2012-010s:\legallour documentslordinances1121burgess salary approvaLdoc
ORDINANCE NO. 2012-� 10
AN ORDINANCE APPROVING A SALARY INCREASE FOR ANITA BURGESS UNDER
THE PERFORMANCE REVIEW PROVISION OF HER EMPLOYMENT AGREEMENT
WITH THE CITY; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, on October 5, 2010, the City Council approved an employment agreement
with Anita Burgess as City Attorney by Ordinance No. 2010-251; and
WHEREAS, the City Council Appointee Performance Review Committee and City
Council have completed the City Attorney's annual review and the Committee has recommended
that the City Council approve a salary increase; 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 approves a salary increase in the amount of 2% of
the current base salary under Section 6 of the Agreement, or the average increase given all City
employees in the event the City Council implements a budgetary decrease of employee salaries,
to be effective as of October 1, 2011.
SECTION 3. The City expenditures provided for in the Agreement are hereby authorized.
SECTION 4. This Ordinance shall become effective immediately upon its passage and
approval.
.�
PASSED AND APPROVED this the
ATTEST:
JENNIFER WALTERS, CITY SECRETAR`�
BY:
APPRO ED AS O LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: '
STATE O� TEXAS
COIINTY OF DENTON
Employment Agreement
This Employinent Agreement (this "Agreement") is made and entered into this 1 st day of
October 2010 by and between the City of Denton, Texas, a Texas municipal corporation (the
"Employer") and Anita Burgess (the "Ernployee"), with the Employer and the Employee
sometixnes being referenced collectively in this Agreement as the "Parties."
Witnesseth:
Whereas, the City Council of the City of Denton (the "Council") and the Employee desire to
amend that certain written Employment Agreement dated the 19�' day of August, 2008, as
amended, to continue the employment services of the Employee as City Attorney of the City of
Denton; and
Whereas, it is the desire of the Council to: (1) secure az�d retain the services of the Employee and
to provide inducement for the Employee to remain in such employment; (2) make possible full
work productivity by assuring the Employee's morale and peace of mind with respect to future
security; and (3} act as a detezxent against malfeasance ox dishonesty for personal gain on the part
of the Employee; and
Whereas, ihe Employee desires to continue employment as City Attorney of said City of Denton,
Texas as a Council appozntee; 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 Texas Disciplinary Ru1es of Professional Conduct;
Now, therefore, in cansideration of the �nutual covenants herein contained, the Parties agree as
follows:
SECTION 1. DEFINITIONS
In this Agreement, the following words and phrases shall have t1�e followxng meazungs:
C� means the City of Denton, Texas.
Commencement Date means October 1, 2010.
Extended Term m.eans any one-year time period, or any part thereof, during which this
Agreement remains in fixll force and effect as a result of any automatic renewal of the terms of
ihis Agreement.
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Initial Terrn means the five-year time period beginning on the Commencement Date and ending
on September 30, 2015, during which this Agreement shall be in fixll force and effect if not
earlier terrninated in accordance with the provisions of tivs Agreement.
Involu.ntary Sepairation has the meaning assigx�ed in Section S.D. of this Agreement.
Salai means the monetary arnount stated in Section 6.A. oi this Agreement that the Employee is
entitled to as an annual base salary—or, if no longer current, then the monetary amount that the
Employee is currenfily entitled to as an a.nnual base salary as approved by the Couz�cil—and does
not include the value of any other benefit of employment or other am�ount.
Termination Date xneans �he date upon which this Agreement terrninates under any applicable
provision of this Agreement.
Total Compensation means the combined sum o£ the Exnployee's Salaxy and the no.onetary value
of a11 other bene�its that the Employee is entitled to under this Agreement and otherwise as an.
Employee of Employer.
SECTION 2. DUTIES
Employer hereby con.tinues to engage the employment services of the Employee as City
Attorney of said Employer to perform the functions and duties specified by the Denton Home
Rule City Charter (the "City Charter"), the Code of the City of Denton, Texas (the "Ciiy Code"),
and all other applicable laws, and as outlined in the City of Denton's job description as it now
exists ox as it may exist with future modi�ications by #he Council and agreed upon by the
employee, ar�d to perform other legally permissible and proper duties and functions as Employer
shall from time to time assign.
SECTION 3. TERM
A. The Initial Term of this Agreement is five years beginning on the Ist day of 4ctober 2010
and ending on the 30th day of September 2015.
B. Unless the Council—at Ieast 30 days before the expiration of the Initzal Term—gives the
Employee written notice of non-renewal, the terms of ihis Agreement shall autoxnatically
renew for one Extended Term. Unless the Council—at least 30 days before the exp�ration
of an Extended Term once commenced—gives the Employee written notice of
nonrenewal, the terms of this Agreeme�t shall automatically renew for an additional
Extended Term.
C. Th:is Agreement may be terminated before the expiration o£ the Initial Term or before the
expiration of any subsequent Extended Term by the Employer or the Employee under any
applicable provision of this Agreement. If the Employer terminates this Agreement, it
must do so either by: (1) following the procedures set forth in Section 4 �f ii115
Agreement; or (2) providing a z�otice of non-renewal in accordance with Section 3.B. of
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this Agreement. The Employee may terminate tlus Agreement by pxoviding at least 30
days vvxitten notice to the Employer before the date designated by the Ernployee for
terrninatzon.
SECTION 4. 1NVOLUNTARY SUSPENSION/REMOVAL
The Employer may suspend or remove the Employee but only if at least 30 days before the
suspension or removal shall becoxne effective, the Council shall by a majority vote of its
members adopt a preliminary resolution stating the reasons for z•emo�al. Ernployee may reply in
writing and may require a hearing at a public meeting of the Council, which sha11 be held not
earlier than 20 days and not laier 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, l�ut may not suspend or reduce the Employee's
Salary. After such hearing or public hearing, if one be requested, and after full consideration, the
Council by maj ority vote may adopt a final resolution of removal ox reinstatement. This
Agreement sha11 be deemed to terminate on the effective date of a final resolution of removal.
SECTION 5. SEPARATION AND SEVERANCE PAY
A. Upon Involuntary Separation occurring during the Initial Term, the Employee shall be
entitled to a lump suxn severance payment in addition to all amounts pre�iously earned.
The amount of the severance payment required to be paid to the Employee upon
Involuntaxy Separation occurriz�g during the Initial Ternn of this Agreerxxent shall be a
portion of the amount of the Employee's Total Compensation, said portion being eight
months of the Employee's Total Compensation for Involuntaxy Separation occurring at
any time during the first year of tkze Initial Term, with said portion increasing by an
additional month's Total Compensation for each subsequent year, as demonstrated in the
following schedule:
Portion of Total
Year of Employment during Compensation to be Paid as
Initial Term Severance Upon
Tnvoluntary ,Separation
During Initial Term
Year 1 10/1/2010 —9/30/2011) 8 months
Year 2 10/1/2011— 9/3012012) 9 months
Year 3 10/1/2012 — 9/30I2013 10 months
Year 4 10/1/2013 — 9/30/2014 11 months
Year 5(10/1/2014 — 9/3Q/2015) 12 months
B. Pxovided that the Employee remains at all times employed as Employer's City Attorney
for the entire Initial Term of this Agreement, tbe Employee shall thereafter be entitled to
recezve a full year of the Employee's Total Coznpensation upon Involuntary Separation,
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except in the event such Tnvoluntary Separation is due to any of the reasons set forth in
Section S.C. of this Agreement, in which case the Employer shall not be obligated to pay
and the Employee shall not be entitled to receive any amount as severance payment.
C. Notwithstanding Section S.A., Section 5.B., or any other provision of this Agreement, the
Employer shall not be obligated to pay and the Employee shall not be entitled to receive
any amount as severance payment if the Employee's separation from employment is due
to the Employee having been convicted of any felony offense, or any non-felony offense
involving: (1) moral turpitude; or (2) an illegal act(s) resulting in personal gain to the
Ernployee.
D. "Involu.ntary Separaiion" means the Employee's: (1) removal by the Council under
Section 4 of #his Agreement; (2) separation by the Council's act of non-renewal of the
Tnitial Term or any Extended Term as set forth in Section 3.B. of this Agreement; or �3)
the Employee's resignation upon the Council's reduction or threatened reduction in the
Employee's Salary or other finaz�cial benefits in a greater percentage than a coinciding
across-the-board reduction for all City employees. If Employee resigns upon such a
reduction, the calculation of the amount of any severance pay due and owing under this
Agreement shall be based on the amount of the Employee's Total Compensation
immediately before any such reduction.
SECTION 6. SALARY
A. For the services rendered as the Employer's City Attorney, the Employer agrees to pay
Employee an annrxal base Salary of $194,480, payable i.n instalLments at the sarne time as
other empl�yees of the Employer are paid. All provisions of the Czty Charter, City Code,
and Council-adopted Rules and Regulations relating to the vacation and sick leave,
retirement and pension system contribution, holidays, and other fringe benefits and
worlcing conditions as they now exist or hereafter may be amended, shall apply to
Employee as they would to other employees af 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 ihe Employee's Salary and/or other ernployment
benefits to such e�ent as the Council may determine within the approved budget that it is
des�rable to do so on the basis of an annual performance review of the Employee made at
the same time as similar consideration is given other Council appointees.
SECTION 7. PERFORMANCE EVALUATION
A. The Coun.cil 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. Sazd xeview and evaluation shall be in accorda�ce with speci�ic criteria
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developed jointly by Employee and Employer. Said criteria rnay be added to or deleted
froxx�. as the Council and Employee sha11 agree.
B. Annually, the Council and Employee shall define such goals and pexformance objectives,
which they determine necessary for the proper operation of the City of Dez�ton Legal
Depa�etYx�.ent, and in the attainment of ihe Council's policy objectives an.d shall further
establish a xelative priority among those various goais and objectives.
SECTION 8. HOURS OF V�ORK
It is recognized by both Employer and Employee that the duties of City Attorney require a great
deal of tinae 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 oui those duties with the
highest arnount of professionalism possible. That being the case, the Parties recognize that
Empioyee may choose to tal�e personal time off during business hours when it is appropriate and
when the Employee's duties allow. Although this personal time off is not considered vacation,
neither is it to be considered as compensatory time for time spent by Ernployee in cartying out
the Employee's duties outside of noxznal. office hours, as the Parties agree that the Employee
must devote the amount of time necessary io fulfill those duties. The Council will consider the
Employee's use of personal time off during the performan.ce evaluation,
SECTION 9. OUTSIDE ACTIVITIES
Employee is entitled to devote whatever amount of time the Employee 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 �hat
this does not conflict or interfere with the Employee's duties as City Attoxney, and provided that
Enaployee first notifies the Council Appointee Performance Revzew Committee that the
Ennployee intends to engage in such activity, including the amount of tixne the Employee xntends
to devote to this activiiy and the Employee's engagement in the activity is approved by the Chaix
of the Committee.
SECTION 10. AUTOMOBILE
The Employee is requixed to be on call for 24-hour service, so therefore, must have access to a
vehicie for City business. Ennployer 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 zeimburse
Employee fox mileage outside a 50-mile radius of the City of Denton associated with City
business at the cur�rent IRS rate for mileage reimbursement in accordance with the then current
City Travel Reimbursement Policy for City employees with car allowances.
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SECTION 11. RETIREMENT
A. Employer agrees to execute alI necessary agreements provided by the International
City/County Management Association — Retirernent Corporation (ICMA-RC) for
Employee's participation in said ICMA-RC retirement plaz�s. Ezz�ployer further agrees to
contribute a total of 10% of Employee's Salary to ICMA-RC's 457 plan. All sums
contributed to said plan sha11 be in addition to Employee's Salary. Employer also agrees
to allow Employee to contribute whatever portion of the Employee's Salary the
Employee may deern appropriate to said p1an, including "catch-up" provisions.
B. Employer agrees to pay the
TMRS retirement program,
executive-level employees.
percentage of the cost of Employee's participation in the
in accordance with Employer's current policy for other
C. If tkae Employee retires pursuant to a qualified retirement plan, or is permanently disabled
during the term of this Agreement, the Employee shall be compensated for the sicic leave,
vacation lea�e, 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, sha11 be permitted to continue to participate in the City's heaith
insurance plan on the same basis as other retirees from the City are permitted to do so, or,
i:F such other retirees are not permitted to do so, at the cost of the Employee.
SECTION 12. DUES, MEMBERSHIPS AND SUBSCRIPTIONS
Employer agrees to budget and to pay for the professional dues, memberships and subscriptions
of Employee necessary for the Employee's continuation of fiz11 participation in national, regional,
state and local associations and organizations necessary and desirable for the Exnployee's
continued professional participation, growth and advancement as City Attomey, a;nd for the good
of the Employer in amounts that are approved by the Council zn the annual budget for the Legal
Department.
SECTION 13. PROFESSIONAL DEVELOPMENT
Employer hereby agrees to budget for and to pay the full travel, participation, and subsistence
expenses of Employee �'ar professional and official travel, meetings and occasions adequate to
continue the professional developmant of Employee, and #o adequately pursue necessary official
and other functions for Employer, including but not limited to the A.nz�ual Conferen.ce of
International Municipal Lawyexs Association, Texas City Attorneys Association, Texas
Municipal League, and other such national, regional, state and local groups a.nd coxnmittees
thereof which Employee serves as a member in tb.e axnounts approved by the Council in the
annual budget for the Legal Department.
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SECTION 14. BONDING
Employer shall bear the full cost of any �idelity 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 Cot�.t�.cil, upon recomrnendation of the Council Appointee Performanca Review
Cornmittee and in con.sultation with the Employee, shall fix. any such other terms and
condiiions of employrnent as it may determine from time to time, relating to the
performance of Employee, prov:ided such terms and conditions are not inconsistent with
or in conflict with the provisions af this Agreement, the City Charter or any other law,
and are memorialized by a written axnendment to this Agreement.
B, All provisions of the Gity Charter and City Cvde, and regulations and rules of the
Employer rela�ing to vacation and sicl� leave, retirement and pension system
contributions, holiday, and other fringe benefits amd working condit�ons as they now e�st
or hereafter may be amended, also shall apply to Employee as they would to other
employaes of the Employer in addition to said beneiits enumerated specifically for the
benefit of Employee.
SECTION 16. GENERAL PROVISIONS
A. The text herein shall constitute the entire agreement between the Parties, and sha11
supersede and replace any previous agreement(s) between the Parties regarding the
subject matter of this Agreement.
B. This Agreement sha11 be binding upon a.nd 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, sha11 be deemed several, shall not be affected and shall remain in force and
effect.
D. Tbe 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 agxees that it will appropriate, set aside and encumbex 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.
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SECTION 18. EFFECTIVE DATE
This Agreement shall talce effect on October 1, 2010,
IN WITNESS WHEREOF, the Mayor as duly authorized by the 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.
CITY OF DENTON, TEXA.S
�� ., � i
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.. ��
MA A�BU UGHS, MAYOR
ATTEST:
JE IFER LTERS, CITY SECRETARY
� CJ�I
ANITA BURGESS �
CITY ATTORNEY
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