03-09 OrdinanceRECORD OF ORDINANCES
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Ordizzccnc•e No.
03-09
Pa.r.sed
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AN ORDINANCE APPOINTING A NEW CITY MANAGER,
AUTHORIZING THE EXECUTION OF AN EMPLOYMENT
AGREEMENT WITH THE CITY MANAGER, WAIVING
THE PROVISIONS OF ORDINANCE 92-02, AND
DECLARING AN EMERGENCY.
WHEREAS, in a Special Meeting held on January 26, 2009, Council agreed upon the
selection of Terry D. Foegler as the new City Manager and authorized the City's
Search Consultant (The Mercer Group, Inc.) and staff to negotiate on Council's behalf
an employment agreement with Terry D. Foegler; and
WHEREAS, Council is in agreement with the terms of the Employment Agreement
and desires to enter into a contract with Terry D. Foegler.
NOW, THEREFORE, BE IT ORDAINED, by the Council of the City of Dublin,
State of Ohio, ~ of the elected members concurring, that:
Section 1. Terry D. Foegler is hereby appointed as City Manager of the City of
Dublin.
Section 2. Council hereby authorizes the Mayor, on behalf of Council, to execute
and enter into an Employment Agreement with the City Manager, a copy of which is
attached as Exhibit "A."
Section 3. The provisions of Ordinance 92-02 authorizing an Ohio Public
Employees Retirement System (OPERS) pension "pick up" plan for the position of
City Manager shall be waived and shall not apply to the appointment of Mr. Foegler as
the new City Manager.
Section 4. This ordinance is declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, safety or welfare, and for the
further reason that Council recognizes that the Interim City Manager has carried out
the duties of both City Manager and Deputy City Manager/Finance Director for
several months, and Council desires to facilitate the transition of duties to the new City
Manager in a timely manner. This ordinance shall therefore take effect and be in force
immediately upon passage.
Passed this day of ~~ , 2009.
Mayor -Presiding Officer
!~ ~ ~
Clerk of Council
crrr or utia~.i~s
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of Dubin City Council
From: Marsha I. Grigsby, Interim City Manager ~``~~-
Datc: January 30, 2009
Initiated By: Stephen J. Smith, Law Director
David L. Harding, Director of Human Resources
Memo
Re: Ordinance 03-09 - Appointing a New City Manager a,~d Authorizing the Execution
of an Employment Agreement with the City Manager
Summary
Staff was advised in writing by the Ohio Public Employees Retirement System (OPERS) on
Friday, January 30, 2009 that, contrary to their previous verbal direction, Ordinance No. 92-02
establishing a pension "pic]< up" plan for the position of City Manager should be repealed
legislatively. Consequently, staff has revised Ordinance No. 03-09 appointing a new City
Manager by adding Section 3 to the Ordinance. Section 3 states that the provisions of Ordinance
No. 92-02 authorizing a pension "pick up" plan for the City Manager position shall be waived
and shall not apply to the appointment of Mr. hoegler as the new City Manager.
As stated, Ordinance No. 92-OZ should be repealed. Staff will either prepare the appropriate
legislation repealing Ordinance No. 92-02 for the February 17, 2009 Council meeting or prior to
the need to make a City Manager appointment in the firture.
Recommendation
Staff recommends adoption of revised Ordinance 03-09 by emergency at the February 2, 2009
Council meeting. If you have any questions, please contact either Dave Harding or Steve Smith.
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
rrrl' pF llUBLIN Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of Dublin City Council
From: Marsha I. Grigsby, Interim City Manager /~'YI~G`,~„~
Date: January 29, 2009
Initiated By: Stephen J. Smith, Law Director
David L. Harding, Director of Human Resources
Memo
Re: Ordinance 03-09 - Appointing a New City Manager and Authorizing the
Execution of an Employment Agreement with the City Manager
Summary
Pursuant to Council's direction, staff has drafted the attached legislation and employment
agreement for the new City Manager. The contract reflects the salary and benefits package as
agreed upon by Council. As you will note, the contract reflects Mr. Foegler's start date as
Tuesday, Febniary 17. This will require emergency adoption of the legislation on February 2.
Recommendation
Staff recommends adoption of Ordinance 03-09 by emergency at the February 2, 2009 Council
meeting. If you have any questions, please contact either David Harding or Steve Smith.
Exhibit "A"
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made and entered into this day of
February, 2009, by and between the City of Dublin, Ohio, an Ohio municipal corporation,
hereinafter called "Employer or City," and Terry D. Foegler, hereinafter called "Employee or
City Manager."
WITNESSETH
WHEREAS, Employer desires to employ the services of Terry D. Foegler as City Manager of
the City of Dublin, as provided for in Article V of the Revised Charter of the City of Dublin
("Revised Charter"); and
WHEREAS, it is the desire of the City Cotmcil of the City of Dublin to provide certain benefits
and to establish certain conditions of employment of said Employee as set forth in this
Employment Agreement; and
WHEREAS, Employee desires to accept employment as City Manager of Dublin, Ohio pursuant
to the terms and conditions set forth in this Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties
agree as follows:
Section 1. Powers and Duties of the City Manager.
A. Employer hereby agrees to employ Terry D. Foegler as City Manager of the City of
Dublin to perform the functions and duties specified in the Revised Charter, and to perform such
other legally permissible and proper duties and functions as the City Council shall from time to
time assign, subject to this Agreement. Employment shall commence on the 17"` day of
February, 2009.
B. Pursuant to Section 3.03 of the Revised Charter, neither the City Council nor any of its
members shall direct or demand the appointment of any person to, or removal from, office by the
City Manager or any of his subordinates, or in any manner take part in the appointment or
removal of officers and employees in the service of the City, except where expressly provided
for by the Revised Charter or state law.
Section 2. Term of Agreement.
A. The City Manager shall serve at the pleasure of the City Council and his initial date of
employment will be February 17, 2009.
B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the
City Manager to resign at any time from his position with Employer. However, the City
Manager agrees to provide thirty (30) days' notice of his resignation and such resignation shall
forfeit any right of severance, except as provided for in Section 3.D. of this agreement.
C. The City Manager agrees to remain in the exclusive employ of the City of Dublin, while
employed by the City of Dublin. The term "employed," however, shall not be construed to
include occasional teaching, writing, speaking or consulting performed on his time off, even if
outside compensation is provided for such services. Said activities are expressly allowed.
provided that in no case is any activity allowed which would present a conflict of interest with
the City of Dublin. De minimus use of City equipment for such purposes is hereby authorized.
D. Employee shall maintain residency within the City of Dublin throughout his tenure as
City Manager.
Section 3. Termination and Severance Pay.
A. In the event the City Manager is terminated by the City Council and in the absence of a
criminal act, then in that event the City shall pay Employee a lump sum cash payment equal to
six (6) months' aggregate compensation. Employee shall also be compensated for all earned sick
leave, vacation, holidays, and other accrued benefits to date, in accordance with the regulations
in place for all non-union management employees of the City, calculated at the rate of pay in
effect upon termination. As used herein, the term "aggregate compensation" shall include
Employee's base salary, car allowance, and deferred compensation.
B. In the event the City Manager is terminated by the City Council, all health, dental, and
disability insurance and all other City provided benefits shall continue in full force and coverage,
at City expense, for a period of six (6) months or until similar coverage is provided to Employee
by a subsequent employer (and is in full force and effect), whichever comes first. Said
continuation of group health insurance coverage shall be in addition to any protection afforded
Employee by the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
Coverage under COBRA shall begin on the date all coverage extended under the severance
provisions herein expires.
C. In the event the City Manager is terminated by the City Council, the City shall pay
Employee a lump sum cash payanent for outplacement services of 52,000 to assist in providing
for various job search expenses to be incurred by Employee.
D. In the event the City Council at any time reduces the salary, compensation or other
benefits of the City Manager in a greater amount than an applicable across-the-board reduction
for all employees of the City, or in the event the City Council fails to comply with any other
provision of this Employment Agreement, or if the Employee resigns following a suggestion by
a majority of the Council, then, in that event, Employee may, at his option, be deemed to be
"terminated" at the date of such reduction, such refusal to comply, or such resignation within the
meaning and context of the herein severance pay provision, then, in that event, Employee may,
at his option, be deemed to be terminated, as provided herein.
E. In the event the City Manager is terminated because of his conviction of any illegal act
involving personal gain to himself, or criminal activity (excluding traffic-related offenses), then,
in that event, Employer shall have no obligation to pay the aggregate severance sum designated
herein.
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F. For purposes of complying with Section 3 of this Agreement, appropriations held as
unencumbered fund balances in any fund or account of the City shall be deemed to be available
and authorized for transfer to the appropriate salary acrd benefit expenditure accounts to insure
fulfillment of this provision of the Emplo}nnent Agreement.
G. Resignation by the Employee forfeits any rights of severance under this Agreement,
except as provided for in Section 3.D. of this agreement, and for such rights as would be
provided to any City employee upon resignation pursuant to the personnel policies and
regulations.
H. Contemporaneously with the delivery of the severance pay set forth in this Agreement,
Employee shall execute and deliver to Employer a release, releasing Employer of all claims that
Employee may have against Employer.
Section 4. Salary.
Employer agrees to pay Employee for his services rendered pursuant hereto as City Manager an
annual base salary of $180,000, payable in installments at the same time as other employees of
the City are paid.
Section 5. Deferred Compensation.
Employer agrees to pay the City Manager annual deferred compensation in monthly installments
equal to ten percent (10%) of the City Manager's base salary. Said deferred compensation shall
be paid to the Ohio Employees Deferred Compensation Program or any other retirement fund or
funds designated by the City Manager, on or around the first of each month commencing in
March 2009. Employer agrees to transfer ownership of said plan or retirement fund to
succeeding employers upon Employee's resignation or discharge.
Section 6. Retirement Benefits.
A. The City Manager shall be covered and governed by the Ohio Public Employees
Retirement System, with the City contributing its required percentage of base salary. The
Employee's share of the retirement contributions shall be paid by the Employee. Calculations for
retirement contributions shall include all compensation normally reportable to PERS, including
deferred compensation if applicable.
Section 7. Insurance Coverages.
A. The City Manager shall be covered by the same health, dental and disability plans,
including the Family Medical Leave Act and worker's compensation benefits, as all other
employees except that coverage shall be in full force and effect immediately upon start of his
service to the City, including no waiting period for preexisting conditions.
B. Employer agrees to purchase and pay the required premiums for a group term life
insurance policy, providing coverage equal in amount to two and one half times the annual base
salary of the City Manager, up to the total maximum premium cost of two thousand dollars
($2,000) per year, with the beneficiary to be designated by Employee.
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Section 8. Automobile.
Employer shall provide a car allowance of five hundred dollars ($500) per month to the City
Manager, a taxable amount paid in conjunction with the regular payroll.
Section 9. Other Benefits.
A. All provisions of the Revised Charter, and rules and regulations of Employer relating to
fringe benefits and working conditions as they now exist or hereafter maybe amended, shall
apply to the City Manager as they would to all other non-union employees of Employer, in
addition to said benefits enumerated specifically for the benefit of the City Manager in this
Agreement. All benefits which vary according to tenure shall be calculated and granted in
accordance with City provisions. These benefits include vacation leave accrual, which is based
upon total completed years of public service, and longevity pay, which is based upon completed,
consecutive years of service in full-time permanent positions with Dublin (no prior public
service credit). Longevity begins after four (4) completed, consecutive years of service in full-
timepermanent positions with Dublin.
B. Employee shall be credited with four (4) weeks of vacation leave at his date of
employment and begimling on such date shall accrue annual vacation leave at the annual rate of
twenty-eight (28) days (pro rata) or at the rate which is in accordance with City policy for non-
union employees, whichever is greater. Employee may not use more than four (4) weeks of
vacation leave during his first twelve (12) months of employment.
C. Employee will be credited with nine (9) days of sick leave begiiming at the date of
employment and will accrue sick leave monthly at nine (9) days per year. Additionally, the
Employer agrees to accept the transfer of Employee's unused sick leave balance from his prior
public employment with The Ohio State University. Furthermore, the portion of this sick leave
balance that was accrued during employee's tenure with the City of Dublin (908 hours) and
unused upon his separation from the City of Dublin, shall be available for immediate use during
his new tenure with the City of Dublin and shall also be eligible for conversion to cash, both
annually and at separation (provided it is a separation in good standing), in accordance with the
specified amounts established for all other non-union employees of the City.
D. Employer shall provide a full service membership for the City Manager and his
immediate family at the City of Dublin Recreation Center.
Section 10. Hours of Work.
It is recognized that the City Manager must devote a great deal of time outside normal office
hours to the business of Employer, and to that end Employee will be allowed to take
compensatory time off as he shall deem appropriate during said normal office hours.
Section 11. Professional Development.
Employer agrees to budget for and to pay the professional dues, subscriptions, and travel and
subsistence expenses of the City Manager for professional participation and travel, meetings and
occasions adequate to continue his professional development. Said participation on City time
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shalt include, but not be limited to the International City/County Management Association, the
Ohio Municipal League, the American Institute of Certified Planners, the American Planning
Association, the Urban Land Institute, the International Economic Development Council, and
such other national, regional, state and local governmental organizations and committees thereof
which Employee serves as a member and/or participates, and which said membership or
participation is beneficial to Employer, as well as associated courses, institutes, conferences and
seminars which benefit the City. Employer agrees to reimburse Employee's expense of other
memberships, registration, travel, meals or lodging in association with business-related
conferences, education or other meetings, according to approved accounts in each annual budget.
Employee shall obtain approval in advance from Council for any overseas travel.
Section 12. General Expenses.
A. The City shall provide aCity-owned cell phone/PDA and laptop computer for business
use of Employee, subject to applicable rate plans or ceilings as contracted by the Employer.
B. Employer shall bear the full cost of any fidelity or other bonds required of the City
Manager under any law or ordinance.
C. Employer agrees to pay or reimburse all other reasonable job-related expenses up to the
maximum provided for in the annual City operating budget and subject to the requirement that
al] such claims for payment or reimbursement be submitted on forms and/or in a manner subject
to the review and approval of the Director of Finance.
Section 13. Performance Evaluation.
Within the first one hundred twenty (120) days of the City Manager's employment with the City,
City Council will meet with him in order to discuss and adopt a performance plan of priorities
and development goals for the City Manager during the first twelve (12) months of employment.
The City Manager's salary will be subject to review and merit consideration at the annual
anniversary date of his hire. In conjunction with the annual performance review, City Council
and the City Manager will discuss and update the City Manager's annual performance plan and
annual compensation. The City Council shall increase base salary and/or other benefits of the
City Manager at the time of his/her review, in such amounts and to such extent as the City
Council may determine that it is desirable to do so, at its sole discretion, in light of performance
by Employee. Merit increases based on annual performance evaluations and salary reviews are
exclusive of any general cost-of-living increases provided to other employees. The Manager
shall receive all cost-of-living increases, if any, which Employer may grant to its other
employees, at the same time and in the same manner said increases are granted to those
employees.
Section 14. Indemnification.
Employer shall defend, indemnify and hold Employee harmless from and against any and all
torts, claims, causes of action, demands, costs, expenses or other legal action, including all
attorneys' fees, whether groundless or otherwise, arising out of any alleged act or omission
occun~ing during or arising out of Employee's performance of duties as City Manager. Employer
shall have the right to compromise and settle any such claim or suit and shall pay the amount of
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any settlement or judgment rendered thereon. Said indemnification shall extend beyond
Employee's termination of employment, and the otherwise expiration of this Agreement, to
provide full and complete protection to Employee by the City of Dublin, as described herein, for
any acts undertaken or committed in his capacity as City Manager, regardless of whether the
filing of a lawsuit for such tort, claim, cause of action, demand, or other legal action occurs
during or following Employee's employment with Employer.
Section 15. General Provisions.
A. The text herein shall constitute the entire Agreement between the parties.
B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and
executors of the Employee.
C. This Agreement shall become effective upon adoption and approval by the City Council
of the City of Dublin.
D. If any provision, or any portion thereof, contained in this Agreement is held
unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof,
shall not be affected and shall remain in full force and effect.
IN WITNESS WHEREOF, the City of Dublin has caused this Agreement to be signed and
executed in its behalf by its Mayor and duly attested by its Clerk of Council, and the City
Manager has signed and executed this Agreement, the day and year first written above.
CITY OF DUBLIN, OHIO
By:_
Mayor
CITY MANAGER
Terry D. Foegler
ATTEST:
Clerk of Council
APPROVED AS TO FORM
Stephen J. Smith, Law Director
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