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

Topics to be covered District Manager issues District Manager issues – Recruitment/selection – Employment Agreements – Evaluation/Supervision – Termination New laws and cases New laws and cases –Legislation, meetings, First Amendment, Prop. 218, other

I. District Manager Issues

Recruitment/Selection Applicable law –Health and Safety Code –Federal and state nondiscrimination laws; more don’ts than do’s, e.g., “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, … for an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ….”

Recruitment/Selection Methods District personnel rules may govern the process District personnel rules may govern the process Coordinate with district counsel Coordinate with district counsel Hire from within district Hire from within district Use of recruiting firm Use of recruiting firm Board subcommittee Board subcommittee Final decision by Board Final decision by Board

Written Employment Agreement? Not required Not required May be advisable May be advisable

Employment Status Generally Public employment generally statutory Public employment generally statutory Governed primarily by personnel rules, employment handbooks, etc. Governed primarily by personnel rules, employment handbooks, etc. Organized labor? Then collective bargaining agreements and memoranda of understanding applicable. Organized labor? Then collective bargaining agreements and memoranda of understanding applicable. Manager outside labor bargaining unit Manager outside labor bargaining unit

Advantages of Written Agreement May not want full personnel rules to apply May not want full personnel rules to apply Confirm salary, benefits and other terms Confirm salary, benefits and other terms Fix term of employment Fix term of employment Provide certain method of termination Provide certain method of termination Provide for severance pay Provide for severance pay Managers sometimes insist Managers sometimes insist

Employment Agreement Approval Must be approved in open Board meeting and reflected in minutes Must be approved in open Board meeting and reflected in minutes Agreement is a public record Agreement is a public record (Govt. Code § 53262)

True or false? State law provides the process by which a Manager is selected. State law provides the process by which a Manager is selected. Written employment agreements are required for management employees. Written employment agreements are required for management employees. An employment agreement may not be approved in closed session. An employment agreement may not be approved in closed session.

Limits on Compensation and Benefits No limit on salary; wide discretion. But consider City of Bell. No limit on salary; wide discretion. But consider City of Bell. Severance pay (Govt. Code § 53260) Severance pay (Govt. Code § 53260) –Fixed employment term: monthly salary x number of remaining months –Open ended contract: monthly salary x 18

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

Limits on Compensation and Benefits Medical, dental, life, disability plans -- must provide benefits “for large numbers of employees.” (Govt. Code § ) Medical, dental, life, disability plans -- must provide benefits “for large numbers of employees.” (Govt. Code § ) Other benefits? Other benefits? –Additional sick leave, vacation, administrative leave ok –Home loan ok

Evaluation and Supervision The Board is the supervisor. The Board is the supervisor. Mandatory sexual harassment training – 2 hours every 2 years. Mandatory sexual harassment training – 2 hours every 2 years. Ongoing manager supervision through Board meetings, listening and observing, monitoring financial reports. Ongoing manager supervision through Board meetings, listening and observing, monitoring financial reports.

Annual Manager Evaluation Recommended; not required Recommended; not required Informal or formal Informal or formal Written or oral Written or oral By full Board or committee or chair By full Board or committee or chair Single or multiple evaluation forms Single or multiple evaluation forms Should be documented Should be documented May be done in closed session with or without manager May be done in closed session with or without manager

True or false? Manager with 2 year contract. If terminated early, severance limited to monthly salary x 18. Manager with 2 year contract. If terminated early, severance limited to monthly salary x 18. State law provides no limit on the amount of manager salary. State law provides no limit on the amount of manager salary. A district may provide a life insurance policy just for its manager. A district may provide a life insurance policy just for its manager. Annual evaluations are required by law. Annual evaluations are required by law.

Problem Manager Signs of problems Signs of problems –Employees contacting trustees –Many disciplinary proceedings, grievances, and complaints of harassment, discrimination and/or retaliation –Poor morale –Employees leaving Board may need to become involved Board may need to become involved

Manager as Harasser Board must monitor Board must monitor Harassment, discrimination and retaliation complaint policy – need mechanism for employee to complain to someone other than the Manager Harassment, discrimination and retaliation complaint policy – need mechanism for employee to complain to someone other than the Manager

Financial Wrongdoing and Mismanagement Board must monitor Regular financial statements Regular financial statements Separate receipt and payment functions Separate receipt and payment functions Regular audits by CPA Regular audits by CPA Competent payroll management Competent payroll management Tightly control credit card use Tightly control credit card use

Employee Retaliation Growing employment practices liability concern. Growing employment practices liability concern. Is there a complainant or whistleblower expressing concerns about the manager? Is there a complainant or whistleblower expressing concerns about the manager? If yes, Board needs to protect the person from retaliation. If yes, Board needs to protect the person from retaliation.

Manager Termination Need good cause? Procedures? Need good cause? Procedures? –If written agreement, follow it. –If not, follow the applicable personnel rules. Consider asking for resignation Consider asking for resignation Brown Act Brown Act –Closed session ok –But must give notice to employee if Board is to hear specific charges against the employee. Employee right to open session.

Limits on Termination Need good cause? Need good cause? Does the Manager have some special status that could lead to a defense, e.g., disabled, over 40, minority, complained of harassment or discrimination, whistleblower? Does the Manager have some special status that could lead to a defense, e.g., disabled, over 40, minority, complained of harassment or discrimination, whistleblower? –Be careful about retaliation. Document reason for termination? Document reason for termination?

Termination “Buy Outs” Written employment agreement with severance provision – ok within limits of Govt. Code § Written employment agreement with severance provision – ok within limits of Govt. Code § Pre-litigation settlement: Any buy-out must be within the limits of § (Page v. Miracosta CCD) Pre-litigation settlement: Any buy-out must be within the limits of § (Page v. Miracosta CCD) Settlement of litigation: Not so limited. Settlement of litigation: Not so limited.

True or false? There must be good cause to support the termination of a manager. There must be good cause to support the termination of a manager. The Board may fire a manager in closed session. The Board may fire a manager in closed session. The Board should let the manager run the district and not discuss district business with other employees. The Board should let the manager run the district and not discuss district business with other employees.

II. New laws and cases.

Local Government Spotlight City of Bell City of Bell Bell-inspired bills Bell-inspired bills City of Vernon City of Vernon Bee: Sacramento Grand Jury Finds Fault with Some Special Districts Bee: Sacramento Grand Jury Finds Fault with Some Special Districts Vector control: AB 288, AB 622 & AB 2465 Vector control: AB 288, AB 622 & AB 2465

Some Atty. Gen. Opinions

AG Op. No H&S Code § 2024(a): “the term of office for a member of the board of trustees shall be for a term of two or four years, at the discretion of the appointing authority.” H&S Code § 2024(a): “the term of office for a member of the board of trustees shall be for a term of two or four years, at the discretion of the appointing authority.” Pending opinion request: Whether a city council may remove its appointee to a vector control district board of trustees. Pending opinion request: Whether a city council may remove its appointee to a vector control district board of trustees.

AG Op. No Brown Act: A board cannot use as a substitute for a public board meeting, even if s are posted on the agency’s website and reported at next meeting. Brown Act: A board cannot use as a substitute for a public board meeting, even if s are posted on the agency’s website and reported at next meeting. Use of for communicating information is ok, but be careful. Use of for communicating information is ok, but be careful.

Guidelines Staff may inform trustees through Staff may inform trustees through Trustee may reply to staff with question Trustee may reply to staff with question Trustee should not reply to other trustees with comments, views or questions Trustee should not reply to other trustees with comments, views or questions Be careful with reply to all Be careful with reply to all Staff should consider using BCC line to list trustee addresses Staff should consider using BCC line to list trustee addresses (Govt. Code § )

Disruptive Audience Norse v. City of Santa Cruz Good 9 th Circuit case

Norse 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 9 th Circuit.

Dealing with Disruption Have board rules that set standards and authorize action Have board rules that set standards and authorize action Enforce speaker time limits Enforce speaker time limits Try admonition first Try admonition first Consider recess. Try to avoid police. Consider recess. Try to avoid police. Focus on whether the person’s action and/or speech is disrupting the meeting, and not on the content. Focus on whether the person’s action and/or speech is disrupting the meeting, and not on the content. Brown Act: shall not prohibit public criticism of policies or actions Brown Act: shall not prohibit public criticism of policies or actions

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

Kaye v. Board of Trustees of San Diego Library Librarian sent scathing criticizing his bosses and was terminated. Employee sues. Librarian sent scathing criticizing his bosses and was terminated. Employee sues. Employee loses. No 1 st Amendment protection when public employee makes statements pursuant to official duties. Employee loses. No 1 st Amendment protection when public employee makes statements pursuant to official duties.

Trustee Compensation Income to trustees. Report through IRS Form 1099 or W-2? Must use W-2. Income to trustees. Report through IRS Form 1099 or W-2? Must use W-2. Beware of IRS audit Beware of IRS audit

True or false? Trustees serve at the will of appointing city/county and can be replaced any time. Trustees serve at the will of appointing city/county and can be replaced any time. A chair should never eject someone from a Board meeting. A chair should never eject someone from a Board meeting. The Board cannot limit public criticism at a Board meeting. The Board cannot limit public criticism at a Board meeting. Trustee compensation should be reported through W-2s with appropriate withholding. Trustee compensation should be reported through W-2s with appropriate withholding.

Some Prop. 218 Cases Cal. Const. art. XIIID Cal. Const. art. XIIID Procedural requirements and substantive limits for taxes, assessments and property-related charges Procedural requirements and substantive limits for taxes, assessments and property-related charges Assessments important for vector control Assessments important for vector control Courts showing little deference Courts showing little deference

Town of Tiburon v. Bonander Assessment for undergrounding utilities Assessment for undergrounding utilities Spread based on cost zones Spread based on cost zones Voided because assessment was allocated on cost not special benefit Voided because assessment was allocated on cost not special benefit

Beutz v. County of Riverside Park maintenance assessment Park maintenance assessment County assessment engineer report defective because failed to (1) separate and quantify general benefit, and (2) show that all SFD parcels benefit the same County assessment engineer report defective because failed to (1) separate and quantify general benefit, and (2) show that all SFD parcels benefit the same

Dahms v. Downtown Pomona PDID Business improvement district assessment upheld Business improvement district assessment upheld Discount may be ok so long as others don’t pay more to support discount. Must use other revenue or funds. Discount may be ok so long as others don’t pay more to support discount. Must use other revenue or funds.

Questions?