Trustee Training

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

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

3. I. District Manager Issues

4. 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….”

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

6. Written Employment Agreement? • Not required • May be advisable

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

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

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

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

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

12. 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.

13. Limits on Compensation and Benefits • Medical, dental, life, disability plans -- must provide benefits “for large numbers of employees.” (Govt. Code § 53202.3) • Other benefits? • Additional sick leave, vacation, administrative leave ok • Home loan ok

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

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

16. True or false? • 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. • A district may provide a life insurance policy just for its manager. • Annual evaluations are required by law.

17. Problem Manager • 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

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

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

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

21. Manager Termination • Need good cause? Procedures? • If written agreement, follow it. • If not, follow the applicable personnel rules. • Consider asking for resignation • 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.

22. Limits on Termination • 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? • Be careful about retaliation. • Document reason for termination?

23. Termination “Buy Outs” • Written employment agreement with severance provision – ok within limits of Govt. Code § 53260. • Pre-litigation settlement: Any buy-out must be within the limits of § 53260. (Page v. Miracosta CCD) • Settlement of litigation: Not so limited.

24. True or false? • There must be good cause to support the termination of a manager. • 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.

25. II. New laws and cases.

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

27. Some Atty. Gen. Opinions

28. AG Op. No. 09-502 • 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.

29. AG Op. No. 00-96 • Brown Act: A board cannot use e-mail as a substitute for a public board meeting, even if e-mails are posted on the agency’s website and reported at next meeting. • Use of e-mail for communicating information is ok, but be careful.

30. E-mail Guidelines • Staff may inform trustees through e-mail • Trustee may reply to staff with question • Trustee should not reply to other trustees with comments, views or questions • Be careful with reply to all • Staff should consider using BCC line to list trustee e-mail addresses (Govt. Code § 54952.2)

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

32. 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 9th Circuit.

33. Dealing with Disruption • Have board rules that set standards and authorize action • Enforce speaker time limits • Try admonition first • 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. • Brown Act: shall not prohibit public criticism of policies or actions

34. 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.

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

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

37. True or false? • 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. • The Board cannot limit public criticism at a Board meeting. • Trustee compensation should be reported through W-2s with appropriate withholding.

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

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

40. Beutz v. County of Riverside • 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

41. Dahms v. Downtown Pomona PDID • 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.

42. Questions?