirty(30)days to become effective.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Employee covenants that, by and for himself, his
heirs, executors, assigns and all persons claiming under or through them, that there shall be no
discrimination against,nor segregation of,any person or group of persons on account of race, color, creed,
religion,gender,marital status,national origin,or ancestry in the performance of this Agreement. Employer
shall take affirmative action to ensure that applicants are employed, and that employees are treated during
employment without regard to their race, color, creed, religion, gender, marital status, national origin or
ancestry.
6.2 Notice. Any notice, demand, request, document, consent, approval or
communication either parry desires,or is required to give to the other party,or any other person, shall be in
writing and either served personally, or sent by pre-paid first class mail in the case of both the Agreement
Officer and Employee at the Palm Springs Library Center 300 South Sunrise Way Palm Springs, California
92262.
6.3 Interpretation. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason of the
authorship of this Agreement or any other rule of construction which might otherwise apply.
6.4 Integration: Amendment. It is understood that there are no oral agreements between
the parties hereto affecting this Agreement and that this Agreement supersedes and cancels any and all
previous negotiations, arrangements, agreements and understandings, if any, between the parties and none
2
shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
6.5 Severability. In the event that part of this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining portions of this Agreement,which are hereby_declared
as severable and shall be interpreted to carry out the intent of the parties hereunder, unless the invalid
provision is so material that its invalidity deprives either party of the basic benefit of their bargain or
renders the Agreement meaningless.
6.6 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy to be construed as a waiver. A parry's
consent or approval of any act by the other party requiring the parry's consent or approval shall not be
deemed to waive or render unnecessary the other parry's consent to or approval of any subsequent act. Any
waiver by either party of any default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
6.7 Attorney's Fees. Both the Board and the Employee shall remain agents of the City of
Palm Springs, California under the terms of this Agreement and therefore subject to the same legal defense,
indemnification and legal fees as other City commissioners, department heads and employees.
6.8 Authority. The persons executing this Agreement on behalf of the parties hereto
warrant that(i)such party is duly organized and existing,(ii)they are duly authorized to execute and deliver
this Agreement on behalf of said party,(iii) by so executing this Agreement such party is formally bound to
the provisions of this Agreement,and(iv)the entering into of this Agreement does not violate any provision
of any other Agreement to which said party is bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement on January
20th, 1999 in Palm Springs,California
BOARD:
CIT F PALM SPRINGS
��
� W �I� O OF LIBRARY TRUSTEES
ATTEST: 4,440 /
Library�Truus�teeeeJJ� resident
1 O�� EMPlmkl
y A.Weiss
3
EXHIBIT"A"
SCOPE OF EMPLOYEE SERVICES
In exchange for the salary and benefits described in EXHIBIT `B" of this Agreement, the Employee
commits to providing the following work and services:
1. From January 1, 1999 Through May 3, 1999 Employee Shall:
A. Manage(directly and through staff)the Library Center and all services therein
B. Manage(directly and through staff)three historical museums on the Village Green
C. Supervise(directly and through staff)all employees and volunteers of the Department
of Library Services
D. Manage the lease(as required)of the former Crocker branch library
E. Manage the Library Trust Fund and all revenues and expenditures of that fund
F. Administer(directly and through staff)all grants controlled by the Department of
Library services
G. Provide all necessary training for the selected City Librarian
H. Serve as"staff' for the Board of Library Trustees.
I. Represent the Department of Library Services to the City Manager as required
J. Represent the Department of Library Services to the California State Library
as required
K. Manage(directly and through staff)the Palm Springs Virtual University
L. Develop plans for a Library Center language service for 1999
M. Recruit and train new staff as required.
N. Represent the Department of Library Services to the Inland Library System
O. Prepare reports,minutes,documents and correspondence as required on behalf of the
Board of Library Trustees
2. From May 4. 1999 Through December 31, 1999.
A. Prepare a draft of a library management agreement between the Board of Library
trustees and the Palm Springs City Council covering the period July 1,2001
through June 30,2006 based upon the existing five-year agreement
B. Research,document and write a detailed history of the Palm Springs Public Library
covering the period from 1923 through 1999 of at least forty(40)pages
C. Revise and rewrite the Library Trust Fund Report based upon the October 1989
version of that report
D. Consult with the City Librarian as required on library financial,political,
administrative and historical issues
3. Beyond December 31, 1999.
A. Consult with the Board of Library Trustees(for a consulting fee)by mutual consent
4
•
EXHIBIT"B"
COMPENSATION SCHEDULE
1.0 Salary Placement and Amount. Effective January 1, 1999 Employee's "Job Classification"
shall become"The Director of the Department of Library Services" and his salary shall be set at the City of
Palm Springs Executive ("EX") "Range Number 75, Step 5" ($8,651 monthly, or nearest placement on the
current salary schedule) including the 5% "Masters Degree" payment available to all eligible "EX"
employees. During the full term of this Agreement, and afterwards, until all of the Employee's accrued and
subsequently earned vacation and leave hours have either been used or converted to full salary, the
Employee shall be eligible to receive, at his discretion, any and all benefits, salary adjustments (COLA)
and/or compensation made available to any other Executive("EX") employees of the City of Palm Springs.
After December 31, 1999 Employee may use or convert to full salary any and all vacation and sick leave
hours earned to that date and any earned during his use of those hours.
2.0 Beyond December 31, 1999. Employee agrees to be available for general consulting work to
the Board of Library Trustees after December 31, 1999 by mutual consent in the amount of eighty-five
dollars ($85.00) per hour. The Employee reserves the right to additionally consult elsewhere at his
discretion after December 31, 1999.
5
PALM •
3 A
f
f ,.N City of Palm Springs
°a•o•a„o ''
Office of the City Clerk
3200 Tahqu,a Canyon Way• Palm Springs,California 92262
</FO RN ! TEL:(760)323-8204 •Too.(760)864-9527
DATE: April 1, 1999 -
TO: Rob Parkins, City Manager
FROM: Judith Sumich, City Clerk
The Charter provides that I am entitled to all benefits upon termination, and as Henry
Weiss is about to do, and others have done before me, I plan to begin exhausting my
leave time in anticipation of my retirement next year. Since I will still be on the city
books, I expect to continue to accrue benefits that any other department head or
member of the executive group is entitled to (salary changes, insurance, leave time,
etc., and hopefully, paid retirees health insurance will come along during this period as
well). My anticipated time schedule is, as follows:
July 6, 1999 - July 26, 1999 15 days Adm Leave
July 27, 1999 - June 30, 2000 1,952 hours
(exhaust sick leave & holidays first, followed by vacation time)
July 1, 2000 - Nov. 29, 2000 856 hours
(exhaust holidays, remaining vacation, and accruals)
I will be available for institutional memory at any time, and specifically will offer back
up to 8 hours per month to assist in whatever way I can. The optical imaging system
has been so long in getting off the ground, I know that my memory would be helpful in
getting a jump start on it in terms of city property and redevelopment deeds. I also
appreciate that the election process will just begin in July, and it will take some time to
till whatever vacancy is left by my absence, and some training assistance might be
needed in that regard. There might also be emergencies which would cause the Council
meetings to be "un-clerk'd".
9 JUDITH S I H
City Clerk
APPROVED
J.'City anage
Post Office Box 2743 0 Palm Springs, California 92263-2743
MINUTE ORDER NO.
MINUTE ORDER RATIFYING A PRE-
RETIREMENT LETTER AGREEMENT BETWEEN
JUDITH SUMICH, CITY CLERK, AND ROB
PARKINS, CITY MANAGER, DATED APRIL 1,
1999,AND AUTHORIZING THE EXECUTION OF
THAT AGREEMENT IN ACCORDANCE WITH
ITS TERMS.
---------------------
I HEREBY CERTIFY that this Minute Order, ratifying a pre-retirement letter agreement between
Judith Sumich, City Clerk, and Rob Parkins, City Manager, dated April 1, 1999, and authorizing
the execution of that agreement in accordance with its terms,was adopted by the City Council of the
City of Palm Springs, California in a meeting thereof held on the I" day of November, 2000.
PATRICIA A. SANDERS
City Clerk