ATTACHMENT A

THE PROPOSED DECISION

Attachment A

BEFORE THE

BOARD OF ADMINISTRATION

PUBLIC EMPLOYEES' RETIREMENT SYSTEM

STATE OF CALIFORNIA

In the Matter of the Statement of Issues of:

KAREN R.BURNHAM,

and

CITY OFOXNARD,

Respondent,

Respondent.

Case No. 2016-1204

OAH No. 2017041079

PROPOSED DECISION

This matter came before Samuel D. Reyes, Administrative Law Judge, OfficeAdministrative Hearings, in Ventura, California, on September 21,2017.

of

Kevin Kreutz, Senior Staff Attorney, represented Complainant Renee Ostrander, Cliief,Employer Account Management Division, California Public Employees' Retirement System(CalPERS). Teresa S. Renaker, Attorney at Law, represented Karen R. Burn ham(Respondent).City).

Michael Youril, Attorney at Law, represented City of Oxnard (Respondent

Respondent worked for Respondent City as the Assistant City Manager at the tirrje ofher retirement in December 2014. During the period of June 12, 2012, to May 30, 2014, sheworked as interim City Manager in accordance with the provisions of a written agreementapproved by the City Council of Respondent City (City Council). Her salary as interim CityManager was $8,804.49 every two weeks, which represented a 10 percent pay increase ovei- herAssistant City Manager salary. CalPERS did not include the 10 percent difference in sala y inthe calculation of Respondent's retirement allowance. CalPERS concluded that the $8,804.49salary was not part of an established payrate and that the additional salary, i.e., the 10 percentdifference, was not an item of special compensation because it was not awarded pursurnt awritten labor policy or agreement and it was not available to a group or class. Respondentargues that her pension should include the $8,804.49 salary because she assumed the ̂ 11 timeduties of the City Manager for the period in question and was paid pursuant to the publiclydisclosed City Manager pay schedule. CALIFORNIA PUBLIC ̂ MPLOYEES'

RETIREMENT SYSTEM

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Oral and documentary evidence was received at the hearing. The record was left openfor the submission of written closing argument. On November 13, 2017, CalPERS andRespondent Eled initial argument. On November 30, 2017, the same parties Eled rpplyargument.

Also on November 30, 2017, Respondent filed a Request for Official Notice (Request)of Defendant's Answer to Second Amended Complaint in the matter of Edmund Sotelo v. CityofOxnard, Case No. CV 13-6039 FMO (MRWx), in the United States District Court foi theCentral District of California. The Request is marked for identification as Exhibit O. Noobjection was submitted, and official notice is taken of the document.

The matter was submitted for decision on November 30,2017.

FACTUAL HNDINGS

1. Complainant filed the Statement of Issues in her official capacity.

2. Respondent City contracts with CalPERS for retirement benefits for elidbleemployees pursuant to the Public Employees' Retirement Law (PERL), Government Code'section 20000 et seq.

3. Respondent was employed by Respondent City as its Assistant City Manager.By virtue of her employment. Respondent is a local miscellaneous member of CalPERS.

4. Respondent started working for Respondent City in November 1978, and retiredeffective December 2,2014.

5. As the Assistant City Manager, Respondent was responsible for the day-tooperations of Respondent City. Directors of Respondent City's 13 departments reported to

•dayher.

She reported to the City Manager, who was responsible for interacting with the City Counciland for broadly overseeing implementation of policy, leaving the operational details toAssistant City Manager.

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6. On June 12,2012, the City Council placed the City Manager, Ed Sotelo (Sotslo),on administrative leave.^ On June 12, 2012, the City Council appointed Respondent to assumethe duties and responsibilities of the City Manager. After her appointment. Respondent workedon a full-time basis as the interim City Manager. She attended all City Council meetings, andmet with the Mayor and the City Council in the development and implementation of policy.

All further statutory references are to the Government Code.

^ Sotelo was not formally discharged, and his employment contract was simply alldwedto expire. As set forth in Exhibit O, Sotelo remained on paid administrative leave until theexpiration of his contract in Febmary 2013.

She moved to the City Manager's office. She did not continue to discharge her duties asAssistant City Manager. The position of Assistant City Manager remained vacant, andRespondent assigned the duties of the position, with the exception of labor-managementnegotiations which she subcontracted to a private law firm, to two Deputy City Managers, oi^eof whom was a Special Assistant who was promoted due to the increase in responsibilities.^,

7. a. Subsequent to her appointment. Respondent and Respondent City enteredinto a contract to formalize her new duties and title. On June 12, 2012, the parties entered intoan "Agreement Between City of Oxnard and Karen R. Bumham Regarding Her Interi^Appointment to the Position of City Manager" (Agreement).

b. Section 1 of the Agreement, entitled "Duties; Exclusive Employment,provided, in pertinent part: "[Respondent] has been appointed to the position of Interim Cii yManager, the purpose of which is to perform the duties and functions of the *City Manager'specified in [Respondent City's] Municipal Code, applicable City resolutions normallyassociated with the position of City Manager and within the meaning of Government Code §[sic] 34851-34S59. In this capacity, [Respondent] will perform any other legally permissiband proper duties and functions as the City Council may from time-to-time [sic] assign.(Exh. A, at p. 41.)

c. Under section 2 of the Agreement, Respondent was to fulfill the positionfrom February 7,2012, until a new City Manager was appointed. Respondent was permitted toapply for the permanent City Manager position, and, "If [Respondent] is not selected as Ci yManager, she will automatically return to her former position as Assistant City Manager and hsrcompensation and benefit package will revert to that she had received prior to her appointmentas Interim City Manager, including but not limited to, her original anniversary date f>revaluation purposes." (Ibid.) Respondent could also retum to her Assistant City Manager jobby giving the City Council 15 business days' notice.

d. The Agreement included a biweekly salary of $8,804.49, whichconstituted a 10 percent salary increase from Respondent's salary as Assistant City ManagiSection 4 (Interim Salary Adjustment) of the Agreement stated: "During [Respondent]'s tenias Interim City Manager, the [Respondent City] shall pay to [Respondent], for all hbremployment, work and services rendered to the [Respondent City] a salary of $8804.49 per payperiod payable in the normal payroll installments at the same time as other managementemployees of [Respondent City] are paid. Said salary increase is retroactive to the 7"' ofFebruary, 2012. The City Council may increase the salary at any time during the term of thisagreement. Upon the end of her tenure, and if [Respondent] returns to her former positicn,[Respondent City] shall pay to her a salary as Assistant City Manager equal to what she h id

1uL.

^ Complainant's argument that the 10 percent pay increase was a pay raise intendedencourage Respondent to take on the additional duties of the interim City Manager positionunsupported by the credible evidence and is unpersuasive. Rather, the record evidence clearlyestablishes that Respondent performed the duties of only one position. City Manager, during tpeperiod of June 12,2012, to May 30,2014.

been earning immediately prior to the entering of this Agreement, as adjusted to include anymerit increases beginning February 2012 made for her past performance as Assistant CityManager, and to be payable in the normal payroll installments." (Exh. A, at p. 42.)

e. Respondent was to continue to receive the same executive benefits shereceived as Assistant City Manager. "All provisions of [Respondent Cityj's rules arregulations relating to retirement and pension system contributions, holidays and other fringebenefits and working conditions as they now exist or hereafter may be amended, also shallapply to [Respondent] as they would to other executive management employees of [RespondentCity].'? (Exh. A, at pp. 42-43.)

8. Approval of the Agreement was placed on the City Council's June 19, 2012public meeting agenda. The financial impact of the Agreement was noted in the agenda iten,and the Agreement was available for public review. Opportunity for public comment wprovided at the meeting, and comments were received. The Agreement was approved by theCity Council in closed session after the public comment portion of the meeting, and approval ofthe Agreement was reported in the City Council minutes.

9. The salary range for City Manager and City Attorney are typically listed as p 5r"Contract" in budget resolutions. For example, at its meeting on July 31, 2012, the CiyCouncil adopted Resolution Number 14,268, a Classification and Salary Schedule effective July1,2012, which lists the salary range for the City Manager as per "Contract." (Exh. K, at p. 4^.)A similar resolution was adopted on July 16,2013, for the 2013-2014 fiscal' year. (Exh. L.)

10. Respondent City regularly publishes and submits to CalPERS Classification andSalary Range schedules. Schedules for fiscal years 2011-2012, 2012-2013, and 2013-20x4were received in evidence. The monthly salary for the City Manager position was reported ̂ obe $23,581.88 in fiscal years 2011-2012 and 2012-2013, and $22,717.57 in fiscal year 20113-2014. The monthly salary for the Assistant City Manager position was reported to be between$13,607.47 and $18,710.27 in fiscal years 2011-2012 and 2012-2013, and between $14,015i69and 19,271.58 in fiscal year 2013-2014.

11. Respondent City does not separately identify "interim" positions in its salaryschedules, despite having made interim appointments. In addition to Respondent's interimappointment. Respondent City appointed an Interim City Attorney in 2012. City Councilminutes for July 31, 2012, show that Rob Roshanian was the Interim Public Works Director atthe time. (Exh. K, at p. 1.)

12. In the Agreement, Respondent agreed to accept a lower salary than the prior CityManager received, as she was honored to serve the city in which she grew up. However, in hernegotiations with then City Attorney Alan Holmberg (Holmberg), Respondent emphasized herdesire that her Interim City Manager service and salary count toward her pension. Holmbergassured Respondent that the City Council also wanted to ensure that the service and salarycounted toward her pension and that it would comply with pertinent rules, including approvingthe agreement in an open meeting.

13. Following adoption of the Agreement, Respondent City reported to CalPERS theincreased pay as part of Respondent's payrate. The $8,804.44'* biweeldy salary resulted in amonthly-equivalent salary of $19,076.39. Just before assuming the City Manager duties on aninterim basis, her biweekly pay had been $8,004.08 and her monthly-equivalent salary had l^een$17,342.17.

14. Starting January 2014, Respondent City reported Respondent's compensation toCalPERS as $8,004.08 in payrate earnings, and $1,416.76 in special compensation, w[iichincluded $800.41 as "Temporary Upgrade Pay." Her monthly-equivalent payrate was reportedas $17,342.17. Respondent City provided no explanation for the reporting change at the hearingor in communications with CalPERS.

15. Respondent introduced samples of her biweekly paystubs. Respondent's salaryof $8,804.44 was listed as pay for "regular hours" in pay periods following adoption ol theAgreement. (Exh. N, at p. 1.) However, in the pay stub for January 24, 2014, $8,004.08 waslisted as pay for "regular hours" and S800.41 was listed as "Temporary Upgrade" pay. (Exh. N,at p. 3.) Respondent did not notice the change at the time it was made, as total pay remaineq thesame.

16. Respondent City provides for temporary appointments and increased pa> forsuch appointments in certain circumstances. Article 5, Section B, of Respondent City'sPersonnel Rules and Regulations allows the City Manager to make temporary appointment!}, upto five months, if there is no eligibles list for a particular open position. Only if the individualsappointed on a temporary basis are subsequently appointed to the position do they receiv^ thesalary and benefits of the position.

17. In April 2014, Respondent City selected a new City Manager, and Respoi^dentreturned to her prior position as Assistant City Manager, effective May 30,2014. At its meetingon Aprh 15, 2014, the City Council approved, also at a publicly noticed meeting, anemployment agreement with its new City Manager, Greg A. Nyhoff (NyhofQ. In theagreement, which became effective June 1, 2014, Respondent City agreed to pay Nyhoff$265,000 payable in installments at the same time that other employees of Respondent Cit^ arepaid. Nyhoffs monthly equivalent salary is $22,083.33.

18. On November 12, 2014, Respondent City retroactively changed the reportedpayrate and special compensation for Respondent to CalPERS for the period of June 201^2 toDecember 2013. Previously posted biweekly payrate ($8,804.44), monthly equivalent payrate($19,076.39), and special compensation ($616.31), were changed to $8,004.08, $17,342.17, and$1,416.67, respectively. In effect, the increase in pay for working as Interim City Manager wasre-characterized from payrate to special compensation. Respondent was already recei ving$616.31 in special compensation as employer paid member pension contributions, which is not

^ Although the Agreement called for a salary of $8,804.49, Respondent City actjuallypaid Respondent $8,804.44 through December 31,2013.

at issue in this proceeding. No explanation was provided at the hearing for the retroactivjechange.

19. No significance has been attached to the unexplained compensation reportingchanges made by Respondent City personnel set forth in factual finding numbers in 14,15, and18. Neither the Agreement nor a labor policy of Respondent City made any portion of the$8,804.44 Interim City Manager pay "temporaiy upgrade pay." Rather, the Agreement calledfor a singular salary of $8,804.49, and the initial reporting by Respondent City to CalPERS wisconsistent with the intent of the parties as expressed in the Agreement and in contemporaneousdiscussions.

20. During the 2014 Thanksgiving Holiday weekend. Respondent made the decisic nto retire due to her husband's ailing health. On December 10,2014, Respondent submitted hurService Retirement Election Application, with a retirement effective date of December 2,20141

21. After receiving Respondent's retirement application, CalPERS conducted ^ninternal review of Respondent's compensation and decided to exclude the 10 percent increasepay she received for working as Interim City Manager from calculation of her retiremeiallowance. CalPERS deemed the salary paid to Respondent as not part of an establishedpayrate. It rejected the added compensation as special compensation because it was nawarded pursuant a written labor policy or agreement and it was not available to a group orclass. CalPERS asked Respondent City to reverse what it called the *'temporaiy upgrade pay"and all corresponding contributions.

22. CalPERS issued its final determination letter on June 30, 2016. Respondentthereafter filed a timely appeal.

LEGAL CONCLUSIONS

1. Respondent has the burden of proof to establish her entitlement to the retirementbenefits for which she has applied. {McCoy v. Board of Retirement (1986) 183 Cal.App.3d1044,1051).

2. A CalPERS member's retirement allowance is calculated by applying apercentage figure, based on the member's age on the date of retirement, to the member's yea rsof service and the member's "final compensation." (§§ 20037 and 21354).

3. Section 20630 defines "compensation" as remuneration paid out of fiindscontrolled by the employer in payment for the member's services performed during nonr alworking hours or for time during which the member is excused from work for specified reasons.Compensation cannot exceed compensation eamable, as defined in section 20636.

4. Section 20636 provides, in pertinent part:

"(a) * Compensation eamable* by a member means the payrate and special compensationof the member, as defined by subdivisions (b), (c), and (g), and as limited by Section 21752.5.

"(b) (1) Tayrate' means the normal monthly rate of pay or base pay of the member ])aidin cash to similarly situated members of the same group or class of employment for servicesrendered on a full-time basis during normal working hours, pursuant to publicly availableschedules. Tayrate,* for a member who is not in a group or class, means the monthly ratjs ofpay or base pay of the member, paid in cash and pursuant to publicly available pay schedules,for services rendered on a full-time basis during normal working hours, subject tolimitations of paragraph (2) of subdivision (e). [1i] * • •

the

"(c) (1) Special compensation of a member includes a payment received for specialskills, knowledge, abilities, work assignrhent, workdays or hours, or other work conditions.

"(2) Special compensation shall be limited to that which is received by a meii|iberto

If

pursuant to a labor policy or agreement or as otherwise required by state or federal lavsimilarly situated members of a group or class of employment that is in addition to payratan individual is not part of a group or class, special compensation shall be limited to that whichthe board determines is received by similarly situated members in the closest related group orclass that is in addition to payrate, subject to the limitations of paragraph (2) of subdivision (e).

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"(6) The board shall promulgate regulations that delineate more specificallyexclusively what constitutes "special compensation" as used in this section "

and

5. Section 20635 excludes overtime from the calculation of compensation eamtible.The statute specifically provides that "[i]f a member concurrently renders service in two ormore positions, one or more of which is full time, service in the part-time position ^hallconstitute overtime "

6. As directed by the Legislature in section 20636, subdivision (f), CalPERS hasaffirmatively determined certain items to constitute special compensation. California Coc^e ofRegulations (OCR), title 2, section 571, states in pertinent part:

"(a) The following list exclusively identifies and defines special compensation items formembers employed by contracting agency and school employers that must be reported toCalPERS if they are contained in a written labor policy or agreement: [^ ... [H]

X3) PREMIUM PAY

heir"Temporary Upgrade Pay - Compensation to employees who are required byemployer or governing board or body to work in an upgraded position/classification of limitedduration. [H]... [II]

"'(b) The Board has determined that all items of special compensation listed insubsection (a) are:

"(1) Contained in a written labor policy or agreement as defined at Government Codsection 20049...: [H]... [H]

"(2) Available to all members in the group or class; [H]. •. [U]

"(c) Only items listed in subsection (a) have been affirmatively determined to be specialcompensation. All items of special compensation reported to PERS will be subject to revie^for continued conformity with all of the standards list^ in subsection (b).

"(d) If an item of special compensation is not listed in subsection (a), or is out ofcompliance with any of the standards in subsection (b) as reported for an individual, then it shallnot be used to calculate final compensation for that individual.*'

7. As noted above, section 20636, subdivision (a), defines compensation"remuneration paid out of fiinds controlled by the employer in payment for the membeij'sservices performed during normal working hours," and section 20636, subdivision (b), limipthe compensation which can be counted toward calculation of a retirement allowance to what isdeemed "compensation eamable." At issue in this case is whether the entire salary paid |oRespondent for working as Interim City Manager can be considered part of compensationearnable. Compensation eamable is composed of an employee's payrate and specipiicompensation. (§20636, subd. (a).)

8. In order for a specific item of pay to be considered special cothpensation, it mustbe contained in a written labor policy or agreement as defined at section 20049. Section 20049defines a labor policy or agreement as "any written policy, agreement, memorandum ofunderstanding; legislative action of the elected or appointed body governing the employer, orany other document used by the employer to specify the payrate, special compensation, andbenefits of represented and unrepresented employees." Moreover, the item of compensationmust be available to all members in the group or class. Respondent City does not have such alabor policy or agreement covering interim appointments. The closest policy. Article 5 of tliePersonnel Rules and Regulations, set forth in factual finding 16, only applies to temporaryappointments of five months or less. Accordingly, the increase in salary above that paid to heras Assistant City Manager does not constitute special compensation to Respondent.

9. In order to determine which payrate applied to Respondent during the period ofJune 12,2012, to May 31,2014, the specific position she occupied must be defined. The parti^esdisagreed about whether Respondent was discharging the duties of the City Manager position inaddition to those of her Assistant City Manager position, whether she was discharging the dutiesof the City Manager position, or whether she was discharging the duties of a different positionentitled Interim City Manager. The record evidence clearly demonstrates that Respondent wasnot working as Assistant City Manager from June 12, 2012, to May 31, 2014, as set forth infactual finding numbers 5 through 7.

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10. Respondent City did not create a separate position entitled "Interim CityManager" as evidenced by the lack of position description or pay schedule. Rather, consistentwith its practice, Respondent City simply filled the City Manager position on an interim basis ,as plainly stated in the formal title of the Agreement: "Agreement Between City of Oxnard andKaren R. Bumham Regarding Her Interim Appointment to the Position of City Manager." Thutitle "Interim City Manager" was thus a functional working title and not a separate position orclassification. As established at the hearing. Respondent actually occupied the position of CityManager during the relevant period, albeit on an interim basis.

11. In order to qualify as part of a member's "payrate," section 20636, subdivision(b), requires the payment in question to be made "pursuant to publicly available pay schedules. 'The court construed this provision in Tamer v. California Public Employees* RetirementSystem (2016) 248 Cal.App.4th 743 (Janner). In Tanner^ a city manager received a $89,844pay increase, for a total base pay of $305,844, during the last two years of employment pursuantto an agreement with his employer. The city's human resources manager created a costestimate to explain to the mayor how the increased compensation was calculated. Although thecontract that included the $305,844 sum had been made public, the salary had not been includedin a public pay schedule.

The Tamer court concluded that a "pay schedule" is a "written or printed list, catalog, orinventory of the rate of pay of one or more employees who are members of CalPERS"(Tannery supra, 248 Cal.App.4th, at 755.) Neither the employment contract nor the costcalculation met the definition of a pay schedule. The court further concluded that its holdingwas consistent with the purpose of the statute to facilitate public disclosure of pay information,as the city manager's pay would not have been easily discernible from all the other informationin the two documents. The disclosure requirement, the court noted, was part of a bill sponsoredby CalPERS "to address the then ̂ recently uncovered, but apparently widely used, practice of'spiking' (intentional inflation) the final 'compensation' (upon which retirement benefits arebased) of employees of [Cal]PERS local contracting agencies.' [citation omitted.] . . . Thestated purpose of this part was to ensure that payrates would 'be stable and predictable amongall members of a group or class of employment' and that they would be 'publicly noticed b[v]the governing body.' [citation omitted.]" (Ibid.)

12. There is no dispute, and the evidence establishes, that the schedules set forth infactual finding number 10 meet the definition of "pay schedule" and that they were publiclydisclosed. The pay schedule listed the monthly salary for the City Manager position is$23,581.88 in fiscal years 2011-2012 and 2012-2013, and as $22,717.57 in fiscal year 2013-2014. These sums clearly establish the maximum that can be paid to a City Manager, but do notforeclose the possibility of a mutually agreed upon lower salary. In this case, Respondejntagreed to a salary that did not exceed the maximum payable to a City Manager. Not only wthe pay schedule that established the top salary payable to a City Manager publicly availabbut so was the Agreement that set forth a lower salary Respondent would receive fbrdischarging the duties of City Manager on an interim basis. Respondent was therefore paidpursuant to a publicly available pay schedule.

13. Complainant argues that the additional compensation is simply a 10 percent rais^to perform additional duties of the City Manager. However, as set forth in factual findinj;numbers 6 and 7, Respondent was in fact discharging the duties of the City Manager position ona full-time basis, as contemplated by the Agreement. In addition, the agreement listed the entir;$8,804.49 bimonthly amount as Respondent's "salary." Although the salary represented a 10percent increase from Respondent's pay as Assistant City Manager, it was not set forth in thiAgreement as a 10 percent increase on the salary of Assistant City Manager. Rather, the salarywas agreed to as the salary for serving as the Interim City Manager. The salary thus becami;part of Respondent's monthly rate of pay or base pay, and was paid to her in cash foperforming the duties of the City Manager position on a foil-time basis during normal workiphours, albeit on an interim basis. Respondent was the only City Manager exercising the foll|time duties of the position from June 12, 2012, to May 30, 2014, and she did not perform thduties of Assistant City Manager during this period.

14. Complainant cites Precedential Decision number 00-06 (Roy T. Ramirez and Cit^of India) and Decisions in case numbers 2014-0681 (Christine F. Londo and City ofWabmt),2014-0702 (Revelina Talavera and City ofChula VTsto), and 2016-0505 (Douglas A. YoimtanaCity ofMarina), (Ramirez, Londo, Talavera, and Yount, respectively), in support of his positio:that compensation for performing the added duties of another position does not constitutcompensation earnable. However, these cases are distinguishable as they involved memberwho retained their positions and performed additional duties of another position on an interimbasis. Thus, in Ramirez, the chief of police also worked as the interim city manager for six-and^one-half months before retiring. In Londo, the finance director also worked as acting citmanager for one year. In Talavera, the fiscal operations manager/comptroller assumed thiduties of the fiscal manager position for two years and two months. In Yomt, thdevelopmental services director worked as interim city manager for one year in what was callephase I. Moreover, in Yoimt CalPERS did include in the calculation of compensation eamablthe salary earned during the period of July 1, 2012, to March 24, 2013, in which the memberworked exclusively as the interim city manager (phase II). The fact that the CalPERS membersin the foregoing decisions held two positions at the same time is significant, as the additions^compensation for simultaneously performing the duties of another position on a temporary basiscan be excluded pursuant to section 20635 as overtime pay. Another material distinguishingfact in the foregoing cases was that there was no pay schedule for any of the combined, interimpositions.

15. Complainant nevertheless argues that the reasoning of the cases cited in legaconclusion number 14 applies because Respondent never "formally vacated" the position oAssistant City Manager, which remained vacant during the period of June 12,2012, to May 312014, and which was available for Respondent if she was not chosen as the permanent Cit}'Manager. This argument is unpersuasive, as none of the cited cases involved a puqjortedl}'

^ Although the Request for Official Notice that included these decisions (Exhibit 19refers to an additional one, Case number 2014-1236 (Andrew Miller and City of Monterey), thetab purporting to contain the case has, instead a "Decision" page and another copy of the Londomatter.

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vacant position and all the cases actually involved an incumbent manager who actuall]^simultaneously performed the duties of multiple positions. Moreover, the pertinent provisionsof law, cited above, require analysis of the duties actually performed, not on those potentialhtravailable for performance.

16. The evidence supported the parties' intention to include Respondent's full salaryin calculating her retirement benefits. The Agreement was a publicly disclosed memorandumof understanding between the parties. It was not entered into as an attempt to spik(;Respondent's pension, but, rather, to address legitimate needs of Respondent City. Respondentshould not be penalized for agreeing to serve in a position for less than the fiill salary publiclydisclosed for the position.

17. Accordingly, the biweekly $8,804.49 salary, equivalent to $19,076.40 per month,Respondent received while she served as Interim City Manager is part of her payrate and shouldbe included as compensation eamable in the calculation of her retirement allowance, by reasoi^of factual finding numbers 1 through 17 and legal conclusions numbers 1 through 17.

ORDER

The appeal of Respondent Karen R. Bumham is sustained.

DATED: December 14.2017

'DoeoSlgnod by:

SAMtJEI?i5?«EYES

Administrative Law JudgeOffice of Administrative Hearings

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