CC SR 20200421 G- Amended Retired Annuitant Appointment
01203.0004/641694.3
CITY COUNCIL MEETING DATE: 04/21/2020
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to adopt two (2) resolutions appointing, Nunc pro
tunc, Mr. Harold “Kit” Fox as Interim Deputy Community Development Director and as
the Interim Deputy City Manager pursuant to Government Code § 21221(h).
RECOMMENDED COUNCIL ACTION:
(1) Waive further reading and adopt Resolution No. 2020- __ entitled “A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES, CALIFORNIA, APPOINTING NUNC PRO TUNC HAROLD “KIT” FOX
AS INTERIM DEPUTY COMMUNITY DEVELOPMENT DIRECTOR PURSUANT
TO GOVERNMENT CODE § 21221(h)”
(2) Waive further reading and adopt Resolution No. 2020- __ entitled “A
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES, CALIFORNIA, APPOINTING NUNC PRO TUNC HAROLD “KIT” FOX
AS INTERIM DEPUTY CITY MANAGER PURSUANT TO GOVERNMENT
CODE § 21221(h)”
FISCAL IMPACT: Costs associated with the temporary appointment of an Interim
Deputy City Manager will be borne by personnel salary savings for the vacant position.
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: William Wynder, City Attorney
REVIEWED BY: Julie DeZiel, Human Resources Manager
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Resolution No. 2020-___ - Interim Deputy Community Development Director
(page A-1)
B. Resolution No. 2020-___ - Interim Deputy City Manager (page B-1)
BACKGROUND:
Government Code § 21221(h), of the Public Employees’ Retirement Law, permits the
City of Rancho Palos Verdes to appoint a CalPERS retiree to a vacant position requiring
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specialized skills during recruitment for a permanent appointment, and provides that
such appointment will not subject the retired person to reinstatement from retirement or
loss of benefits so long as it is a single appointment that does not exceed 960 hours in a
fiscal year. The resolution recommended by this staff report is the mechanism by which
such appointment is authorized.
DISCUSSION:
Mr. Fox has accepted two (2) interim assignments for the City of Rancho Palos Verdes
as a retired annuitant. He first commenced his assignment as Interim Community
Development Director on September 3, 2019. When that assignment concluded, Mr.
Fox then accepted the assignment to serve as Interim Deputy City Manager on
December 7, 2019 after the full-time Deputy City Manager resigned her position on
December 6, 2019 to begin new employment with the City of Beverly Hills. As soon as
staff were notified of the Deputy City Manager’s resignation, the exam planning,
recruitment process, and a draft job bulletin were developed.
At the time of these assignments, the City was focused on the recruitment of the City
Manager. Following the reopening of City Hall on January 1, 2020 after the Holiday
closure, the job posting for a new full-time Deputy City Manager was released on
January 30, 2020. The new City Manager was formally appointed on February 4, 2020.
When the Governor issued his Executive Order extending the hours a city could employ
a retired annuitant, city staff reached out, as directed in Circular letter 200-015-20, to
CalPERS to confirm that the City was correctly utilizing Mr. Fox during the state and
local emergencies. It was during this exchange with CalPERS staff that city staff
learned that, due to an administrative oversight, the necessary City Council resolutions
approving these interim appointments had not been timely agendized. Accordingly,
staff approached the City Attorney’s office to seek advice as to a legislative correction
for this oversight.
The City Attorney now recommends adopting the attached two (2) resolutions (one for
the interim assignment as Deputy Community Development Director and one for the
interim assignment as Deputy City Manager) as actions Nunc pro tunc. This legal
mechanism has the same retroactive force and effect as if the resolutions
recommended in this report had been adopted concurrently with the interim
assignments of Mr. Fox. ([“Nunc pro tunc,” a Latin phrase meaning “now for then,”
denotes an order having retroactive legal effect. The function of a nunc pro tunc entry is
to correct a clerical error or to state on the record an action that has been omitted
through inadvertence or mistake.] 21 C.J.S. § 247 (2020), see, also, Mozley &
Whiteley's Law Dictionary (11th ed.), quoted in Emanuele v Australian Securities
Commission (1997) 188 C.L.R. 114 at 131.)
Next, staff reached out to CalPERS staff to ascertain if adoption of these corrective
resolutions would be deemed compliance with state law. On April 15, 2020, staff
received email confirmation from the CalPERS Employer Account Management
Division, Membership & Post-Retirement Employment Determinations Team that Mr.
Fox “was in compliance” and advised the CalPERS would “send out a letter approving
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him to work under the executive order.” Accordingly, all that remains is for the City
Council to adopt the two attached resolutions.
ALTERNATIVES:
Take such other action as the City Council deems appropriate consistent with the
requirements of law.
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01203.0006/642181.1
RESOLUTION NO. 2020-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES, CALIFORNIA, APPOINTING
NUNC PRO TUNC HAROLD “KIT” FOX AS INTERIM
DEPUTY COMMUNITY DEVELOPMENT DIRECTOR
PURSUANT TO GOVERNMENT CODE § 21221(h)
WHEREAS, Government Code § 21221(h) of the Public Employees’ Retirement
Law permits the City Council of the City of Rancho Palos Verdes to appoint a CalPERS
retiree to a vacant position requiring specialized skills during recruitment for a permanent
appointment, and provides that such appointment will not subject the retired person to
reinstatement from retirement or loss of benefits so long as it is a single appointment
that does not exceed 960 hours in a fiscal year; and
WHEREAS, the City Council of the City of Rancho Palos Verdes desires to
appoint, nunc pro tunc, Mr. Harold “Kit” Fox as an interim appointment retired annuitant
to the vacant position of Deputy Community Development Director for the City of Rancho
Palos Verdes, California, pursuant to Government Code § 21221(h), such appointment
to be deemed effective as of September 3, 2019; and
WHEREAS, the City Council of the City of Rancho Palos Verdes, the City of
Rancho Palos Verdes, California and Mr. Harold “Kit” Fox, jointly and severally certify
that Mr. Fox has not and will not receive a “Golden Handshake” or any other retirement-
related incentive; and
WHEREAS, an appointment under Government Code § 21221(h) requires the
retiree is appointed into the interim appointment during recruitment for a permanent
appointment; and
WHEREAS, the City Council of the City of Rancho Palos Verdes has authorized
the search for a permanent appointment on September 3, 2019; and
WHEREAS, this Government Code § 21221(h) appointment shall only be made
once and therefore will end on or before the retired annuitant reaches 960 hours; and
WHEREAS, the employment agreement, contract or appointment document
between Mr. Fox and the City of Rancho Palos Verdes, California, has been reviewed
by the City Council of the City of Rancho Palos Verdes and is attached hereto as Exhibit
“A,” and incorporated herein; and
WHEREAS, the compensation paid to retirees cannot be less than the minimum
nor exceed the maximum monthly base salary paid to other employees performing
comparable duties, divided by 173.333 to equal the hourly rate; and
WHEREAS, the maximum base salary for this position is $196,784 per year and
the hourly equivalent is $94.60 per hour; the minimum base salary for this position is
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01203.0006/642181.1
$115,823 per year and the hourly equivalent is $55.68 per hour; and
WHEREAS, the hourly rate paid to Mr. Fox will be $80.00 per hour; and
WHEREAS, Mr. Fox has not and will not receive any other benefit, incentive,
compensation in lieu of benefit or other form of compensation in addition to this hourly
pay rate.
NOW , THEREFORE, THE RANCHO PALOS VERDES CITY COUNCIL HEREBY
FINDS, DETERMINES AND RESOLVES, AS FOLLOWS:
SECTION 1. The City Council hereby certifies the nature of the employment of Mr.
Harold “Kit” Fox as set forth in more detail in that certain Personnel Action form, attached
hereto as Exhibit “A,” and incorporated herein, is necessary to fill the critically needed
position of Deputy City Manager for the City of Rancho Palos Verdes, California.
SECTION 2. The City Council hereby deems such appointment and this resolution
to be declared effective September 3, 2019 nunc pro tunc as if it had been adopted
simultaneously with and in conjunction with the foregoing appointment.
SECTION 3. The City Council finds and determines that such appointment was
necessary because the previous Deputy Community Development Director was vacant
and is currently unfilled.
The City Clerk shall certify to the passage and adoption of this resolution.
PASSED, APPROVED and ADOPTED on this ___ day of April, 2020.
_____________________
John Cruikshank, Mayor
Attest:
___________________________
Emily Colborn, City Clerk
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
A-2
01203.0006/642181.1
I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. 2020-__ was duly and regularly passed and adopted by the said
City Council at a regular meeting thereof held on April __, 2020.
___________________________
Emily Colborn, City Clerk
A-3
01203.0004/641238.2
RESOLUTION NO. 2020-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RANCHO PALOS VERDES, CALIFORNIA, APPOINTING
NUNC PRO TUNC HAROLD “KIT” FOX AS INTERIM
DEPUTY CITY MANAGER PURSUANT TO GOVERNMENT
CODE § 21221(h)
WHEREAS, Government Code § 21221(h) of the Public Employees’ Retirement
Law permits the City Council of the City of Rancho Palos Verdes to appoint a CalPERS
retiree to a vacant position requiring specialized skills during recruitment for a permanent
appointment, and provides that such appointment will not subject the retired person to
reinstatement from retirement or loss of benefits so long as it is a single appointment
that does not exceed 960 hours in a fiscal year; and
WHEREAS, the City Council of the City of Rancho Palos Verdes desires to
appoint, nunc pro tunc, Mr. Harold “Kit” Fox as an interim appointment retired annuitant
to the vacant position of Deputy City Manager for the City of Rancho Palos Verdes,
California, pursuant to Government Code § 21221(h), such appointment to be deemed
effective as of December 7, 2019; and
WHEREAS, the City Council of the City of Rancho Palos Verdes, the City of
Rancho Palos Verdes, California and Mr. Harold “Kit” Fox, jointly and severally certify
that Mr. Fox has not and will not receive a “Golden Handshake” or any other retirement-
related incentive; and
WHEREAS, an appointment under Government Code § 21221(h) requires the
retiree is appointed into the interim appointment during recruitment for a permanent
appointment; and
WHEREAS, the City Council of the City of Rancho Palos Verdes has authorized
the search for a permanent appointment on December 7, 2019; and
WHEREAS, this Government Code § 21221(h) appointment shall only be made
once and therefore will end on or before the retired annuitant reaches 960 hours; and
WHEREAS, the employment agreement, contract or appointment document
between Mr. Fox and the City of Rancho Palos Verdes, California, has been reviewed
by the City Council of the City of Rancho Palos Verdes and is attached hereto as Exhibit
“A,” and incorporated herein; and
WHEREAS, the compensation paid to retirees cannot be less than the minimum
nor exceed the maximum monthly base salary paid to other employees performing
comparable duties, divided by 173.333 to equal the hourly rate; and
WHEREAS, the maximum base salary for this position is $196,784 per year and
the hourly equivalent is $94.67 per hour; the minimum base salary for this position is
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01203.0004/641238.2
$115,823 per year and the hourly equivalent is $55.68 per hour; and
WHEREAS, the hourly rate paid to Mr. Fox will be $90.00 per hour; and
WHEREAS, Mr. Fox has not and will not receive any other benefit, incentive,
compensation in lieu of benefit or other form of compensation in addition to this hourly
pay rate.
NOW , THEREFORE, THE RANCHO PALOS VERDES CITY COUNCIL HEREBY
FINDS, DETERMINES AND RESOLVES, AS FOLLOWS:
SECTION 1. The City Council hereby certifies the nature of the employment of Mr.
Harold “Kit” Fox as set forth in more detail in that certain Personnel Action form, attached
hereto as Exhibit “A,” and incorporated herein, is necessary to fill the critically needed
position of Deputy City Manager for the City of Rancho Palos Verdes, California.
SECTION 2. The City Council hereby deems such appointment and this resolution
to be declared effective December 7, 2019 nunc pro tunc as if it had been adopted
simultaneously with and in conjunction with the foregoing appointment.
SECTION 3. The City Council finds and determines that such appointment was
necessary because the previous Deputy City Manager left employment with the City for
another municipal appointment and because the position of Deputy City Manager is
currently unfilled and in recruitment.
The City Clerk shall certify to the passage and adoption of this resolution.
PASSED, APPROVED and ADOPTED on this ___ day of April, 2020.
_____________________
John Cruikshank, Mayor
Attest:
___________________________
Emily Colborn, City Clerk
B-2
01203.0004/641238.2
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. 2020-__ was duly and regularly passed and adopted by the said
City Council at a regular meeting thereof held on April __, 2020.
___________________________
Emily Colborn, City Clerk
B-3