Appointment of Steven Wayne Whiton as the Risk & Safety Administrator BEFORE THE BOARD OF COUNTY COMMISSIONERS
OF LEWIS COUNTY,WASHINGTON
Appointing Steven Wayne Whiton as the )
Risk& Safety Administrator ) RESOLUTION 18- 1.4(a
WHEREAS, the current Risk & Safety Administrator has tendered her resignation and is no longer
working for the county; and
WHEREAS, the Board of County Commissioners (BOCC) of Lewis County has agreed to appoint
Steven Wayne Whiton to the position of Risk& Safety Administrator; and
WHEREAS, the effective date of this appointment is May 1, 2018. Further that the terms of this
appointment shall be set forth in the attached contract agreed upon by both parties; and
NOW, THEREFORE BE IT RESOLVED, that the BOCC hereby appoint Steven Wayne Whiton to the
position of Risk& Safety Administrator.
PASSED IN REGULAR SESSION this 3 O day of (, {?.tic , 2018.
BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
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APPROVED A o-F•RM: y
Jonathan L,` • osecuting Attorney Edn- J. Fund, Clair
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By: I-pu y Prosecuting Attorney !�
Robert C. Jackson, Vice Chair cfii.(
ATTEST: Gary Stamper Commissioner
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Rieva Lester, Clerk of the Board :i< °�\��•
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Contract of Employment
— between —
Lewis County, Washington, % Board of County Commissioners,
351 NW North Street, Chehalis, Washington 98532
(hereinafter referred to as the "County");
— and —
Steven Wayne Whiton, Jr. of 8012 114th Ln Sw, Olympia, Washington 98501
(hereinafter referred to variously as "Mr. Whiton" and as the "Employee").
Therefore the parties hereto contract as follows:
SECTION 1. EMPLOYMENT
The County employs Mr. Whiton as Risk & Safety Administrator to perform such
duties as are currently prescribed or may be prescribed by the Lewis County Board of
Commissioners (hereinafter referred to variously as the "Commissioners" and as the
"Board"), in its sole discretion. Such employment is at-will and may be terminated at any
time, with or without cause. The current Description of Duties (Job Description),
prescribed by the Board of the said position comprises Exhibit A and is incorporated by
reference herein, and shall continue in full force unless and until modified by the Board in
its sole discretion.
SECTION 2. TERM
This Agreement shall be effective from April 23, 2018, until such time as it may be
terminated pursuant to any of the provisions set out hereinbelow. It may be terminated
in accordance with the provisions hereof at any time, with or without cause.
Employment Agreement: Steven Wayne\ hiton&Lewis County. April 2018.
1
SECTION 3. DUTIES OF EMPLOYEE
The Employee:
a. Promises to diligently perform all duties assigned to him and will devote
substantially all of the Employee's efforts to those duties on a full-time basis and
to the best of the Employee's skill and ability.
b. Shall not engage in any other employment (either paid or unpaid) which, in the
sole opinion of the Commissioners, may interfere with his employment with the
County.
c. Shall faithfully adhere to the Code of Ethics for municipal officers RCW 42.23. The
employee also shall comply with the provisions of the Code of Ethics in Public
Service, RCW 42.52, construed such that each reference to "state officer" shall
include and encompass an officer of a municipal corporation.
d. Shall comply with the Lewis County harassment policy and complaint procedure
and immediately report to the Board's Chair any and all harassment, violations of
the policy, and complaints under the policy. Additionally, the Employee shall
immediately disclose to the Board's Chair any romantic or intimate relationship
between Employee and any subordinate employee.
f. Shall not disclose, during or subsequent to employment with the County, any
information that is generally not available to the public concerning the business or
affairs of the County which the Employee may have acquired in the course of, or
incidental to, his employment with the County. The prohibitions of this section shall
not apply to any information that is required by law to be divulged.
g. Shall leave in place, or return immediately upon termination of employment with
the County, all property of the County which was provided to or generated by the
Employee in the course of, or in connection with, his employment with the County.
Employee shall not copy or appropriate any intangible property of the County for
his own purposes or for the purposes of a third party.
h. All references herein to a State statute or to a Lewis County policy, ordinance, or
County Code provision shall be construed to include any future statute, policy,
ordinance, or code provision which amends, supplements, replaces, or supplants
such statute, policy, ordinance, or County Code provision.
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
SECTION 4. COMPENSATION
a. The County shall pay the Employee, as compensation for services rendered, a
monthly salary calculated as per Grade 28, Step H, of the Lewis County Salary
Schedule. Any changes or adjustments to the said Schedule over time shall apply
to Employee.
b. Because Employee is engaged in a professional and executive capacity and
compensated on a predetermined salary basis, his position is exempt from the
provisions of the Fair Labor Standards Act and the Washington Minimum Wage
Act. The County will provide benefits subject to the terms and conditions of the
various county benefit plans for which the Employee is eligible in his position and
as those benefit plans may be amended from time to time. The County reserves
the right to amend or eliminate any benefit plan.
c. At such time as Employee separates from employment with Lewis County, all pay-
outs or accrued annual leave shall be made in accordance with Section 6.2.5 of
the Employee Handbook, as amended from time to time, and all pay-outs for
accrued sick leave shall be made in accordance with Section 6.3.7 (1) of the
Employee Handbook, as amended from time to time. These provisions shall
hereinafter apply to all references to "benefits," "annual leave," or "sick pay" in this
Agreement.
d. Personal Time:
1. Up to eighty (80) hours of Personal Time will be granted Employee on January 1St
of each calendar year. Unused Personal Time shall expire on December 31st of
each calendar year, and shall not carry over from one calendar year to the next.
There shall be no restriction on the number of available hours of Personal Time
that can be requested for use at any one time, nor is there a timetable for use of
Personal Time within a calendar year. During calendar year 2018 Employee's
grant of Personal Time shall be pro rated as from April 1, 2018; i.e., Employee
shall be granted up to 60 hours of Personal Time for calendar year 2018.
2. Employee shall submit his requests for Personal Time to the Board of County
Commissioners, which, in its sole and exclusive discretion, shall decide whether
to grant or deny all or any portion of the requested leave. Employee's requests to
Employment Agreement: Steven Wayne Whiton &Lewis County. April 2018.
3
take annual leave shall by subject to the same requirement and to the same
discretion of the Board.
3. Provisions in the County's Employee Handbook inconsistent with the provisions
concerning personal time set out hereinabove shall not apply to Employee.
4. The Board shall make reasonable efforts to permit Employee to utilize his leave
entitlements set out herein. However, the parties recognize that exigent
circumstances (including without limitation acts of God and unforeseeable
requirements for Employee's professional services or expertise) may from time to
time cause full utilization of Employee's leave entitlements to be either impractical
or impossible. In such instances Employee shall not be entitled to monetary or
other consideration for accrued but unused leave, nor shall he be entitled to carry
such leave forward into a future calendar period if such carry-over would be
contrary to provisions of this Agreement or of any adopted County policy, manual,
or handbook.
SECTION 5. REIMBURSEMENT OF EXPENSES
Reimbursement for expenses incurred in the performance of Employee's job duties
will be made pursuant to the relevant sections of the Employee Handbook; however, use
of a County motor pool vehicle cannot be guaranteed.
SECTION 6. PROFESSIONAL DEVELOPMENT
a. The County may pay Employee's reasonable, pre-approved professional dues and
subscriptions necessary for the Employee's continuing education, growth, and
advancement for the benefit of the County.
b. The County may pay reasonable, pre-approved travel and subsistence expenses
of the Employee for continuing education courses necessary for the Employee's
professional development for the benefit of the County.
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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SECTION 7. TERMINATION OF EMPLOYMENT
The County may terminate this Agreement at any time, with or without Cause.
a. Employee serves at the will and pleasure of the County, acting by and through its
Board of County Commissioners. Termination of employment shall be upon the
affirmative vote of a majority of the Board.
b. Termination of Employee's employment without Cause shall be effective 17
calendar days after written notice thereof is mailed by certified mail to the
Employee, or 14 calendar days after written notice thereof is hand-delivered to
Employee, whichever is sooner.
c. Termination of employment also may occur by resignation of the Employee.
Termination by resignation shall be effective thirty (30) days after written notice is
mailed or delivered by the Employee to the Board. If the Employee resigns without
giving thirty (30) days' advance written notice to the Board, the resignation will be
effective immediately. In such event, Employee shall be entitled to receive only
earned pay, accrued annual leave and sick pay, and other such salary and benefits
already earned by the Employee.
d. The Board may, in its discretion and without notice, terminate the Employee for
Cause, effective immediately. For purposes of this Agreement, "Cause" shall
include: dishonesty; fraud; theft; intentional destruction of County property;
physical attack upon a fellow employee; intentionally being under the influence of
alcohol and/or illegal or recreational drugs while at work or performing the duties
of the Employee's employment; willful malfeasance, misfeasance, or gross
negligence in the performance of the Employee's duties; violation of any provision
of the Municipal Code of Ethics codified at RCW 42.23, as amended; violation of
any provision of the Code of Ethics of Public Service codified at RCW 42.52, as
amended (with every reference to the "State" being deemed a reference to Lewis
County); violation of the harassment policy of the County; violation of the policies
of the County applicable to electronic communications; breach of any provision of
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
5
this Agreement; conviction of a felony or for a crime of moral turpitude; or conduct
of the Employee outside of work that brings public discredit upon Lewis County.
e. All notices required or anticipated by this Agreement may be hand delivered, in the
case of the County, to the Chair from time to time of its Board of County
Commissioners; or they may be mailed to him (or to her, as the case may be) at
the address shown on the first page of this Agreement. All notices required or
anticipated by this Agreement may be hand delivered, in the case of Mr. Whiton,
to him; or they may be mailed to him at the address shown on the first page of this
Agreement.
i. Either party may, at any time, provide the other party with a new address, in
writing, for service of notice by mail.
ii. In the case of any such notice provided to the County, a complete copy thereof
shall simultaneously be hand delivered to the Prosecuting Attorney or to a Civil
Deputy Prosecuting Attorney, or a complete copy thereof shall simultaneously
be sent by certified mail and addressed as follows: Civil Division, Prosecuting
Attorney's Office, 345 West Main Street, Floor 2, Chehalis, Washington 98532.
SECTION 8. SEVERANCE PAY
If the Board discharges the Employee for Cause, or the Employee resigns without giving
thirty (30) days' advance written notice, the County shall not provide severance
pay; however, the Employee shall be entitled to receive earned pay, accrued
annual leave and sick pay, and other such salary and benefits already earned by
the Employee.
b. If the Employee resigns and gives thirty (30) days advance written notice to the
Board, then the Employee shall receive all earned pay, and accrued annual leave
and sick pay, and, in addition, shall receive severance pay equal to one (1) month's
salary, provided, Employee first signs and returns to the Prosecuting Attorney a
release and does not timely revoke (if applicable), on a form acceptable to the
Prosecuting Attorney, releasing Lewis County, its Commissioners, elected
officials, employees, attorneys, and other agents, from any and all liability to the
fullest extent permitted by law.
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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c. If the Board discharges the Employee, other than for Cause, the Employee shall
receive all earned pay, accrued annual leave and sick pay, and, in addition, shall
receive severance pay, equal to four(4) month's salary, including in the calculation
of the four (4) months' salary the thirty (30) or thirty five (35) days notice period
referenced in Section 7(b); provided, Employee first signs and returns to the
Prosecuting Attorney and does not timely revoke (if applicable) a release, on a
form acceptable to the Prosecuting Attorney, releasing Lewis County, its
Commissioners, elected officials, employees, attorneys, and other agents, from
any and all liability to the fullest extent permitted by law.
SECTION 9. DEATH OR DISABILITY
If the Employee dies or becomes permanently disabled and unable to perform the
work described in Exhibit A, as amended, the employment relationship shall be
terminated as of the last day of the month during which death or permanent disability
occurs. Upon the death or permanent disability of the Employee, neither the Employee
nor he or his beneficiaries or estate shall have any further rights against the County,
except the right to receive:
a. The unpaid portion of salary for the month in which employment ends, as
well as accrued, unused annual leave and sick pay.
b. Reimbursement of any unpaid business expenses; and,
c. Life insurance, disability insurance, and/or any other post-termination
benefits in accordance with the terms and conditions of the applicable
benefit plans, if any.
Employee shall be deemed to suffer permanent disability in any instance in which
his health or physical condition render him unable to perform any essential functions
described in Exhibit A, as amended, whether with or without reasonable accommodation.
This definition is not intended to waive the County's duty of accommodation or its duty
of due inquiry under federal and state laws pertaining to disabilities.
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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For purposes of this Section, Employee's essential job functions shall include, but
not be limited to, those set out in Exhibit A, as amended from time to time.
SECTION 10. INDEMNIFICATION
Whenever an action or proceeding for damages is brought against the Employee,
allegedly arising from actions or omissions of the Employee while performing or in good
faith purporting to perform his official duties, the following provisions shall supplement the
provisions of RCW 4.96.041 and Lewis County Resolution 87-26, which are incorporated
herein by this reference:
a. Within ten (10) days of receipt of notice of the existence of an action or proceeding
for damages, the Employee shall submit a written request to the Clerk of the Board
asking that the County defend and indemnify the Employee, including his marital
community, if applicable.
b. Upon receipt of such a written request from the Employee, the Board shall, within
a reasonable time, make a prima facie determination whether the action or
proceeding arose from actions or omissions of the Employee while performing or
in good faith purporting to perform his official duties. If the finding is in the
affirmative, the necessary expense of defending the Employee and his marital
community in the action or proceeding shall be paid by the County. If the answer
is in the negative, no defense shall be provided and no expenses paid by the
County.
c. In the event the action or proceeding results in an award of damages against the
Employee or his marital community, the County shall indemnify the Employee for
the damages award unless the finder of fact determines that the act(s) or
omission(s) giving rise to the action or proceeding did not arise from the good faith
performance of an official duty, or unless a court of competent jurisdiction has
ordered otherwise.
d. Except as specifically directed by the Board, through its legal representative, the
Employee may not engage in the following acts with respect to actions or
proceedings for damages defended pursuant to this Agreement: (1) negotiate or
otherwise effect the settlement of said action or proceeding; or (2) admit liability on
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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the part of the County, including admissions of personal liability. A violation of this
provision shall constitute breach of this Agreement and shall result in the denial of
defense and indemnification.
e. The County shall not be required to defend or indemnify the Employee in criminal
proceedings, or in civil proceedings in which the Employee is the plaintiff, or in
actions brought against the Employee by the County (other than derivative actions
asserted by third parties on behalf of the County), to the extent the Board makes
a prima facie finding and/or it is finally adjudicated that the Employee did not act in
good faith and in the reasonable belief that the Employee's actions were
appropriate in the discharge of the Employee's duties for the County, or to the
extent prohibited by law.
f. This indemnification provision shall survive termination of this Agreement. The
Employee agrees to cooperate and participate as necessary to defend an action
or proceeding. If the Employee is no longer a County employee at the time of such
defense, the County shall compensate the Employee at an hourly rate equal to the
adjusted hourly rate of the Employee's final salary while employed by the County,
and in addition, will reimburse the Employee for reasonable travel and lodging
expenses directly related to the Employee's participation in said defense.
g. Nothing contained herein shall be construed to limit the County's discretion per
RCW 4.96.041(4) to pay or not to pay any award of punitive damages.
SECTION 11. PUBLIC RECORDS ACT
Employee shall at all time (both during and subsequent to the term of this
Agreement) render all possible assistance to the County in fulfilling the County's
obligations to third parties pursuant to Washington's Public Records Act, including any
necessary travel and/or testimony. If County requests such assistance subsequent to the
termination of this Agreement, then County shall compensate Employee for all hours
spent in rendering such cooperation at Employee's hourly rate of take-home pay effective
on the date prior to his termination of County employment (less benefits). All such
remuneration shall constitute taxable income of Employee. County also shall reimburse
all expenses necessarily incurred by Employee in rendering such assistance.
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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SECTION 12. AMENDMENT; AUTHORITY TO AMEND OR TO GIVE NOTICE
The terms of this Agreement may not be altered, amended, or otherwise modified
except by the express, written consent of the parties. Employee acknowledges that only
a majority of the members from time to time of County's Board of County Commissioners
have authority to give any notice required or anticipated by the Agreement, or to amend
or to waive any provision hereof. Accordingly, Employee stipulates that he shall at no
time assert that any other officer or employee of the County (including any one member
of its Board of County Commissioners) has apparent or ostensible authority to amend,
modify, or waive any provision of this Agreement, or to give any notice required or
anticipated by this Agreement.
SECTION 13. SEVERABILITY
If any section or other provision of this Agreement is held to be invalid or
unenforceable, the remaining sections or provisions shall remain in full force and effect.
SECTION 14. ASSIGNMENT OR DELEGATION
The Employee may not assign any right under this Agreement, nor may he
delegate any benefit, or interest arising pursuant to this Agreement, without the express,
written consent of the Board; any purported assignment without such consent will be void
and in no event will the County honor such an assignment. However, nothing herein shall
be construed to limit the right of Employee to allocate and reallocate the day-to-day work
of his Department among himself and its other staff members.
SECTION 15. BINDING EFFECT
This Agreement is for the benefit of, and shall remain binding upon, the respective
legal representatives and successors of the parties.
SECTION 16. HEADINGS
The section headings in this Agreement are for reference only and shall not by
themselves determine the construction or interpretation of the Agreement.
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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SECTION 17. APPLICABLE LAWS
Both the County and the Employee agree to abide by all applicable federal, state,
and local laws. This Agreement shall be governed by the laws of state of Washington
excluding Washington's choice of law rules.
SECTION 18. WAIVER AND CONSENT
No waiver or consent, express or implied, by either party, to any breach or default
by the other party of any or all of its obligations under this Agreement, will be valid unless
it is in writing and stated to be a "waiver" or "consent."
SECTION 19. ARBITRATION
Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered by the Washington Arbitration and
Mediation Service (WAMS) under its Arbitration Rules, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction. So long as
WAMS maintains a Tacoma Office, arbitration shall occur at that Office.
SECTION 20. VENUE
Venue for any legal action or legal proceeding arising under or in any way relating
to this Agreement shall lie exclusively in the Superior Court of Washington for Thurston
County, at Olympia; or in the United States District Court for the Western District of
Washington, at Tacoma.
SECTION 21. ENTIRE AGREEMENT
This Agreement, including attached Exhibits referenced herein, constitutes the
entire agreement between the parties and supersedes all prior oral or written agreements
or understandings between the parties with respect to the subject matter of this
Agreement. Where this Agreement does not address personnel policies and procedures
adopted in the Employee Handbook, the Employee Handbook shall be determinative in
any dispute. Where this Agreement addresses matters not contained in the Employee
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
11
Handbook, or where it may specifically contradict the Employee Handbook, it is the
express intent of the County and Employee that this Agreement shall be determinative.
SECTION 22. AGREEMENT READ AND UNDERSTOOD BY EMPLOYEE
Employee acknowledges that he has read and understood each and every section and
provision of this Agreement. Employee further acknowledges that he has had ample
opportunity to consult with an attorney of his own choosing before signing this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement on theme day of
April, 2018.
LEWIS COUNTY
i
Edna J. Fund, Chair, ird of County Commissioners
7
Robert C. Jackson, Vice Chair, Board of County Commissioners
Gary Stamper, Com lssioner
STEVEN WAYNE WHITON, JR.
5--6,1-,..,2--_,_ lAj(4. 10 A_,-) ---1__PT-
Steven Wayne Whiton,
Employment Agreement: Steven Wayne Whiton&Lewis County. April 2018.
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BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: Apr 30, 2018
Suggested Wording for Agenda Item: Agenda Type: Consent
Appointing Steven Wayne Whiton as the Risk& Safety Administrator
Contact Archie Smith Phone: 3607402747
Department: Human Resources
Action Needed: Approve Resolution
Description
Steven Wayne Whiton was selected for the Risk and Safety Administrator position for Lewis County. The
resolution approves the contract agreement between Lewis County and Mr. Whiton.
Mr. Whiton's effective date will be May I, 2018.
Cover Letter To
Becky Butler
Gladis Mendez