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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Wendy J. McCammack, Subject: The terms and conditions of
Councilwoman, ih Ward Police Chief Keith Kilmer's
employment contract included
Dept: Council Office a provision to provide $5,000
in moving expense costs as
Date: February 1,2011 long as he moved to, and
continued to reside In,
File: San Bernardino.
MCC Date: February 7, 2011
Synopsis of Previous Council Action:
None
Recommended Motion:
Direct the City Manager to enforce the terms and conditions of Police Chief Keith Kilmer's
employment contract (attached), including but not limited to the moving expense provision.
~mnm~k
Council Member, ih Ward
Contact Person: Wendy 1. McCammack,
Council Member, ih Ward
Phone: 5068
Supporting data attached: Staff Report, Employment Agreement
Ward(s):
All
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.)
Acct. Description:
Finance:
Council Notes:
Agenda Item No: 9
MICC Date: 02/07/2011
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
The Terms and Conditions of Police Chief Keith Kilmer's employment contract included
a provision to provide $5,000 in moving expense costs as long as he moved to, and
continued to reside in, San Bernardino.
Background:
The Chief announced to his command staff and Police Union leadership that he has
moved out of San Bernardino to the City of Corona. Also, he reportedly told a new staffer
that he could not insure the staffer's safety if they moved into the City of San
Bernardino.
Financial Impact:
$5,000.00
Recommendation:
Direct the City Manager to enforce the terms and conditions of Police Chief Keith
Kilmer's employment contract (attached), including but not limited to the moving
expense provision.
NOW TBEREF:QRE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. APPOINTMENT. Kilmer is hereby appointed to, and does h~by accept
appointment to, the office ofCJllefofPolice oftbe City of San Bernardino effective June 1,2009.
Such appointment and the effectiveness of this Agreement are contingent upon Kilmer's successful
completion of the following required clearances: (a) Medical I Psychological Clearances pursuant
to Government Code section 1031(1)(1 ),(2) and 11 Cal.Code Regs., sections 9050, 9054 and 9055;
(b) Fingerprint Returns I Fireanns Clearances pursuant to Government Code sections.1029(a), and
1031 (c), Penal Code section 832J5(c), 18 use 922, and I I Cal.Code Regs., sections 9050 and
9053 (e)(3). If the foregoing required clearances are not successfully completed, this Agreement
and the appointment pursuant hereto shall be null and void.
2. TERM. The initial term of this Agreement shall commence June 1, 2009 and
terminate May 31, 2012. Upon the natural expiration of the initial three-year'tenn of this
21 Agreement, the Agreement will continue on a month-to-month basis and may.be terminated upon
22 . thirty (30) days notice, unless this Agreement is amended to establish a new tenD..
23 3. TERMINA nON. Under the terms of this appointment, Kilmer serves as an "at-will"
24 employee and may be terminated at any time, with or without cause pursuant to the provisions of
25 the San Bernardino City Charter and this Agreement. Nothing in this Agreement, the San
26 Bernardino City Charter, any statute, ordinance, or rule shall be construed as creating any vested
27 right in such appointment or in employment with the City.
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1 E~LOY~NTAGREEMENT
2 THIS AGREEMENT is made and entered into this 4th day of May, 2009, by'and between
3 the CITY OF SAN BERNARDINO, a charter city (''City''), and KEITH 1. KILMER, an individual
~ (''Kilmer'').
5 WHEREAS, the City has a need for the services of a Chief of Police;
6 WHEREAS, Kilmer is competent, trained, and qualified for the position of Chief of Police;
7 and
WHEREAS, the parties desire to enter into this Agreement to outline the duties. and
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responsibilities of the parties,
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a. If during the initial three-year term of this Agreement, Kilmer is ierm.inated
without cause, he shall ,e entitled to severance pay equal to six (6) months of his then current salary
and he shall be entitled to compensation for any accrued and unused leave per Resolution No. 2007-
345 as amended or its successor. The severance payment shall be conditioned llPon Kilmer
executing a separation agreement providing a release and waiver of any and all claims against City,
its officers, employees, and agents arising out of. Kilmer's employment with City and the
termination thereof. The severance payment shall be Kilmer's sole and exclusive remedy for
tennination without cause.
b. If during the term. of this Agreement, Kilmer is tenninated for cause, Kilmer
shall have a right to a hearing before the Mayor in accordance with Section 180 of the San
Bernardino City Charter, which authorizes the Mayor to discharge the Chief of Police for cause,
subject to the laws of the State ofCalifomia. In the event Kilmer voluntarily resigns his position
with the City, then Kilmer shall give City thirty (30) days written notice in advance of the effective
date of his resignation, unless the parties otherwise agree. Kilmer shall have no' right to any
severance payment, and shall only be entitled to compensation for any accrued and unused leave
per Resolution No. 2007-345 as amended or its successor, upon the occurrence of any of the
following events: (i) upon mutual written agreement by the parties to terminate this Agreement;
(ii) upon Kilmer's voluntary resignation; (Hi) upon the death of Kilmer,' (iv) upon tennination of
the Agreement after the natural expiration of the initial three-year tenn; or (v) upon Kilmer's
termination for cause.
c. For purposes of this section, "cause" is defined as: (i) a willful breach of this
Agreement, (ii) neglect or lack ofloyalty in the perfonnance of the Chief of Police duties, or (iii)
any acts of dishonesty, fraud, misrepresentation, or other acts of moral turpitude. For purposes of
this section, "loyaltY' is defined as the duty of the Chief of Police to avoid fraud, bad faith,
usurpation of city government opportunities, and self-dealing.
4. SALARY. Kilmer's annual base salary for his services as Chief of Police shall be
determined in accordance with Section 186 of the San Bernardino City Charter. This annual base
salary shall be payable bi-monthly at the same time as other city employees.
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5. VOLUNTARY 10% uGIVEBACK." In recognition of the extraordinary financial
issues facing the City of San Bernardino and other local governments, and consistent with the
sacrifice made by other city department heads, Kilmer has voluntarily agreed to give back ten
percent (10%) of his salary in accordance with Resolution No. 2009-35, until June 30,2010. lfthe
City restores the 10% concession 'provided by employees in the Management/Confidential Group
per Resolution No. 2009-35, or any portion thereo~ prior to June 30, 2010, the 10% voluntary
"giveback" provided herein by Kilmer shall also be commensurately restored.
6. FRINGE BENEFITS. Kilmer shall be entitled to the benefit package established for
police safety management employees in the Management/Confidential Group, including but not
limited to, health, dental, vision, leave, retirement, long-term disability coverage, life insurance,
unifonn allowance, education incentive pay, and other benefits as provided in Resolution No. 2007-
345 as amended or its successor.
a. For purposes of "vacation leave," Kilmer shall be provided an initial bank of
one hundred (100) hours of vacation leave and shall be given credit for twenty (20) years of
continuous service for purposes of accruing vacation leave per Resolution No. 2007-345 as
amended or its successor. Kilmer may sell back to the City up to forty (40) hours of vacation leave
each year, upon notice to Finance Director on or before August 1 &t, with payment to be received in
September and compensation to be calculated using the June 30th rate.
b. Kilmer shall have the right to the use of a city-owned and maintained vehicle,
or in the alternative, to receive a vehicle reimbursement allowance "in accordance with Resolution
No. 2006-428 as amended or its successor. Kilmer shall make an election within a reasonable
period of time after the beginning of the term of this Agreement between the use of a city-owned
. vehicle or the vehicle reimbursement allowance. Such election shall be final for the term of this
Agreement.
7. INITIAL UNIFORM & EQUIPMENT STIPEND. No later than June 15,
2009, Kilmer shall receive a one-time stipend of One Thousand Two Hundred Dollars ($1,200) to
pay for expenses associated with the initial purchase of unifonn and equipment for his employment.
8. TEMPORARY HOUSING & RELOCATION ASSISTANCE. In
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consideration of the cost and expense Kilmer will incur for temporary housing in the City of San
Bernardino during the initial months of his employment, the City shall provide Kilmer a one.time
stipend of Five Thousand Dollars ($5,000) for temporary housing assistance no later than June 15,
2009. In consideration of the cost and expense Kilmer will incur to relocate his pennanent
residence to the City of San Bernardino, the City shall provide Kilmer a one-time stipend of Five
Thousand Dollars ($5,000) for relocation assistance no later than September 1, 2009. Payment of
the stipends set forth in this section is contingent upon Kilmer establishing his residence within the
boundaries of the City orSan Bernardino. If for any reason this Agreement is ended prior to June 1,
2010, or if for any reason during the term of this Agreement Kilmer establishes his residence
outside the boundaries of the City of San B.ernardino, then Kilmer shall rePay City the entire
relocation assistance stipend.
9. MOONLIGHTlNG. Kilmer will focus his professional time, ability, and
attention on City business during the term of this Agreement. To the extent consistent with
applicable law, Kilmer shall not engage in any other business duties or pursuits whatsoever or,
directly or indirectly, render any services of a business, commercial, or professional nature to any
other person or organization, whether for compensation or otherwise, except that the expenditure
of reasonable amounts of time not in conflict with the City's needs and interests, for educational,
and professional activities, shall not be deemed a breach of this Agreement. This Agreement shall
not be interpreted to promoit Kilmer from making pas~ive' personal investments, occasional
teaching at a local inStitution of higher education, or conducting private business affairs if those
activities do not materially interfere with the duties of the Chief of Police or create conflicts of
interest. Kilmer may also participate in charitable and community activities except that he shall not
provide legal advice or representation in the course of participating in these activities.
10. PRACTICE OF LAW. The parties understand and acknowledg~ that Kilmer
is a member of the Bar of the State of California, and that such legal training is beneficial for a chief
of police, but that Kilmer shall obtain official legal advice or opinions applicable to the
San Bernardino Police Department from the District Attorney or the City Attorney, depending on
their respective area of expertise.
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11. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties. Any correspondence, letters, documents, or discussions leading up to this
Agreement which deal with the tenns contained herein are superseded by this Agreement.
12. SEVERABILITY. If any part of this Agreement is in conflict or inconsistent
with the applicable provisions of federal, state, or city statutes, or it is otherwise held to be invalid
or unenforceable by any court of competent jurisdiction, such part or provision shall be suspended
and superseded by such applicable law or regulations, and the remainder of this Agreement shall
not be affected thereby.
13. AMENDMENT. This Agreement may only be amended by a written
agreement executed by the parties, and may not be amended by oral agreement.1N WITNESS
WHEREOF, the parties hereto have executed this Agreement on the day and date first shown.
ATTEST:
CITY OF SAN BERNARDINO
By:~,.e ,h,~
Racll Clark, City Clerk
B~
1ricI: J. orris, Me'
APPROVED AS TO FORM:
KEITH L KILMER
lIi~
7.~
es F. Penman, City Attorney
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