HomeMy WebLinkAboutResolution No. 23-8193 - Appointing John Funk at the City Attorney and Approving Employment AgreementFz• • • : P141
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNE '
APPOINTING JOHN FUNK AS THE CITY ATTORNEY AND APPROVIN
EMPLOYMENT AGREEMENT
WHEREAS, the City of Downey desires to appoint John Funk to the position of City
Attorney for the City of Downey, effective September 18, 2023, and
WHEREAS, the entire employment agreement between John Funk and the City of
11towney has been reviewed by this body and is attached herein.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Effective September 18, 2023, John Funk shall be appointed City Attorney
of the City of Downey.
SECTION 3. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 12 th day of September, 2023.
7r,
MARIO TRUJILLO, May
�r6_Tem
VAP,IKALICIA DUARTE, CMC
City Clerk
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of
the City of Downey at a Regular meeting held on the 12th day of September, 2023, by the
following vote, to wit.
AYES:
Council Members:
Horn, Sosa, Trujillo,
NOES:
Council Members:
None.
ABSENT:
Council Members:
Frometa
ABSTAK.
Council Member&
None.
M 14112,611MMEW lam
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered on this 181h day of
September, 2023, by and between the City of Downey, a charter city and municipal corporation
("CITY"), and John Funk ("EMPLOYEE"). CITY and EMPLOYEE are sometimes referred to
herein as the "Parties."
RECITALS
WHEREAS, the City, acting through its City Council, desired to hire EMPLOYEE to
perform the duties and responsibilities of City Attorney outlined under Section 703 of the CITY
Charter and the CITY Municipal Code; and
WHEREAS, the Parties desire to enter into this Agreement to establish the terms of
EMPLOYEE'S continued employment relationship with the CITY.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
Parties agree as follows:
AGREEMENT
Section 1: EMPLOYMENT
A. Continued Employment.
The CITY hereby agrees to employ EMPLOYEE as the City Attorney of the City of Downey
in an at -will status, subject to the terms of this Agreement, to perform the functions and
duties specified under the CITY'S Charter, Ordinances and Resolutions of the CITY, the
policies of the CITY, and California law, and to perform such other legal, permissible and
proper duties and functions as the City Council shall from time to time assign.
B. Term.
Term of Employment
The term of this Agreement shall commence upon adoption by the City Council
and shall remain in effect unless sooner terminated as provided for in Section 6 of
this Agreement.
2. At -Will Status
During the terms of this Agreement, EMPLOYEE shall serve at the pleasure of the
CITY. Nothing in this Agreement shall prevent, limit or otherwise interfere with the
right of the CITY to terminate the services of EMPLOYEE for any reason, subject
only to the provisions set forth in Section 6. Nothing in this Agreement shall
prevent, limit or otherwise interfere with the right of EMPLOYEE to voluntarily
65186.00209\41561368.3
Employment Aoreament-CityAttornmy
September 1O,2O33
Page
resign atany time from his/her position aoCity Attorney with the CITY, subject only
to the provisions set forth in Section 6.
3. Exclusive EmploVment
EMPLOYEE egnaee to remain in the exclusive employment of CITY and not to
become otherwise employed while this Agreement is in effect without the express
written consent of the City Council.
Section 2: DUTIES AND POWER OF EMPLOYEE
A. Employment Duties.
EMPLOYEE shall function as the City Attorney of the CITY, and shall be vested
with the powers, duties and responsibilities set forth in Section 703 ofthe CITY
Charter, the CITY Municipal Code and California law as they now exist and may
be amended hereafter, the terms of which are incorporated herein by reference.
In addition, EMPLOYEE shall perform such duties as may be assigned by the City
Council and which are consistent with the position of City Attorney, without
additional compensation because the City Attorney is on overtime -exempt
executive position.
B. Hours of Work.
EMPLOYEE isexpected todevote necessary time outside normal office hours ho
business nfthe CITY. Tothat end, EMPLOYEE shall beallowed flexibility insetting
his/her own office hours, provided that EMPLOYEE shall work as necessary during
customary business hours to satisfactorily perform his/her duties and
responsibilities osCity Attorney.
Section 3: COMPENSATION AND BENEFITS OF EMPLOYEE
A. Annual Base Salary.
CITY agrees to pay EMPLOYEE for his/her services rendered pursuant hereto an
annual base salary of$238,442.25 doUare, payable in bi-weekly inotaUnnenta, in
accordance with the pay range established by the City for the position of City
Attorney and paid inthe same manner and otthe same time amother employees
of the CITY are paid. EMPLOYEE'S salary shall be subject to State and Federal
withholding taxes and other employee payroll deductions as herein specified in
1 Pay Range Increases, All across the board pay range increases shall be
|nthe same amount orpercentage as adopted bvthe City Council for non -
safety classifications designated oaExecutive Management.
2. EMPLOYEE
nauemmg the same amount or percentage on an |nnraooa in base salary
above, the EMPLOYEE'S salary may be adjusted upward as a merit
adjustment in the same manner and within the omrne Personnel Rules of
Employment Agreement-CUy Attorney
September 1D,2W23
Page
B.
the CITY as other classifications designated as Executive Management,
provided the salary adjustment does not exceed the top ofthe salary range
designated for the position of City Attorney.
EMPLOYEE shall be entitled to all benefits, including but not limited to, medicalor
qualified medical opt out allowance, Section 125cafetera plan, dental, vocation.
e|ok leave, executive |eava, vehicle oUovvanca. long-term d|aobi|Kv and life
insurance in accordance with the enclosed Salary and Benefits Payable to
Employees in the Classifications Designated as Executive Management pursuant
to resolution of the City Counci|, the current resolution attached hereto and
incorporated herein by reference. These benefits may be modified from time to
time after the date ofthis Agreement etthe discretion ofthe CITY.
Professional License Dues; Organization Membership. CITY shall pay for
EMPLOYEE'S California State Bar dues. CITY shall also pay for
membership dues in traditional and/or civic organizations of benefit to a
City Attorney and the City, including, the League of California Cities or Cal
Cities ("LCC"),and other organizations agdetermined bvEMPLOYEE, and
subject toapproval bythe City Manager, amnecessary and appropriate for
the professional enrichment of the City Attorney and benefit to the City,
subject tnthe authorized Department budget.
2. CITY shall also pay for the expenses of
EMPLOYEE to attend and complete required Continuing Legal Education
(CLE) courses, including, but not limited to, institutes and seminars that are
required to comply with the California State Bar CLE requirements and are
necessary for his/her professional development and for the good of the
CITY ohoU pay for registration, tnave|, room
accommodations, meals, etc..msnecessary for EMPLOYEE'S attendance
at conferences deemed reasonably necessary for EMPLOYEE'S
professional development and subject tothe departmental budget.
C. Covenant Against Decrease. Excluding any EMPLOYEE voluntary benefit payroll
deduction uaspecified inSection 313(1)and 8CQrespectively, theCD-/sgreeemot
horeduce the base salary orother benefits ofEMPLOYEE atany time during the
bann of this Aoreenlent, except as the CITY may impose an across the board
deduction in benefits for employees designated as Executive Management.
D. All provisions of the Municipal Code, City Charter, Resolutions and Personnel
Rules relating tofringe benefits oenow exist orhereinafter may beamended shall
apply to EMPLOYEE in like manner as they apply to Executive Management
employees of City.
Employment Aoreement-CityAttornoy
September 18,3023
Page 4
Section 4: INDEMNIFICATION AND ABUSE OFOFFICE
Subject tothe California Government Code G§825-825.Gand S85.2-8S5.Oand any
other applicable |avv the CITY shall defend, hold harmless, and indemnify
EMPLOYEE against any tort, professional liability dainn, or demand, or civil rights
or other legal action, arising out ofany oot, event or omission occurring in the
course and scope of EMPLOYEE'S performance of his/her professional duties as
City Attorney. This Section will survive termination ofthe Agreement.
B. Abuse of Office.
To the extent CITY provides: U> paid leave to EMPLOYEE pending an
investigation; (ii) funds for the legal criminal defense of the EMPLOYEE and/or (iii)
acash settlement toEMPLOYEE related hothe termination ofthe EMPLOYEE
pursuant to this Agreement and Government Code Section 53243 et aeq..
EMPLOYEE shall fully reimburse the City for any and all amounts paid bythe CITY
which fall within subsections (i) through (iii) of this section in the event that the
EMPLOYEE ioconvicted ofmcrime involving the abuse ofoffice nrposition.
Section5: PERFORMANCE EVALUATION
A. Performance Evaluation:
The CITY shall review and evaluate the performance ofEMPLOYEE in March of
each calendar year. The CITY will timely cause to be placed onthe City Council
agenda each year o "closed session" for the purpose of the performance
evaluation.
Evaluation Report. Contingent upon o satisfactory performance evaluation
each year, the Mayor will document the satisfactory performance
evaluation in o written napu¢ with a copy given to Human Resources to
place |nEMPLOYEE'S personnel file and for administering any applicable
base salary adjustments as directed by the City Council.
Section 6: TERMINATION OF AGREEMENT
Termination and Resignation.
A. EMPLOYEE'S employment with the City is on on at -will basis.
Nothing inthisAgreement shall prevent, limit orotherwise interfere with the rightofthoCdv
Council toterminate, bvamajority voteoftheCitvCounuU.thoservimeoofEMPLOYEE without
cause, at any time, subject only to the City providing written notice to Employee, and complying
with the Downey Charter and Downey Municipal Code. Specifically, City may terminate this
agreement for any reason by submitting thirty (30) days' written notice to the EMPLOYEE
stating theCmunoi|'s intention toterminate this Agreement and remove him as City Attorney and
the reasons therefor. CITY shall comply with the requirements of Section 701 of the CITY
Charter. Notwithstanding the foregoing, notice of termination shall not be given during or within
Employment Agreement - City Attorney
September 18, 2023
Page 5
a period of ninety (90) days succeeding any general or special municipal election held in the
City at which a member of the City Council is elected.
B. Nothing in this Agreement shall prevent, limit or otherwise
interfere with the right of EMPLOYEE to resign from their position, subject only to EMPLOYEE
providing thirty (30) days prior written notice to the City. EMPLOYEE'S resignation shall be
deemed accepted upon delivery of a written resignation to the Mayor, or if the Mayor is
unavailable, the Mayor Pro Tem.
C. Notwithstanding the provisions of Paragraph A of this Section 6.1,
in the event Employee is terminated by City for "cause," then City may terminate this Agreement
and Employee shall be entitled to only the compensation accrued up to the date of termination.
As used in this section, "cause" shall mean any of the following:
(1) Conviction of any felony.
(2) Conviction of a misdemeanor arising directly out of the City
Attorney's duties pursuant to this Agreement involving a willful and
intentional violation of law.
(3) Conviction of any crime involving moral turpitude.
(4) Removal from office by the Grand Jury.
(5) Willful abandonment of duties.
D. In the event EMPLOYEE is terminated by the City Council at any
time that EMPLOYEE is still willing and able to perform the duties of City Attorney, and the
termination is without cause as "cause" is defined in Paragraph C above, then, and upon
delivery to the City of an executed Separation Agreement and release of all claims in a form
acceptable to the City within 30 days of the termination, the City shall pay EMPLOYEE a
severance payment equal to the aggregate of nine (9) months of EMPLOYEE'S base annual
salary and monthly medical benefit premium then in effect pursuant to this Agreement as of the
last day of employment. EMPLOYEE agrees that in the event of his voluntary resignation from
his position with the City, he is not entitled to the severance payment specified herein.
The word "termination" in this paragraph 6.1.D. shall include a reduction in salary (other than an
across-the-board reduction applicable to all senior level employees) or other financial benefits of
EMPLOYEE or EMPLOYEE'S resignation, if preceded by a formal request by a majority of the
membership of the City Council that they resign.
E. Effect of Pavment of Severance/Release.
(1) It is understood and agreed by the parties hereto that EMPLOYEE
is employed at will, and that upon the City's full payment of severance benefits to EMPLOYEE,
any right of EMPLOYEE to continued employment with City is terminated and EMPLOYEE
releases and discharges CITY and its officers,, agents and employees from any claim, demand,
or cause of action or damages for wrongful termination.
-5-
Emp|oymmntAurmmnmmnt-CitvAttorney
September 18,2023
Page
(2� ] This ot
herwise waive,
rightsother
(3) This Section will survive termination of the Agreement.
Section 7: MISCELLANEOUS PROVISIONS
A.
B.
This Agreement shall be administered by the C[TY'S City Manager
("Administrator"). All correspondence from EMPLOYEE to the CITY shall be
directed to or through the Administrator or his orher designee.
All notices pertaining tothis Agreement shall besent to:
EMPLOYEE: John Funk
At the most recent address on file in his/her Personnel file
held by the CITY
CITY: City Manager
City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Such notice shall bmdeemed made when personally delivered, transmitted by fax,
or when mailed, 48 hours after deposit in the U.S. Mail, first class postage.
C. Conflict of Interest:
EMPLOYEE warrants that he/she presently does not have and will not acquire any
direct orindirect financial interest that would conflict with his/her performance of
this Agreement.
D. Assignment Prohibited:
E.
The Parties may not assignmny rightorob|i abonpun;uanttothisAoneannent.Anv
attempted or purported assignment of any right or obligation pursuant tothis
Agreement shall be void and of no effect.
All documents provided to EMPLOYEE by the CITY and all reports and supporting
data prepared bvEMPLOYEE for the CITY are the sole property ofthe CITY and
shall be delivered to the CITY upon termination of this Agreement or at the CITY'S
written request. All confidential raporto, infonnetion, exhibits and data, including
but not limited to, electronic data, prepared or assembled by EMPLOYEE while
he/oho serves an City Attorney are confidential until release by the CITY to the
Emnp(myrmemtAgreomemt-CNy Attorney
September 18,2O23
Page
pUb/io, and EMPLOYEE shall not make any of these unreksaoed documents or
information available to any individual or organization, without prior written consent
of the City Council.
Effect of Waiver:
The failure of eitherparty toinsist onstrict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall not bedeemed
a waiver of that term, oovenont, or condition, and no waiver or relinquishment of
any right orpower ofany subsequent occasions.
G. Integration of Agreement:
The text herein shall constitute the entire Agreement between the Parties. This
Agreement incorporates the entire understanding between EMPLOYEE and the
CITY, recites the sole considerations for the promises exchanged herein, and fully
supersedes any and all prior agreements or underntandinga, written or oral or
implied, between the Parties pertaining tothe subject matter hereof. In reaching
this Agreement, no Party has relied upon any representation or promise except
those expressly set forth herein. This Agreement cannot be modified by the
Parties except in m vvhUDg that is signed by both Parties, ratified by City CnUDc|l,
and that expressly states that itintends tn modify this Agreement. '
M. Successors and Assigns:
This Agreement shall be binding upon and inure to the benefit of the heirs at law
and executors of the Parties.
If any provision, or any portion thereof, ned in this Agreement is held
unconstitutional, invalid or unenforceable, -the r�m-ainder'ofthis Agreement, or
portion thereof, shall bedeemed severable, shall not be affected and shall remain'
infull force and effect.
Attorneys'
|nthe event that either Party tothis Agreement brings elawsuit toenforce nr
interpret any provisions of this Agreement, each Party shall bear its own attorneys'
fees, expenses, and costs.
K. Goveming Law and Venue:
This Agreement shall begoverned by the laws of the State of California and the
parties agreethat venue shall beinthe state court inthe County ofLos Angeles,
September 18,2023
Page 8
Interpretation:
The Parties agree that any ambiguity in this Agreement shall not be construed or
interpreted against, or in favor of, either Party.
This Agreement may be changed or amended by the mutual written consent of
City and Employee. Any benefits to Employee under this Agreement may be
�rO*W.Cop-e-f #7 2444&4
this Agreement.
NOW 11 N
61
17
;igned and executed this Agreement for Employment this 1211 day of September 2023,
MA
J �Y' �nFunk � -Date Claudia M. Frome yor ate
0 wn'•= ng
Lauren Langer, In rim City Attorney
M