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Trustee Training Trustee Training Richard P. Shanahan Richard P. Shanahan Bartkiewicz, Kronick & Bartkiewicz, Kronick & Shanahan Shanahan Sacramento, CA Sacramento, CA www.bkslawfirm.com www.bkslawfirm.com MVCAC Meeting MVCAC Meeting November 3, 2010 November 3, 2010 South Lake Tahoe, CA South Lake Tahoe, CA

Trustee Training

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Trustee Training. Richard P. Shanahan Bartkiewicz, Kronick & Shanahan Sacramento, CA www.bkslawfirm.com MVCAC Meeting November 3, 2010 South Lake Tahoe, CA. Topics to be covered. District Manager issues Recruitment/selection Employment Agreements Evaluation/Supervision Termination - PowerPoint PPT Presentation

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Trustee TrainingTrustee Training

Richard P. ShanahanRichard P. ShanahanBartkiewicz, Kronick & ShanahanBartkiewicz, Kronick & ShanahanSacramento, CA Sacramento, CA www.bkslawfirm.comwww.bkslawfirm.com

MVCAC MeetingMVCAC MeetingNovember 3, 2010November 3, 2010

South Lake Tahoe, CASouth Lake Tahoe, CA

Topics to be coveredTopics to be covered

District Manager issuesDistrict Manager issues– Recruitment/selectionRecruitment/selection– Employment AgreementsEmployment Agreements– Evaluation/SupervisionEvaluation/Supervision– TerminationTermination

New laws and casesNew laws and cases– Legislation, meetings, First Legislation, meetings, First

Amendment,Amendment,

Prop. 218, otherProp. 218, other

I. District Manager I. District Manager IssuesIssues

Recruitment/SelectionRecruitment/Selection

Applicable lawApplicable law– Health and Safety CodeHealth and Safety Code– Federal and state nondiscrimination laws; Federal and state nondiscrimination laws;

more don’ts than do’s, e.g., “It shall be an more don’ts than do’s, e.g., “It shall be an unlawful employment practice, unless based unlawful employment practice, unless based upon a bona fide occupational qualification, upon a bona fide occupational qualification, … for an employer, because of the race, … for an employer, because of the race, religious creed, color, national origin, religious creed, color, national origin, ancestry, physical disability, mental disability, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to sexual orientation of any person, to refuse to hire or employ….”hire or employ….”

Recruitment/SelectionRecruitment/Selection

MethodsMethods District personnel rules may govern District personnel rules may govern

the processthe process Coordinate with district counselCoordinate with district counsel Hire from within districtHire from within district Use of recruiting firmUse of recruiting firm Board subcommitteeBoard subcommittee Final decision by BoardFinal decision by Board

Written Employment Written Employment Agreement?Agreement?

Not requiredNot required May be advisableMay be advisable

Employment Status Employment Status GenerallyGenerally Public employment generally statutoryPublic employment generally statutory Governed primarily by personnel rules, Governed primarily by personnel rules,

employment handbooks, etc.employment handbooks, etc. Organized labor? Then collective Organized labor? Then collective

bargaining agreements and bargaining agreements and memoranda of understanding memoranda of understanding applicable.applicable.

Manager outside labor bargaining unitManager outside labor bargaining unit

Advantages of Written Advantages of Written AgreementAgreement May not want full personnel rules May not want full personnel rules

to applyto apply Confirm salary, benefits and other Confirm salary, benefits and other

termsterms Fix term of employmentFix term of employment Provide certain method of Provide certain method of

terminationtermination Provide for severance payProvide for severance pay Managers sometimes insistManagers sometimes insist

Employment Employment Agreement ApprovalAgreement Approval Must be approved in open Board Must be approved in open Board

meeting and reflected in minutesmeeting and reflected in minutes Agreement is a public recordAgreement is a public record

(Govt. Code § 53262)(Govt. Code § 53262)

True or false?True or false?

State law provides the process by State law provides the process by which a Manager is selected.which a Manager is selected.

Written employment agreements Written employment agreements are required for management are required for management employees.employees.

An employment agreement may An employment agreement may not be approved in closed not be approved in closed session.session.

Limits on Limits on Compensation and Compensation and BenefitsBenefits No limit on salary; wide discretion. No limit on salary; wide discretion.

But consider City of Bell.But consider City of Bell. Severance pay (Govt. Code § Severance pay (Govt. Code §

53260)53260)– Fixed employment term: monthly Fixed employment term: monthly

salary x number of remaining monthssalary x number of remaining months– Open ended contract: monthly salary Open ended contract: monthly salary

x 18 x 18

Limits on Limits on Compensation and Compensation and BenefitsBenefits

Single employee deferred compensation Single employee deferred compensation plan or supplemental retirement plan?plan or supplemental retirement plan?Probably not. Need authority. Manager Probably not. Need authority. Manager may only participate in plans provided to may only participate in plans provided to other employees.other employees.

Limits on Limits on Compensation and Compensation and BenefitsBenefits Medical, dental, life, disability Medical, dental, life, disability

plans -- must provide benefits plans -- must provide benefits “for large numbers of employees.” “for large numbers of employees.” (Govt. Code § 53202.3) (Govt. Code § 53202.3)

Other benefits?Other benefits?– Additional sick leave, vacation, Additional sick leave, vacation,

administrative leave okadministrative leave ok– Home loan okHome loan ok

Evaluation and Evaluation and SupervisionSupervision The Board is the supervisor.The Board is the supervisor. Mandatory sexual harassment Mandatory sexual harassment

training – 2 hours every 2 years.training – 2 hours every 2 years. Ongoing manager supervision Ongoing manager supervision

through Board meetings, listening through Board meetings, listening and observing, monitoring and observing, monitoring financial reports.financial reports.

Annual Manager Annual Manager EvaluationEvaluation

Recommended; not requiredRecommended; not required Informal or formalInformal or formal Written or oralWritten or oral By full Board or committee or chairBy full Board or committee or chair Single or multiple evaluation formsSingle or multiple evaluation forms Should be documentedShould be documented May be done in closed session with May be done in closed session with

or without manageror without manager

True or false?True or false?

Manager with 2 year contract. If Manager with 2 year contract. If terminated early, severance limited to terminated early, severance limited to monthly salary x 18.monthly salary x 18.

State law provides no limit on the State law provides no limit on the amount of manager salary.amount of manager salary.

A district may provide a life insurance A district may provide a life insurance policy just for its manager.policy just for its manager.

Annual evaluations are required by Annual evaluations are required by law.law.

Problem ManagerProblem Manager

Signs of problemsSigns of problems – Employees contacting trusteesEmployees contacting trustees– Many disciplinary proceedings, Many disciplinary proceedings,

grievances, and complaints of grievances, and complaints of harassment, discrimination and/or harassment, discrimination and/or retaliationretaliation

– Poor moralePoor morale– Employees leavingEmployees leaving

Board may need to become involvedBoard may need to become involved

Manager as HarasserManager as Harasser

Board must monitorBoard must monitor Harassment, Harassment,

discrimination and discrimination and retaliation complaint retaliation complaint policy – need policy – need mechanism for mechanism for employee to complain employee to complain to someone other than to someone other than the Managerthe Manager

Financial Wrongdoing Financial Wrongdoing and Mismanagementand MismanagementBoard must monitorBoard must monitor Regular financial Regular financial

statementsstatements Separate receipt and Separate receipt and

payment functionspayment functions Regular audits by CPARegular audits by CPA Competent payroll Competent payroll

managementmanagement Tightly control credit Tightly control credit

card usecard use

Employee RetaliationEmployee Retaliation

Growing employment practices Growing employment practices liability concern.liability concern.

Is there a complainant or Is there a complainant or whistleblower expressing whistleblower expressing concerns about the manager?concerns about the manager?

If yes, Board needs to protect the If yes, Board needs to protect the person from retaliation.person from retaliation.

Manager TerminationManager Termination

Need good cause? Procedures?Need good cause? Procedures?– If written agreement, follow it.If written agreement, follow it.– If not, follow the applicable personnel If not, follow the applicable personnel

rules.rules. Consider asking for resignationConsider asking for resignation Brown ActBrown Act

– Closed session okClosed session ok– But must give notice to employee if Board But must give notice to employee if Board

is to hear specific charges against the is to hear specific charges against the employee. Employee right to open employee. Employee right to open session.session.

Limits on TerminationLimits on Termination

Need good cause?Need good cause? Does the Manager have some Does the Manager have some

special status that could lead to a special status that could lead to a defense, e.g., disabled, over 40, defense, e.g., disabled, over 40, minority, complained of harassment minority, complained of harassment or discrimination, whistleblower?or discrimination, whistleblower?– Be careful about retaliation.Be careful about retaliation.

Document reason for termination?Document reason for termination?

Termination “Buy Termination “Buy Outs”Outs” Written employment agreement Written employment agreement

with severance provision – ok within with severance provision – ok within limits of Govt. Code § 53260.limits of Govt. Code § 53260.

Pre-litigation settlement: Any buy-Pre-litigation settlement: Any buy-out must be within the limits of § out must be within the limits of § 53260. (Page v. Miracosta CCD)53260. (Page v. Miracosta CCD)

Settlement of litigation: Not so Settlement of litigation: Not so limited. limited.

True or false?True or false?

There must be good cause to support There must be good cause to support the termination of a manager.the termination of a manager.

The Board may fire a manager in The Board may fire a manager in closed session.closed session.

The Board should let the manager run The Board should let the manager run the district and not discuss district the district and not discuss district business with other employees.business with other employees.

II. New laws and II. New laws and cases.cases.

Local Government Local Government SpotlightSpotlight City of BellCity of Bell Bell-inspired billsBell-inspired bills City of VernonCity of Vernon Bee: Sacramento Grand Jury Finds Bee: Sacramento Grand Jury Finds

Fault with Some Special DistrictsFault with Some Special Districts Vector control: AB 288, AB 622 & Vector control: AB 288, AB 622 &

AB 2465AB 2465

Some Atty. Gen. Some Atty. Gen. OpinionsOpinions

AG Op. No. 09-502AG Op. No. 09-502

H&S Code § 2024(a): “the term of H&S Code § 2024(a): “the term of office for a member of the board of office for a member of the board of trustees shall be for a term of two or trustees shall be for a term of two or four years, four years, at the discretion of the at the discretion of the appointing authorityappointing authority.” .”

Pending opinion request: Whether a Pending opinion request: Whether a city council may remove its appointee city council may remove its appointee to a vector control district board of to a vector control district board of trustees.trustees.

AG Op. No. 00-96AG Op. No. 00-96

Brown Act: A board cannot use e-Brown Act: A board cannot use e-mail as a substitute for a public mail as a substitute for a public board meeting, even if e-mails board meeting, even if e-mails are posted on the agency’s are posted on the agency’s website and reported at next website and reported at next meeting.meeting.

Use of e-mail for communicating Use of e-mail for communicating information is ok, but be careful.information is ok, but be careful.

E-mail GuidelinesE-mail Guidelines

Staff may inform trustees through e-mailStaff may inform trustees through e-mail Trustee may reply to staff with questionTrustee may reply to staff with question Trustee should not reply to other Trustee should not reply to other

trustees with comments, views or trustees with comments, views or questionsquestions

Be careful with reply to allBe careful with reply to all Staff should consider using BCC line to Staff should consider using BCC line to

list trustee e-mail addresseslist trustee e-mail addresses

(Govt. Code § 54952.2)(Govt. Code § 54952.2)

Disruptive AudienceDisruptive Audience

Norse v. City of Norse v. City of Santa CruzSanta Cruz

Good 9Good 9thth Circuit Circuit casecase

Norse CaseNorse Case

Norse ejected twice. He “engaged in a parade about the chambers” and directed a Nazi salute to the chair.

Board rules authorize removal of “any person who interrupts and refuses to keep quiet . . . or otherwise disrupts the proceedings of the Council.”

Ejection upheld by 9th Circuit.

Dealing with Dealing with DisruptionDisruption Have board rules that set standards Have board rules that set standards

and authorize actionand authorize action Enforce speaker time limitsEnforce speaker time limits Try admonition firstTry admonition first Consider recess. Try to avoid police.Consider recess. Try to avoid police. Focus on whether the person’s action Focus on whether the person’s action

and/or speech is disrupting the and/or speech is disrupting the meeting, and not on the content.meeting, and not on the content.

Brown Act: shall not prohibit public Brown Act: shall not prohibit public criticism of policies or actionscriticism of policies or actions

Some First Some First Amendment CasesAmendment Cases

City of Ontario v. City of Ontario v. Quon (US Sup. Ct.): Quon (US Sup. Ct.): Employee has no Employee has no privacy right privacy right regarding text regarding text messages sent messages sent during work on an during work on an employer-owned employer-owned and issued pager.and issued pager.

Kaye v. Board of Trustees of Kaye v. Board of Trustees of San Diego LibrarySan Diego Library

Librarian sent scathing e-mail Librarian sent scathing e-mail criticizing his bosses and was criticizing his bosses and was terminated. Employee sues.terminated. Employee sues.

Employee loses. No 1Employee loses. No 1stst Amendment protection when Amendment protection when public employee makes public employee makes statements pursuant to official statements pursuant to official duties.duties.

Trustee CompensationTrustee Compensation

Income to trustees. Report Income to trustees. Report through IRS Form 1099 or W-2? through IRS Form 1099 or W-2? Must use W-2.Must use W-2.

Beware of IRS auditBeware of IRS audit

True or false?True or false?

Trustees serve at the will of appointing Trustees serve at the will of appointing city/county and can be replaced any time.city/county and can be replaced any time.

A chair should never eject someone from A chair should never eject someone from a Board meeting.a Board meeting.

The Board cannot limit public criticism at The Board cannot limit public criticism at a Board meeting.a Board meeting.

Trustee compensation should be reported Trustee compensation should be reported through W-2s with appropriate through W-2s with appropriate withholding.withholding.

Some Prop. 218 CasesSome Prop. 218 Cases

Cal. Const. art. XIIIDCal. Const. art. XIIID Procedural requirements Procedural requirements

and substantive limits and substantive limits for taxes, assessments for taxes, assessments and property-related and property-related chargescharges

Assessments important Assessments important for vector controlfor vector control

Courts showing little Courts showing little deferencedeference

Town of Tiburon v. BonanderTown of Tiburon v. Bonander

Assessment for Assessment for undergrounding undergrounding utilitiesutilities

Spread based on Spread based on cost zonescost zones

Voided because Voided because assessment was assessment was allocated on cost allocated on cost not special benefitnot special benefit

Beutz v. County of RiversideBeutz v. County of Riverside

Park maintenance Park maintenance assessmentassessment

County assessment County assessment engineer report defective engineer report defective because failed to (1) because failed to (1) separate and quantify separate and quantify general benefit, and (2) general benefit, and (2) show that all SFD parcels show that all SFD parcels benefit the same benefit the same

Dahms v. Downtown Pomona Dahms v. Downtown Pomona PDIDPDID

Business Business improvement district improvement district assessment upheldassessment upheld

Discount may be ok Discount may be ok so long as others so long as others don’t pay more to don’t pay more to support discount. support discount. Must use other Must use other revenue or funds.revenue or funds.

Questions?Questions?