Resolution No. 2012-148RESOLUTION NO. 2012-148
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPOINTING NICHOLAS GEORGE RODRIGUEZ TO
SERVE AS THE CITY ATTORNEY OF THE CITY OF VERNON
AND APPROVING AND AUTHORIZING THE EXECUTION OF A
RELATED EMPLOYMENT AGREEMENT
WHEREAS, the office of City Attorney has been vacant since
November, 2011; and
WHEREAS, per the good governance reforms recommended by
Senator Kevin de Leon and the City's Reform Monitor John Van de Kamp
the City retained the services of Roberts Consulting Group to recruit
a City Attorney for the City of Vernon; and
WHEREAS, Roberts Consulting Group created an executive
recruitment brochure for the position (attached hereto as Exhibit A)'
and conducted a broad and extensive recruitment that included multiple
screenings and interviews of numerous applicants; and
WHEREAS, the City Council conducted final interviews of the
six highest ranking candidates at special City.Council meetings on
June 13 and 20, 2012; and
WHEREAS, the City Council of the City of Vernon has
determined Nicholas George Rodriguez ("Rodriguez") to be the most
qualified candidate for the position and desires to appoint Rodriguez
to serve as the City Attorney, effective September 10, 2012, subject to
approval of an At -Will Employment Agreement; and
WHEREAS, the attached At -Will Employment Agreement for Vernon
City Attorney provides for (1) a three year engagement at the current
salary of $252,000 per year plus all benefits provided to executive
personnel including heads of major departments and, (2) in the event of
a material breach by the City, Rodriguez may, at his option, leave the
City's employ and shall be entitled to receive up to 24 months salary
and benefits as severance pay and, (3) the termination of the current
City Administrator prior to the expiration of this agreement is deemed
to be a material breach; and
WHEREAS, the above terms are recommended because the City
wishes to induce a qualified attorney to leave a long term employment
situation to help make progress on Reform Efforts, among other tasks;
and
WHEREAS, while there is a hope and expectation among both
parties that a severance or material breach provision would never be
exercised, this particular employment situation can be perceived as
carrying a level of risk above the norm, as organizational change and
Reform can be difficult even in the best of contexts; and
WHEREAS, in addition to inducing the candidate to come to
Vernon, there is a need to create incentives for stability in that
position to help ensure stability in the Reform Efforts; and
WHEREAS, there is a need to provide a disincentive to any
future City Council from arbitrarily terminating the candidate from
employment; and
WHEREAS, it also serves the interests of Vernon to cap any
claims which might arise from termination, should that occur, and the
severance provision provides.a waiver of claims; and
WHEREAS, there is a guiding principle that public funds must
be expended for an authorized.public purpose; and
WHEREAS, an expenditure is made for a public purpose when its
purpose is to benefit the public interest rather than private
individuals or private purposes and this agreement falls squarely
within those parameters; and
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WHEREAS, in approving this Resolution, the City Council
determines and finds the following:
(1) As a Charter City, Vernon may set its own reasonable
severance provisions.
(2) The 24 month maximum severance pay offered does not
unreasonably exceed the severance limitations of the
18 month maximum set for General Law Cities.
(3) The severance proposed is reasonable and serves the
public purposes of providing stability for the position,
of providing a disincentive for termination that might
interrupt the Reform Efforts and of providing an
inducement to accept the appointment and,
(4) The severance provision also serves the public interest
by creating a cap on any claims that might arise from
termination, should it occur.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
appoints Nicholas George Rodriguez to serve as the City Attorney of
the City of Vernon, effective September 10, 2012.
SECTION 3: The City Clerk, or any authorized officer, shall
administer the Oath of Office prescribed in the Constitution of the
State of California to Rodriguez and shall have him.subscribe to it
and file it with the Human Resources Department.
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SECTION 4: The City Council of the City of Vernon hereby
approves the Employment Agreement with Rodriguez, in substantially the
same form as the copy which is attached hereto as Exhibit "B."
SECTION 5: The City Council of the City of Vernon hereby
authorizes the Mayor or Mayor Pro-Tem to execute said Agreement for,
and on behalf of, the City of Vernon and the City Clerk, or Deputy
City Clerk, is hereby authorized to attest thereto.
SECTION 6: The City Council of the City of Vernon hereby
instructs the City's Legal Counsel, to take whatever actions are
deemed necessary or desirable for the purpose of implementing and
carrying out the purposes of this Resolution and the transactions
herein approved or authorized, including but not limited to, any
nonsubstantive changes to the Agreement attached herein.
SECTION 7: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to give a fully
executed Agreement to Rodriguez.
SECTION 8: The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this resolution, and
the City Clerk of. the City of Vernon shall cause this resolution and
the City Clerk's certification to be entered in the File of
Resolutions of the Council of this City.
APPROVED AND ADOPTED this 7th day of August, 2012.
� n r
Name: William J. Davis
Title / Mayor Pro-Tem
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2012-148, was duly passed, approved and adopted by the City.
Council of the City of Vernon at a regular meeting of the City Council
duly held on Tuesday, August 7, 2012., and thereafter was duly signed
by the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this q day of August, 2012, at Vernon, California.
(SEAL)
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EXHIBIT A
CITY ATTORNEY
City of Vernon, CA
1,,,.
ROBERTS CQIVSUL
THE CITY
Vernon is an industrial city of 5.2 square miles located about five miles
to the southeast of downtown Los Angeles. Founded in 1905 as the
first exclusively industrial city in the Southwestern United States (its
residential population is 112), Vernon currently houses more than 1,800
businesses that employ approximately 50,000 people, serving as a
vital economic engine in the region. Offering an environment uniquely
friendly to business, Vernon is the home to many Fortune 500
companies in industries that include food and agriculture, apparel,
steel, plastics, logistics and home furnishings. Vernon maintains strong
philanthropic ties with the neighboring communities where much of
its workforce lives, providing significant support for public services
such as health care and education.
Over the years, Vernon's city government has grown into one of the
most efficient and business -friendly in the region. With some of the
lowest taxes of any city in the State, Vernon is abletooffer an array
of municipal services tailored to meet the needs of its business
community. Vernon is just one of 25 cities in the United States with a
Class 1 rated fire department, and one of four cities in California with
its own health department, which specializes in industrial issues. The
City's businesses receive very low rates for water, electricity, gas and
fiber optics as a result of Vernon's independent utilities. In 2008,
Vernon was named by the Los Angeles County Economic Development
Corporation as the County's "Most Business Friendly City" for cities
with less than 50,000 residents.
The five members of the City Council are elected at large, on a
non -partisan basis, for five year staggered terms and, as a result of
2011 Charter amendments, no person may serve more than two terms
of office (terms that began before. the effective date of the amendment
do not apply to the two term limit). The Mayor is selected by the
Council. At present, there are four Council Members in office and
there will be a special election in June 2012 to fill the vacant seat.
The City's total budget for FY 2011-12 is almost $326 million (the
General Fund budget is $61.6 million) with 274 employees.
Vernon is on the cusp of historic reform and the creation of a model
government. In February 2011, Former California State Attorney General
John Van de Kamp was engaged to serve as an Independent Ethics
Advisor to the City. In July, he presented an initial report summarizing
his findings and presenting recommendations for Good Governance
Reform. A number of these measures have been implemented and
others are ongoing. In January of this year, he presented a follow-up
report summarizing the status of the July recommendations and
presenting several additional recommendations. In an August 2011 letter
from California State Senator Kevin De Leon, he outlined six proposed
Critical Path Reforms for the City to undertake to address concerns:
1) Creating greater accountability and transparency by implementing
charter reform via election.
2) Implementing the recommendations in the Van de Kamp report,
3) Doubling the electorate through the construction of additional
housing units within three years.
4) Appointing an Independent Reform Monitor for four years.
5) Continuing and establishing worker rights for police, fire and
other public employees.
6) Establishing a Good Neighbor Program, including a substantial
and long-term Environmental and Community Benefit Fund.
KEY CHALLENGES AND OPPORTUNITIES
Key challenges and opportunities facing the City Attorney include:
* Evaluating the organization and staffing of the Office.
* Overseeing multiple firms used for outside counsel, and
controlling costs related to these activities.
*Assisting in facilitating the reform effort now underway.
THE POSITION
In the past, the City has utilized retained outside counsel to advise
the City Council and City Administrator with respect to the issues
created by its unique functions and services. Vernon is now seeking
an in-house City Attorney to fill that role.
The City Attorneys role is to provide the City Council and City Administrator
with the legal advice and legal documents necessary to ensure that
policy objectives are achieved in a manner consistent with State and
Federal law. The City Attorney is considered to be an extremely
important member of the team - the City Council, City Administrator,
Department Directors and staff - that has been assembled to successfully
address and respond to the myriad of issues that Vernon faces on a
daily basis. The City Attorney is expected to develop a working
knowledge of the legal issues related to the special and unique services
that Vernon provides to the businesses and employees in the community
and serve as a resource to help manage outside counsel retained to
address those issues. The City Attorney will work closely with, and
receive overall policy direction from, the City Administrator.
The City Attorney functions as the legal advisor and legal counsel for
the. City Council, City boards and commissions, City Administrator and
City departments. Directly or through outside counsel, he/she
represents the City in litigation. The City Attorney will provide legal
advice regarding compliance with the law, including the Brown Act and
Political Reform Act; prepare and/or approve contracts, ordinances
and resolutions; and attend meetings of the City Council and other
City Boards and Commissions. Under the general direction of the City
Administrator, the City Attorney will oversee the work of outside
counsel on matters related to the City of Vernon power generating and
transmission facilities, public financing, personnel and labor relations,
land use (e.g., the City has considerable land holdings in Kern County),
and other specialized: issues. The City Attorney is responsible for
planning, organizing and directing the activities of the Office, including
supervision of staff, effective communication with other City Departments,
and preparing and implementing a budget for legal services.
The City Attorney is appointed by and serves at the pleasure of the
City Council. He/She will receive policy direction from the City Council
and the City Administrator. The City Attorney generally reports to
the City Administrator or his/her designee. This person supervises
professional and clerical staff. Currently within the City Attorney's Office
are the Chief Deputy City Attorney/City Clerk and a Legal Administrative
Assistant. The City Attorney will work with the City Administrator to
determine additional staffing needs for the Department. The FY2011-2012
budget for the Office of the City Attorney.is $3.6 million. In addition, the
City's enterprise departments allocate funds for needed outside counsel.
The City Attorney will perform the following duties and such other tasks
commonly performed by a municipal attorney that may be assigned by
the City Administrator:
*Develop, plan, implement and administer City Attorney goals and
objectives, as well as policies and procedures necessary to provide
excellent legal services.
*Develop and administer the City Attorney budget, as well as monitor
and approve expenditures.
*Direct, oversee and participate in the development of a City Attorney
work plan designed to provide timely legal advice and/or documents.
*Coordinate City Attorney functions with those of other departments
and outside agencies and organizations.
*Provide staff assistance to the City Council and City Administrator,
including preparation and presentation of staff reports and correspondence.
*Recommend the selection of City Attorney office staff and, after
selection, train, motivate and evaluate staff.
*Prepare and transmit, on a timely basis, legal opinions to the City
Council, City Boards and Commissions, City Administrator and
Department Directors, as requested. -
*Develop a working knowledge of the specialized work performed by
outside counsel on matters such as electrical power generation and
transmission, review invoices submitted by outside counsel, and
provide assistance if requested by the City Administrator.
*Upon request of the City Administrator, analyze legislation affecting
the City.
*Review proposed contracts, bond and financing papers, insurance
policies and other documents affecting the City.
*Monitor the status of claims and lawsuits.
*Attend meetings of the City Council, boards, commissions and
committees as may be required, and render legal advice on
agenda items.
*Prepare or review drafts of proposed agreements, ordinances.,
resolutions and other legal documents.
*Appear before courts and administrative proceedings to represent
the City's interests, as required.
*If and when requested, perform other duties normally performed by
a chief municipal officer.
THE CANDIDATE Management Style and Personal Traits
Education and Experience
The City Attorney must have a combination of education, experience,
skill and training that provides the knowledge and abilities required to
perform all of the duties of the position.
*Requires the equivalent of a Juris Doctorate degree from an
accredited law school, a current license to practice law in the State
of California, and membership in good standing with the State Bar
of California.
*Desire at least ten years of increasingly responsible professional
experience in municipal or other government law, including trial
experience and experience with utilities, land use, public financing,
contracts, personnel and labor relations. Ideally, the selected individual
will have worked for a City with a substantial andsophisticated
industrial and/or commercial base, and will be comfortable litigating
when necessary.
*A stable employment history is important.
Prior to employment, the prospective candidate must successfully complete
a thorough background review, and may be fingerprinted by the Vernon
Police Department. A job related medical examination and drug screen
will also be required; at City expense, by a City designated physician.
Knowledge. Skills and Abilities
The City Attorney must know and understand the legal principles and
practices, including civil, criminal, constitutional and administrative law
and procedures directly relevant to the duties of the position. He/She
should be familiar with the most important legal precedents applicable
to municipal law. This person should also be very familiar with the
overall duties, powers, limitations and. authority of City government and
the City Attorney's office. In addition, he/she should have established
an extensive professional network and be familiar with the legislative
process in California.
The City Attorney must have the ability to correctly interpret, and
effectively apply, legal principles and laws that are generally applicable
to the practice of municipal law. This person must have the ability to
present legal issues and analysis in a manner that can be understood and
used by non -lawyers. He/She must also have the ability to communicate
effectively, both orally and in writing, as well as the personal skills
necessary to establish and maintain cooperative working relationships
with the City Council, City Boards and Commissions, City Administrator,
City staff, other public officials and the general public.
The ideal candidate will be someone who can properly prioritize his/her
workload, follows through, and who is detail oriented, well organized,
decisive and has a sense of urgency. He/She should be a team player
who is open and approachable; able to identify, select and motivate
subordinate staff; and can handle ambiguity. This person should be
proactive in advising the City Council. Furthermore, he/she should be
responsive, in a timely manner, to requests from the Council, City
Administrator and Department Heads. He/She must be politically astute,
hardworking, energetic and confident, with a "can do" attitude. Finally,
the City Attorney needs to be trustworthy, ethical and articulate; and
have good people skills.
COMPENSATION
The salary for this position is $252,000. In addition, benefits are
provided which include: vacation, holidays and sick leave; medical,
dental, vision and life insurance coverage paid by the City for the
employee; a City contribution of $35 per month towards auto insurance
with proof of insurance coverage; pre-tax supplemental insurance plans
offered through AFLAC and Colonial; the option of participating in a
Section 125 IRS Plan for reimbursement of dependent care and medical
costs; retirement through the California Public Employees Retirement
System (CaIPERS), with a 2.7% at 55 formula (employee pays
8% contribution); 457 deferred compensation plan available at employee
cost (City does not contribute); credit union membership available;
tuition reimbursement available to employees who satisfactorily complete
job related college courses ($2,200 per fiscal year) after successful
completion of the one year evaluation period; and an additional 5%
longevity pay increase on completion of five uninterrupted years of
service for full-time employees. The City has a 4/10 work schedule.
HOW TO APPLY
Send resumes (email preferred) by May 7, 2012 to:
ROBERTS CONSULTING GROUP INC
PO Box 16692
Beverly Hills, CA 90209
Telephone: (818) 783-7752
Facsimile: (818) 783-6377
Email: robertsrcg@msn.com
Equal Opportunity/ADA Employer
Female, Minorlty and Disabled Candidates are
Encouraged to Apply
Additional information about the
City can be found on their website at www.cityofvernon.org.
EXHIBIT B
AT -WILL EMPLOYMENT AGREEMENT
FOR VERNON CITY ATTORNEY
This AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY
("Agreement') is effective as of the 10`h day of September, 2012, by and between NICHOLAS
GEORGE RODRIGUEZ ("Rodriguez") and the CITY OF VERNON, CALIFORNIA, a
municipal corporation and charter city ("City"). The Recitals are considered a material part of
this Agreement.
I.IIMORM
(A) The City has been operating without a full time City Attorney since November, 2011,
and is desirous of filling that position with a member of the California Bar who is
qualified, capable and experienced in Municipal Law matters.
(B) During the past 18 months, and currently, the City, under the direction of the. City
Council and the current City Administrator, Mark Whitworth, has made, and
continues to make, numerous changes in its operation to ensure that its residents,
corporate citizens, and those who earn their livelihood in the City have public
employees, contractors and consultants who are committed to the values of open,
honest and fair government and responsible decision making. The City Council and
Mark Whitworth are committed to carrying out the recommendations of the
Independent Ethics Advisor as set forth in his report, dated July 29, 2011, and in his
follow-up report, dated January 12, 2012 ("Reform Efforts").
(C) The City hired an independent, professional executive recruiting organization to assist
in recruiting the most qualified candidate for the position of City Attorney. After
interviews with numerous qualified prospective candidates, City has determined that
Rodriguez is the most qualified applicant for the position.
(D) Rodriguez is ready to accept the appointment as City Attorney after a stable, two
decade career with a major Southern California city based on the following
understanding: The continued vitality of the City is essential for the welfare of its
residents, corporate citizens and also for the tens of thousands of workers who earn
their livelihood in the City. To this end, the City remains fully committed to the
values of open, honest and fair government and responsible decision making_ as
promoted by the City Council and the current City Administrator. The City remains
fully committed to carrying out the Reform Efforts, including, but without limitation,
best practices, sound administration and continued compliance with open government
laws and laws related to conflicts of interest. Rodriguez is specifically relying on the
continued tenure of the current City Administrator to provide continuity as well as
strong and ethical leadership and direction to the City toward these ends.
(E) With respect to his application for the position of City Attorney, and his
independence in assuming that position, Rodriguez states that all of the following
facts are true and accurate: A colleague at his place of employment initially called
Rodriguez' attention to the City Attorney recruitment, not anyone associated with
City. No employee, elected official or recruiter from the City contacted Rodriguez to
suggest that he apply, or to encourage or to discourage his application. Rodriguez'
first meeting and first conversation with any elected official or employee of the City,
ever, was in his formal interview for the City Attorney position, on which his
selection was based. Rodriguez' first time in the corporate limits of the City was in
that same formal interview. Rodriguez has received no offer, request or inducement to
skew or to shade his professional judgment in any particular matter that may come
before him in the role of City Attorney, or generally. Rodriguez is not aware of any
business, financial, social or professional relationship with any individual, group or
interest group in the City or elsewhere that would compromise his ability to.exercise
fair,and impartial judgment in conducting business for the City or in furthering in the
Reform Efforts.
1. APPOINTMENT
City Council hereby appoints Rodriguez as City Attorney to perform services customarily
provided by city attorneys in the State of California and as more fully described in this
Agreement.
2. SCOPE OF WORK AND DUTIES
A. Rodriguez shall perform any and all work necessary for the provision of City
Attorney services to City, including, without limitation, the following:
i. Evaluate the organization and staffing of the City Attorney's Office; and
ii. Oversee, in conjunction with the City Administrator, the multiple firms used for
outside counsel, and controlling costs related to those activities; and
iii. Assist in facilitating the Reform Efforts; and
iv. Attend City Council meetings unless excused by the City Administrator, and
other board and commission meetings upon request of the City Administrator;
and
v. Provide or secure legal advice, written legal opinions, and consultation on all
matters affecting the City to the City Council, City Administrator, boards,
commissions, committees, officers, and employees of City and as requested by
the City Council or the City Administrator in accordance with such policies and
procedures as may be established by the City from time to time; and
vi. Maintain regular office hours at City Hall and be available for personal, e-mail
and/or telephone consultation with City staff, as needed on legal matters which
are within their area of operation, as well as be on call for emergency matters
that may arise; and
vii. Prepare or cause to be prepared, review, and approve as to form all necessary
legal documents such as: ordinances and resolutions; all agreements of any
nature; all real property instruments of any nature including purchase
agreements and escrows, leases, covenants, deeds, easements and licenses;
public works construction documents including bid specifications, contracts,
bonds, insurance, liens and related documents; memoranda of understanding;
franchise agreements; and all similar documents, all as requested by the City
Council or City Administrator; and
viii. Represent and advise City on pending and potential litigation as requested by
City. Notwithstanding the foregoing, it is expressly understood that Rodriguez
is not responsible for any pending litigation matter(s) handled by attorneys
previously or otherwise employed by the City until all files have been
transferred to Rodriguez, and he has either appeared in the matter(s) as attorney
of record on behalf of City or acknowledged representation in writing. In this
regard, it is further understood that, Rodriguez will be of record and responsible
for litigation, and may call upon outside counsel as needed; and
ix. Monitor pending and current legislation and case law as appropriate; and
x. Unless otherwise directed by the City Council or agreed upon with the City
Administrator, supervise all outside legal services. This shall include, on a
schedule coordinated with the City Administrator, advertising and issuing open
Requests for Proposals to outside law firms to serve as contract attorneys for the
City.
B. Rodriguez shall keep the City informed as to the progress and status of all
pending matters in accordance with such procedures as the City may establish from time
to time. He shall manage, control and oversee the delivery of legal services in a
competent, professional, and cost-effective manner.
C. Special provision with respect to City Council elections. The City Administrator
and City Attorney shall confer no fewer than two (2) months in advance of any future city
council election, to recommend whether an independent election counsel should be
engaged to independently oversee and advise the City on issues which may arise during
the course of such upcoming election.
D. Rodriguez shall report in accord with the Vernon City Charter, its Municipal
Code, and all applicable laws and regulations, and shall coordinate his work program
with the City Administrator, especially as it relates to the Reform Efforts, in order to help
insure expeditious progress in those Reform Efforts. Nothing in this Agreement shall be
construed as requiring Rodriguez to exercise or to refrain from exercising his best
professional and ethical judgment in any particular manner or to take any action contrary
to his best professional or ethical judgment.
3. CITY DUTIES
City agrees to provide such offices, equipment, staff support, information, assistance,
cooperation, and access to books, records, and other information as is necessary for
Rodriguez to effectively render professional services under this Agreement.
4. COMPENSATION AND BENEFITS
Compensation shall be as set from time to time by Resolution of the City Council but
shall not be less than $252,000 annually, payable biweekly in 26 equal installments of
$9,692.30 less deductions for taxes, insurance, retirement benefits, voluntary
contributions, etc. In addition, Rodriguez shall be entitled to all benefits provided by the
City to executive personnel including heads of major City departments.
5. AT WILL EMPLOYEE
Rodriguez is considered an "at will" employee, and serves at the pleasure and will of the
City Council, and may be discharged without cause or reason and without notice or
hearing subject to the termination and severance procedures below.
6. TERM, TERMINATION AND SEVERANCE
A. Employment under this Agreement shall commence on September 10, 2012 and
shall remain in full force and effect until August 31, 2015.
B. Rodriguez may, at his option, terminate this Agreement in the event of a material
breach by the City. City termination, including but without limitation, constructive
termination, of the current City Administrator at any time prior to the expiration of this
Agreement shall be considered a material breach, unless this provision is waived, in
writing, by Rodriguez, in his sole discretion.
C. City may, at its option, terminate this Agreement for any reason. However, unless
the termination is due to disability, incapacity, dereliction of duty, addiction to a
controlled substance or alcohol, conviction of a crime involving moral turpitude or
involving personal gain to him, or any felony, or material breach of this Agreement by
Rodriguez, the City shall continue to compensate Rodriguez under this agreement until
such time as provided in Subsection (D) below. If termination is due to disability,
incapacity, dereliction of duty, addiction to a controlled substance or alcohol, conviction
of a crime involving moral turpitude or involving personal gain to him, or any felony, or
material breach of this Agreement by Rodriguez, then compensation shall cease on date
of termination.
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D. In the event of a material breach of this Agreement by the City or City termination
of Rodriguez except for the reasons specified in Subsection (C), of this Section,
Rodriguez shall be entitled to receive full compensation and benefits set forth in Section
4, above, until August 31, 2015, except that he shall not be entitled to receive more than
twenty four (24) months of severance compensation and benefits. In making this
severance provision, the City has determined that, as a Charter City, it may set its own
severance provisions, within reason, that this provision does not unreasonably exceed the
severance limitations of 18 months set for General Law Cities, and that the severance
proposed is reasonable and serves the public purposes of providing stability for the
position, of providing disincentive for termination that might interrupt the Reform
Efforts, of providing an inducement to accept the appointment and ofsetting a cap on
any claims that might arise from termination, should it occur.
E. To be eligible for severance pay, as identified in Subsection (D), of this Section,
Rodriguez shall sign an acknowledge and release of all claims against the City relating to
his termination.
F. At termination, or on expiration of this Agreement in the normal course,
Rodriguez shall be paid for all earned, but unused, vacation time.
7. CONFLICTS
Rodriguez has no present or contemplated employment which is adverse to the City, and
he shall not accept legal work, other than that performed pursuant to this Agreement,
without the prior written consent of the City Administrator.
8. INTEGRATED AGREEMENT; AMENDMENT
This Agreement contains all of the agreements of the parties and cannot be amended or
modified, except by written agreement. No prior oral or written understanding shall be of
any force or effect with respect to those matters covered in this Agreement. This
Agreement may be amended at any time by the mutual consent of the parties by an
instrument in writing.
9. ASSIGNMENT.
This Agreement is not assignable by either the City or Rodriguez.
10. SEVERABILITY.
In the event that any provision of this Agreement is finally held or determined to be
illegal or void by a court having jurisdiction over the parties, the remainder of this
Agreement shall remain in full force and effect unless the parts found to be void are
wholly inseparable from the remaining portions of the Agreement.
11. EFFECT OF WAIVER.
The failure of either party to insist on strict compliance with any of the terms, covenants,
or conditions in this Agreement by the other party shall not be deemed a waiver of that
term, covenant or condition, nor shall any waiver or relinquishment of any right or power
at any one time or times be deemed a waiver or relinquishment of that right or power for
all or any other time or times.
12. JURISDICTION.
Any action to interpret or enforce the terms of this Agreement shall be held. exclusively in
a state court in Los Angeles County, California. Employee expressly waives any right to
remove any such action from Los Angeles County.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the City.
City of Vernon, a California charter City
and California municipal corporation
0
Mayor / Mayor Pro-Tem
ATTEST:
Willard G. Yamaguchi, City Clerk
APPROVED AS TO FORM:
Willard G. Yamaguchi,
Chief Deputy City Attorney
L-A
Name: Nicholas George Rodriguez
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
August 9, 2012
VIA U.S. MAIL
Nicholas G. Rodriguez, Esq.
Re: At -Will Employment Agreement for Vernon City Attorney
Dear Mr. Rodriguez:
Enclosed please find two duplicate originals of the
aforementioned Agreement, which need to be signed and returned
to the City, to the attention of Eva Muro, City Attorney
Department, as soon as possible.
Once the originals are executed by the City, one fully executed
original will be returned to you for your files.
Si rely,
WILLARD G. YA AG CHI
Chief Deputy y Attorney
WY:em
Enclosures
Cc: City Clerk (w/o encls.) (Resolution No. 2012-148)
Ezcfusivefy Industrial
OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
August 16, 2012
Nicholas G. Rodriguez, Esq.
Re: City Attorney Employment Agreement
Dear Mr. Rodriguez:
Transmitted herewith is a fully executed original agreement as referenced above, approved by
City Council through Resolution No. 2012-148 on August 7, 2012.
If you have any questions regarding this matter, please call Mark Whitworth at (323) 583-88i.1
ext. 398.
L
IJez
Records Management Assistant
c: Raquel Franco
Karina Rueda
Martha Valenzuela
Mark Whitworth
Resolution No. 2012-148
Agreement File No. 12-082
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AT -WILL EMPLOYMENT AGREEMENT
FOR VERNON CITY ATTORNEY
This AT -WILL EMPLOYMENT AGREEMENT FOR VERNON CITY ATTORNEY
("Agreement') is effective as of the 10`h day of September, 2012, by and between NICHOLAS
GEORGE RODRIGUEZ ("Rodriguez") and the CITY OF VERNON, CALIFORNIA, a
municipal corporation and charter city ("City"). The Recitals are considered a material part of
this Agreement.
RECITALS
(A) The City has been operating without a full time City Attorney since November, 2011,
and is desirous of filling that position with a member of the California Bar who is
qualified, capable and experienced in Municipal Law matters.
(B) During the past 18 months, and currently, the City, under the direction of the City
Council and the current City Administrator, Mark Whitworth, has made, and
continues to make, numerous changes in its operation to ensure that its residents,
corporate citizens, and those who earn their livelihood in the City have public
employees, contractors and consultants who are committed to the values of open,
honest and fair government and responsible decision making. The City Council and
Mark Whitworth are committed to carrying out the recommendations of the
Independent Ethics Advisor as set forth in his report, dated July 29, 2011, and in his
follow-up report, dated January 12, 2012 ("Reform Efforts").
(C) The City hired an independent, professional executive recruiting organization to assist
in recruiting the most qualified candidate for the position of City Attorney. After
interviews with numerous qualified prospective candidates, City has determined that
Rodriguez is the most qualified applicant for the position.
(D) Rodriguez is ready to accept the appointment as City Attorney after a stable, two
decade career with a major Southern California city based on the following
understanding: The continued vitality of the City is essential for the welfare of its
residents, corporate citizens and also for the tens of thousands of workers who earn
their livelihood in the City. To this end, the City remains fully committed to the
values of open, honest and fair government and responsible decision making as
promoted by the City Council and the current City Administrator. The City remains
fully committed to carrying out the Reform Efforts, including, but without limitation,
best practices, sound administration and continued compliance with open government
laws and laws related to conflicts of interest. Rodriguez is specifically relying on the
continued tenure of the current City Administrator to provide continuity as well as
strong and ethical leadership and direction to the City toward these ends.
(E) With respect to his application for the position of City Attorney, and his
independence in assuming that position, Rodriguez states that all of the following
facts are true and accurate: A colleague at his place of employment initially called
Rodriguez' attention to the City Attorney recruitment, not anyone associated with
City. No employee, elected official or recruiter from the City contacted Rodriguez to
suggest that he apply, or to encourage or to discourage his application: Rodriguez'
first meeting and first conversation with any elected official or employee of the City,
ever, was in his formal interview for the City Attorney position, on which his
selection was based. Rodriguez' first time in the corporate limits of the City was in
that same formal interview. Rodriguez has received no offer, request or inducement to
skew or to shade his professional judgment in any particular matter that may come
before him in the role of City Attorney, or generally. Rodriguez is not aware of any
business, financial, social or professional relationship with any individual, group or
interest group in the City or elsewhere that would compromise his ability to exercise
fair and impartial judgment in conducting business for the City or in furthering in the
Reform Efforts.
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City Council hereby appoints Rodriguez as City Attorney to perform services customarily
provided by city attorneys in the State of California and as more fully described in this
Agreement.
2. SCOPE OF WORK AND DUTIES
A. Rodriguez shall perform any and all work necessary for the provision of City
Attorney services to City, including, without limitation, the following:
i. Evaluate the organization and staffing of the City Attorney's Office; and
ii. Oversee, in conjunction with the City Administrator, the multiple firms used for
outside counsel, and controlling costs related to those activities; and
iii. Assist in facilitating the Reform Efforts; and
iv. Attend City Council meetings unless excused by the City Administrator, and
other board and commission meetings upon request of the City Administrator;
and
v. Provide or secure legal advice, written legal opinions, and consultation on all
matters affecting the City to the City Council, City Administrator, boards,
commissions, committees, officers, and employees of City and as requested by
the City Council or the City Administrator in accordance with such policies and
procedures as may be established by the City from time to time; and
vi. Maintain regular office hours at City Hall and be available for personal, e-mail
and/or telephone consultation with City staff, as needed on legal matters which
are within their area of operation, as well as be on call for emergency matters
that may arise; and
vii. Prepare or cause to be prepared, review, and approve as to form all necessary
legal documents such as: ordinances and resolutions; all agreements of any
nature; all real property instruments of any nature including purchase
agreements and escrows, leases, covenants, deeds, easements and licenses;
public works construction documents including bid specifications, contracts,
bonds, insurance, liens and related documents; memoranda of understanding;
franchise agreements; and all similar documents, all as requested by the City
Council or City Administrator; and
viii. Represent and advise City on pending and potential litigation as requested by
City. Notwithstanding the foregoing, it is expressly understood that Rodriguez
is not responsible for any pending litigation matter(s) handled by attorneys
previously or otherwise employed by the City until all files have been
transferred to Rodriguez, and he has either appeared in the matter(s) as attorney
of record on behalf of City or acknowledged representation in writing. In this
regard, it is further understood that, Rodriguez will be of record and responsible
for litigation, and may call upon outside counsel as needed; and
ix. Monitor pending and current legislation and case law as appropriate; and
x. Unless otherwise directed by the City Council or agreed upon with the City
Administrator, supervise all outside legal services. This shall include, on a
schedule coordinated with the City Administrator, advertising and issuing open
Requests for Proposals to outside law firms to serve as contract attorneys for the
City.
B. Rodriguez shall keep the City informed as to the progress and status of all
pending matters in accordance with such procedures as the City may establish from time
to time. He shall manage, control and oversee the delivery of legal services in a
competent, professional, and cost-effective manner.
C. Special provision with respect to City Council elections. The City Administrator
and City Attorney shall confer no fewer than two (2) months in advance of any future city
council election, to recommend whether an independent election counsel should be
engaged to independently oversee and advise the City on issues which may arise during
the course of such upcoming election.
D. Rodriguez shall report in accord with the Vernon City Charter, its Municipal
Code, and all applicable laws and regulations, and shall. coordinate his work program
with the City Administrator, especially as it relates to the Reform Efforts, in order to help
insure expeditious progress in those Reform Efforts. Nothing in this Agreement shall be
construed as requiring Rodriguez to exercise or to refrain from exercising his best
professional and ethical judgment in any particular manner or to take any action contrary
to his best professional or ethical judgment.
3. CITY DUTIES
City agrees to provide such offices, equipment, staff support, information, assistance,
cooperation, and access to books, records, and other information as is necessary for
Rodriguez to effectively render professional services under this Agreement.
4. COMPENSATION AND BENEFITS
Compensation shall be as set from time to time by Resolution of the City Council but
shall not be less than $252,000 annually, payable biweekly in 26 equal installments of
$9,692.30 less deductions for taxes, insurance, retirement benefits, voluntary
contributions, etc. In addition, Rodriguez shall be entitled to all benefits provided by the
City to executive personnel including heads of major City departments.
5. AT WILL EMPLOYEE
Rodriguez is considered an "at will" employee, and serves at the pleasure and will of the
City Council, and may be discharged without cause or reason and without notice or
hearing subject to the termination and severance procedures below.
6. TERM, TERMINATION AND SEVERANCE
A. Employment under this Agreement shall commence on September 10, 2012 and
shall remain in full force and effect until August 31, 2015.
B. Rodriguez may, at his option, terminate this Agreement in the event of a material
breach by the City. City termination, including but without limitation, constructive
termination, of the current City Administrator at any time prior to the expiration of this
Agreement shall be considered a material breach, unless this provision is waived, in
writing, by Rodriguez, in his sole discretion.
C. City may, at its option, terminate this Agreement for any reason. However, unless
the termination is due to disability, incapacity, dereliction of duty, addiction to a
controlled substance or alcohol, conviction of a crime involving moral turpitude or
involving personal gain to him, or any felony, or material breach of this Agreement by
Rodriguez, the City shall continue to compensate Rodriguez under this agreement until
such time as provided in Subsection (D) below. If termination is due to disability,
incapacity, dereliction of duty, addiction to a controlled substance or alcohol, conviction
of a crime involving moral turpitude or involving personal gain to him, or any felony, or
material breach of this Agreement by Rodriguez, then compensation shall cease on date
of termination.
D. In the event of a material breach of this Agreement by the City or City termination
of Rodriguez except for the reasons specified in Subsection (C), of this Section,
Rodriguez shall be entitled to receive full compensation and benefits set forth in Section
4, above, until August 31, 2015, except that he shall not be entitled to receive more than
twenty four (24) months of severance compensation and benefits. In making this
severance provision, the City has determined that, as a Charter City, it may set its own
severance provisions, within reason, that this provision does not unreasonably exceed the
severance limitations of 18 months set for General Law Cities, and that the severance
proposed is reasonable and serves the public purposes of providing stability for the
position, of providing disincentive for termination that might interrupt the Reform
Efforts, of providing an inducement to accept the appointment and of setting a cap on
any claims that might arise from termination, should it occur.
E. To be eligible for severance pay, as identified in Subsection (D), of this Section,
Rodriguez shall sign an acknowledge and release of all claims against the City relating to
his termination.
F. At termination, or on expiration of this Agreement in the normal course,
Rodriguez shall be paid for all earned, but unused, vacation time.
7. CONFLICTS
Rodriguez has no present or contemplated employment which is adverse to the City, and
he shall not accept legal work, other than that performed pursuant to this Agreement,
without the prior written consent of the City Administrator.
8. INTEGRATED AGREEMENT; AMENDMENT
This Agreement contains all of the agreements of the parties and cannot be amended or
modified, except by written agreement. No prior oral or written understanding shall be of
any force or effect with respect to those matters covered in this Agreement. This
Agreement may be amended at any time by the mutual consent of the parties by an
instrument in writing.
9. ASSIGNMENT.
This Agreement is not assignable by either the City or Rodriguez.
10. SEVERABILITY.
In the event that any provision of this Agreement is finally held or determined to be
illegal or void by a court having jurisdiction over the parties, the remainder of this
Agreement shall remain in full force and effect unless the parts found to be void are
wholly inseparable, from the remaining portions of the Agreement.
11. EFFECT OF WAIVER.
The failure of either party to insist on strict compliance with any of the terms, covenants,
or conditions in this Agreement by the other party shall not be deemed a waiver of that
term, covenant or condition, nor shall any waiver or relinquishment of any right or power
at any one time or times be deemed a waiver or relinquishment of that right or power for
all or any other time or times.
12. JURISDICTION.
Any action to interpret or enforce the terms of this Agreement shall be held exclusively in
a state court in Los Angeles County, California. Employee expressly waives any right to
remove any such action from Los Angeles County.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the City.
s�lr�ll�,
City of Vernon, a California charter City By:
and California municipal corporation Name: Nicholas Georee Rodri¢uez
By: N
e d— �—
William.Davis, May r Pro -Tern
APPROVED AS TO FORM: 11
Deputy City
DATE: August 1, 2012
TO: Honorable City Council
FROM: Dana Reed, Legal Counsel bA/�
RE: Appointment of City Attorney and Related Employment Contract
Backeround
The office of City Attorney has been vacant since November, 2011.
As part of the City's overall reform activities, an Executive Recruiter, Mr. Norm Roberts, was
chosen to assist the City in filling this important position.
After reviewing dozens of applications, and personally interviewing the top candidates, the City
Council selected Nicholas George Rodriguez, subject to approval of an At -Will Employment
Agreement.
Mr. Rodriguez has served in the City Attorney's Office in the City of Pasadena for over twenty
years, first as a Deputy, and promoting through the years to Assistant, Senior Assistant, and his
current position of Chief Assistant. He presently serves as the primary Business Lawyer and
Elections Lawyer for the City of Pasadena and General Counsel for the Rose Bowl Operating
Company. He has extensive experience in handling legal work for the City's largest and most
complex departments, including Water and Power, Public Works, Finance, Police, Fire, and City
Clerk, and has improved the City's internal operations by standardizing the documentation for
city procurement processes and city contracts.
The At -Will Employment Agreement for Vernon City Attorney before you has been agreed to by
Mr. Rodriguez and awaits Council's approval. The document provides for a three year
engagement at the current salary of $252,000 per year plus all benefits provided to executive
personnel including heads of major departments. In the event of a material breach by the City,
Rodriguez may, at his option, leave the City's employ and shall be entitled to receive up to 24
months salary and benefits as severance pay. The termination of the current City Administrator
prior to the expiration of this agreement is deemed to be a material breach.
The above terms are recommended because the City wishes to induce a qualified attorney to
leave a long term employment situation to help make progress on Reform Efforts, among other
tasks. While there is a hope and expectation among both parties that a severance or material
breach provision would never be exercised, this particular employment situation can be
perceived as carrying a level of risk above the norm, as organizational change and Reform can be
difficult even in the best of contexts.
Therefore, in addition to inducing the candidate to come to Vernon, there is a need to create
incentives for stability in that position to help ensure stability in the Reform Efforts. As such,
there is a need to provide a disincentive to any future City Council from arbitrarily terminating
the candidate from employment. It also serves the interests of Vernon to cap any claims which
might arise from termination, should that occur, and the severance provision provides a waiver of
claims.
There is a guiding principle that public funds must be expended for an authorized public
purpose. An expenditure is made for a public purpose when its purpose is to benefit the public
interest rather than private individuals or private purposes. This agreement falls squarely within
those parameters.
In approving the proposed resolution, the City Council is being asked to determine and to find
the following: As a Charter City, Vernon may set its own reasonable severance provisions. The
24 month maximum severance pay offered does not unreasonably exceed the severance
limitations of the 18 month maximum set for General Law Cities. The severance proposed is
reasonable and serves the public purposes of providing stability for the position, of providing a
disincentive for termination that might interrupt the Reform Efforts and of providing an
inducement to accept the appointment. The severance provision also serves the public interest
by creating a cap on any claims that might arise from termination, should it occur.
Recommendation
It is recommended that the City Council approve the attached resolution appointing Nicholas
George Rodriguez as City Attorney effective September 10, 2012, and authorizing the execution
of a related employment agreement.
It is further recommended that, upon his start date, Mr. Rodriguez execute the requisite Oath or
Affirmation of Office and, for ceremonial purposes, be sworn into office at the September I8t'
City Council meeting.
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