HomeMy WebLinkAboutResolutions - No. 2014-100RESOLUTION NO. 2014-100
A RESOLUTION OF THE LODI CITY COUNCIL
APPOINTING JANICE D. MAGDICH TO THE POSITION OF
CITY ATTORNEY AND APPROVING EMPLOYMENT
AGREEMENT
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
appoint Janice D. Magdich to the position of City Attorney for the City of Lodi; and
BE IT FURTHER RESOLVED that the City Council does hereby approve the City
Attorney Employment Agreement attached hereto marked as Exhibit A.
Dated: June 4, 2014
I hereby certify that Resolution No. 2014-100, was passed and adopted by the
City Council of the City of Lodi in a regular meeting held June 4, 2014, by the following
votes:
AYES: COUNCIL MEMBERS — Hansen, Johnson, Mounce, Nakanishi,
and Mayor Katzakian
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
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NDI J L-OLSON
ity Clerk
2014-100
EXHIBIT A
CITY ATTORNEY EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of June 4, 2014 by and between the City of Lodi, a
municipal corporation, hereinafter called "City," and Janice D. Magdich, hereinafter called
"Employee," both of whom agree as follows:
RECITALS:
It is the desire of the City to retain the services of Employee and to provide inducement for her to
remain in such employment, make possible full work productivity by assuring Employee's
morale and peace of mind with respect to future security, and to provide a just means for
terminating Employee's services.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. GENERAL:
City agrees to employ Employee as the City Attorney of City starting June 4, 2014, and
Employee accepts such employment and agrees to perform the functions and duties of City
Attorney for the City as she may be assigned.
2. DUTIES & AUTHORITY:
Employee has the duty to:
(a) Perform the functions and duties of City Attorney as specified in applicable statutes
including, but not limited to, the California Government Code, Rules of Professional
Conduct for Attorneys, and City Ordinances, Resolutions, Rules, and Regulations, as well
as all other applicable federal, state, and local laws;
(b) Provide legal advice, counsel, and representation of the City as requested by appropriate
City officials and/or the City Council;
(c) Perform all legally permissible and proper duties as may be assigned and as may be
modified from time to time; and
(d) Employee, in coordination with the City Manager, shall recommend policies, rules, and
regulations to implement City Council policies and shall enforce policies established by
the City Council. To accomplish this, Employee shall
(1) Attend City Council meetings as needed or required by the City Council.
(2) Review all documents agendized for any regular and/or special meetings of the
City Council. Employee shall provide legal advice and counsel, and make
recommendations in connections with such advice and counsel, to the City
Manager and City Council concerning items on the City Council's agenda.
1100357.3 11233-28
3. EXCLUSIVE EMPLOYMENT:
(a) Employee has the duty and herein commits to devote her full time and energies in the
best interest of the City, and to act in accordance with the duties and responsibilities of
the position of City Attorney as specified in Lodi Municipal Code section 2.14.010, as
well as other duties assigned by the City Council which reasonably relate to the position
of City Attorney.
(b) Employee shall not accept employment from or on behalf of any person, firm,
corporation or entity during the term of this Agreement, except City acknowledges that
Employee may engage in other professional activities (including teaching and writing), so
long as these activities do not interfere or conflict with Employee's duties as City
Attorney. The foregoing shall not be construed to prevent Employee from performing
volunteer community service, participating in community service organizations,
Employee's membership on non-profit boards, or managing personal and real property
investments, provided Employee shall, prior to performing such services, disclose such
anticipated services to the City Council and obtain its approval. Any approved outside
services shall not create nor tend to create a disqualifying conflict of interest as defined
by the California Political Reform Act of 1974, as amended, nor shall such services
impair Employee's ability to perform fully her duties for City hereunder.
4. EMPLOYEE COMMITMENTS:
(a) Specific Tasks and Work Plans — Employee agrees to accomplish specific tasks as
specified and described by the City Council from time to time in a timely and
professional manner. Such specific tasks shall be discussed with Employee and then
adopted by motion by the City Council as frequently as the City Council may choose.
(b) Hours of Work — Employee is an exempt employee who does not accrue compensatory
time off, but is expected to engage in those hours of work which are necessary to fulfill
the obligations of her position. Employee does not have set hours of work as she is
expected to be available at all times. It is recognized that Employee must devote a great
deal of her time outside "normal office hours" to the business of the City, and to that end
Employee's schedule of work each day and week shall vary in accordance with the work
required to be performed. The Employee has discretion as to her work schedule.
5. CITY COMMITMENTS:
(a) City shall provide Employee with an office, support staff, office equipment, supplies, and
all other facilities and services adequate for the performance of her duties.
(b) City shall pay for, or provide, Employee reimbursement of actual business expenses. The
City shall provide Employee with a City credit card to charge appropriate and lawful
business expenses up to the amount provided for in the City budget.
(c) City shall pay for Employee's California State Bar dues, including membership in the
Public Law Section, San Joaquin County Bar Association dues, legal subscriptions, and
Minimum Continuing Legal Education (MCLE) expenses.
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(d) City agrees to pay travel and subsistence expenses of Employee to pursue official and
other functions for the City, and meetings and occasions to continue the professional
development of Employee, including, but not limited to, annual conferences of the
League of California Cities, including the annual conference of the League's City
Attorney's Division, and other national, regional, state, and local conferences, and
governmental groups and committees upon which Employee serves as a member up to an
amount provided for in the City budget.
6. MUTUAL COMMITMENTS:
Performance Evaluation — Annual performance evaluations are an important way for the
City Council and Employee to ensure effective communications about expectations and
performance. The City Council recognizes that for Employee to respond to its needs and to
grow in the performance of her job, she needs to know how the City Council Members
think she is performing. To assure Employee gets this feedback, the City Council commits
to:
(a) Conduct an evaluation of Employee's performance at least annually, or on any other
schedule deemed appropriate by the City Council. The City Council may use an outside
facilitator to assist them in conducting this evaluation.
(b) The annual review and evaluation shall be in accordance with specific criteria developed
jointly by the City Council and Employee. Such criteria may be added to or deleted as
the City Council may from time to time determine in consultation with Employee.
(c) The City Council and Employee shall define such goals and performance objectives
which they determine necessary for the proper operation of the City for the attainment of
the City Council's policy objectives. The City Council and Employee shall further
establish a relative priority among those various goals and objectives.
7. COMPENSATION:
City agrees to provide the following compensation to Employee during the term of this
Agreement:
(a) Base Salary — Employee shall be paid an annual salary of $140,000 per year, which sum
may be adjusted from time to time as provided in this Agreement by action of the City
Council, payable in twenty-six (26) equal installments in the same manner as City
department heads. In recognition of the ongoing contributions of Employee, and in the
interest of retaining Employee's future services, Employee's salary, as set forth herein,
shall be effective as of February 5, 2014.
(b) The City shall pay all traditional employer costs required by law, including but not
limited to: FICA, Medicare, Unemployment Compensation, and Workers'
Compensation.
(c) Future annual adjustments to Employee's salary shall be set by City Council action. City
may not reduce salary or benefits provided by this Agreement unless:
1100357.3 11233-28
(i) it does so on a Citywide (all employees) basis, and then in no greater percentage
than the average reduction of all City employees, or
(ii) it does so after providing Employee with a written performance evaluation that
provides direction and opportunity for improvement prior to any action to reduce
salary or benefits.
8. AUTOMOBILE:
Employee shall not be provided an automobile or automobile allowance. Employee shall
be reimbursed for travel expenses in accordance with City's travel policies.
9. GENERAL EXPENSES:
Employee shall also be reimbursed by City for reasonable out-of-pocket expenses incurred
in the course and scope of her employment in accordance with City reimbursement
policies.
10. BASIC BENEFITS:
(a) Holidays — Employee shall receive 36 floating hours of paid leave and nine and one half
(9'/2) paid fixed holidays per year credited in the same manner as all other City
employees.
(b) Vacation Leave — In recognition of the ongoing contributions of Employee, and in the
interest of retaining Employee's future services, Employee's vacation leave shall be
calculated as if she were in her fifteenth year of continuous service to the City (i.e.
Employee will receive 160.16 hours of paid vacation leave per year), increasing from
there as provided in the Executive Management Statement of Benefits, as it may be
amended from time to time by the City Council. Upon termination or resignation of
employment, Employee or those entitled to her estate, shall receive a lump sum payment
for unused or accumulated vacation time to her credit at her rate of pay as of her date of
termination.
(c) Sick Leave — Employee shall be granted twelve (12) days of sick leave per year which
will accrue at a rate of 3.70 hours per pay period with no limit on the amount that can be
accumulated.
(d) Administrative Leave — Employee shall be granted eighty (80) hours of administrative
leave per year. Upon termination or resignation of employment, Employee or those
entitled to her estate, shall receive a lump sum payment for unused or accumulated
administrative leave to her credit at her rate of pay as of her date of termination.
(e) Other terms and conditions — Except as otherwise provided herein, all provisions of the
City of Lodi Municipal Code, official policies, and regulations and rules of the City
relating to disability, incapacity, vacation, holidays, retirement systems contributions, and
other fringe benefits and working conditions as they now exist or hereafter may be
1100357.3 11233-28 4
amended also shall apply to Employee as they would to other executive management
employees of City in addition to said benefits set out in this Agreement.
11. INSURANCE:
(a) Medical Insurance: Employee shall receive family dental insurance, long-term disability,
chiropractic insurance, and any other similar benefit which may be made available to
Employee by the City as outlined in the City of Lodi Executive Management Statement
of Benefits, as it may be amended from time to time by the City Council. The Statement
of Benefits or Council Resolution describes these benefits and any applicable deductibles.
Employee shall also receive medical insurance for employee and dependents through
Cal -PERS -Medical Plans. City shall pay 100% of the premium for Employee's family
category (Family, Employee+l, Single) for the lowest cost PERS HMO available in the
City of Lodi's geographic area (excluding PORAL) as of January 1, 2014.
If Employee selects a higher cost medical plan, Employee will pay the difference as a
payroll deduction. If Employee elects not to be covered by medical insurance through
the City, an additional $692.81 per month for Family or $532.92 for Employee+l or
$305.22 for a Single employee, will be added to either the Employee's deferred
compensation account or paid in cash. In order to qualify for this `cash -out' provision,
proof of group insurance coverage must be provided to the City.
Employee will pay 100% of the change in medical costs beginning January 1, 2015. The
baseline will be the January 1, 2014 lowest costs PERS HMO for the Employee's family
category (Family, $1,709.06; Employee+l, $1,314.66; Single, $657.33).
(b) Deferred Compensation: Employee may participate in the City's Deferred Compensation
plan. The City will match up to a percentage equal to the highest amount provided to any
bargaining group.
(c) Life Insurance: Employee shall receive Life Insurance as provided in the Executive
Statement of Benefits, as it may be amended from time to time by the City Council.
12. RETIREMENT:
City is a full member of the Public Employees Retirement System (PERS) to which City
agrees to contribute to Employee's retirement account the total amount required by it.
Employee shall contribute Employee's contribution of seven percent (7%) to the
membership contract with PERS for each pay period.
13. SEPARATION:
(a) Resignation — In the event Employee terminates this Agreement by voluntary resignation
of her position with the City, Employee shall not be entitled to severance pay otherwise
provided in Paragraph 14 of this Agreement. In the event Employee voluntarily resigns
her position with City, she shall give City at least forty-five (45) days' advance written
notice and shall be entitled to all earned salary and all earned, accrued, and unused leave
1100357.3 11233-28
(vacation, sick, administrative, and holiday) in the same manner as all other City
employees.
(b) Termination & Removal — The City Council may remove Employee with or without
cause, by a majority vote of its members. Notice of termination shall be provided to
Employee in writing. Any such notice of termination shall be given at a noticed meeting
of the City Council. Employee shall not be removed during the first 120 days following
any change in membership of the City Council, except upon four-fifths vote of the City
Council. Given the at -will nature of the position of City Attorney, an important element
of the employment Agreement pertains to termination. It is in both the City's interest and
that of Employee that separation of Employee be done in a businesslike manner.
14. TERMINATION AND SEVERANCE:
In the event Employee is terminated by the City Council, City agrees to pay to Employee
a lump sum cash payment equal to six (6) months' salary and to continue to pay
Employee's health insurance benefits on the same terms set forth in Paragraph I I(a) of
this Agreement for six (6) months from the Employee's date of termination. In all cases
such payments shall be subject to all rules and regulations governing income tax
withholding. Notwithstanding the above, if Employee is terminated due to retirement, or
for cause, which shall include, insubordination, incapacity, dereliction of duty, conviction
of a crime involving acts of moral turpitude or involving personal gain to her; or a breach
of this Agreement, City shall have no obligation to pay any severance provided in this
section. In the event Employee is convicted of a crime involving abuse of her office or
position, Employee shall reimburse City for any severance pay paid to Employee under
this paragraph, as further provided in paragraph 19. In the event Employee is terminated
for reasons other than for cause, City shall reasonably endeavor, but shall not be required,
to provide Employee a minimum of fourteen (14) days' written notice in advance of
termination.
15. EMPLOYMENT TERM:
(a) Employee is an "at will" Employee and shall serve at the pleasure of the City Council.
(b) Except as provided in Paragraph 14, nothing in this Agreement shall prevent, limit or
otherwise interfere with the rights of the City Council to terminate the services of
Employee.
(c) Nothing in this Agreement shall prevent, limit or otherwise interfere with the rights of
Employee to resign at any time from her position as City. Attorney, subject only to the
provisions set forth in Paragraph 13 of this Agreement.
16. MODIFICATIONS:
No modification of this Agreement shall be valid unless said modification is in writing and
signed by the party to be charged.
1100357.3 11233-28
17. CONFLICT OF INTEREST:
Because of the duties and role of Employee on behalf of the City and its citizenry,
Employee shall not, during the term of this Agreement, individually, as a partner, joint
venturer, officer or shareholder, invest or participate in any business venture conducting
business in the corporate limits of City, except for stock ownership in any company whose
capital stock is publicly held and regularly traded, without the prior approval of the City
Council.
Employee shall also be subject to the conflict of interest provisions of the California
Government Code and any conflict of interest code applicable to her City employment.
Employee is responsible for submitting to the City Clerk the Appropriate Conflict of
Interest Statements at the time of appointment, annually thereafter, and at the time of
separation from the position.
18. INDEMNIFICATION:
In accordance with and subject to the provisions of California's Government Claims Act
(Government Code §825, et seq.) and any other applicable law, City shall defend,
indemnify, and hold harmless Employee in any civil action against and for all losses
sustained by Employee in direct consequence of the discharge of her duties on the City's
behalf for the period of her employment. City shall defend, indemnify, and hold harmless
Employee against any tort, professional liability claim or demand or other civil legal
action, whether groundless or otherwise, arising out of an alleged act or omission occurring
in the performance of her duties as City Attorney. City may compromise and settle any
such claim or suit and pay the amount of any settlement or judgment rendered thereon.
Whenever Employee shall be sued for damages arising out of the performance of her
duties, the City may provide defense counsel for Employee in such suit and indemnify her
from any judgment rendered against her; provided that such indemnity shall not extend to
any judgment for damages arising out of any willful wrongdoing. Said indemnification
shall extend beyond termination of employment and the otherwise expiration of this
Agreement to provide protection for any such acts undertaken or committed in her capacity
as City Attorney, regardless of whether the notice of filing of a lawsuit occurs during or
following employment with the City.
19. ABUSE OF OFFICE
Any severance payments or cash settlement paid in relation to the termination of this
Agreement, and any legal criminal defense payments made by the City in the defense of
Employee, if any, are subject to, and shall be interpreted to comply with, the limitations set
forth in Government Code section 53260, concerning the maximum cash settlement in an
employment contract, and Government Code sections 53243 through 53243.4, limiting
and/or restricting payment or continued retention of severance payments and/or legal
criminal defense payments should Employee be convicted of a crime involving an abuse of
office or position. "Abuse of office or position" for purposes of this Agreement, shall be as
defined in Government Code section 53243.4 which provides: "`abuse of office or position'
means either of the following: (a) An abuse of public authority, including, but not limited
to, waste, fraud, and violation of the law under color of authority. (b) A crime against
1100357.3 11233-28 7
public justice, including, but not limited to, a crime described in Title 5 (commencing with
Section 67) or Title 7 (commencing with Section 92) of Part 1 of the Penal Code."
20. ATTORNEY'S FEES:
If either of the parties hereto brings any action or proceeding against the other, including
but not limited to, an action to enforce or to declare the termination, cancellation or
revision of this Agreement, the prevailing parry in such action or proceedings shall be
entitled to receive from the other party all reasonable attorney's fees and costs, incurred in
connection therewith. In the event either party shall initiate any suit, action, or appeal on
any matter related to this Agreement, then the court before whom such suit, action, or
appeal is taken shall award to the prevailing party such attorney's fees as the court shall
deem reasonable, and such award and all allowable costs of the event may be either added
to or deducted from the balance due under this Agreement or be a separate obligation as
appropriate.
21. SEVERABILITY:
If any provision, or any portion of any provision of this Agreement is held to be
unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion
hereof, shall be deemed severable and shall not be affected, but shall remain in full force
and effect.
22. INTEGRATED AGREEMENT:
This writing contains the entire agreement between the parties and all prior or
contemporaneous agreements, understandings or discussions relative to this Agreement are
hereby superseded.
23. JURISDICTION AND VENUE:
This Agreement shall be construed in accordance with the laws of the State of California
and the parties hereto agree that the venue for resolving any dispute regarding this
Agreement shall be in San Joaquin County, California.
24. NOTICES:
All written notices required pursuant to this Agreement shall be delivered to: City Clerk,
P.O. Box 3006, Lodi, CA 95241 or City Hall, 221 West Pine Street, Lodi, CA 95240; and
Janice D. Magdich, City Attorney, P.O. Box 3006, Lodi, CA 95241 or City Hall, 221 West
Pine Street, Lodi, CA 95240.
Ill
1100357.3 11233-28
25. EXECUTION:
IN WITNESS WHEREOF, the City Council of the City of Lodi has caused this Agreement
to be signed and executed on its behalf by the Mayor and Employee has signed and
executed this Agreement as of the day and year first above written.
CITY OF LODI, a municipal corporation:
Phil Katzakian
Mayor
Attest:
Randi Johl-Olson
City Clerk
1100359.3 11233-28 9
EMPLOYEE:
Janice D. Magdich
City Attorney
Approved as to Form:
KRONICK, MOSKOVITZ, TIEDEMANN
& GIRARD
A Professional Corporation
By
onathan P. Hobbs
Attorney to the City of Lodi