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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Mayor Patrick J. Morris
Subject: RESOLUTION OF THE MAYOR
AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO
AUTHORIZING EXECUTION OF AN
EMPLOYMENT AGREEMENT
BETWEEN KEITH 1. KILMER AND THE
CITY OF SAN BERNARDINO FOR THE
POSITION OF CHIEF OF POLICE TO
COMMENCE JUNE 1,2009.
Dept: Mayor's Office
Date: April 21, 2009
Council Date: May 4, 2009
Synopsis of Previous Council Action:
April 20, 2009 - Common Council confirms Mayor's appointment of Keith L. Kilmer as Chief of
Police for the City of San Bernardino.
Recommended Motion:
Approve resolution.
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nature
Contact person:
Jim Mnrri~
Phone:
5133
Supporting data attached: Staff ReDort and Reso. Ward: All
FUNDING REQUIREMENTS:
Amount:
Source: (Ace!. No.)
(Ar.r.t n""r.riptinn) -0-
Finance:
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Agenda Item No.
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect
Resolution authorizing execution of an employment agreement between the City of San
Bernardino and Keith 1. Kilmer for the position of the Chief of Police.
Backl!:round
On April 20, 2009, the Common Council confirmed the Mayor's appointment of Keith 1. Kilmer
as Chief of Police for the City of San Bernardino. At the time of the Council's confirmation, the
Mayor provided council members a copy of the conditional offer of employment letter
containing the terms of employment negotiated with Mr. Kilmer. Attached is a copy of the
letter.
The proposed employment agreement simply memorializes the negotiated terms of the
employment outlined in the letter.
Financial impact
There is no net impact to the City's budget by this action. The commencement date for Mr.
Kilmer's employment as Chief of Police is June 1,2009. The last day for the current Chief of
Police, Michael Billdt, is May 29,2009. As set forth in the employment agreement, Mr. Kilmer
has agreed to a voluntary give back equal to ten percent (10%) of the salary, consistent with the
sacrifice made by other city department heads, which will result in a net savings to the City's
budget.
Recommendation
Adopt resolution.
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CCO)~1f
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN . BERNARDINO AUTHORIZING EXECUTION OF AN EMPLOYMENT
AGREEMENT BETWEEN KEITH L. KILMER AND THE CITY OF SAN
BERNARDINO FOR THE POSITION OF CHIEF OF POLICE TO COMMENCE
JUNE 1, 2009.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City the Employment Agreement between Keith L.
Kilmer and the City of San Bernardino, which is attached hereto, marked Exhibit "A", and
incorporated herein by reference as fully as though set forth at length.
SECTION 2. The authorization to extend the above-referenced agreement is
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING EXECUTION OF AN EMPLOYMENT
AGREEMENT BETWEEN KEITH L. KILMER AND THE CITY OF SAN
BERNARDINO FOR THE POSITION OF CHIEF OF POLICE TO COMMENCE
JUNE 1, 2009.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a regular meeting thereof, held on the
7 _dayof
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, 2009, by the following vote, to wit:
Council Members:
AYES
ABSTAIN
ABSENT
NAYS
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28 By:
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
MCCAMMACK
City Clerk
The foregoing resolution is hereby approved this _ day of
,2009.
Patrick J. Morris, Mayor
Approved as to form:
.f~
es F. Penman, City Attorney
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 4th day of May, 2009, by.and between
the CITY OF SAN BERNARDINO, a charter city ("City"), and KEITH L. KILMER, an individual
("Kilmer").
WHEREAS, the City has a need for the services of a Chief of Police;
WHEREAS, Kilmer is competent, trained, and qualified for the position of Chief of Police;
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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NOW THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
I.
APPOINTMENT. Kilmer is hereby appointed to, and does hereby accept
appointment to, the office of Chief of Police of the City of San Bernardino effective June 1, 2009.
Such appointment and the effectiveness of this Agreement are contingent upon Kilmer's successful
completion ofthe following required clearances: (a) Medical I Psychological Clearances pursuant
to Government Code section 103 I (f)(I),(2) and 11 Ca1.Code Regs., sections 9050,9054 and 9055;
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(b) Fingerprint Returns I Firearms Clearances pursuant to Government Code sections 1029(a), and
1031(c), Penal Code section 832.15(c), 18 USC 922, and 11 Ca1.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 I, 2009 and
terminate May 31, 2012. Upon the natural expiration of the initial three-year term of this
Agreement, the Agreement will continue on a month-to-month basis and may be terminated upon
thirty (30) days notice, unless this Agreement is amended to establish a new term.
3.
TERMINATION. Under the terms ofthis 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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F:\EASLAND\Employmcnt Agreemenls\Kilmer PDChfOfPol EmpAg wpd
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a. If during the initial three-year term of this Agreement, Kilmer is terminated
without cause, he shall be 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 upon 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
termination without cause.
b. If during the term of this Agreement, Kilmer is terminated 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 of California. In the event Kilmer voluntarily resigns his position
with the City, then Kilmer shall give City thirty (30) days written notice in advance ofthe 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; (iii) upon the death of Kilmer; (iv) upon termination of
the Agreement after the natural expiration of the initial three-year term; or (v) upon Kilmer's
termination for cause.
c. For purposes of this section, "cause" is defined as: (i) a willful breach ofthis
Agreement, (ii) neglect or lack ofloyalty in the performance 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.
F. \EASLANDlEmployment AgreementslKi1mer. PDChfOfPol EmpAg_ wpd
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5. VOLUNTARY 10% "GNEBACK." 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. If the
City restores the 10% concession provided by employees in the Management/Confidential Group
per Resolution No. 2009-35, or any portion thereof, 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,
uniform 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 ", 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 oftime 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 Dollars ($1,000) to pay for
expenses associated with the initial purchase of uniform 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 permanent
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 of San Bernardino. If for any reason this Agreement is ended prior to June I,
2010, or if for any reason during the term of this Agreement Kilmer establishes his residence
outside the boundaries of the City of San Bernardino, then Kilmer shall repay City the entire
relocation assistance stipend.
9. MOONLIGHTING. 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
ofreasonable 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 prohibit Kilmer from making passive 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 acknowledge that Kilmer
is a member of the Bar ofthe 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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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 terms contained herein are superseded by this Agreement.
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SEVERABILITY. If any part ofthis Agreement is in conflict or inconsistent
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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
10 agreement executed by the parties, and may not be amended by oral agreement.IN WITNESS
II WHEREOF, the parties hereto have executed this Agreement on the day and date first shown.
12 ATTEST:
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CITY OF SAN BERNARDINO
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By:
Rachel Clark, City Clerk
By:
Patrick J. Morris, Mayor
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APPROVED AS TO FORM:
KEITH L KlLMER
By:
James F. Penman, City Attorney
Entered Int9 Rae. gt MCC/CDC Wrt9:S/~/O?
by:' Ut..4"h"J.- 4 ()
Agenda No:
by:
Cily Clerk! DC Secretary
City 01 San Bernardino
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OFFICE OF THE MAYOR
PATRlCKJ. MORRIS
CITY OF SAN BERNARDINO
INTEROFFICE MEMORANDUM
TO: Rachel Clark, City Clerk
FROM: Patrick J. Morris, Mayor
SUBJECT: Administrative Error in Section 7 of the Employment Agreement with Police
Chief Keith L. Kilmer
DATE: June I, 2009
CC: City Manager; City Attorney; Police Chief
On April 20, 2009, the Common Council confirmed the Mayor's appointment of Keith L. Kilmer
as Chief of Police for the City of San Bernardino. Prior to the Council's confirmation of the
appointment, the Mayor distributed to the Council a Conditional Offer of Employment letter,
setting forth the terms of Chief Kilmer's proposed employment. A copy of the letter is attached.
Paragraph 2(g) of the letter provides that "[a]n initial uniform and equipment stipend of $1,200
shall be provided." Unfortunately, an administrative error prevented this negotiated term of
employment with Chief Kilmer from being accurately carried over into Chief Kilmer's
employment contract which was approved on May 4, 2009. Section 7 of the employment
agreement provides that "Kilmer shall receive a one-time stipend of One Thousand Dollars
($1,000)" for initial uniform and equipment costs.
Attached is a corrected version of Page 4, with the following bolded substitute language in
Section 7 to correct the administrative error:
"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
uniform and equipment for his employment."
Thank you for helping correct this administrative error.
Kilmer shall receive a one-time stipend of One Thousand Two Hundred Dollars ($1,200) to pay
2 for expenses associated with the initial purchase of uniform and equipment for his employment.
3 8. TEMPORARY HOUSING & RELOCATION ASSISTANCE. In consideration
4 of the cost and expense Kilmer will incur for temporary housing in the City of San Bernardino
5 during the initial months of his employment, the City shall provide Kilmer a one-time stipend
6 of Five Thousand Dollars ($5,000) for temporary housing assistance no later than June 15,
7 2009. In consideration of the cost and expense Kilmer will incur to relocate his permanent
8 residence to the City of San Bernardino, the City shall provide Kilmer a one-time stipend of
9 Five Thousand Dollars ($5,000) for relocation assistance no later than September I, 2009.
10 Payment of the stipends set forth in this section is contingent upon Kilmer establishing his
11 residence within the boundaries of the City of San Bernardino. If for any reason this
12 Agreement is ended prior to June 1,2010, then Kilmer shall repay City one-twelfth of the
13 total amount of stipends received for every month or portion thereof remaining until June I,
14 20 I 0, or if for any reason during the term of this Agreement Kilmer establishes his residence
15 outside the boundaries of the City of San Bernardino, then Kilmer shall repay City the entire
16 relocation assistance stipend.
17 9. MOONLIGHTING. Kilmer will focus his professional time, ability, and
18 attention on City business during the term of this Agreement. To the extent consistent with
19 applicable law, Kilmer shall not engage in any other business duties or pursuits whatsoever or,
20 directly or indirectly, render any services of a business, commercial, or professional nature to
21 any other person or organization, whether for compensation or otherwise; except that the
22 expenditure of reasonable amounts of time not in conflict with the City's needs and interests,
23 for educational and professional activities shall not be deemed a breach of this Agreement.
24 This Agreement shall not be interpreted to prohibit Kilmer from making passive personal
25 investments, occasional teaching at a local institution of higher education, or conducting
26 private business affairs if those activities do not materially interfere with the duties of the
27 Chief of Police or create conflicts of interest. Kilmer may also participate in charitable and
28 community activities except that he shall not provide legal advice or representation in the
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OFFICE OF THE Mi\YOR
PATRlCKJ.MORRlS
300 North D Street
San Bernardino. CA 924] 8
(909) 384-5133 . Fax (909) 384-5067
www.sbeity.org
April 20, 2009
Keith L. Kilmer
13629 Ramona Road
Whittier, CA 90602
RE: Conditional Offer of EmploymeI1t - Chief of Police
Dear Mr. Kilmer:
Per our discussions over the past several days, and under my authority to appoint to the Chief of
Police pursuant to Section 182 of the San Bernardino City Charter, I am making you a
conditional offer of employment with the City of San Bernardino as the Chief of Police. This
offer of employment is contingent upon several actions:
1. Approval by the Common Council of your appointment as Chief of Police for the City of
San Bernardino at the regularly scheduled meeting of April 20, 2009.
2. Approval by the Common Council of an employment agreement between you and the
City of San Bernardino no later than the regularly scheduled meeting of May 4, 2009,
containing the following terms:
a. Salary shall be established by Section 186 of the San Bernardino City Charter,
which currently sets the annual salary for the Chief of Police at $203,700.
b. To help balance a significant budget deficit in our City, and consistent with the
sacrifice made by other city department heads, a voluntary give back equal to ten
percent (10%) of the salary shall be included in accordance with Resolution No.
2009-35. City shall restore the ten percent (10%) concession no later than June
30,2010, or earlier in accordance with the provisions of Resolution No. 2009-35.
Keith L. Kilmer
April 19, 2009
Re: Conditional Offer of Employment - Chief of Police
c. Benefits shall be the same as received by the police safety management
employees in the Management/Confidential Gronp, including but not limited to,
health, dental, vision, leave, retirement, long-term disability coverage, life
insnrance, uniform allowance, edncation incentive pay, and other benefits as
provided in Resolution No. 2007-345 as amended or its successor.
d. For purposes of "vacation leave," an initial bank of one hundred (100) hours of
vacation leave shall be provided, and credit for twenty (20) years of continuous
service shall be provided for purposes of accruing vacation leave per Resolution
No. 2007-345 as amended or its successor. A sell back of up to forty (40) hours of
vacation leave shall be allowed each year, upon notice to Finance Director on or
before August I ", with payment to be received in September and compensation to
be calculated using the June 30.10 rate.
e. Use of a city-owned and maintained vehicle shall be provided, or in the
alternative, a vehicle reimbursement allowance shall be provided per Resolution
No. 2006-428 as amended or its successor. The election between use of city
vehicle or vehicle reimbnrsement allowance shall be made once annually.
f. A temporary housing assistance stipend of $5,000 shall be provided no later than
June 15, 2009 to assist with obtaining temporary housing in the City of San
Bernardino, until permanent residency can be established. A relocation assistance
stipend of $5,000 shall be provided no later than September I, 2009 to assist with
permanent relocation to the City of San Bernardino. Both stipends shall be
contingent upon residency in the City of San Bernardino.
g. An initial uniform and equipment stipend of$1,200 shall be provided.
h. The agreement term and first day of employment shall commence on June I,
2009. The term of the employment agreement shall be three (3) years, and a
severance of six (6) months salary shall be provided if the employment agreement
is tenninated without cause prior to its natural expiration. Upon the natural
expira~ion of the initial 3-year term, the agreement will become terminable upon
thirty (30) days notice without severance, unless a new term is agreed upon.
3. Successful completion of the following POST required clearances: Medical /
Psychological Clearances (Gov!. Code section 1031 (f)(2) and Commission Reg.
I 002(b)(I)), and Fingerprint Returns / Firearms Clearances (Gov!. Code sections 1029(a),
(b), and 1031(a), Penal Code section 120121(c), 18 USC 922, and Commission Reg.
1002(a)(2)). Also, successful completion of a polygraph test is required by the City of
San Bernardino for all sworn police personnel. An appointment will be made with our
Keith L. Kilmer
April 19,2009
Re: Conditional Offer of Employment - Chief of Police
Director of Hwnan Resources, Linn Livingston, to complete these items and your new
employee orientation.
If you have any questions regarding this conditional offer of employment, please contact me at
(909) 384-5133. I look forward to working with you in colltinuing to make San Bemardino a
more safe and hospitable city.
Sincerely,
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~orris
Mayor
cc: Members of the Commoll Council
City Manager
City Attomey
City Clerk