Loading...
HomeMy WebLinkAbout12-09-19 City Commission Packet Materials - A1. Decision on City Manager Surratt's Request for Employment Termination Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Karen Stambaugh, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT: Decision on City Manager Surratt’s Request to Terminate Employment Agreement on Thursday, December 12, 2019 and Authorize Mayor to Sign Interim Employment Agreement with Dennis Taylor to Serve as Interim City Manager Effective Thursday, December 12, 2019 MEETING DATE: December 9, 2019 AGENDA ITEM TYPE: Action RECOMMENDATION: Consider public comment and adopt the motion as provided below. SUGGESTED MOTION: I move to authorize termination of City Manager Surratt’s employment agreement prior to the expiration of the required 90-day notice period with City Manager Surratt’s last day to be Thursday, December 12, 2019 and authorize the Mayor to sign an Interim Employment Agreement with Dennis Taylor to Serve as Interim City Manager beginning Thursday, December 12, 2019 conditioned upon successful completion of a background check. BACKGROUND: On Monday, December 2, 2019, City Manager Surratt informed the City Commission of her acceptance of a position as city manager in another city. If the Commission so desires, City Manager Surratt requests the Commission agree to waive the 90-day time period for her notice of termination pursuant to Section 4.3(d) of the Employment Agreement (see attached). Ms. Surratt desires to end her employment at the time an interim city manager is available to start. Mayor Andrus informs me she has been in contact with Dennis Taylor who has served previously as Interim Bozeman City Manager. If the Commission so desires, Mr. Taylor has agreed to serve again as Interim City Manager during the period of time the City Commission conducts a recruitment and selection for a permanent city manager. Mr. Taylor has indicated he is available to commence duties as interim city manager immediately after City Manager Surratt’s employment ends. If the Commission desires, the Interim Employment Agreement before you for your consideration begins on December 12, 2019. The proposed Interim Employment Agreement is identical to the previous interim employment agreement with Mr. Taylor (except for salary and vehicle allowance) and contains the following: • Base pay is the same per month as provided to the City’s current city manager ($13,459.29/month) (this was also the basis for Mr. Taylor’s salary in 2017); 134 • The interim city manager will have the functions and duties as provided in Section 3.04 of the Bozeman City Charter; • The interim city manager is a temporary employee; • The City agrees to pay Mr. Taylor $569.99 per month for travel related expenses (same as currently provided to Ms. Surratt) and a $400.00 travel allowance for travel between Mr. Taylor’s home in Helena and his temporary residence in Bozeman. • City provides a housing allowance of up to $3,600 per month. The above motion conditions the Mayor’s signature on the interim employment agreement with Mr. Taylor upon the successful completion of a background check pursuant to existing city policy. UNRESOLVED ISSUES: None identified. ALTERNATIVES: As determined by the Commission. FISCAL EFFECTS: The City will pay the costs as shown in the attached agreement. This includes a monthly salary of $13,459.29 and travel related expenses. The duration of the interim employment agreement with Mr. Taylor depends on the length of time the recruitment and selection process takes for a new city manager. Mr. Taylor will not be eligible for employee health benefits and the City will not contribute to retirement. Ms. Surratt will be paid for her unused accrued vacation and sick leave pursuant to her existing employment agreement. The fiscal effects of the recruitment and selection process for a new city manager will be discussed in other memoranda. Report compiled on December 4, 2019 City Manager Andrea Surratt’s Employment Agreement Proposed Interim Employment Agreement with Dennis Taylor Dennis Taylor’s 2017 Interim Employment Agreement 135 136 137 138 139 140 141 142 143 144 145 Dennis Taylor Interim Employment Agreement 2019 Page 1 of 8 INTERIM EMPLOYMENT AGREEMENT EFFECTIVE DATE: This Agreement is dated as of December 9, 2019 (the “Effective Date”) PARTIES: EMPLOYER City of Bozeman 121 North Rouse Avenue Bozeman, MT 59715 EMPLOYEE Dennis M. Taylor 920 Strawberry Drive Helena, MT 59601 RECITAL Employer has extended an offer of interim employment to Employee subject to the terms and conditions set forth in this Agreement. Employee expressly acknowledges the temporary nature of the employment offer and accepts interim employment on the terms, covenants, and conditions set forth in this Agreement. AGREEMENT In consideration of the foregoing recitals and the covenants and promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Employer and Employee agree as follows: ARTICLE I. DEFINITIONS AND INTERPRETATION 1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings: “Cause” shall mean (1) misconduct, negligence, or any gross omission by Employee; (2) an act or acts of dishonesty by Employee involving the Employer; (3) conduct of Employee which is materially injurious to the Employer, monetarily or otherwise; (4) commission by Employee of a criminal offense that, if committed in the State of Montana, would have constituted a felony under the laws of the State of Montana or the United States; or (5) failure to meet the functions and duties specified by Section 3.04 of the City Charter, the Bozeman Municipal Code, state law and the job description. 146 Dennis Taylor Interim Employment Agreement 2019 Page 2 of 8 1.2 Interpretation. Unless a clear contrary intention appears, as used in this Agreement (a) the singular includes the plural and vice versa, (b) reference to any document means such document as amended from time to time, (c) “include” and “including” means including without limiting the generality of any description preceding such term, (d) the word “or” is not exclusive, unless otherwise expressly stated, (e) the terms “hereof,” “herein,” “hereby,” and derivative or similar words refer to this entire Agreement, and (f) headings are for convenience only and do not constitute a part of this Agreement. ARTICLE II. DUTIES AND AUTHORITY Employer agrees to employ Employee on a temporary basis as City Manager to perform the functions and duties specified by Section 3.04 of the City Charter, the Bozeman Municipal Code, state law and the job description, and to perform other legally permissible and proper duties and functions. ARTICLE III. FULL-TIME BEST EFFORTS. Employee shall devote Employee’s full professional time and attention to the performance of Employee’s obligations under this Agreement, and shall at all times faithfully, industriously and to the best of Employee’s ability, experience and talent perform all of Employee’s obligations under this Agreement. Until this Agreement is terminated, Employee shall not be employed or engaged by any other person or firm other than Employer unless otherwise authorized in writing by Employer. ARTICLE IV. TERM AND TERMINATION. 4.1 Term. The term of this Agreement and the Employee’s employment shall begin at 8:00am on December 12, 2019 to facilitate transition of authority from the current city manager. Employee’s duties as City Manager shall commence at 5:00pm on December 12, 2019. Upon hiring an individual to serve as City Manager in a non-interim capacity (the Permanent City Manager), Employer shall provide Employee written notice of the Permanent City Manager’s start date. The term of this Agreement shall end on the Permanent City Manager’s start date or no later than seven (7) days thereafter if requested by the Mayor to facilitate transition of authority to the Permanent City Manager; if so, during the transition period the Employee shall receive compensation pursuant to Article V and Business Expenses pursuant to Article VI but shall have no authority to act as City Manager under Article II. 4.2 Probationary Period of Employment. Notwithstanding Section 4.1, the Employee shall have a probationary period of employment beginning on the 147 Dennis Taylor Interim Employment Agreement 2019 Page 3 of 8 Effective Date and ending on the end of the day which is twelve (12) months from the Effective Date. During the probationary period of employment, either Employer or Employee may terminate Employee’s employment at will on notice to the other for any reason or for no reason. 4.3 Termination. Notwithstanding Section 4.1: (a) This Agreement and the Employee’s employment shall terminate immediately upon Employee’s death. (b) This Agreement and the Employee’s employment shall terminate immediately upon the Employer ceasing to conduct its business. (c) Employer may terminate this Agreement: (i) During the probationary period of employment at will on notice to the other for any reason or for no reason. (ii) Upon 30 days prior written notice for any legitimate business reason; (iii) Upon written notice if Employee is in material breach of any provision of this Agreement, and fails to cure the breach with 30 days of the date of the Employer’s written notice; (iv) Immediately upon a showing of Cause. (d) Employee may terminate this Agreement: (i) Upon 30 days’ written notice to Employer; (ii) Immediately if the Employer, citizens or legislature acts to amend any provisions of the Bozeman Municipal Code and/or City Charter pertaining to the City Manager’s role, powers, duties, authority, or responsibilities that substantially changes the City of Bozeman’s form of government; and (e) This Agreement shall terminate automatically: (i) Upon expiration of the term under Section 4.1; (ii) If the majority of the governing body adopts a final resolution to remove the Employee at a duly authorized public meeting consistent with the provisions of Section 3.02 of the City Charter; and 148 Dennis Taylor Interim Employment Agreement 2019 Page 4 of 8 (iii) If the City Commission requests the Employee to resign under Section 3.02 of the City Charter and the Employee resigns in writing. (f) Upon termination of Employee’s employment under this Agreement, Employer shall have no further obligation to Employee except as specifically provided under this Agreement; provided, however, that: (i) Termination of Employee’s employment shall not affect Employee’s right to receive accrued but unpaid salary through the date of termination; (ii) Termination of Employee’s employment shall not affect Employee’s right to be paid for accrued but unpaid leave in accordance with state and federal law; (iii) Employee shall be allowed to pay for continued health insurance as permitted by federal law. (g) Upon termination of Employee’s employment under this Agreement, Employee shall return to Employer all equipment and property, including without limitation, confidential files, proprietary information, client files, investor information, project files, construction files, electronic equipment, keys, credit cards, and the like, owned by Employer and used by Employee. ARTICLE V. COMPENSATION 5.1 Base Salary. Employer shall pay Employee $13,459.29 per month (the “Salary”), payable in installments on a monthly basis. 5.2 Health Insurance. As a temporary employee the Employee is not eligible to participate in the Employer’s health, dental, or vision insurance programs. 5.3 Vehicle Allowance. Employer will pay Employee $568.99 per month as reimbursement for transportation related expenses. In addition to the above, Employer agrees to pay Employee $400.00 per month as reimbursement for travel related expenses between Employee’s home in Helena and the Employee’s residence in Bozeman. The Employee is prohibited from using City vehicles or from seeking reimbursement for transportation expenses for use of his personal vehicle. Employee shall be responsible for paying for liability, property damage, and comprehensive insurance coverage on such vehicle. Employee shall also be responsible for all expenses related, in any way, to the purchase, operation, maintenance, repair, or replacement of such vehicle. 149 Dennis Taylor Interim Employment Agreement 2019 Page 5 of 8 5.4 Housing Allowance and Residency Requirement. Employer agrees to pay Employee a housing supplement for actual housing costs of up but not to exceed $3,600.00 per month, payable on the same day as the Employee’s base salary, and prorated daily for the time Employee is employed pursuant to this Agreement. Employee agrees to maintain residence within the corporate boundaries of the City of Bozeman. 5.5 Exclusion of Certain Fringe Benefits. The Employee shall not be entitled to participate in any plans, arrangements or distributions by the Employer pertaining to or in connection with life insurance, disability insurance, pension, retirement (unless otherwise required by law), or profit sharing. 5.6 Leave. Employee shall be entitled to accrue and utilize sick leave and vacation leave as set forth in the Employer’s Employee Handbook. ARTICLE VI. BUSINESS EXPENSES/HOLDING OFFICE 6.1 General Business Expenses. Employer shall reimburse Employee for any approved business-related expenses. The Finance Director is authorized to disburse reimbursement upon receipt of duly executed expense or petty cash vouchers, receipts, statements, or personal affidavits reflecting such expenses. 6.2 Holding Office. Commission approval is needed before the Employee agrees to hold office in any professional, business, or civic organization. ARTICLE VII. HOURS OF WORK Employer recognizes that Employee must devote a great deal of time outside normal office hours on business for the City. To that end, Employee shall be allowed to establish an appropriate work schedule. ARTICLE VIII. INDEMNIFICATION Under Montana Code Annotated section 2-9-305, Employer will indemnify, immunize and prove a defense to Employee if he is civilly sued for action taken within the scope of his employment. Further, Employer agrees that notwithstanding Section 4.3(f), this obligation shall continue beyond Employee’s service to Employer as long as litigation is pending. Employer agrees to pay Employee’s reasonable consulting fees and travel expenses when Employee serves as a witness, advisor, or consultant to Employer regarding pending litigation. 150 Dennis Taylor Interim Employment Agreement 2019 Page 6 of 8 ARTICLE IX. BONDING Employer shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. ARTICLE X. MISCELLANEOUS. 10.1 Governing Law. This Agreement shall be governed by the laws of the State of Montana. 10.2 Severability. The invalidity of any provision of this Agreement or portion of a provision shall not affect the validity of any other provision of this Agreement or the remaining portion of the applicable provision. 10.3 Counterparts and Facsimile Signatures. This Agreement and any amendments to this Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one agreement. A facsimile or electronic signature to this Agreement and any amendments to this Agreement shall be deemed an original and binding upon the party against whom enforcement is sought. 10.4 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed facsimile or electronic mail if sent during normal business hours of the recipient, if not, then on the next business day; (iii) upon receipt, if sent by registered or certified mail or nationally recognized overnight courier. All notices shall be sent to Employer or Employee at the address set forth on the first page of this Agreement, or at such other address as either party may designate by notice pursuant to this Section. 10.5 Entire Agreement. The terms of this Agreement express and constitute the entire agreement between the parties pertaining to the subject matter of this Agreement and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties. 151 Dennis Taylor Interim Employment Agreement 2019 Page 7 of 8 No supplement, modification, waiver or termination of this Agreement shall be binding, unless executed in writing by the party to be bound. 10.6 Assignment. This Agreement and all rights, entitlements, duties and obligations arising from it shall not be assignable in whole or in part by Employee except with the prior written consent of Employer. 10.7 Public Document. This Agreement is a public document and shall be available for inspection by the public. ****** End of Agreement Except for Signatures **** The parties have executed this Agreement effective as the Effective Date. 152 153 154 155 156 157 158 159 160