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HomeMy WebLinkAboutOCSD 18-15RESOLUTION NO . OCSD 18-15 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE ORANGE COUNTY SANITATION DISTRICT APPROVING SALARY INCREASE AND SALARY RANGE ADJUSTMENT FOR THE GENERAL MANAGER FOR FISCAL YEAR 2018 TO 2019 WHEREAS, the General Manager provides organizational leadership, strategic direction, and District oversight for Orange County Sanitation District (OCSD); and WHEREAS, the General Manager serves in an at-will employment capacity, which may be terminated at any time by the Board with or without cause; and WHEREAS, it is OCSD's philosophy to compensate employee classifications competitively, which currently can be achieved through alignment with the salary market; and WHEREAS, the July 1, 2016, At-Will Agreement with the General Manager provides that, "District's Steering Committee shall meet with General Manager in August of each year during the term of this Agreement to review and evaluate his performance over the prior year. The Steering Committee shall make its recommendation(s) to the Board concerning adjustment to the compensation and/or benefits paid or provided to General Manager, to be effective in July of the year of review. After consideration of the recommendation(s) of the Steering Committee, the Board shall determine and approve the compensation, including benefits, payable to General Manager, which generally becomes effective July of the fiscal year of the review"; and WHEREAS, the Steering Committee commenced its review of the General Manager's performance in June 2018 , finalized its review and made its recommendation to the Board on August 22 , 2018 . NOW, THEREFORE, the Board of Directors of the Orange County Sanitation District, DOES HEREBY RESOLVE, DECLARE, DETERMINE , AND ORDER: 1. That the At-Will Agreement with the General Manager (Attached hereto as Exhibit 1) setting forth the terms and conditions of his employment, including a base building salary increase of five percent (5%) in the first pay period of July 2018, consisting of 2.5% salary range adjustment and 2.5% merit increase , and a salary range adjustment to the corresponding salary range, is hereby approved to be effective retroactively to the first pay period of July 2018 : 2. That the Board Chair, or his designee, is authorized to implement the changes to salary range and salary items approved herein. OCSD 18-15-1 1338105 .l PASSED AND ADOPTED at a regular meeting of the Board of Directors held August 22, 2018. ATTEST: OCSD 18-15-2 1338105.l STATE OF CALIFORNIA ) ) COUNTY OF ORANGE ) I, Kelly A. Lore, Clerk of the Board of Directors of the Orange County Sanitation District, do hereby certify that the foregoing Resolution No. OCSD 18-15 was passed and adopted at a regular meeting of said Board on the 22nd day of August 2018, by the following vote, to wit: AYES: NOES: ABSTENTIONS: ABSENT: Barnes; Beard (Alternate); Bernstein; Collacott; Deaton; Ferryman; Kim; Nagel; Nguyen; Peotter; Peterson; Sebourn; Shaw; F. Smith; Steel; Tinajero; Wagner; Warren (Alternate); Wanke; Withers; and Yarc Parker Kusumoto (Alternate) Hawkins and T. Smith IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of Orange County Sanitation District this 22nd day of August 2018. OCSD 18-15-3 1338105.1 [ Pay Grade EM37 Annual $ Monthly $ Hou riv $ Pay Grade EM37 Annual $ Monthly $ Hourly $ General Manager Salary Schedules July 2017 and Proposed July 2018 Orange County Sanitation District Classification and Compensation Plan Rates Effective July 1, 2017 GENERAL MANAGER Step 1 Step 2 Step 3 249,543 $ 262,305 $ 275,719 20,795 $ 21,859 $ 22,977 119.97 $ 126.11 $ 132.56 Orange County Sanitation District Classification and Compensation Plan PROPOSED Rates Effective July 1, 2018 GENERAL MANAGER Step 1 Step 2 Step 3 255,778 $ 268,861 $ 282,618 21,315 $ 22,405 $ 23,551 122.97 $ 129.26 $ 135.87 Step 4 Step 5 $ 289,820 $ 304,641 $ 24,152 $ 25,387 $ 139.34 $ 146.46 Step 4 Step 5 $ 297,066 $ 312,250 $ 24,755 $ 26,021 $ 142.82 $ 150.12 AT-WILL EMPLOYMENT AGREEMENT James D. Herberg General Manager ORANGE COUNTY SANITATION DISTRICT THIS AT-WILL EMPLOYMENT AGREEMENT ("Agreement") is entered into , to be effective the 1st day of July, 2018, by and between : AND ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "District"; JAMES D. HERBERG, sometimes hereinafter referred to as "General Manager"; collectively referred to herein as ("the Parties") RECITALS WHEREAS, District desires to continue to employ James D. Herberg ("Mr. Herberg"), as General Manager of District, pursuant to the terms and conditions as set forth in this Agreement ; and WHEREAS, Mr. Herberg, by virtue of his education, training and experience, is fully qualified to fill the position of General Manager and desires to continue to serve the District as its General Manager, pursuant to the terms and conditions of this Agreement; and WHEREAS, per Resolution No. OCSD 18-15 adopted on August 22, 2018 the District's Board of Directors has approved and authorized the Board Chair to execute this "At-Will Employment Agreement"to include a base building salary increase of 5% of his current salary . WHEREAS, at the beginning of negotiations of a new Employment Agreement, the parties agreed that any salary changes agreed to would take effect retroactively to the first pay 1338031.l 1 period of July 2018 , which is the first pay period in the current fiscal year . NOW, THEREFORE,lt'e Parties hereto agree as follows : Section 1: District hereby continues to employ Mr. Herberg to serve as General Manager of the Orange County Sanitation District, commencing on the effective date hereof, and continuing until termination by either Party, as provided in this Agreement. In that capacity , Mr . Herberg agrees to perform the functions and duties of General Manager, the administrative head of the District , as prescribed by the laws of the State of California, and by the rules, regulations, decisions , and directions of the Board of Directors of District (hereinafter referred to as "Board "). The General Manager's duties may involve expenditures of time in excess of the regularly established workday or in excess of a forty-hour work week and may also include time outside normal office hours (including attendance at Board and Committee meetings). General Manager is classified as an exempt employee under the Fair Labor Standards Act ("FLSA") and shall not be entitled to any additional compensation for hours worked in excess of forty in a work week . Sectjon 2: Mr . Herberg shall be employed in an "at-will" capacity serving at the sole pleasure of the Board . Either party to this Agreement may terminate the Agreement at any time for any reason with or without cause, and without hearing, upon 30 days' notice to the other party. Mr. Herberg is advised and acknowledges that he has none of the termination rights of a Regular employee of the District. Except as expressly provided herein , and as a condition of employment, Mr. Herberg knowingly, willingly and voluntarily gives up , waives , and disclaims any and all rights he may have, express or implied, to any notice and/or hearing before or after termination, and/or to any continued employment with the District after termination . As an "at-will" employee, Mr. Herberg understands that he may be subject to termination with or without cause at the sole discretion of the Board , notwithstanding that the other provisions of the District's Personnel Policies and Procedures Manual (hereinafter referred to as "Manual") apply to Mr. Herberg . If the District terminates employment without cause, Mr. Herberg shall be given a thirty (30) day Notice of Termination and severance pay in an amount equal to six (6) months of his then current annual base salary upon Mr. Herberg's execution of a valid written release of legal claims . If the District terminates this Agreement (thereby terminating Mr. Herberg's employment) without cause, and Mr. Herberg executes a valid written release of legal claims, the severance pay is considered a cash settlement related to the termination of Mr. Herberg and waiver of legal claims and shall be fully reimbursed to the District by Mr . Herberg if Mr. Herberg is convicted of a crime involving an abuse of his office or position. Abuse of office or position shall have the meaning set forth in 133803 1.1 2 Government Code 53243.4, as may be amended, of either (1) an abuse of public authority, including, but not limited to, waste, fraud and violation of the law under color of authority, or (2) a crime against public justice, including, but, not limited to, a crime described in Title 7 (commencing with Section 92 of Part 1 of the Penal Code). Mr. Herberg shall reimburse such severance pay to the District no later than six (6) months after such conviction. If Mr. Herberg terminates his employment with 30 days' notice, the Board shall have the right to accept his resignation effective the date notice is given. Such decision to accept his resignation earlier shall not be considered a termination without cause and shall not entitle Mr. Herberg to receive the severance pay noted above. Section 3: The term of this Agreement shall commence on the effective date above and continue for an indefinite duration, until terminated by either Party pursuant to Section 2 above, or unless terminated or amended as provided herein. Section 4: As compensation for the services to be performed hereunder, upon the effective date of this Agreement, District agrees to pay General Manager an annual base salary for services rendered of two hundred ninety thousand, two hundred twenty-two dollars ($290,222), subject to all applicable deductions and withholdings of any and all sums required by then current state, federal or local law, along with deductions of applicable sums the General Manager is obligated to pay because of participation in plans and programs described in this Agreement, and paid biweekly in accordance with the District's established accounting and payroll practices at the same time and in the same manner as other employees of the District. No increase in salary may exceed the compensation permitted by the applicable salary range for the classification established by duly adopted Resolution of the Board. Section 5: For the period of this Agreement, District shall provide Mr. Herberg w~h a fixed benefit package that includes the following: 1338031.1 • Personal Leave -accrued based on years of service for all paid hours, including hours actually worked and hours in a paid-leave payroll status, on a biweekly basis in accordance with the Manual. Personal leave accruals shall not exceed four hundred forty (440) hours as of December 31 of each year. Any hours in excess of said limit, will be paid to Mr. Herberg in January in an amount equal to the hourly rate of compensation. • Administrative Leave -40 hours per fiscal year, granted and not eligible for annual cash out. • Investment Incentive Salary (llS) -6% of base salary applied on a biweekly fiscal year basis, and a flat amount of one thousand two hundred fifty dollars ($1,250) annually. 3 • Deferred Compensation -OCSD-paid annual allocation for 2018 of $11,000 allocated on a biweekly calendar year basis. • Car Allowance -OCSD-paid annual allocation of $8,400. • Added Medical Allowance -OCSD-paid annual allocation for 2018 of six thousand dollars ($6,000). Mr. Herberg's benefit package shall also include benefits consistent with the Manual for: holiday pay; medical, dental, vision and life insurance at three times base salary; long-term and short-term disability insurance; and employee assistance program. Additionally, Mr. Herberg's benefit package shall include executive disability insurance benefits, consistent with those provided to OCSD managers. These benefits shall remain in full force and effect unless and until replaced by an amendment to this Agreement, signed by Mr. Herberg and approved by the Board, which amendment shall include the effective date thereof. Sectjon 6: District's Steering Committee shall meet with General Manager in August of each year during the term of this Agreement to review and evaluate his performance over the prior year. The Steering Committee shall make its recommendation(s) to the Board concerning adjustment to the compensation and/or benefits paid or provided to General Manager, to be effective in July of the year of review. After consideration of the recommendation(s) of the Steering Committee, the Board shall determine and approve the compensation, including benefits, payable to General Manager, which generally becomes effective July of the fiscal year of the review. Failure of the District to review and evaluate the performance of the General Manager pursuant to this section shall not affect the right of the District to terminate the General Manager's employment and shall not be considered a breach of this Agreement. Section 7: Mr. Herberg shall be a Participant Member in the Orange County Employees Retirement System ("OCERS"). District shall pay the required employer's contribution and 0% of Mr. Herberg's required contribution towards membership in OCERS. Section 8: District shall reimburse General Manager for all expenses paid by him and incurred for non-personal, job-related District business that are reasonably necessary to the General Manager's service to the District. The District agrees to either pay such expenses in advance or to reimburse the expenses, so long as the expenses are incurred and submitted according to the criteria established by District's budget and/or normal expense reimbursement procedures pursuant to applicable policy Resolutions. To be eligible for reimbursement, all expenses must be supported by documentation meeting the District's policies and requirements and must be submitted within time limits established by the District. Such reimbursement shall 1338031.1 4 not be considered a benefit. Sectjon 9: During the period of this Agreement, it is agreed that General Manager shall devote his fulltime , skills, labor and attention to said employment. At no time may General Manager undertake outside activities consisting of consultant work, speaking engagements, writing, lecturing, or other similar professional activities for money or other consideration without prior approval of District 's Steering Committee. However, the expenditure of reasonable amount of time for educational , charitable , or professional activities shall not be deemed a breach of this Agreement if those activities do not conflict or materially interfere with the services required under this Agreement, and shall not require the prior written consent of the Steering Committee. This Agreement shall not be interpreted to prohibit General Manager from making passive personal investments or conducting private business affairs , provided those activities are not deemed to be a conflict of interest by state law nor do they conflict or materially interfere with the services required under this Agreement. Sectjon 10: The Board has the sole discretion to determine whether the District shall pay General Manager pending an investigation into any alleged misconduct by General Manager. In the event that the District's Board determines , in its sole discretion, that it is in the best interest of the District for General Manager to be placed on paid administrative leave pending such an investigation , General Manager shall fully reimburse any salary provided for that purpose ff the misconduct for which the General Manager was under investigation results in the General Manager being convicted of a crime involving an abuse of his office or position as defined in Section 2 of this Agreement. General Manager shall reimburse such salary to the District no later than six months after such conviction . Section 11: In the event that the District provides funds for the legal criminal defense of General Manager, General Manager shall fully reimburse said funds to the District if the General Manager is convicted of a crime involving an abuse of his/her office or pos ition as defined in Section 2 of this Agreement. General Manager shall reimburse such criminal legal defense fees to the District no later than six months after such conviction . Section 12: The terms and conditions of employment for General Manager, including other employment benefits for the General Manager that are not specifically provided for in this Agreement, shall be governed by the Manual , to the extent that amendments to the Manual made after the effective date of this Agreement are not inconsistent with the provisions of this Agreement. In the event of any such inconsistency or conflict, the provisions of this Agreement 1338031.1 5 shall govern. Sectjon 13: This Agreement supersedes any and all other prior agreements, either oral or in writing, between the Parties hereto with respect to the employment of Mr. Herberg by District, and contains all of the covenants and agreements between the Parties with respect to that employment in any manner whatsoever. Each Party to this Agreement acknowledges that no representation, inducement, promise, or agreement, orally or otherwise, has been made by any Party, or anyone acting on behalf of any Party, which is not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement or Employment shall be valid or binding on e~her Party. Sectjon 14: Any notices to be given hereunder by e~her Party to the other shall be in writing and may be transmitted by personal delivery, or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed to the Parties at the addresses maintained in the personnel records of District, but each Party may change that address by written notice in accordance with this Section. Notices delivered personally shall be deemed communicated as of the date of actual receipt; mailed notices shall be deemed communicated as of the date of mailing . Section 15: Any modifications of this Agreement will be effective only if set forth in writing and signed by the Parties. Sectjon 16: The failure of either Party to insist on strict compliance with any of the terms, covenants, or conditions of 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 times . Sectjon 17: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. Sectjon 18: This Agreement shall be governed by and construed in accordance with the laws of the State of California and all applicable ordinances, policies and resolutions. Sectjon 19: General Manager acknowledges that he has had the opportunity and has conducted an independent review of the financial and legal effects of this Agreement. General Manager acknowledges that he has made an independent judgment upon the financial and legal effects of the Agreement and has not relied upon representation of the District, its elected l 338031. l 6 or appointed officers and officials, agents or employees other than those expressly set forth in this Agreement. General Manager acknowledges that he has been advised to obtain , and has availed himself of, legal advice with respect to the terms and provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this At-Will Employment Agreement as follows . APPROVED AS TO FORM: BRADLEY R. HOGIN GENERAL COUNSEL 1338031.1 "DISTRICT" ORANGE COUNTY SANITATION DISTRICT "GENERAL MANAGER" By: / ~Ja ~--u-~t6 Date "CHAIR, BOARD OF DIRECTORS" By : 7