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HomeMy WebLinkAbout03.h. Provide for concurrent annual performance evaluations for Executive Management TeamCentral Contra Costa Sanitary District 3.h. BOARD OF DIRECTORS "- POSITION PAPER Board Meeting Date: August 6, 2015 Subject: ADOPT RESOLUTION RESCINDING RESOLUTION NO. 2008 -111 AND PROVIDING FOR CONCURRENT ANNUAL PERFORMANCE EVALUATIONS OF THE MEMBERS OF THE EXECUTIVE MANAGEMENT TEAM Submitted By. Initiating Dept. /Div.: T. O'Malley, Human Resources Manager Human Resources / Operations REVIEWED AND RECOMMENDED FOR BOARD ACTION: A. Sasaki — Deputy General Manager / Director of Operations Roger S. Bailey General Manager ISSUE: The current resolution governing the performance appraisals for the District's Executive Team, Resolution No. 2008 -111, mandates evaluations in October of each even - numbered year. General Manager Roger S. Bailey was last evaluated in August 2014, and his October 2014 evaluation was waived by the Board. In accordance with his employment agreement, Mr. Bailey would be expected to be evaluated in August 2015. Per the resolution, the Secretary of the District, District Counsel, and General Manager would be due for evaluations in October 2016. RECOMMENDATION: For ease and efficiency, President McGill suggested that the resolution be updated to align the dates of the Executive Management Team's performance appraisals to be concurrent in September of every year, rather than at staggered intervals as at present. He also suggested that the Board engage consultant Dr. Larry Bienati of VPI Strategies to facilitate the evaluations. FINANCIAL IMPACTS: None. ALTERNATIVES /CONSIDERATIONS: The Board could elect to not rescind the resolution and continue holding performance evaluations for the Executive Management Team in October of each even - numbered year. This is not recommended because, as occurred in 2014, General Manager Roger Bailey is on an alternate timeline, as his last evaluation was conducted in August 2014 in accordance with his employment contract. As an alternative, the Board could elect to not rescind the resolution and instead waive Mr. Bailey's October appraisals for the duration of his employment contract, or shift the timing to October so the resolution and employment contract coincide. At the October 2, 2014 Board Meeting, neither of these options was taken by the Board, and District Counsel Kent Alm opined at the time that there was no need to change the resolution because in 2016, the timing could be back on track. N:\ADMINSUP\ADMIN \DIST- SEC \Position Papers\2015 \PP - Rescind Reso and Adopt New Reso for Exec Mgmt Team Appraisals.docx Page 1 of 2 POSITION PAPER Board Meeting Date: August 6, 2015 subject: ADOPT RESOLUTION RESCINDING RESOLUTION NO. 2008 -111 AND PROVIDING FOR CONCURRENT ANNUAL PERFORMANCE EVALUATIONS OF THE MEMBERS OF THE EXECUTIVE MANAGEMENT TEAM BACKGROUND: On November 6, 2008, the Board adopted Resolution No. 2008 -111 establishing a biennial performance evaluation for the Executive Management Team "scheduled automatically in October of each even - numbered year" (highlighted clause in Attachment 1). Before this, the General Manager, Secretary of the District, and District Counsel were not on a set schedule to receive performance evaluations. Section 10 of Mr. Bailey's Employment Agreement (highlighted clause in Attachment 2), effective July 11, 2013 and ending August 18, 2016, states that the Board may evaluate the General Manager "at any time in its sole discretion." Given that his last appraisal occurred in August 2014, the Board decided to waive his October 2014 evaluation as mandated by Resolution No. 2008 -111 and referred review of the Executive Management Team evaluation process to the Administration Committee. At the July 23, 2015 Board Meeting, President McGill suggested that timing of performance reviews for the General Manager, Secretary of the District, and District Counsel be agendized for a future meeting so they may be conducted simultaneously. He also suggested that Mr. Bienati be retained to facilitate the evaluations, and that both matters be reviewed by the Administration Committee prior to going to the full Board. COMMITTEE RECOMMENDATION: None. Given that Board Members have expressed support for aligning the three team members' evaluations to be concurrent with one another, and the need to resolve this issue before Mr. Bailey's August 2015 evaluation, this matter is being brought to the full Board without Committee review. RECOMMENDED BOARD ACTION: Adopt a resolution rescinding Resolution No. 2008 -111 and providing for concurrent annual performance evaluations of the Executive Management Team (General Manager, Secretary of the District, and District Counsel) in September of each year. Attached Supportinq Documents: 1. Resolution No. 2008 -111 2. Proposed Resolution (strikeout showing proposed changes) 3. Employment Agreement with General Manager Roger S. Bailey N:\ADMINSUP\ADMIN \DIST- SEC \Position Papers\2015 \PP - Rescind Reso and Adopt New Reso for Exec Mgmt Team Appraisals.docx Page 2 of 2 Attachment 1 RESOLUTION NO. 2008 -111 A RESOLUTION ESTABLISHING BIENNIAL PERFORMANCE APPRAISALS FOR MEMBERS OF THE CENTRAL CONTRA COSTA SANITARY DISTRICT EXECUTIVE MANAGEMENT TEAM WHEREAS, the Executive Management Team of the Central Contra Costa Sanitary District consists of the General Manager, District Counsel and Secretary of the District, as defined in Section 4.24.030 of the District Code; and WHEREAS, the members of the Executive Management Team report directly to the Board of Directors of the Central Contra Costa Sanitary District; and WHEREAS, the Board of Directors has determined that each member of the Executive Management Team should receive a performance appraisal from the Board of Directors every two years. NOW, THEREFORE, BE IT RESOLVED THAT: 1. As defined in Section 4.23.030 of the District Code, the Executive Management Team consists of the General Manager, District Counsel, and Secretary of the District. 2. Performance appraisals by the Board of Directors for each member of the Executive Management Team will be scheduled automatically in October of each even - numbered year. 3. The Board of Directors may, if desired, schedule additional, interim performance appraisals of any member of the Executive Management Team. PASSED AND ADOPTED this 6th day of November, 2008 by the Board of Directors of the Central Contra Costa Sanitary District by the following vote: AYES: Members: Itockett, McGill, Nejedly, Lucey NOES: Members: None ABSENT: Members: Menesini Gerald R. Luc 6y President of the Board of Di ctors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Elaine R. Boehme Secretary of the Central Contra Costa Sanitary District County of Contra Costa, State of California Approved as to form: Kenton L. AI Counsel for the District Attachment 2 RESOLUTION NO. 2098- ?2015 -027 A RESOLUTION OF THE CENTRAL CONTRA COSTA SANITARY DISTRICT RESCINDING RESOLUTION 2008 -111 AND ESTABLISHING BIENNIAL ANNUAL PERFORMANCE APPRAISALS FOR MEMBERS OF THE CENTRAL CONTRA COSTA SANITARY DISTRIG EXECUTIVE MANAGEMENT TEAM WHEREAS, the Executive Management Team of the Central Contra Costa Sanitary District consists of the General Manager, District Counsel and Secretary of the District, as defined in Section 4.24.030 of the District Code; and WHEREAS, the members of the Executive Management Team report directly to the Board of Directors of the Central Contra Costa Sanitary District; and WHEREAS, the Board of Directors has determined that each member of the Executive Management Team should receive a performance appraisal from the Board of Directors every year:. NOW, THEREFORE, BE IT RESOLVED THAT: As defined in Section 4.23.030 of the District Code, the Executive Management Team consists of the General Manager, District Counsel, and Secretary of the District. 2. Performance appraisals by the Board of Directors for each member of the Executive Management Team will be scheduled automatically in 9Etc)ber September of each RrbeFed -year. 3. The Board of Directors may, if desired, schedule additional, interim performance appraisals of any member of the Executive Management Team. 4. As of the effective date of this resolution, the existing District Resolution No. 2008 -111 is rescinded. PASSED AND ADOPTED this 6th day of NevemberAugust, 201508 by the Board of Directors of the Central Contra Costa Sanitary District by the following vote: AYES: Members: NOES: Members: ABSENT: Members: Michael R. McGill, P.E. President of the Board of Directors Central Contra Costa Sanitary District County of Contra Costa, State of California COUNTERSIGNED: Elaine R. Boehme, CIVIC Secretary of the District Central Contra Costa Sanitary District County of Contra Costa, State of California Approved as to form: Kenton L. Alm, Esq. Counsel for the District Attachment 3 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT (this "Agreement ") is entered into effective July 11, 2013 ( "Effective Date "), by and between the Central Contra Costa Sanitary District, a special district organized pursuant to the California Sanitary District Act of 1923 ( "District ") and Roger S. Bailey ( "General Manager "). District and General Manager are hereinafter collectively referred to as the "Parties." NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. General. The District hereby engages and employs, "General Manager," to perform the functions and duties of the General Manager subject to the terms, conditions and provisions of this Agreement. The General Manager hereby accepts such employment and agrees to render services as provided herein, all of which services shall be performed conscientiously and to the full extent of the General Manager's ability. The Parties acknowledge and• agree that the General Manager is an "at- will" employee serving at the pleasure of the District's Board of Directors (the `Board "). 2. Term. The term of this Agreement shall be three (3) years beginning on August 19, 2013 and ending on August 18, 2016, unless otherwise terminated as provided for in this Agreement. At the end of this term, the Agreement thereafter shall be automatically extended from year to year unless the District provides written notice at least ninety (90) days prior to the end of the term of the Agreement of its intent to terminate the Agreement. If the Agreement is extended year to year, the Agreement to provide ninety (90) days' written notice applies to that extended tern. Notwithstanding the above - stated term, the General Manager acknowledges that he is an at will employee and that nothing in this Agreement shall prevent, limit, or otherwise interfere with the District's ability to terminate his employment at any time with or without cause, in accordance with the requirements of paragraph 12 of this Agreement. 3. Position and Duties; Authority, The General Manager shall have overall responsibility for the day -to -day management and administration of the District, and shall be subject to direction by the Board. The General Manager shall perform his duties to the best of his ability in accordance with the highest professional and ethical standards. He shall comply with and carry out the District's rules and regulations, and shall obey all laws as they apply to the performance of his duties. He shall have the authority to hire, fire, and determine the range of compensation of District employees subject to all applicable laws and regulations, the Memoranda of Understanding with the bargaining groups, consistent with the policies adopted from time to time by the Board regarding the District's workforce. 4. Exclusivity. The General Manager's services shall be exclusive to the District during the term of this Agreement. The General Manager warrants that there are no agreements or arrangements, whether written or oral, in effect, which would prevent him from rendering exclusive services to the District during the term hereof and that he has not made and will not make any commitment or do any act in conflict with this Agreement. 5. Residence within District. The General Manager agrees to maintain a residence within the District's service area or within thirty (30) miles of the District's Headquarters Office Building, located at 5019 Imhoff Place, Martinez, California 94553. 6. Salary. (a) Salary. The District shall pay the General Manager a salary of $229,000.00 per year, or a total of $19,083.34 per month. The Board annually will consider adjustment of the General Manager's annual salary in such amounts and to such extent as the Board may determine is desirable on the basis of its annual review and evaluation of the General Manager. Ariy salary adjustments must be approved by the Board in open session. 7. Benefits. The District agrees to provide the following benefits: (a) Paid Time Off (PTO) of twenty -five (25) days per year, accrued month to month over that year, with those accruals beginning on the anniversary date of employment. The General Manager may accumulate PTO up to a maximum of fifty (50) days of PTO. If the accumulated PTO reaches the maximum accrual of fifty (50) days, then the General Manager shall not accrue any additional PTO unless and until the accumulation becomes less than fifty (50) days, The option of requesting a case payment for accumulated PTO during employment is not permitted by this Agreement. However, any accumulation of PTO up to that maximum accumulation will be payable at the time of any separation of employment. (b) Thirteen (13) paid holidays. (c) Retirement plan of 2 percent at age fifty -five (55). The General Manager's responsibility is for paying the employee share of the COLA and 1.25 percent of the pensionable compensation towards the employee share; this will require an additional 1.25 percent on April 18, 2014, an additional 1.25 percent on April 18, 2015, and an additional 1.25 percent on April 18, 2016. Effective April 18, 2017, the General Manager will pay the entire employee pension rate based on his age of entry as calculated and determined by CCCERA unless a prior year's contribution has brought him to the full employee share. (d) Retiree medical and dental coverage at the District's Tier III level. The Rule of 70 must be met. Age and years of service with the District at the time of retirement must total 70, with a minimum requirement that the General Manager must be at least 55 years of age and have a least 10 years of continuous service. The District shall only pay 50 percent of the premium cost for the lowest cost medical and dental plan for the retiree and spouse. Tier III retirees are not eligible for life insurance. (e) Medical plan coverage. The General Manager shall receive Kaiser HMO or Health Net HMO medical plan coverage at 100 percent paid by the District (up to family coverage); the General Manager has the option to choose the Health Net PPO, but the difference in premiums between the highest cost HMO and PPO will be borne by the General Manager. The General Manager may waive District medical coverage and in lieu receive a District contribution of $400.00 to the Section 401 A plan. 2 coverage). (f) Delta Dental Plan coverage paid 100 percent by the District (up to family (g) A cafeteria plan of $425.00 per month. (h) Life Insurance of $250,000.00 and insurance for Accidental Death and Dismemberment. (i) Long Term Disability coverage which provides for sixty percent (60 %) of earnings up to $11,000.00 per month after a sixty (60) day waiting period. contributions. 0) $100.00 per month for phone or communication devices. (k) A 401 A contribution of 6.2 percent of salary in lieu of social security (1) An Employee Assistance Program. 8. Business and Travel Expenses. The District shall pay the General Manager's reasonable and necessary expenses for travel on District business, for professional memberships, and for conferences and seminars related to District business or professional training and development in accordance with District policy. All expenses shall be documented by the General Manager on District expense reimbursement forms. 9. Relocation and Temporary Housing Expenses. The District shall provide fifteen thousand dollars ($15,000.00) to the General Manager to assist in his relocation expenses and his temporary housing expenses. 10. Review and Evaluation. The Board will conduct a performance review or evaluation of General Manager's performance to General Manager annually. The Board may undertake performance review or evaluation of General Manager at any time in its sole discretion. 11. Return of Property. Upon termination of this Agreement, regardless of how tennination may be effected, or whenever requested by the District, the General Manager shall immediately turn over to the District all District property, including all items used by the General Manager in rendering services hereunder or otherwise, that may be in the General Manager's possession or under his control. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 13. Termination. The District may terminate this Agreement, with or without cause, at any time upon ninety (90) days' written notice to the General Manager. If the District elects to terminate this Agreement without cause, the District may also elect to terminate the Agreement without providing ninety (90) days' notice. If the District elects to terminate the General Manager without cause and without such notice, the General Manager shall be paid severance compensation in an amount equal to three (3) months of the base monthly salary. At its discretion , the District may satisfy this obligation by providing a combination of notice and severance pay. Such severance is contingent upon the General Manager signing and delivering a general release of all claims against the District in a form acceptable to the District. The General Manager shall not receive any severance payments if such a waiver and release is not executed by the Parties. Notwithstanding the foregoing, in the event the General Manager is convicted of a crime involving an abuse of his office or position, the General Manager shall fully reimburse the District for any severance compensation he received from the District pursuant to this Agreement. For purposes of this paragraph, "abuse of his office or position" means either: (a) an abuse of public authority, including, but not limited to, waste, fraud and violation of the law under color of authority; or (b) a crime against public justice, including, but not limited to, a crime described in Title 7 of Part l of the Penal Code. The General Manager shall not be entitled to notice or to severance compensation pursuant to this Paragraph if he is terminated with cause for any of the following reasons: (a) Commission of any material act of fraud or dishonesty which is adverse to the District; (b) Acting in a manner that is directly or substantially in a conflicting position with the District after notice of the same and reasonable opportunity to cure and which has a material adverse effect on the District; (c) Gross negligence in the performance of the General Manager's duties and /or obligations to the District; (d) Sale, possession or use of illegal drugs; (e) A final judgment by a court of law of unlawful retaliation by the General Manager against any other employee for disclosure of information relative to actual or suspected violations of any State or Federal law; (f) Willful disregard of a lawful directive of the Board; (g) Insubordination; (h) Improper use of District funds or resources; (i) Willful misconduct; 0) Unauthorized absence from employment; or 4 (k) Any other failure of good behavior either during or outside of employment such that the General Manager's conduct causes discredit to the District. For purposes of this Agreement, termination, "with cause" shall apply only to eligibility for the severance pay described in this paragraph, and shall not give rise to any property interest and /or appeal rights of any kind. The General Manager shall be entitled to terminate this Agreement for any reason upon thirty (30) days' written notice. 14. Entire Agreement; Amendments. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior negotiations and agreements with respect thereto. This Agreement may be modified or amended only by an instrument in writing executed by both Parties. 15. Arbitration. (a) Any controversy or claim arising out of or relating to this Agreement or the breach thereof, or arising out of or relating to General Manager's employment or termination thereof, including but not limited to claims of employment discrimination based on federal and state law, which cannot be resolved among the Parties themselves, shall, on the written request of either party served on the other within the applicable statute of limitations, be submitted and resolved by final and binding arbitration. Service of the written request for arbitration shall be made only by certified mail, with a return receipt requested. Time is of the essence; if the request is not served within a one (1) year period after the cause of action arises or the termination of this Agreement, whichever is earlier, then the complaining party's claim(s) shall be forever waived and barred before any and all forums, including, without limitation, arbitration or judicial forums. (b) The Arbitrator shall have no authority to alter, amend, modify or change any of the terms of this Agreement, unless a provision expressly conflicts with applicable federal or state laws. Any arbitrator selected under this provision shall have the express authority to consider statutory violations of federal and state law in addition to disputes involving this Agreement, and to award such remedies as may be permitted under such statutes. The decision of the Arbitrator shall be final and binding and judgment therein may be entered in any court having jurisdiction over the dispute. (c) The Arbitration shall be conducted under the National Rules for the Resolution of Employment Disputes of the American Arbitration Association ( "AAA ") current at the time of the dispute. In the event that such rules are determined to be in conflict with federal or state law, then the arbitrator shall have the authority to amend them accordingly. The District shall be responsible for paying all the AAA's administrative and arbitrator's fees. In all other respects, the Parties shall bear their own attorneys' fees and costs except as otherwise required by law. The Parties shall have the right to conduct discovery which provides them with access to documents and witnesses that are essential to the dispute, as determined by the Arbitrator. The Arbitrator's written award shall include the essential findings and conclusions upon which the award is based. 5 (d) The Parties intend that this arbitration procedure is mandatory and shall be the exclusive means of resolving all disputes whether founded in fact or law between the General Manager and the District and/or its employees, elected officials, directors, agents, officers or managers arising out of or relating to this Agreement, the Parties' employment relationship and/or the termination of that relationship, including, but not limited to, any controversies or claims pertaining to wrongful or constructive discharge, violations of the covenant of good faith and fair dealing, implied contracts, public policies, anti - discrimination statutes or any employment- related statutes. (e) Nothing in this Agreement shall be deemed to waive any requirement to file a claim against the District under the terms of the Government Claims Act or other provisions of law. (f) Each party shall bear its own cost and attorneys' fees in any such action. THE PARTIES ACKNOWLEDGE THAT BY ADOPTING ARBITRATION THEY HAVE IN EFFECT WAIVED ANY CONSTITUTIONAL OR STATUTORY RIGHT TO HAVE ANY SUCH DISPUTE DECIDED IN A COURT OF LAW AND /OR BY A JURY IN A COURT PROCEEDING. Initials: w.- olet'h"'ict General rtanager 16. Severability. If any provision or any part of any provision of this Agreement is for any reason held to be invalid, void, unenforceable or contrary to any public policy, law, statute and /or ordinance, then the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect and fully enforceable. 17. Interpretation; Cantionsl Legal Review. The section headings used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. Further each party agrees that it has had an ample opportunity to have this document reviewed by its legal counsel prior to execution. /Il /I/ rol IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CENTRAL CONTRA COSTA SANITARY DISTRICT a special district Dated: p 6- 14 - 2 y 13 1-'J a) ROGER S. BAIL AY General Manager Dated: -7 - 1 i ' ! 3 BY: _. -24� c«r ,MMES A. NEJEDLY President, Board of Directors 7