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HomeMy WebLinkAbout12428RESOLUTION NO. 12428 A RESOLUTION ACCEPTING THE RESIGNATION AS CITY MANAGER OF JERRY M. PACHECO AND APPROVING AND RATIFYING THE EXECUTION THEREOF BY THE PRESIDENT OF CITY COUNCIL BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Resignation as City Manager of Jerry M. Pacheco dated May 30, 2012 (the "Resignation Agreement"), a copy of which is attached hereto, is hereby accepted and approved. SECTION 2. The execution of the Resignation Agreement by the President of the City Council in the name of the City effective as of 5:00 p.m. MST on May 30, 2012 is hereby ratified and approved. INTRODUCED: June 11, 2012 BY: Steve Nawrocki COUNCIL PERSON Background Paper for Proposed RESOLUTION DATE:June 11, 2012AGENDA ITEM # Q-1 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION ACCEPTING THE RESIGNATION AS CITY MANAGER OF JERRY M. PACHECO AND APPROVING AND RATIFYING THE EXECUTION THEREOF BY THE PRESIDENT OF CITY COUNCIL ISSUE Should City Council approve and ratify the Resignation as City Manager of Jerry M. Pacheco? RECOMMENDATION This Resolution is submitted pursuant to direction by City Council. BACKGROUND During the regular City Council meeting of May 29, 2012, Council passed a motion requesting the resignation of City Manager Jerry M. Pacheco. Thereafter, the terms of his resignation were reduced to writing and the resignation tendered to and accepted by the President of the City Council effective at 5:00 o'clock p.m. on May 30, 2012, subject only to approval and ratification by City Council. The Resignation as City Manager attached to the Resolution contains the following important provisions: a. Pacheco resigns as City Manager effective May 30, 2012, and demotes to his former position as Director of the Department of Planning and Community Development ("Director"). b. Pacheco will be paid $9,635.21 monthly salary ($115,622 annually) as Director, as provided by City ordinance. c. Pacheco will be placed upon administrative leave for a short period to resolve personal and medical issues. d. The City and Pacheco mutually release the other from claims or liability existing as of the date of City Council approval of the resignation which arise from his employment. e. Neither Pacheco nor City Council will make disparaging statements or remarks concerning the other. f. Pacheco will cooperate with his successor and participate as needed in pending judicial and administrative matters involving the City. Under the terms of the resignation, no termination or severance pay will be paid to Pacheco. FINANCIAL IMPACT See Background. MEMORANDUM TO: Members of the City Council FROM: Jerry M. Pacheco DATE: May 30, 2012 RE: Resignation as City Manager City Council has requested that I resign my office as City Manager effective today, but continue to serve the City of Pueblo as Director of the Department of Planning and Community Development. This request by Council is understood to be in lieu the procedures set forth in Section 4 -3 of the City Charter with respect to Council's right to remove any City Manager, and Council's contract rights with respect to removal of the City Manager "without cause" as that term is defined in section 5 of my Employment Agreement dated August 1, 2009, and all subsequent amendments thereto (The Employment Agreement). This resignation is specifically contingent upon the following terms and conditions: 1. The Employment Agreement is hereby superseded in its entirety by the terms of this resignation; 2. My resignation as City Manager shall be effective as of 5:00 o'clock p.m. on May 30, 2012; 3. Upon acceptance of this resignation by the President of the City Council, acting on behalf of the Council, subject to subsequent formal action of City Council approving the terms hereof, I will be permitted to continue my employment with the City as Director of the Department of Planning and Community Development, the position I held with the City before I was appointed City Manager; 4. My monthly compensation as Director of Planning and Community Development ( "Director "), commencing May 31, 2012 shall be $9,635.21, which is the maximum salary for such position established in Section 6 -5 -16, Pueblo Municipal Code; 5. Effective May 31, 2012, I will be placed upon paid administrative leave for a period of at least thirty (30) days and not more than forty -five (45) days for the purpose of resolving personal and medical issues. 1 6. In consideration of Council accepting this resignation, I acknowledge, stipulate and agree that: a. Absent a breach of agreement on the part of the City respecting its obligations as set forth in this resignation, I covenant not to sue and hereby agree not to institute any proceedings against the City, the Released Parties or any other persons named herein in their official or individual capacities based on any matter relating to this resignation. b. This resignation is signed and delivered by me as my free and voluntary act after being given the opportunity to review this Agreement and all its terms with third parties not affiliated with the City, including my personal attorney. c. I acknowledge, represent and agree that I have not, to my knowledge, done or failed to do anything that would cause the City to be liable to any third party or other employee. d. I shall maintain the confidentiality of all confidential, non - public City information which I have been made privy or otherwise learned in connection with my employment with the City. I will not, without the prior written consent of the successor City Manager or order of a court of competent jurisdiction or administrative body with lawful subpoena power, communicate or divulge any such City information, knowledge or data to anyone other than City or its designated representatives. e. I shall maintain and receive all accrued employee benefits earned through May 30, 2012, and will hereafter accrue those future benefits to which I may be entitled as I continue as Director of the Department of Planning and Community Development. I shall retain all employment rights applicable to me at the time I was promoted from Senior Planner to Director. 7. City agrees that my separation from employment as City Manager shall be treated as a resignation without fault or cause. In the event a prospective employer requests an evaluation or reference, City will not provide any unfavorable information relating to my separation from employment as City Manager in response to such request, but will verify my dates of employment, salary, employment history and positions held, and that I voluntarily resigned without fault or cause. 8. I agree not to make any disparaging statements or remarks concerning the City, City Council or its officers or employees. City Council agrees not to make any disparaging statements or remarks concerning my separation from employment as City Manager, or my performance as City Manager. 9. I agree to cooperate with the transition to management of the City by the acting, interim or other appointed City Manager who succeeds me in that position, and with his or her deputies and assistants, if any. As part of such cooperation I will make myself available to City, its staff and counsel with respect to all current and ongoing investigations, prosecutions, arbitrations, grievance hearings, transactions and other proceedings, regulatory actions and internal matters affecting or involving the City; and agree to meet on request with my successor or successors to 2 provide information and answer questions concerning the status of matters upon which I acquired knowledge during my tenure as City Manager. 9. Mutual Releases: a. I hereby release and forever discharge Pueblo, a Municipal Corporation ( "City "), its officers, managers, directors, supervisors, employees, attorneys, agents and representatives in their official and individual capacity (herein collectively "Released Parties ") from any and all claims, demands, actions, causes of action and obligations of any kind or nature whatsoever existing as of the date of approval of this resignation by City Council whether known or unknown, fixed or contingent, liquidated or unliquidated, and whether arising from tort, contract, or under any constitution, federal, state or local law including, but not limited to, any claims arising under Title VII of the Civil Rights Act, as amended; 42 U.S.C. § 1981; 42 U.S.C. § 1983; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act; the Older Workers Benefit Protection Act; the Fair Labor Standards Act; claims under the laws of the State of Colorado relating to employment practices including §24 -34 -401, et seq, C.R.S.; the Charter and Municipal Code of the City of Pueblo; and any common law theory of defamation, libel or slander, or breach of any duty allegedly owed to Employee; provided, however, that the foregoing shall not release the City from the terms set forth herein once approved by the City Council. It is my intention to make this release as broad and as general as the law permits. b. City hereby release and discharge me from any and all claims and liabilities of whatever kind or nature, known or unknown, which it has ever had or which it may now have, known and unknown, existing as of the date of approval of this resignation by City Council, arising out of or in any way related to my employment by the City as City Manager and performed within the scope of my employment as City Manager. It is City' s intention to make this release as broad and as general as the law permits. 12. I understand that my employment as Director will be subject to the provisions of section 4 -5(b) of the Charter. 13. The terms herein shall be interpreted and enforced according to the laws of the State of Colorado and may not be modified or amended except by written instrument signed by the parties. 14. This resignation and its terms constitute the entire understanding and agreement between the parties regarding the subject matter hereof. If any provision of this resignation is determined to be invalid or unenforceable by a court of competent jurisdiction, such determination shall not affect the other provisions of this resignation which will remain in full force and effect. 15. This resignation shall not be effective unless approved and ratified by City Council; provided, however, that upon such approval, it shall be effective as of the date first above written. Between the date first above written and the date of approval by City Council, I shall not hold nor exercise any of the powers of City Manager. Should City Council fail to approve this resignation within 14 days of the date first written above, this resignation shall be deemed withdrawn. 3 . _ Jerry M. 'ac Imo ACCEPTED as of 5:00 o'clock p.m., the date first .bov- written. hris K. Kaufm. President of the City Council 4