07-20-04 Item 17To: Honorable Mayor, Vice Mayor Date: July 20, 2004
and City Commission
I
From: Maria V. Davis Subject: Agenda Item #� Ile City Manager Commission Meeting
07/20/04
Re: Attorney for Scurr Matter
REQUEST
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA PROVIDING AN ESTIMATED
COST NOT TO EXCEED $7,000 TO COME FROM GENERAL
CONTINGENCY ACCOUNT #00121005199920 FOR A LEGAL OPINION
RELATING TO FORMER CITY MANAGER CHARLES SCURR'S
PENSION MATTER; PROVIDING AN EFFECTIVE DATE
BACKGROUND AND ANALYSIS
The City Commission at their regular June 1, 2004 meeting instructed the City Manager to
prepare a resolution authorizing the entrance into a contract for further legal advice on the
provisions of the contract with former city manager Charles Scurr concerning his pension and the
crediting for past government service. After selecting the attorney determined to be the most
qualified to offer that advice, the Commission further instructed the Manager to obtain an
estimate of the cost for such services. This resolution is intended to approve those estimated
costs, not to exceed $7,000, as this was not a budgeted item. This expense is to come from
general contingency account #00121005199920 with a current balance of $26,572.74.
RECOMMENDATION
Your denial of the resolution is recommended.
Attachments: Resolution
Estimate Letter from Ronald Cohen
Copy of fax sent to Ronald Cohen
1 RESOLUTION NO.
2
3 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
4 SOUTH MIAMI, FLORIDA PROVIDING AN ESTIMATED COST NOT TO EXCEED
5 $7,000 TO COME FROM GENERAL CONTINGENCY ACCOUNT #00121005199920
6 FOR A LEGAL OPINION RELATING TO FORMER CITY MANAGER CHARLES
7 SCURR'S PENSION MATTER; PROVIDING AN EFFECTIVE DATE.
8
9 WHEREAS, the Mayor and City Commission requested that the City Manager contract with an
10 impartial attorney to provide advice in the matter of former City Manager Charles Scurr's pension buyback;
11 and
12
13 WHEREAS, the background and qualifications of those who responded were reviewed by the Mayor
14 and Commission and Ronald J. Cohen was determined to be the most qualified to offer an opinion on this
15 particular matter; and
16
17 WHEREAS, an estimate of costs for the review of salient facts and documents and preparation of a
18 legal memorandum answering the legal questions proffered by the Mayor and Commission was requested; and
19
20 WHEREAS, that estimate was received from Ronald J. Cohen in an amount "in the neighborhood of
21 $7000.00 ".
22
23 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
24 THE CITY OF SOUTH MIAMI, FLORIDA:
25
26 SECTION 1. That the City Manager is authorized to contract with Ronald J. Cohen, P.A. to perform
27 an in -depth analysis of the relevant documents, laws and records pertaining to the legality and /or the
28 enforceability of the contract and /or any agreements made between Mr. Scurr and the City of South Miami in
29 regard to his pension and /or the crediting of his time in former government service, and to prepare a legal
30 memorandum laying out the details and facts of that analysis, for a cost not to exceed $7,000 to come from
31 General Contingency Account #00121005199920, with a current balance of $26,572.74.
32
33 SECTION 2. That this Resolution shall take effect immediately upon approval.
34
35 PASSED AND ADOPTED THIS
36
37 ATTEST:
38
39
40
41 CITY CLERK
42
43
44
45
46
47
48
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
DAY OF , 2004.
APPROVED:
L►1: ••.
Commission Vote:
Mayor Russell:
Vice Mayor Palmer:
Commissioner Wiscombe:
Commissioner Birts- Cooper:
Commissioner Sherar:
RONALD J. COHEN, P.A.
ATTORNEYS AT LAW
July 13, 2004
ANDREW JACKSON BUILDING
8100 OAK LANE, SUITE 403
MIAMI LAKES, FLORIDA 33016
DADE: (305) 823 -1212
BROWARD: (954) 922 -1446
FACSIMILE: (305) 823 -7778
VIA FACSIMILE /305- 663 -6345
Charles Blazak, Assistant to City Manager
City of South Miami
6130 Sunset Drive
South Miami, FL 33143
Re: Charles Scurr Pension Matter
Dear Mr. Blazak:
We are pleased to be selected by the City Commission to provide a legal
opinion on the Charles Scurr pension matter. Our hourly rate for attorney's time
will be $200.00 per hour and our hourly rate for paralegal time will be $75.00 per
hour. We estimate our fees to be in the neighborhood of $7,000.00.
Sincerely,
DICTATED & SENT IN
HIS ABSENCE TO EXPEDITE
Ronald J..Cohen
RJC /nlw
P: \Documents \RON \Proposals \south miami 2004 \Blazek Itr re fees.doc
FROM:
TO:
COMPANY:
FAX NUMBER:
DATE:
CITY OF SOUTH MIAMI
6130 Sunset Drive
South Miami, FL 33143
(305) 663 -6318 (305) 663 -6345 (fax)
Charles Blazek, Assistant to the City Manager
Ronald J. Cohen, Esq.
305- 823 -7778
July 7, 2004
NO. OF PAGES (including this cover sheet): 22
RE: Charles Scurf Pension Matter
Comments: The South Miami City Commission selected you to offer a legal opinion on the
captioned matter for the city. Please briefly review the following pages and send us an estimate
of your time and charges to study the matter and present us with a legal memorandum as to
whether the City is obligated to pay for his pension buy -back. There are other related questions
below and on the first page following this cover that the Commission would like addressed in the
memorandum as well. We would appreciate receiving your fee estimate as soon as possible.
Several concerns /questions related to the Pension Buyback situation are itemized below:
1. It is not clear in either Mr. Scurr's contract or the resolution approving his hire that the
City committed itself to buying back Mr. Scurr's previous pension time. The resolution
(No. 203 -98- 10470) states, "Section 2. Charles D. Scurr shall receive a salary of $85,000
annually as well as ..., and credit in the South Miami Retirement System for time
employed in other governmental entities, as provided in the City of South Miami 1997/98
final adopted City budget."
There is no provision in the referenced budget to a "buyback" of previous time. The
resolution simply states that he would receive "credit" for the time, which, per my
understanding, is usually used to determine vesting and allowed contribution amounts.
Furthermore, there is no provision for payment of any money by the City toward the
referenced credit.
2. Mayor Robaina's memo dated July 19, 1999, intended to "clarify the intent of the City
Commission resolution" simply refers to the "attached" resolution and offers no
interpretation. Even the EMPLOYMENT AGREEMENT BETWEEN CITY OF SOUTH
MIAMI AND CHARLES D. SCURR states only (under Section 2.5 Retirement Benefits),
"Credit (bold emphasis added) in the City retirement system for time employed in other
governmental entities and annual contributions to the system."
The regular annual contributions to the system, this appears to say, would be based on the
years of service with which he was credited. Again, it says nothing about a buyback of
time served. Would any responsible legislative body saddle a cash - strapped city with a
half -a- million dollar obligation up -front to someone whom it had just hired?
The contract and the resolution are between the City and Mr. Scurr. Only the majority of
the Commission has any authority to alter any provisions. The Mayor, acting alone, has
no authority to clarify and /or change any provisions of either one.
3. The City's Pension Plan is setup and established by ordinance and is supposed to be
totally non - discriminatory. Wouldn't it have required the passage of an amending
ordinance by the then - sitting Commission if it was their intent to buy -back or fund all the
previous years of Mr. Scurr's previous government service; and would it not have been
illegal to separate him as a class unto himself for specialized provisions under the plan
that do not exist anywhere, for any class of employee?
4. If it was determined to be the intent of the then - sitting Commission to buyback the
previous years' contributions to the Pension Plan for Mr. Scurr, can the City be held to a
provision in a contract that is illegal on its face?
These are our main concerns with this situation. We would like your memorandum, should
acceptable terms be negotiated, to address these issues also. Thank you.
Attached /following:
Facts /Issues Re Scurr Pension
Article III, Section 5 H City of South Miami Charter
Memo from Finance Director to present City Manager, Dated 3/19/04
Letter from Pension Attorneys Sugarman & Susskind, 1/10/03
Memo from Finance Director to Acting City Manager 12/27/02
Resolution No. 203 -98 -10470 (appointing City Manager Scurr)
Memo to Finance Director from Mayor Robaina 7/19/99
Employment Agreement between City and Scurr
Resolution No. 198 -02 -1157 (accepting Scurr resignation)
Facts /Issues Re Scurr Pension
The City and Charles Scurr entered in an Employment Agreement. The contract provides
for "Credit in the City retirement system for time employed in other governmental
entities and annual contributions to the system" (contract paragraph 2.5).
The City's pension attorney has opined that the "buy- back" provision could not be put
into a Pension Plan unless it was extended to all other City employees. It was also his
opinion that, "Unless and until the Pension Plan is amended by ordinance, the Pension
Plan cannot grant credited service to Mr. Scuff for his service with other governmental
service. Furthermore, should the P3ension Plan not be so amended, $89,716.80 paid by
the City to the Plan for the other governmental service should be either refunded to the
City or credited towards future required City contributions. To so alter the Pension Plan
would cause the City to incur costs of at least hundreds of thousands, if not millions of
dollars in buy backs for other employees.
The City Commission never approved by budget, resolution or ordinance the
authorization of expenditures to fund buy- backs. Despite this, Charles Scurr signed
checks to pay for the buy -backs of his pension credits. The City Charter at Art. III,
Section 5H requires all expenditures over $5,000 to be approved by the Commission.
The checks were in excess of that threshold amount and were not approved by the
Commission. The City's Finance Director questioned the expenditures. The mayor at
that time, Julio Robaina, drafted a memorandum to justify the expenditure, but all it did
was refer to the contract, which was drafted by Mr. Scurr and his representative.
Issues
1. Having approved the City Manager's contract, must the Commission approve all
other resolutions and ordinances necessary to effectuate it, or does the City
Commission exercise its independent legislative duties on each budgetary item
before it?
2. Since Scurr's pension provision was not allowed under the Pension Plan at the
time the contract was approved, did the Commission have to approve a change to
the pension ordinance, or could they exercise independent legislative prerogative
in approving the new pension provisions?
3. Was Scurf's signing checks to fund his pension illegal?
4. Did the act of Scurr's signing checks bind the city to fully fund his pension buy-
back?
5. Does the fact that Scurr took no action to change the pension plan (he could have
proposed an ordinance or resolution) mean that he waived his right to enforce the
pension provision?
6. As you're aware, a contract can be formal or ratified by conduct. By the City
funding the buy -back, Scurr can argue that that was ratification and no other
formal act of the Commission was necessary. But, since Scurr executed the acts of
ratification on behalf of the City, can he use those acts against the City?
temporary absence or disability. Such acting City Manager shall
not serve for a period longer than 90 days. During such absence
or disability, the Commission may decline such recommendation at
any time and appoint another officer of the City to serve until
the Manager shall return or his disability shall cease.
B. Failure to Recommend During such absence or disability
as set forth in (A), if the City Manager fails to recommend an
Acting City Manager, the Commission shall name an Acting Manager
to serve at the pleasure of the Commission.
SECTION S. Powers and Duties
The Citr Manager shall be the chief executive officer and
head of the administrative branch of the City government. He or
she shall be responsible to the Commission for the proper
administration of all affairs of the City. He or she shall have
the following powers and duties to:
A. Appoint and, when necessary for the good of the City,
remove any non- elective officers or ^ employees- " -- of the City
(excepting those authorized to be appointed and removed by the
City- Commission), providing sucR removal does not conflict with
Civil Service provisions.
B. Prepare the budget annually and submit it to the
Commission and be responsible for its administration after
adoption.
C. Submit to the Commission and make available to the
public a report every month on the finances and administrative
activities of the City, together with his or her recommendations.
D. Prepare and submit to the Commission at the end of the
fiscal year a complete report on the finances and administrative
activities of the City for the preceding year.
E. Direct and supervise the administration of all
departments offices and agencies of "' " "�th'e "" "'City, excepts "s
otherwise provided by this Charter or by law. (Amended 2/8/00)
F. Attend all Commission meetings with the right to take
part in discussion.'
G. Perform such other duties as are specified in this
Charter or which may be required by the Commission.
H. Contract for the purchase of any goods or services for
any department of the City in an amount up to and including
($5,000.00). All contracts for goods and services in excess of
$5,000.00 shall be approved by the City Commission. The City
] 5 SOUTH NIL -XNII CITY CHARTER
AMENDED 2/8/00
Manager shall report. all expenditures to the City Commission
monthly. (Amended 2/8/00)
All purchases shall be approved after competitive conditions
shall have been maintained and competitive bids sought from at
least three different sources of supply if available, such
determination to be made by the Commission, and, notwithstanding
the foregoing, the City may make purchases through other
governmental agencies that have followed similar bidding
procedures. This subsection does not apply to the purchase of
legal and expert services that have been approved by the City
Commission. (Amended 2/8/00)
ARTICLE IV
Finance
SECTION 1. Fiscal Year
The fiscal year of the City of South Miami shall be the same
as that set by Dade County or its successors.
SECTION 2. Budget
A. The City. Manager shall submit to the C -Dmimission, 6 -0
days prior to the beginning of the fiscal year, an annual budget
together with an explanatory message. The budget, budget message
and all supporting schedules, shall be a public record open to
public inspection by anyone.
B. Public Hearings At the meeting of the Commission at
which the budget and budget message are submitted, the Commission
shall determine the time and place for a public hearing on the
budget, at which time, interested persons shall be given an
opportunity to be heard. The City Clerk shall post a notice of
the place and time not less than five days after the date of
posting at which time the Commission will hold a public hearing.
C. Adjustments After conclusion of such public hearings,
the Commission may insert new items or may increase, decrease or
delete the items of the budget; provided, however, if the total
of proposed expenditures be increased thereby, then and in that
event, the City Clerk shall post a notice setting forth the
nature of the proposed increase and listing a place and time not
less than five days after the date of posting of the public.
hearing thereon.
D. Adoption The budget shall be adopted by three
affirmative votes of the City Commission before the first day of
the new fiscal year. Should the Commission take no final action
on or prior to the date, the budget, as submitted, shall be
16 SOUTH MIANI-II CITY CHARTER
ANIE`DED 2/8/00
Y
CITY OF SOUTH MIAMI
INTER - OFFICE MEMORANDUM
To: Maria Davis
City Manager
Date: March 19, 2004
From: Hakeem K. Oshikoya, CPA Re: Pension Buyback -
Finance Director Charles Scurr
s
As a follow -up to our conversation of this morning, I am writing this memo to provide
you additional information to my December 27, 2002 relative to the former City Manager
Charles Scurr's pension.
1. On October 5, 1999, the City Commission entered into an employment contract
with Mr. Scurr.
2. Section 2.5 of the contract provides for "Credit in the City retirement system for
time employed in other governmental entities and annual contributions to the
system ".
3. At some point after approval of the contract, Mr. Scurr requested for us to begin
payment of funds into the pension plan for his regular pension contribution and
the buyback time.
4. I responded to him that my interpretation of this section of the contract is only for
the City to pay for his regular pension contribution annually based on his current
salary at the time, and it does not address the issue of who will be responsible for
the payment of the buyback time. Furthermore, the City pension plan only
provides for buyback of time for City of South Miami past services up to a
maximum of five (5) years in the City retirement system.
5. Because of the fact that the City pension plan does not provide for buyback of
time to employees for services rendered to other governmental entities, I
suggested for Mr. Scurr to obtain clarification of the matter from either the City
Attorney or the City Commission if the City was responsible for payment of his
buyback time and how to handle the ambiguity.
6. Subsequent to this discussion I had with him, he forwarded me a memo written by
former Mayor Julio Robaina, dated July 19, 1999 clarifying the intent of the City
Commission regarding Section 2.5 of the contract to mean that the City will be
financially responsible for payment of Mr. Scurr's pension buyback time.
7. From the time we received the former Mayor's letter, the City started making two
separate biweekly payments to the bank for Mr. Scurr. One for the buyback time
and the other for his regular pension contribution.
8. In December 2002, upon Mr. Scurr's resignation of employment with the City, I
wrote a memo to Mr. Youkilis, who was the Acting City Manager then to inquire
about how to handle future payments into his pension buyback account.
9. He forwarded the memo and other documents to the City Commission for
direction.
10. The documents were later sent to the Pension Board Attorney for review and
recommendations (see attached letter).
11. It was after receiving response of the Pension Board Attorney that it became
known to us that the funds sent to the bank for credit into Mr. Scurr's pension
buyback account were never credited to him by the Pension Actuary because the
current provisions of the pension plan does not allow for him to be credited with
buyback time, and his funds were used to offset the annual amount of
contributions by the City to the general pension plan.
Please advise if there is any additional information I need to provide regarding this
matter. Thanks.
Robert A. SVgClrnlan♦
Howcud S. Sualdnd
David E. Robinson
Kenneth R. Harrison, Sr.
D. MarCus Braswell, Jr.
G**rV0 S. Aude
Chades A. Gibson
*Board Certified Labor
& employment Lawyer
SU ARMAN & SUSSKIND
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
January 10, 2003
Via facsimile (305) 66$.3877 & U.S. Mail
13oard of Trustees
City of South Miami Pension Funds
c/o Jeannette Enrizo- Navarro, Duman Resources Manager
6130 Sunset Drive
South Miami, Florida 33143
Re. Pension Credit for Farmer City Manager Charles Seurr
Dear Trustees,
2801 Pome Do Leon Soutevord
Suite 757
CoTd Gables, Fio0da 33134
(305) 524 -2801
Broward 327.2878
Toll Free 1-900329 -2122
FOCSIM11e (305) 447.8115
You have asked our opinion concerning the contributions which should be made to the
South Miami Pension Plan on behalf of recently resigned City Manager Charles Scurr.
In preparing this opinion, we have reviewed the Inter Office Memorandum dated
December 27, 2002 from Finance Director Oshikoya to Acting City Manager. Youkilis, City
Commission Roolutioans No. 203 -99-1040 and 198 -02- 11547, the Memorandum dated Judy 19,
1999 from Mayor kobaina to Finance Director Qshikoya, the Employment Agreement between
the City and Mr. Scutr dated October 4, 1999, and the provisions of the ponsion plan set forth in
Chapter 16, Article 11 of the South Miami Code.
Resolution No. 2013 -98- 104701, dated July 21, 199$, appointed Mr. Saar as the city
manager and provided for a "credit in the South Miami Retirement System for tinge employed in
other governmental entities" The July 19, 1999 Memorandum from Mayor Robaina verified the
City Commission's intent that the retirerner)t credit be "part of the compensation section of the
resolution and is the financial responsibility of the City," Seotion 2.5 of the Wow 5, 1999
Employment Agreemat also states that Mr. Scurr received "credit in the City retirement system,
for time employed in other governmental entities and annual contributions to the system."
Z01d d4O ;90 EO- OT:-Uvr
Board of Trustees
City of South Miami Pension Funds
c/o Jeannette Enrico- Navarro, ffuman Resources Manager
January 14, 2003
Page 2
Although Resolution No. 203-9&10470 and the Employment Agreement provide for
credited service in the South Miami Pension Plan for Mr. Scurr's tither governmental service,
there is no such provision in the South Miami Pension Plan which authorizes you to pay a
pension based upon service for other governments. nts. As trustexs of the Pension Plan, you have a
fiduciary duty to pay benefits only in accordance with the terms of the Pension Plan. Since the
Pension Plan ".v mit provide for credited service for time spent working fbr other employers, it
is our opinion that the South Miami Pension Plan cannot pay a benefit to Mr. Scurr or grant him
credited service based upon his employment with other employers.
In order for Mr. Scurr to receive credited service for employment with ether
governmeotal employers, the provisions of tho South Miami Pension Plan must be amended by
ordinance. Because the provisions of Resolution No. 203 -98- 14470 and the Employment
Agreement are ambiguous as to the financing of this credit for Mr, Scurr, the ordinance
amendment should include answers to the following questions:
- is Mr_ Scurr required to make employee contributions for the credited service he is
receiving for work with other governmental employers?
Was Mr. Scurf obligated to make employee contributions for the credited service he
earned while employed as South Miami City Manager?
Are there any other employment agreements or arrangements with other employees who
are participants in the South Miami Pension Plan providing for a-edited service for work
with other employers? If so, those arrangements should also be included in the
ordinance.'
If the city attorney drafts the amending ordinance, we request an opportunity to review it
before it is submitted to the 'Commission. If you would lee us to draft the ordinance, (a service
which is covered by our retainer), please ask the City to furnish us with the answers to the shove
questions and we will prepare the amendsa nt for review by the city attorney.
Before the amending ordinance can be finally adopted by the Commission, an actuarial
impact statement must be prepared by the Pension Plan's actuary. Now that Mr. Scum's
employment with the City has teradmted., the exact impact of grtmting this other goverranental
service (that is, the amount by which this other service increased the pension he would otherwise
earn) can be definitely determined. Thus, the actuary will be able to provide us with a clef Hite
cost for this additional credited service. The $89,716.50 which the city has already paid towards
that cost (as shown in Finance Director 0shikoya's December 27, 2042, Inter - Office
' The answers to these questions must be prow ad by the city. Sim it was the city that adopted dw rew1ution and
was party to the employment contract ofMr, scum, the City cats f apish is with its in mt and clear up the
ambiguities in 04 two d=mMft. As truces of the Ponsion Plan, you are autborind only to itstawt and oomruc
provisions of the Pension Plan; you do rat ban the authority to ca>sct z or interpret ambiguous previsions of the
city's emloyanetat c�>sttacts,
EO'd dso ;90 £O- OZ_UVV
Board of Trustees
City of South Miami Pension Funds
c/o Jeannette Enrizo-Navarro, Human Resources Merger
Januavy 10, 2003
Page 3
Memorandum) will be credited towards this cost. The actuary should be notified of this
contribution already made by the city so that the actuary can prepare a funding schedule for any
balance which: may be due.
Based upon the undersWdings and for the reasons set forth above, it is our opinion that
unless and until the Pension Platt is amended by ordinance, the Pension Plan cannot g mt
credited service to Mr. Scurr for hie s told w tfi ether govein &* oyers iffid cannot pay - - - -- — - --
Mr. Scur, a pension based upon the other governmental service. Furthermore, should be Pension
Platt not be so amended, $89,716.90 paid by the City to the Plan for the other governmental
service should be either refunded to the city or credited towards future required city
contributions.
YYOLIrs truly,
*OREX7'A- SUG AN
R Slid
G:`.\SbeFO?M',t) PIN -WityM~cnsionccm' mdow-tarTTuetem
tr0Id d8O :90 eO- OT-UeV
CITY OF SOUTH MIAMI
INTER- OFFICE MEMORANDUM
To: Sandy Youkilis Date: December 27, 2002
Acting City Manager
From: Hakeem K. Oshikoya, CPA Re: Pension Buyback -
Finance Director Charles Scurr
In response to a phone inquiry from one of our City Commissioners and a follow -up
conversation between you and me, I am writing this memo to request direction on future
payments of the pension buyback for former City Manager Charles Scurr. To better
understand the reasons for this request, below is a synopsis of sequence of events relating
to the buyback.
1. On October 5, 1999, the City Commission entered into an employment contract
with Mr. Scurr.
2. Section 2.5 of the contract provides for "Credit in the City retirement system for
time employed in other governmental entities and annual contributions to the
system ".
3. In order to accomplish the requirements of the provision, the City requested and
received information from Mr. Scurr pertaining to his past salaries in other
governmental entities that he was employed.
4. The information received was used to determine his average salary in the last ten
years before he started working for City of South Miami. The amount was
$52,784.80.
5. This amount was then used to calculate his total pension buyback amount of
$168,177.63.
6. The City has made the following payments towards Mr. Scurr's pension buyback,
and his annual contributions since inception of the contract:
YEAR BUYBACK AMOUNT ANNUAL CONTRIBUTION
2000 $28,189.18 $4,495.00
2001 27,054.34 4,674.80
2002 28,009.54 7,146.05
2003 6,463.74 1,683.04
TOTAL 89,716.80 17,998.89
Page 2
Charles Scurr
Pension Buyback
Since Mr. Scurr's last day of employment with the City of South Miami is February 17,
2003, and his pension buyback would not have been fully paid as of this date, I need to
know how to proceed with future payments of this benefit and whether a resolution is
needed to continue payments because the resignation resolution is silent on this matter.
Please advise on future course of actions to this matter at your earliest convenience.
RESOLUTION NO. 203 -98 -10470
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO THE CITY
MANAGER, PROVIDING FOR APPOINTMENT OF CITY MANAGER;
APPOINTING CHARLES D. SCURR TO SERVE AS CITY MANAGER;
PROVIDING FOR SALARY ADJUSTMENT; PROVIDING FOR
BENEFITS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Mayor and City Commission of the City of South
Miami are authorized pursuant to article II, section 7 and
article III, section 1 of the City Charter, to appoint a City
Manager, who shall serve at the pleasure of the Commission; and
WHEREAS, the City Manager shall be the chief executive
officer and the head of the administrative branch of the city
government; and
WHEREAS, article III, section 2 of the City Charter provides
that the City Manager shall be appointed solely on the basis of
his or her executive and administrative qualifications, shall be
qualified by experience and training in municipal government and
shall be a graduate of a recognized school of government of have -
equivalent experience; and
WHEREAS, on January 6, 1998 by Resolution No. 8 -98 -10275 the
City Commission provided for the selection of a City Manager by
Creating a City of South Miami City Manager search Committee; and
WHEREAS; ON March 3, 1998 by Resolution No. 52 -98 -10319 the
City Commission provided for the composition of that City Manager
Search Committee to be comprise into two groups; 1) A
Professional City Manager Committee. comprised of three current
full members in good standing of the International City /County
Managers Association (ICMA); and 2) a Citizen Search Committee
comprised of five members who would be selected from among the
citizenry of the City; and
WHEREAS, on March 17, 1998 by Resolution No. 58 -98 -10326 Lee
Feldman, City Manager for the City of North Miami, John Asmar,
City Manager from the City of Homestead and Linda Karlson, City
Manager for the Town of Bay Harbor Islands were appointed to the
Professional City Manager Search Committee and were charged with
the responsibility of reviewing the applications submitted and
narrowing that number down to 10 prospective candidates for
review by the Citizen Search Committee; and
WHEREAS, on April 7, 1998 by Resolution No. 75 -98 -10342 Ann
Bass, Bruce Hoffmann, John Whitehead, III, Subrata Basu and Ned
W. Valois were appointed to the Citizen Search Committee and were
charged with the responsibility of further narrowing down the
prospective candidates for submission to the City Commission.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section L. The City Commission hereby appoints
Charles D. Scurr to serve as the City Manager for the
City of South Miami, Florida in a permanent capacity at the
pleasure of the Commission.
Section 2. Charles D. Scurr
of $85,000 annually as well as
compensation, car allowance, and
Retirement System for time emp:
entities, as provided in the City
adopted City budget.
shall receive a salary
insurance benefits, deferred
credit in the South Miami
Loyed in other governmental
of South Miami 1997/98 final
Section 3. This resolution shall take effect immediately
upon approval.
PASSED AND ADOPTED this 21St day of July 1998
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
APPROVED:
/ ME-
COMMISSION VOTE:
Mayor Robaina:
Vice Mayor Oliveros:
Commissioner Russell:
Commissioner Feliu:
Commissioner Bethel:
5 -0
Yea
Yea
Yea
Yea
Yea
. 1,
JULIO ROBAINA
MAYOR
To: Hakeem Oshikoya
From: Julio Robaina _l k
04 �
F �
i� z
iN CGl1'OIUTCG
3137
LORi9
6130 SUNSET DRIVE
SOUTH MIAMI, FLORIDA 33143
3051663-8340
FAX 663 -6348
Date: July 19, 1999
Re: CharlesrScurr) South Miami
Retirement System
The purpose of this memorandum is to clarify the intent of the City Commission
resolution (Resolution attached) concerning the retirement credit for the City Manager.
This is part of the compensation section of the resolution and is the financial
responsibility of the City.
CC: C. Scurr
EMPLOYMENT AGREEMENT
BETWEEN CITY OF SOUTH MI M AND
CHARLES D. SCURR
This Agreement, is made and entered into this 5t' day of October, 1999, between
the City of South Miami, a Florida municipal corporation, and Charles D. Scurr.
WHEREAS, the City of South Miami and Charles D. Scurr wish to continue to
employ the services of Charles D. Scurr as City Manager of the City of South Miami; and
WHEREAS, the City and City Manager desire to provide for certain procedures,
benefits, requirements and to set working conditions regarding the employment of the
City Manager by the City.
NOW, THEREFORE, in consideration of the promises, mutual covenants,
conditions, provisions and undertakings contained in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is acknowledged by both
parties, the parties covenant and agree with each other as follows:
1. The City Manager shall:
1.1 Duties. Continue to perform the duties of the City Manager of the City of
South Miami in accordance with the terms conditions and provisions
contained in this Agreement, the Charter and Code of Ordinances of the
City of South Miami, and as otherwise lawfully directed by motion or
acclamation of the City Commission.
1.2 Time Required. The City Manager recognizes the position is not and
cannot be an hourly -type employment and the City Manager shall work as
required in order to carry out his duties and responsibilities.
1.3 Outside Employment. The City Manager may engage in outside
employment so long as: 1) prior permission is received from the Mayor
and City Commission upon disclosure of the nature of the employment,
duration and the estimated number of hours per month that will be devoted
to the employment, 2) the employment does not violate the prohibition
against dual office holding and 3) the employment does not create a
potential conflict of interest or detract from the time necessary to
accomplish city work, as determined in the discretion of the City
Commission. The term "Outside Employment" shall not be construed to
mean occasional teaching, publication, pro bono activities or consulting
services performed on time off, not exceeding 5 hours a week unless
approved by the City Commission.
2. The City shall:
2.1 Employment. Continue to employ Charles D. Scurr as City Manager
consistent with the Charter and Code of Ordinances of the City of South
Miami, and as otherwise lawfully directed by motion or acclamation of the
City Commission and the terms and conditions of this Agreement.
2.2 Salary. The amount of Ninety three thousand five hundred dollars
($93,500.00) for the period beginning October 1, 1999, payable in
accordance with the regularly scheduled method of compensation for other
City employees and subject to adjustment in accordance with this
Agreement.
2.3 Annual Adjustment. Annually review the salary of the City Manager as
part of the annual budget annually in accordance with the City Charter.
The City Commission may, in its sole discretion, grant a merit salary
increase and, or, other benefits to the City Manager.
2!4 Cost of Living. COLA as approved by the City for other general
employees.
2_5 Retirement Benefits. Credit in the City retirement system for time
employed in other governmental entities and annual contributions to the
system.
226 General Expenses: The City shall pay a monthly expense allowance
equivalent to that provided for the individual members of the City
Commission.
2.7 Professional Dues. Reasonable and customary dues, training and
subscriptions necessary for the City Manager's continued professional
participation, growth and advancement, including national and state
professional organizations.
2.8 Transportation. A car allowance of $500.00 monthly plus a gasoline
allowance of $100.00 monthly, or if requested by the City Manager, a City
car, in which event the City shall be responsible for providing for liability,
property damage and comprehensive insurance and for the purchase,
operation, maintenance, repair and regular replacement of the vehicle.
Entitlement to use of the City vehicle shall cease upon the City Manager's
termination or resignation.
2.9 Insurance/Medical. Pay family coverage health and dental insurance
under the city plans, long term disability insurance, and life insurance in
an amount equal to annual salary, and an annual physical.
2.10Leave. Equivalent to other City employees at senior seniority levels as
provided in the City personnel regulations.
2.11 Deferred Compensation. An annual amount equal to l I% of the City
Manager's annual salary , into the Plan on the City Manager's behalf, and
agree to transfer ownership to the City Manager of the Plan's fund upon
the City Manager's resignation or termination.
2
2.12 Equipment. Provide the equipment necessary to perform the duties of City
Manager such as cell phone, pager and radio.
2.13 Indemnification and Defense of Claims. The City shall defend, save
harmless and indemnify the City Manager against any tort, professional
liability claim or demand or any and all other legal action arising out of an
alleged act or omission occurring in the performance of the City
Manager's duties. The City will litigate, compromise or settle any such
claim or suit and pay the amount of any settlement or judgement rendered
thereon. The City, or its insurance carrier, will provide legal
representation for the City Manager, suitable to the City Manager, for any
and all claims, proceedings or lawsuits related to or arising out of the City
Manager's affiliation with the City. This indemnification provision shall
survive the termination of this Agreement.
2.14 Bonds. Pay for any cost of bonds required pursuant to law, ordinance or
Charter.
3. Termination. The City Manager shall serve at the pleasure of the City
Commission as defined by the City Charter. Nothing in this Agreement shall
prevent, limit or otherwise interfere with the absolute right of a majority of the
full City Commission to terminate the services of the City Manager at any
time, with or without cause, and without prior notice, in accordance with
Article III, Section 3 of the City's Charter, subject only to the provisions set
forth in Section 4 of this Agreement. In the event the City Manager voluntarily
resigns his position with the City, then the City Manager shall give the ,City
Commission 60 -days written notice, in advance, unless the parties agree to
waive such notice requirement. Termination for cause shall mean termination
for the same grounds as would result in the forfeiture of office by a
Commissioner under Article II, Section 4.A. of the City Charter.
4. Severance Terms and Conditions. Severance pay, as authorized by the Charter,
shall not be payable in the event of a voluntary resignation or termination for
cause. In the event the City Manager is terminated without cause by a majority
of the full City Commission, or the City Manager resigns following a
suggestion made in writing or at a public meeting or workshop by any two
members of the Commission that he resign, or the City Commission suspends
the City Manager without cause for more than 90 days, in which events the
City Manager may at his option be deemed terminated without cause, the City
shall pay the City Manager an amount equal 30 -days of the City Manager's
salary and accrued benefits. Any payments due to the City Manager for
severance, accrued leave or other obligations shall be paid in cash in full within
30 days of resignation or termination.
3
5. Suspension. The City Commission may suspend the City Manager with full
pay and benefits at any time during the term of this Agreement. The
Commission may suspend the City Manager without pay and further benefits,
but only for cause as described in Section 3 and upon giving the City Manager
at least 30 -days written notice of the charges to be heard at a public hearing on
the charges.
b. Term. The term of this Agreement shall be a three (3) year term commencing
October 1, 1999 and ending September 30, 2002.
7. Contract Payment. In the event the City Manager is terminated without cause
or the City Manager resigns as provided in paragraph 4, the City shall
additionally pay the City Manager the balance of payments and benefits
provided for under this contract up to a maximum of six months plus one
additional month for each year of service.
8. Amendment. The provisions of this Agreement constitute the entire
understanding between the parties. Only the representations and understanding
contained herein shall be binding upon the City Commission and the City
Manager. No other representations or understanding are binding on the City
Commission and the City Manager unless contained in this or a subsequent
duly adopted Agreement. No modification, amendment or alteration in the
terms and conditions of this Agreement shall be effective unless approved in
writing by both parties.
9. Severability. In the event any provision of this Agreement is declared by a
court of competent jurisdiction to be invalid, the declaration shall not affect the
validity of the Agreement as a whole, or any part of the Agreement, other than
the part declared to be invalid.
10. No Property Right to Employment. The contract for employment does not
change the nature of the employment from at will employment nor create a
property right to employment under the laws of the State of Florida.
11 No Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other shall not operate or be construed as a waiver of any
subsequent breach by that party.
12. Obligations Personal. The rights and obligations herein granted are personal in
. nature and cannot be transferred by the City Manager.
13. Reduction of Compensation. In the event the City Commission at any time
during the employment of the City Manager, reduces the annual financial
10
benefits of the City Manager in a greater percentage than an applicable across -
the -board reduction for all City employees, or in the event the Commission
refuses, following written notice, to comply with any other provision
benefiting the City Manager, then in that event the City Manager may at his
option, be deemed to be terminated within the terms outlined in Section 3 and
4 above, at the date of the reduction or the refusal, and the severance pay
provision and other termination provisions shall become applicable at the
annual salary and benefit level in effect prior to the reduction or refusal.
14. Florida Law. This Agreement shall be governed by Florida law and any
.litigation which. may arise under, or relating to this Agreement shall be filed
and litigated in the state circuit court in Miami -Dade County, Florida.
Litigation shall not be initiated in any federal district court, nor shall any party
assert in any proceeding that this employment contract creates a federally
protected property right in employment.
15. Waiver of Right to Jury Trial. The parties knowingly waive their right to a
jury trial in any legal action arising under, or relating to, this Agreement.
16. Effective Date. This Agreement shall become effective on the date of approval
by resolution of the City Commission.
IN WITNESS WHEREOF, the City of South Miami has caused this Agreement to
be signed and executed on its behalf by its Mayor and duly attested by its City Clerk, and
Charles D. Scurr has signed and executed this Agreement the day and year first above
written.
Attest:
City.Clerk
Approved as to for and
Legal sufficiency:
City Attorney
City of South Miami
By
Julio Robaina, Mayor
City Manager
Charles D. Scurr
5
RESOLUTION NO. 198-02-11547
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
THE CITY MANAGER; ACCEPTING THE RESIGNATION OF
CHARLES D. SCURR AND AUTHORIZING SEVERANCE
PAYMENT; PROVIDING AN EFFECTIVE DATE.
WHEREAS, Charles D. Scurr was appointed by the Mayor and City
Commission of the City of South Miami to serve as its city manager and Mr. Scurr
has fully and faithfully served the city during that time; and
WI- AREAS, Mr. Scurr gave notice on December 17, 2002, that he desires
to resign as city manager and has notified the city commission that he will
continue to be available as necessary and appropriate to assist with the transition;
and
WHEREAS, the Mayor and City Commission accept his resignation upon
the terms and conditions stated in this resolution.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
Section 1. The resignation of Mr. Charles D. Saw as city manager of
the City of South Miami is accepted. The resignation. shall be effective 60 days
from December 17, 2002; provided, however, in the event the city commission
appoints a permanent city manager . during that 60 -day period of time, the
resignation shall be effective upon the date of the appointment. Mr. Scurr shall be
on leave following this commission meeting to the effective date of his
resignation. Regardless whether a city manager is appointed during the 60 -day
period, Mr. Scurr shall receive salary and benefits as follows: (1) he will receive
fiill payment of salary and benefits during the first 30 days; and (2) payment shall
be made for the second 30 days provided that he has not commenced employment
elsewhere. In the event Mr. Scurr accepts other employment he shall be paid to
the date of employment.
Section 2. This resolution shall take effect immediately upon approval.
Additions shown by nnderlinin and deletions shown by evefstr-icg.
Res, No. 198 -02- 11547
PASSED AND ADOPTED this 176 day of December, 2002.
ATTEST: APPROVED:
W4 -1� '�' tom,,
r
I Y CLERK MAYOR
COMMISSION VOTE:
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
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Page 2 of 2
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Russell:
Commissioner Wiscombe:
Commissioner Bethel:
Commissioner McCrea:
5 -0
Yea
Yea
Yea
Yea
Yea