HomeMy WebLinkAbout05/01/2012 04E City Finance Director Contract with Cindy Epperson; Severance Compensation ('''''''.
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of: May 1, 2012
ITEM TITLE: Resolution approving the Interim City Manager's
agreement to a special employment contract term between
Cindy Epperson and the City providing for severance
compensation as part of the employment agreement,
thereby formalizing the appointment of Cindy Epperson as
the new City Finance Director.
SUBMITTED BY: Jeff Cutter, City Attorney
CONTACT Jeff Cutter /509- 575 -6030
PERSON/TELEPHONE:
SUMMARY EXPLANATION:
The Interim City Manager Michael Morales has selected Cindy Epperson to become the
City's new Finance Director and seeks the Council's approval of a reasonable severance
agreement with Ms. Epperson as represented by the terms of the Employment Agreement
attached hereto and incorporated herein by this reference. City ordinances do not presently
provide for severance terms in a City employee's employment agreement. Therefore,
approval of a severance provision requires specific City Council authorization.
Resolution X Ordinance Other
(specify)
Contract: X Mail to:
Contract Term: Amount: Expiration Date:
Insurance Required? No
Funding
Source: Phone:
APPROVED FOR C Manager
SUBMITTAL:
STAFF RECOMMENDATION:
Adopt Resolution.
BOARD /COMMISSION RECOMMENDATION:
ATTACHMENTS:
Click to download -
0 Epperson- Finance Manager Special Contract Provisions 2012
0 Employment agreement
RESOLUTION NO. R -2012-
A RESOLUTION approving the Interim City Manager's agreement to a special
employment contract term providing for severance compensation as
part of the employment agreement between Cindy Epperson and the
City thereby formalizing the appointment of Cindy Epperson as the new
City Finance Director.
WHEREAS, Cindy Epperson has been selected by Michael Morales, Interim City
Manager, to become the City's new Finance Director; and
WHEREAS, the Interim City Manager has negotiated with Cindy Epperson on the
terms of her employment with the City and has reached agreement on those terms; and
WHEREAS, the Interim City Manager finds it to be appropriate to approve a
reasonable severance agreement with Cindy Epperson as represented by the terms of the
Employment Agreement attached hereto and incorporated herein by this reference if
Ms. Epperson's position was to be terminated by the City without cause; and
WHEREAS, City ordinances do not presently provide for severance terms in a City
employee's employment agreement and therefore approval of a severance provision
requires specific City Council authorization; and
WHEREAS, in order to accommodate this severance provision Interim City Manager
Michael Morales has requested the City Council's approval of said provision; and
WHEREAS, the City Council finds it to be in the best interest of the City to approve
the severance terms set forth in the attached Finance Director Employment Agreement;
Now, Therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Interim City Manager of the City of Yakima is hereby authorized to include in the
City Finance Director's Employment Agreement the provision for severance compensation
that is part of the attached and incorporated City Finance Director Employment Agreement
between the City and Cindy Epperson, and finds the severance terms to be a reasonable
and appropriate provision of said employment agreement.
ADOPTED BY THE CITY COUNCIL this 1 day of May, 2012.
ATTEST: Micah Cawley, Mayor
City Clerk
EMPLOYMENT AGREEMENT FOR FINANCE DIRECTOR
OF THE CITY OF YAKIMA
THIS EMPLOYMENT AGREEMENT (hereafter referred to as "Agreement "), is by
and between the City of Yakima, Washington, a Washington municipal corporation (hereafter
referred to as "City "), and Cindy (hereafter referred to by name, as "Finance
Director ", or as "employee ").
WHEREAS, pursuant to RCW 35.18.060, Yakima Municipal Code
( "YMC ") 1.18.010, and Article II of the City Charter of the City of Yakima (hereafter
referred to as the "City Charter "), the City Manager of the City of Yakima desires to employ
Cindy Epperson as Finance Director of the City of Yakima; and
WHEREAS, the City desires to provide for certain benefits and compensation for the
Finance Director and to establish conditions of employment applicable to the Finance
Director; and
WHEREAS, Cindy Epperson desires to accept employment as Finance Director of the
City of Yakima under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises as set forth in this
Agreement, the parties agree as follows:
Section 1. Employment and Duties.
A. Cindy Epperson is appointed as Finance Director effective on the date provided in
Section 2 and under the terms of this Agreement, and Cindy Epperson agrees to accept
employment with the City in the position of Finance Director. The Finance Director
shall have the duties, responsibilities and powers of said office as set forth in the City
of Yakima Class Specification for Finance Director, attached as Exhibit A, as well as
those set forth under Washington law, the Yakima Municipal Code and the City
Charter. She shall perform such other legally permissible and proper duties and
functions as the City Manager shall from time to time assign. The Finance Director
shall follow the City of Yakima administrative policies and procedures. The Finance
Director agrees to perform all duties and responsibilities faithfully, industriously, and
to the best of her ability and in a professional and competent manner.
B. The Finance Director shall remain in the exclusive employ of the City and shall devote
all such time, attention, knowledge and skills necessary to faithfully perform her
duties under this Agreement. The Finance Director may, however, engage in
educational and professional activities upon receipt of approval by the City Manager,
provided that such activities shall not interfere with her primary obligation to the City
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as its Finance Director. The Finance Director shall dedicate no less than an average of
forty (40) hours per week, in the performance of her duties hereunder.
C. If the Finance Director serves on any appointed boards or elected boards of any
professional organization, or serves on any committees related to her professional
activities, in the event any monies are paid, or gifts received by the Finance Director
related to such service, such money or property shall be paid over to or delivered to
the City, unless otherwise provided by the City Manager.
Section 2. Duration of Agreement.
A. The City's employment of Cindy Epperson as the Finance Director of the City of
Yakima is effective_on April 20, 2012.
B. The Finance Director shall serve at the pleasure of the City Manager and shall be an
at -will contractual employee of the City of Yakima, and Cindy Epperson waives any
rights to a pre - termination hearing or post - termination hearing in the event of
discipline of termination. Nothing in this Agreement shall prevent, limit, or otherwise
interfere with the right of the City Manager to terminate the employment of the
Finance Director at any time, without or with cause.
C. The duration of this Agreement will be for a period of two (2) years, commencing on
April 20, 2012, and continuing until April 19, 2014; provided, however, that the
parties recognize that the Finance Director is an at -will employee whose employment
may be terminated at any time, without or with cause.
D. Extension of Agreement. In the event either party to this Agreement does not give
written notice to the other party three (3) months prior to the expiration date, this
Agreement shall be extended for two (2) years on the same terms and conditions as set
forth in this Agreement. The Agreement shall continue thereafter for two -year
periods, unless either party provides written notice to the other party three (3) months
prior to the expiration date of the current period of the Agreement. This section is
subject to the recognition of the parties that the Finance Director is an at -will
employee whose employment may be terminated at any time, without or with cause.
Section 3. Yakima Municipal Code.
The references to the Yakima Municipal Code ( "YMC ") sections in this Agreement
are to the Yakima Municipal Code as it currently exists, or as it may be amended in the future.
Section 4. Salary.
A. For the performance of services pursuant to this Agreement, the City agrees to pay the
Finance Director an annual base salary as set forth in the 2011 Master Ordinance for
pay for the Finance Director position at Step E (YMC Ordinance No. 2011 -35), which
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is $115,728.96 per year, payable in installments at the same time as other City
employees are paid.
B. After the first year of the contract, should the management employees receive pay and
compensation adjustments pursuant to YMC 2.20.115 -.116, the Finance Director will
receive the same increase pursuant to the YMC.
C. The City Manager may also increase said base salary and /or other benefits of the
Finance Director in such amounts and to such an extent as the City Manager may
determine desirable on the basis of an annual performance evaluation of the Finance
Director, subject to the approval by the City Council of the pay increase pursuant to a
modification of the Pay Master Ordinance passed by the City Council.
D. Nothing in this Section shall require the City to increase the base salary or other
benefits of the Finance Director.
E. The Finance Director acknowledges that, pursuant to the Fair Labor Standards Act
(FLSA), the Finance Director qualifies for the professional employee exemption. As
an exempt employee, the Finance Director is paid a monthly salary and is not subject
to overtime compensation.
Section 5. Performance Criteria and Evaluations.
A. At least annually, the City Manager shall meet with the Finance Director to establish
performance standards, departmental goals and criteria for a performance evaluation.
Between March 15 and April 15 each year, the City Manager shall in accordance
with the criteria previously established, review and evaluate the performance of the
employee.
B. The City Manager shall provide the employee with a written performance evaluation
and shall provide an opportunity for the employee to discuss the contents of it with the
City Manager for the purpose of advancing the overall effectiveness of the Finance
Director in her position. Such evaluation shall be in such form as the City Manager
deems appropriate and shall be made at a time between March 1 and April 30 of
each year in which this Agreement is effective.
C. The City Manager shall provide the employee with periodic written performance
evaluations a minimum of one time during her first 180 days of employment as
Finance Director.
Section 6. Dues and Subscriptions.
Pursuant to YMC 2.20.085(6), the City will pay the Finance Director's professional
dues for membership in the Government Finance Officers Association. Other appropriate
dues and subscriptions on behalf of the Finance Director will be paid by the City as approved
by the City Manager, if funds are available in the City's annual budget.
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Section 7. Professional Development.
Pursuant to YMC 2.20.085(5), and in accordance with the City's travel policy, the
City agrees to pay reasonable and customary travel and subsistence expenses for the Finance
Director's travel to and attendance at the Washington Finance Officers Association. The City
may choose to pay for the Finance Director's attendance at other seminars, conferences, and
committee meetings as deemed appropriate and approved in advance by the City Manager.
Section 8. Community Involvement.
The City recognizes the desirability of representation in and before local civic and
other organizations, and encourages the Finance Director to participate in these organizations
to foster a continuing awareness of the City's activities as well as the community's attitudes
and ideas.
Section 9. Leave.
The Finance Director shall accrue annual leave, which increases depending on length
of service, at the same accrual rate as provided for management employees in YMC 2.40.020.
Accrual of sick leave shall be as provided for management employees in YMC 2.40.030. Any
other leave, such as bereavement leave pursuant to YMC 2.40.035, shall be the same as
provided for management employees. Accrued leave cash outs may be paid at separation
pursuant to the Yakima Municipal Code provisions relating to management employees. Cash
outs for sick leave for management employees are placed in a VEBA Medical Savings
Account at retirement.
Section 10. Benefits.
The Finance Director shall receive the benefits, including longevity pay pursuant to
YMC 2.24.010, as are provided for management employees under the Yakima Municipal
Code and /or by City policy.
Section 11. Holidays.
The Finance Director is entitled to specified holidays with pay consistent with
management employees pursuant to YMC 2.40.080.
Section 12. Health, Dental, Life. and Disability Insurance.
The City of Yakima has an employee Health Care Plan. Health care coverage,
including limited vision care and limited dental insurance, is available for City employees and
their dependents for which the City cost shares. Pursuant to YMC Chapter 2.04, the Finance
Director is entitled to be covered by the City of Yakima employee Health Care Plan consistent
with City management employees. The City will provide other insurance, or the availability
for other insurance, for the Finance Director as it does for management employees.
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Section 13. Communication Equipment.
The Finance Director will receive a City- issued cell phone to be used for City business
in accordance with City policy.
Section 14. Residency.
The City Manager prefers that the Finance Director resides within the City of Yakima.
Section 15. Retirement.
Pursuant to Washington State law, the City shall contribute the percentage required by
the State of Washington of the Finance Director's monthly salary each month into the State of
Washington Public Employees' Retirement System (PERS).
Section 16. Termination by the City Manager and Severance Pay.
A. Pursuant to RCW 35.18.060, YMC 1.18.010, and Article II of the City Charter, and as
provided in this Agreement, the Finance Director shall serve at the pleasure of the City
Manager, and the City Manager may terminate this Agreement and the Finance
Director's employment with the City at any time without cause or with cause, and /or
for no reason or for any reason.
B. Should the City Manager terminate the services of the Finance Director "without
cause ", then at the next regular City payroll following such termination, and pursuant
to the provisions in YMC Chapter 2.40 relating to management employees, the City
shall pay accrued and unpaid salary and benefits earned prior to the date of
termination (including annual leave and sick leave) as calculated and provided in the
YMC Chapter 2.40 provisions relating to management employees.
C. Severance Pay. After six (6) months' continuous employment in the position of
Finance Director, and should the City Manager terminate the services of the Finance
Director "without cause ", then the employee shall be entitled to severance pay as set
forth in this Section 16C of the Agreement. If the City Manager terminates the
services of the Finance Director "without cause ", then within forty -five (45) calendar
days following the termination of the Finance Director's employment "without cause ",
the City shall pay the Finance Director a lump sum severance pay equal to the
specified number of months of her base salary as provided in the following two
sentences, as full and complete payment and satisfaction of any claims of the Finance
Director of whatsoever nature arising out of this Agreement or otherwise. After the
employee has had more than six months of continuous employment in the position of
Finance Director after April 20, 2012, the City Manager shall grant the employee three
(3) months' severance pay upon termination without cause; and after two years in the
position of Finance Director, the City Manager shall grant the employee five (5)
months' severance pay upon termination without cause by the City Manager. As
consideration for such severance payment, the Finance Director shall, prior to receipt
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thereof, execute and deliver to the City a general release of the City of Yakima, the
City Council, the City Manager, and the City's officers, agents, and employees, for all
acts and actions (whether accrued or subsequently accruing) from the beginning of
time until the date of release, said release to be prepared by the City Attorney or her
designee.
D. In the event the Finance Director is terminated for "just cause," the City shall have no
obligation to pay the amounts outlined in Section 16, Paragraph C of this Agreement.
For purposes of this Agreement, "just cause" is defined to include but is not limited to
any of the following:
1. Misfeasance, malfeasance and /or nonfeasance in performance of the Finance
Director's duties and responsibilities.
2. Conviction or a plea of guilty or no contest to a felony crime, whether or not
adjudication is withheld.
3. Conviction of a gross misdemeanor or misdemeanor involving moral turpitude.
4. Neglect of duty, including the inability or unwillingness to properly discharge
the responsibilities of office.
5. Violation of any substantive City policy, rule, or regulation, which would
subject any other City employee to termination.
6. The commission of any fraudulent act against the interest of the City.
7. The commission of any act which involves moral turpitude, or which causes
the City disrepute.
8. Violation of the City of Yakima Charter Article VI, Section 5, or violation of
Revised Code of Washington ( "RCW ") Chapter 42.23, entitled "Code of
Ethics for Municipal Officers -- Contract Interests ".
9. Any other act of a similar nature of the same or greater seriousness.
E. In the event the City Manager, at any time during the employment term, reduces the
salary or other benefits of the Finance Director, as identified herein, in a greater
percentage than an equivalent across - the -board reduction for all full -time City
management employees, or in the event the City allegedly refuses to comply with any
other material provision of this Agreement benefiting the Finance Director, the
Finance Director shall notify the City Manager in writing of the alleged violation. The
City Manager's failure to conduct any of the scheduled evaluations shall not constitute
non - compliance with a material provision of this Agreement. The City Manager shall
have forty -five (45) days from such notice within which to cure the violation;
otherwise, the Finance Director may at her option, consider such violation as
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termination "without cause" as of the date of such alleged reduction or refusal, and the
severance pay provision and other termination provisions contained herein shall
become applicable at the annual salary and benefit level in effect prior to the reduction
or refusal.
Section 17. Termination by the Finance Director.
The Finance Director may terminate this Agreement at any time by delivering to the
City Council a written notice of termination not later than sixty (60) days prior to the effective
date of the termination. If the Finance Director terminates this Agreement, then the
provisions of Section 16, Paragraph C above, shall not apply. If the Finance Director
voluntarily resigns pursuant to this Section, the City shall pay to the Finance Director all
accrued compensation due to the Finance Director up to the Finance Director's final day of
employment, and the pay out of any accumulated annual and sick leave shall be governed by
the same Yakima Municipal Code provisions and City policies as those for City management
employees. The City shall have no further financial obligation to employee pursuant to this
Agreement. This Section shall not prevent the Finance Director from collecting any money
earned as a result of participation in the City's deferred retirement program.
Section 18. Disability.
If the Finance Director becomes permanently disabled or is otherwise unable to
perform her duties because of sickness, accident, injury, mental incapacity or health for a
period of four consecutive weeks beyond any accrued leave, or beyond a period of time that
the employee is otherwise legally entitled to, the City shall have the option to terminate this
Agreement, subject to the severance pay provision outlined in Section 16, Paragraph C of this
Agreement.
Section 19. Indemnification.
A. The Finance Director shall be entitled to the benefits and subject to the responsibilities
in City of Yakima Resolution No. D -5820, entitled "Resolution providing for
indemnification against personal liability for City personnel ", and any protections
provided by State of Washington law, including RCW 4.96.041.
B. Said indemnification referred to in this Section 19 shall extend beyond the termination
of employment and the expiration of this Agreement to provide protection for any
such acts undertaken or committed in the capacity as Finance Director, regardless of
whether the notice of claim or filing of a lawsuit occurs during or following
employment with the City.
Section 20. Bonding.
The City agrees to bear the full cost of any fidelity or other bonds required of the
Finance Director under any policy, regulation, ordinance or law.
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Section 21. General Terms and Conditions.
A. If any provision, or any portion thereof, contained in this Agreement is held by a court
of competent jurisdiction to be unconstitutional, illegal, invalid or unenforceable, the
remainder of this Agreement, or portion thereof, shall not be affected and shall remain
in full force and effect.
B. The waiver by either party of a breach of any provision of this Agreement by the other
shall not operate or be construed as a waiver of any subsequent breach by that party.
C. This Agreement shall be binding upon and inure to the benefit of the heirs at law or
personal representative of Finance Director.
D. This Agreement contains the entire Agreement of the parties. It may not be changed
verbally, but only by an Agreement in writing signed by the parties.
E. Washington law shall govern this Agreement, and any litigation that may arise from
this Agreement shall be filed and litigated in Yakima, Washington.
F. Upon the Finance Director's death, the City's obligations under this Agreement shall
terminate except for:
1. Transfer of ownership of retirement funds, if any, to her designated
beneficiaries;
2. Payment of accrued leave balances as provided for management employees
under these circumstances under the Yakima Municipal Code;
3. Payment of all outstanding hospitalization, medical and dental bills in
accordance with City's insurance policies or plans, if applicable; and
4. Payment of all life insurance benefits in accordance with the City's insurance
policies or plans.
G. The parties acknowledge that each had an opportunity to review this Agreement and
consult with their attorney if they chose to do so, and, accordingly, no court construing
this Agreement shall construe it more strictly against one party that the other and
every covenant, term and provision of this Agreement shall be construed simply
according to its fair meaning.
H. This Agreement may be executed in duplicate or counterparts, each of which shall be
deemed an original and all of which together shall be deemed one and the same
instrument. No term, condition or covenant of this Agreement shall be binding on
either party until both parties have signed it.
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EXECUTED this day of April, 2012.
CITY OF YAKIMA
By:
Michael A. Morales, Interim City Manager
ATTEST:
By
City Clerk
EXECUTED this day of April, 2012.
Cindy Epperson
City Contract No.:
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