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HomeMy WebLinkAbout2008-193SAOur Doc uments\Ordinances\08\Appointment of City Attomey.doc ORDINANCE NO. AN ORDINANCE APPOINTING A CITY ATTORNEY; APPROVING AN EMPLOYMENT AGREEMENT; AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT EMPLOYING A CITY ATTORNEY OF THE CITY OF DENTON, TEXAS; SETTING THE COMPENSATION AND TERMS OF THAT EMPLOYMENT; AUTHORIZING EXPENDITURES AND ACTIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council desires to appoint and employ a City Attorney for the City of Denton; and WHEREAS, the City Council finds that this Ordinance is in the public interest; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this Ordinance are incorporated into the body of this Ordinance. SECTION 2. The City Council hereby appoints AMW &1-60;6as City Attorney of the City of Denton and will serve at the pleasure of the City Council. SECTION 3. The City Council hereby approves an Employment Agreement for the City Attorney and authorizes the Mayor, or his designee to execute the Agreement on behalf of the City. SECTION 4. The City expenditures provided for in the Agreement are hereby authorized. SECTION 5. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2008. Ir ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: SAOur Documents\Ordinances\08\Appointment of City Attomey.doc APPROVED AS TO LEGAL FORM: JOHN M. KNIGHT, INTERIM CITY ATTORNEY BY: Page 2 HAEMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc STATE OF TEXAS COUNTY OF DENTON Employment Agreement This Agreement, made and entered into this day of008 by and between the City of Denton, Texas, a Texas municipal corporation, hereinVr" called "Employer", and Anita Burgess, hereinafter called "Employee", both of whom agree as follows: Witnesseth: Whereas, Employer desires to employ the services of said Anita Burgess as City Attorney of the City of Denton as a City Council Appointee; and Whereas, it is the desire of Employer to (1) secure and retain the services of Employee and to provide inducement for her to remain in such employment, (2) to make possible full work productivity by assuring Employee's morale and peace of mind with respect to future security, and (3) to act as a deterrent against malfeasance or dishonesty for personal gain on the part of the Employee; and Whereas, Employee desires to accept employment as City Attorney of said City of Denton, Texas as a City Council Appointee; and Whereas, the parties acknowledge that Employee is a member of the State Bar of Texas (State Bar) and that Employee is subject to the Code of Professional Responsibility of the State Bar; Now, therefore, in consideration of the mutual covenants herein contained, the parties agree as follows: SECTION 1. DUTIES Employer hereby engages the employment services of Anita Burgess as City Attorney of said Employer to perform the functions and duties specified by the Denton City Charter, the City Code, the laws of the State of Texas, and all other applicable laws, and as outlined in the City of Denton's job description as it now exists or as it may exist with future modifications by the City Council, and to perform other legally permissible and proper duties and functions as Employer shall from time to time assign. SECTION 2. TERM A. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate the services of Employee at any time, subject only to the provisions set forth in Section 4, paragraphs A and B of this agreement. B. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from her position with the Employer, subject only to the provision set forth in Section 4, paragraph C, of this agreement. HAEMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc C. Employee shall assume the duties of the City Attorney on October 6, 2008 and agrees to remain in the exclusive employ of Employer until December 31, 2011, and neither to accept other employment nor to become employed by any other employer until this agreement is terminated by either party as provided herein. This agreement shall automatically renew for successive one year terms unless Employer gives Employee at least 30 day written notice of termination prior to such one year extension. The term "employed" shall not be construed to include occasional teaching, writing, or consulting performed on Employee's time off, so long as it is approved in accordance with Section 8 hereof. SECTION 3. SUSPENSION/REMOVAL Subject to the provisions of Section 4 below, Employer may suspend or remove the Employee with or without full pay and benefits at any time during the term of this Agreement, but only if: 1. Employer and Employee agree, or 2. At least 30 days before the suspension or removal shall become effective, the City Council shall by a majority vote of its members adopt a preliminary resolution stating the reasons for her removal. Employee may reply in writing and may require a hearing at a public meeting of the Council, which shall be held not earlier than 20 days nor later than 30 days after the filing of such request. The hearing may be held in executive session, at the option of the Council, unless Employee requests the hearing be held in open session in accordance with Tex. Gov't Code §551.074. Pending such hearing, the Council may suspend Employee from duty, but may not suspend or reduce her salary. After such hearing or public hearing, if one be requested, and after full consideration, the Council by majority vote may adopt a final resolution of removal or suspension. SECTION 4. SEPARATION AND SEVERANCE PAY A. Employee serves at the will and pleasure of the City Council. In the event of her involuntary separation in her first year as City Attorney, she shall be entitled to receive a lump sum payment equal to six months aggregated salary; provided, however, that in the event of her termination because of her conviction for any offense involving moral turpitude or an illegal act involving personal gain to her, or due to any act of incompetency, official misconduct, or intoxication on or off duty caused by drinking an alcoholic beverage; then, in those events, the City shall have no obligation to pay the aggregate severance sum designated herein. An additional lump sum payment equal to one month aggregate salary will be granted per year of service, not to exceed twelve (12) months (e.g., 7 months at year 1; 8 months at year 2; 9 months at year 3...12 months at year 6 and beyond). B. Involuntary separation as used in this section means: (1) her discharge or dismissal by the City Council; or (2) her resignation following a reduction in salary or other financial benefits of Employee in a greater percentage than an applicable across-the-board reduction for all City employees; or (3) in the event the City refuses, following a written 2 HAEMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc notice, to comply with any other provision benefiting Employee herein. Then, in the event of one of the occurrences listed above, Employee may, at her option, be deemed "terminated" at the date of such reduction in pay or Employer's refusal to comply within the meaning of the context of the severance pay provision. C. In the event Employee voluntarily resigns her position with Employer before expiration of the aforesaid term of her employment, then Employee shall give Employer 30 days notice in advance, unless the parties otherwise agree. SECTION 5. SALARY A. Employer agrees to pay Employee for her services rendered pursuant hereto an annual base salary of $187,000, payable in installments at the same time as other employees of the Employer are paid. All provisions of the City Charter, City Code, and Rules and Regulations of the City adopted by the City Council relating to vacation and sick leave, retirement and pension system contribution, holidays, and other fringe benefits not specifically addressed in this agreement, and working conditions as they now exist or hereafter may be amended, shall apply to Employee as they would to other employees of the City, which benefits include health insurance, long-term disability insurance, retirement under the Texas Municipal Retirement System, and other benefits as provided to other Council appointees of the City. B. In addition, Employer agrees to increase said base salary and/or other benefits of Employee in such amounts and to such extent as the Council may determine, within the approved budget, on the basis of an annual performance review of said Employee made at the same time as similar consideration is given other Council appointees. SECTION 6. PERFORMANCE EVALUATION A. The Council shall review and evaluate the performance of the Employee at least once annually during the time set aside each year for the performance review of other Council appointees. Said review and evaluation shall be in accordance with specific criteria developed jointly by Employee and Employer. Said criteria may be added to or deleted from as the Council and Employee shall agree. B. Annually, the Council and Employee shall define such goals and performance objectives which they determine necessary for the proper operation of the City of Denton Legal Department, and in the attainment of the Council's policy objectives and shall further establish a relative priority among those various goals and objectives. C. In effecting the provision of this Section, the Council and the Employee mutually agree to abide by the provisions of applicable law. SECTION 7. HOURS OF WORK It is recognized by both Employer and Employee that the duties of City Attorney require a great deal of time outside of normal office hours. It is also recognized by the parties that Employee is required to devote the amount of time and energy necessary to carry out those duties with the 3 HAEMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc highest amount of professionalism possible. That being the case, the parties recognize that Employee may choose to take personal time off during business hours when it is appropriate and when her duties allow. Although this personal time off is not considered vacation, neither is it to be considered as compensatory time for time spent by Employee in carrying out her duties outside of normal office hours, as the parties agree that the Employee must devote the amount of time necessary to fulfill those duties. The Council will consider the Employee's use of personal time off during the performance evaluation. SECTION 8. OUTSIDE ACTIVITIES Employee is entitled to devote whatever amount of time she feels is appropriate under the circumstances to the pursuit of teaching, counseling, consulting, writing or other non -employer connected business outside of normal business hours of the Employer, provided that this does not conflict or interfere with her duties as City Attorney, and provided that Employee first notifies the Council Appointee Performance Review Committee that she intends to engage in such activity, including the amount of time she intends to devote to this activity and her engagement in the activity is approved by the Chair of the Committee. SECTION 9. AUTOMOBILE The Employee is required to be on call for 24 hour service, so therefore, must have access to a vehicle for City business. Employer shall grant to the Employee a car allowance of $650 per month for providing such vehicle. The Employee shall be responsible for the purchase, maintenance, insurance, taxes, etc. for said vehicle. The monthly allowance will be considered for increase during the performance evaluation process. The Employer also agrees to reimburse Employee for mileage outside a 50 mile radius of the City of Denton associated with City business at the current IRS rate for mileage reimbursement in accordance with the then current City Travel Reimbursement Policy for City employees with car allowances. SECTION 10. RETIREMENT A. Employer agrees to execute all necessary agreements provided by the International City/County Management Association — Retirement Corporation (ICMA-RC) for Employee's participation in said ICMA-RC retirement plans. Employer further agrees to contribute ten (10) percent of Employee's annual base salary to ICMA-RC's 457 plan. All sums contributed to said plan shall be in addition to Employee's base salary. Employer also agrees to allow Employee to contribute whatever portion of her base salary she may deem appropriate to said plan, including "catch-up" provisions. B. If the Employee retires pursuant to a qualified retirement plan, or is permanently disabled during the term of this Agreement, the Employee shall be compensated for sick leave, vacation leave, holidays, and other benefits then accrued or credited to the Employee in accordance with Employer's current policies for compensation for these benefits, and, at the Employee's option, shall be permitted to continue to participate in the City's health insurance plan on the same basis as other retirees from the City are permitted to do so, or, if such other retirees are not permitted to do so, at the cost of the Employee. .19 HAEMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc SECTION 11. VACATION AND SICK LEAVE A. As an inducement to Employee for her to become City Attorney, Employee shall be credited upon her first day of work with fifteen (15) days of annual vacation, and shall be allowed to take said vacation anytime during her employment. Further vacation hours will accrue monthly in accordance with City policy. B. As an inducement to Employee for her to become City Attorney, Employee shall be credited upon her first day of work with fifteen (15) days of annual sick, and shall be allowed to take said sick leave any time during her employment. Further sick hours will accrue monthly in accordance with City policy. SECTION 12. DUES, MEMBERSHIPS AND SUBSCRIPTIONS Employer agrees to budget and to pay for the professional dues, memberships and subscriptions of Employee necessary for her continuation of full participation in national, regional, state and local associations and organizations necessary and desirable for her continued professional participation, growth and advancement as City Attorney, and for the good of the Employer in amounts that are approved by the City Council in the annual budget for the City's Legal Department. SECTION 13. PROFESSIONAL DEVELOPMENT Employer hereby agrees to budget for and to pay the full travel, participation, and subsistence expenses of Employee for professional and official travel, meetings and occasions adequate to continue the professional development of Employee, and to adequately pursue necessary official and other functions for Employer, including but not limited to the Annual Conference of the International Municipal Lawyers Association, the Texas City Attorneys Association, Texas Municipal League, and other such national, regional, state and local groups and committees thereof which Employee serves as a member in the amounts approved by the City Council in the annual budget for the City's Legal Department. SECTION 14. BONDING Employer shall bear the full cost of any fidelity or other bonds that may be required of the Employee under any law or ordinance. SECTION 15. OTHER TERMS AND CONDITIONS OF EMPLOYMENT A. The City Council, upon recommendation of the Council Appointee Performance Review Committee and in consultation with the Employee, shall fix any such other terms and conditions of employment as it may determine from time to time, relating to the performance of Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this agreement, the City Charter or any other law, and are memorialized by a written amendment to this Agreement. B. All provisions of the City Charter and Code, and regulations and rules of the Employer relating to vacation and sick leave, retirement and pension system contributions, holiday, HAEMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc and other fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Employee as they would to other employees of the Employer in addition to said benefits enumerated specifically for the benefit of Employee. SECTION 16. GENERAL PROVISIONS A. The text herein shall constitute the entire agreement between the parties. B. This agreement shall be binding upon and inure to the benefit of the heirs at law and executors of Employee. C. If any provision, or any portion, thereof, contained in this agreement is held unconstitutional, invalid, or unenforceable, the remainder of this agreement, or portion thereof, shall be deemed several, shall not be affected and shall remain in force and effect. D. The venue of any litigation involving this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. SECTION 17. APPROPRIATIONS The Employer agrees that it will appropriate, set aside and encumber funds of the City in an amount sufficient to fund and pay all financial obligations of the City pursuant to this Agreement, including, but not limited to the severance pay, salary and benefits set forth and described herein. IN WITNESS WHEREOF, the Mayor as duly authorized by the City Council and on behalf of the City of Denton, has signed and executed this agreement and the Employee has signed and executed this agreement, both in duplicate, the day and year first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: CITY OF DENTON, TEXAS Co H:\EMPLOYME\Executive Searches\City Attomey\Burgess - Employment Agreement.doc APPROVED AS TO LEGAL FORM: JOHN KNIGHT, INTERIM CITY ATTORNEY BY: c LL-.N- C )- I --r .t ANITA BURGESS, CITY ATTORNEY