Review and Discuss Proposal for CHO Employment Contract Renewal (current contract expires June 30, 2010)
The committee was provided with the most current draft of the Employment Agreement in addition to a cover memo from Angus MacEachern, human resources administrator, which outlined the changes made based on the committee’s direction from its last meeting.
Mr. MacEachern said he would address only the changes made since the last meeting, which appear in “red” on the draft Agreement. Member Strickland asked for clarification on the various changes and mark-up language. The “red” indicate the most recent changes; the underlines and strikeouts are changes from the previous Agreement.
The first addition is lines 12-13, which constitutes basic contract language: “NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows.”
Member Christensen referred to line 19 and cited “the term of this Agreement is July 1, 2010 through June 30, 2013” and noted it is a three-year contract. Further he cited “EMPLOYER shall have the right to extend this Agreement annually subject to negotiation and acceptance by EMPLOYEE.” He asked if future contracts would be annual or multi-year. Mr. MacEachern said the Agreement is for three years and each year there will be an annual review of the Chief Health Officer. At such time the Board could consider extending the contract for an additional period to provide continuity to the position.
Member Strickland expressed concern with the existing wording and suggested the contracts are to provide clarity and ensure lack of ambiguity. If there is a question, it could be related to the ambiguity of the contract. Dr. Sands said the intent was to provide an option for the Board to add another year to the contract, if desired, on an annual basis. Member Christensen said the Board will meet annually to review Dr. Sands’ performance, and the Board can agree to extend the life of the contract by one year, thus maintaining the three-year contract.
Member Fairchild suggested striking “annually” from the sentence to provide clarity and thereby allowing the Board to extend the contract as long as the Board feels appropriate at that time. She also suggested that language be added to address the yearly review.
Dr. Sands said it is not extending the contract but extending the term of the contract. Member Fairchild stressed that extensions may not be for one year, but a longer period of time. She suggested the language be modified to read “upon yearly evaluation and review EMPLOYER shall have the right to extend this Agreement subject to negotiation with and acceptance by EMPLOYEE.” Member Strickland said the word “annually” causes confusion. It was further suggested that language be consistent throughout in reference to “evaluation” versus “review” and “Agreement” versus “contract.”
The proposed language reads: “upon annual performance evaluation EMPLOYER shall have the right to extend the term of this Agreement subject to negotiation with and acceptance by EMPLOYEE.”
- Termination of Agreement: “actions or omission” was modified to “breach” and line 78 incorporate additional language changes to read “EMPLOYEE does not cure such breach” to provide a smoother context; the term “automatically” was also stricken. Lines 83-87 spell out numerical references; in line 87 the word “plus” was added to make a full sentence. Lines 88-93 address health benefits, which are figured on a monthly basis and are paid one month in advance. The proposed language better address this issue; additionally the COBRA language was modified to adopt the monthly concept: “full health benefit for six (6) months following the month that includes the last day worked. … the six (6) months of paid health insurance coverage shall apply to the maximum continuation period established under COBRA.”
The committee questioned “formal or informal” resignation and legal counsel suggested omitting the terms entirely, which is reflected in lines 94-96. The paragraph now reads: “If EMPLOYEE resigns following EMPLOYER’S offer to accept EMPLOYEE’S resignation then EMPLOYEE shall be paid in accordance with the terminated without cause provisions of this Agreement.” An offer to accept resignation would need to occur in a publicly noticed meeting.
Chair Giunchigliani noted an extra “T” in line 110 between “give” and “employer.” This will be corrected.
- Resignation: line 113 reflects a change in wording of “demise” to “death” for clarification.
Chair Giunchigliani referred to Member Fairchild’s request for liability versus term insurance and asked for the status on this issue; she also asked for clarification of COBRA benefits upon death of an employee. If an employee passes away, COBRA benefits are extended for a period of thirty-six (36) months versus the eighteen (18) months for separation. The law is being revised currently at the federal level. Member Fairchild expressed her agreement with Scott Weiss’ comments at the last meeting that it is more cost effective to provide monthly insurance coverage versus paying premiums for term life insurance for an indefinite period of time.
- General Provisions / Dispute Resolution: paragraphs 8 and 9 were reversed to have “dispute resolution” come first. The added language addresses issues brought forward by the committee at the last meeting.
Member Strickland referred to paragraph 8(d) and the reference to the deposit of $5,000 upon entering mediation and arbitration. She said the previous paragraph discussing mediation did not establish deposit of monies for mediation. She asked that “mediation” be stricken from paragraph 8(d) in both instances in lines 151 and 153.
Member Strickland asked what would constitute a breach of the Agreement. Member Christensen said loss of licensure to practice medicine – Nevada Revised Statutes addresses this issue and is quite encompassing as it pertains to the Board of Medical Examiners (BME), including moral turpitude, felonies, weapon offenses, impairment and the like. Member Strickland asked again what types of things are “curable.” Mr. Weiss noted there is a process through the BME whereby if someone loses their license as part of a disciplinary process there is an appeal process which can be undertaken if the licensee desires to overturn the BME’s decision; however this could not be accomplished in a 30-day time frame.
Mr. Weiss also referenced lines 17-18 which read “EMPLOYEE shall devote his full time, attention and efforts to the duties of the Chief Health Officer.” If Dr. Sands opted to take on additional employment, was not forthright and the Board learned of his outside employment, this could be considered a breach as he is not able to expend his full resources to the health district; he would then have thirty days to cure this breach.
Member Strickland asked if Dr. Sands is able to take on additional employment during his off hours. The Agreement is mute on this point as presently written. If outside obligations detract Dr. Sands from devoting his full time and efforts to his duties, the Board would need to undertake a factual review of that particular situation.
Chair Giunchigliani said she was unaware that the Agreement was mute on outside employment. Member Strickland said if Dr. Sands decided to do something after hours and the Board agreed it was something he should not be doing, there is potential dispute as the Agreement is silent on this matter at present.
Steve Minagil, legal counsel, said this would be an issue. The Board could specify that Dr. Sands is not to obtain employment in addition to that of the chief health officer. His initial review of the Agreement led to concern that there were no duties flowing from him – the duties flowed from the district to him. There is an affirmation obligation on him as specified in lines 17 and 18, which is devoting his full time, attention and efforts to his role. Mr. Minagil asked if Dr. Sands is precluded from opening private practice on Saturdays and Sundays. If this is a concern, it should be addressed in the Agreement. Member Strickland said there should be nothing subject to interpretation or opinions; as Board members change annually the language and intent needs to be clear. She said outside employment should be precluded.
Member Christensen asked if Dr. Sands holds an unrestricted or administrative medical license. Dr. Sands holds an unrestricted license from the Nevada State Board of Osteopathic Medicine. Serving as chief health officer is a 24/7 responsibility. He said that he does not see himself opening a private practice on the weekends, outside employment has the potential to be in conflict with his duties and would infringe on his time and responsibility to the health district.
Dr. Sands indicated that anyone serving in the role of chief health officer should be able to participate in teaching activities if the opportunities arise. Because of the nature of this position, compensation would not be sought. Member Christensen said it is standard throughout the medical industry to provide teaching opportunities on a pro bono basis, including having medical students or residents shadowing a physician.
Dr. Sands offered language pertaining to this issue: “EMPLOYEE agrees to remain in the exclusive employ of the health district until June 30, 2013 and neither to accept other employment nor to become employed by another employer until said termination date unless that termination date is effected as herein provided. The term “employed” shall not be construed to include occasional teaching or writing on the EMPLOYEE’S time off.”
Member Fairchild offered it would be easier to say employee is prohibited from accepting outside employment except for the teaching caveat. Member Christensen said Dr. Sands would be a phenomenal public health teacher for someone considering a career in public health. Chair Giunchigliani asked for clarification on the term “teaching” in the medical profession. Member Christensen said it encompasses lecturing, writing and teaching. Dr. Sands said much of this fulfills the duties of chief health officer as most of what he would be teaching or writing about deals with promotion of public health by making people aware of certain public health issues or providing education on how we deal with different public health issues, and how to best work with public health.
Member Strickland suggested having Dr. Sands request approval of the Board prior to accepting a teaching or lecture engagement. Member Fairchild objected to this suggestion as it is part of his duty and responsibility as chief health officer to promote health – it would be burdensome to come to the Board for approval each time this opportunity arose.
Member Christensen suggested language stating that scholarly activities are approved, as that would allow for publication writing, peer review, op-ed pieces, and would also allow for occasional students to shadow him as well as lecture activities. The term “scholarly activities” is used universally in the medical field.
Chair Giunchigliani said the amount of time spent on scholarly activities is key. She expresses concern with making a commitment that will ultimately detract from the time spent on the defined duties as chief health officer. She suggested that all scholarly activities be reported to the Board during the annual performance evaluation process. This will allow the Board to be aware of the duration and time-related to these activities and how they relate to his role as chief health officer. Dr. Sands said he does include this information as part of the “Community Activities” section of his annual report of accomplishments, including time spent with students, for his review.
Chair Giunchigliani suggested that language be added to allow for scholarly activities which will be delineated and reported to the Board for the purposes of performance review. This allows for acknowledgement and the Board will know the time spent on these types of activities.
Member Strickland expressed concern that the information comes after the fact, but she is not trying to prevent Dr. Sands from being out in the community as this is very important. She wants to avoid an unwarranted amount of time spent in the community which could detract from his duties. She asked how much time he spent in the community over the last year.
Dr. Sands said he did not spend so much time on scholarly activities that it detracted from his duties. He said some activities are part of his duties. A few weeks ago he did a dinner presentation on syphilis for the Philippine Medical Association of Nevada. It took time to prepare the presentation, but this was done to promote a public health activity in the medical community. Having the opportunity to present information to sixty physicians at one time is a great opportunity on which to capitalize.
Chair Giunchigliani directed staff to incorporate the scholarly activity language, and that the information is reported and contained in the annual performance evaluation process, including the amount of time devoted to these activities. She said this would not preclude him from updating the Board at monthly Board meetings on any activities in which he has participated. Member Strickland asked again to include language about not having other employment.
Mr. Minagil proposed language to address the issues brought forward by the committee:
- Employment outside the district and practicing medicine outside his duties as chief health officer is prohibited;
- Scholarly activities such as lecturing or writing are not precluded as long as such do not interfere with the duties of chief health officer; and
- Such activities will be reported by EMPLOYEE as part of the annual performance evaluation process
Dr. Sands said he maintains licensure in Arizona and keeps in contact with the two osteopathic colleges as well. He has been asked to participate in sessions at both schools in Arizona, which he has done on his own time – he asked if the proposed language would preclude him from continuing in those activities. Chair Giunchigliani said this is not a problem. Dr. Sands does receive CMEs for participating in the activities; though he is assisting in training health professionals in Arizona, these students could potentially seek employment in Las Vegas.
The committee thanked Mr. Minagil for the proposed language and welcomed him back as legal counsel to the Board.
Chair Giunchigliani referenced page 3 and asked for further clarification for termination with and without cause. Member Strickland said gaining outside employment would be cured by termination outside employment. Chair Giunchigliani asked if the Board is prohibited from disagreeing with the chief health officer and releasing him from employ.
Mr. Minagil said if the Board is unhappy with Dr. Sands and there was no underlying factor for termination with cause, it would be considered a termination without cause. Termination for cause would include loss of license. Mr. Minagil said if his license were in jeopardy it is not as much as a breach of the Agreement, but more that he is not qualified to be the chief health officer as required by statute.
Member Christensen noted he had to leave the meeting due to a personal obligation; he expressed his concurrence with the items discussed today.
(Member Christensen left the meeting at 9:11am)
Member Strickland stated if Dr. Sands were to lose his license and is no longer qualified to serve as chief health officer, it is not curable and is terminated with case. Member Fairchild said there are specific requirements in statute to hold the position and if he falls below these requirements he is no longer qualified to hold the position.
Mr. Minagil asked what would happen if his license is in jeopardy or it is suspended for a period of time. Member Fairchild said he would be terminated for cause. If the situation is not rectified in 30 days, he is terminated with cause. Mr. Minagil said the current language for termination with cause does not address this issue and suggested that language be incorporated: “loss of license or otherwise no longer being qualified to act as chief health officer.” The committee asked that this item be included as “iii” and that “intentional breach of this Agreement” be changed “iv.”
