by Pam Zubeck
El Paso County commissioners will consider appointing Amy Folsom as their new county attorney following the resignation of Bill Louis.
Folsom formerly worked in the Fourth Judicial District District Attorney's Office, and has been with the county for a few years.
Her appointment seems assured, considering the county posted the employment agreement as backup material for the June 28 agenda item. Her salary will be $129,388.57. Read it all, after the jump:
THIS EMPLOYMENT AGREEMENT (“Agreement”) is entered into this 28th
day of June 2012, by and between the County of El Paso, Colorado (“County”) and Amy
R. Folsom (“Employee”). The County and the Employee may be hereinafter referred to
as the Parties.
NOW, THEREFORE, in consideration of the mutual provisions contained herein,
the Parties agree as follows:
1. Employee will serve as the County Attorney for the County (“the
Position”) upon the terms and conditions expressed in this Agreement and in the
applicable policies of the County. The terms and conditions contained in this Agreement
shall take precedence over any contrary or inconsistent terms and conditions found in any
County policy, practice or procedure.
2. Employee agrees to serve the County faithfully, diligently and to the best
of Employee’s ability, under the direction and supervision of the County’s Board of
County Commissioners (“the Board”). Employee shall devote Employee’s full time and
energy to the duties of the Position and shall not, during the employment term, be
employed or serving as an independent contractor in a full-time or part-time capacity in
any other business activity. However, the Board shall not unreasonably refuse to allow
Employee to teach, professionally consult, or write, with or without compensation,
provided the Board determines, in the sole exercise of its discretion and judgment, that
such additional activities do not interfere with Employee’s ability to perform all or part of
the duties of the Position, and provided that the person or entity desiring Employee to
teach, professionally consult or write is one that does not contract with, provide services
to or does not regularly seek to influence the development or application of County
policy, the determination of which the Board shall be authorized to make in the sole
exercise of its discretion and judgment.
3. Employee’s salary shall be an annual calendar year salary of One Hundred
Twenty-Nine Thousand Three-Hundred Eighty-Eight Dollars and Fifty-Seven Cents
($129,388.57), and shall be paid at this rate, effective July 1, 2012, for the remainder of
calendar year 2012. The Board in its discretion shall determine any changes to this
salary for each succeeding calendar year.
4. Employee shall receive all County Employee Benefits, to the extent
eligible, by virtue of Employee’s position, tenure, salary, age and other qualifications,
specified in any policy or plan pertaining to such benefits. The benefits include medical,
dental, vision, worker’s compensation, life insurance, vacation, sick leave, car allowance,
retirement and such other benefits as the County may provide at the present and in the
future to County employees, under such terms expressed in applicable County policies or
plans, unless the Board specifically excludes Employee from receipt of such benefits.
Notwithstanding any policy or practice of the County to the contrary, Employee shall
accumulate sick and annual leave at the highest rate of accrual allowed under the El Paso
County Personnel Policies and Procedures Manual, 2008, as amended, but Employee
shall not lose any sick and annual leave that the Employee has accrued, but not used,
from before the first date of the initial term of this Agreement.
5. The initial term of this Agreement, hereinafter referred to as the Initial
Term, shall be from July 1, 2012 through December 31, 2012. This Agreement shall
expire at the end of the Initial Term unless renewed in accordance with Section 6, below,
for another one-year term, beginning January 1, 2013 and expiring December 31, 2013,
and which period from January 1, 2013 through December 31, 2013 shall be referred to
hereinafter as the First Renewal Term. In the event the County and Employee enter into
the First Renewal Term, this Agreement shall then expire on December 31, 2013. The
fact this Agreement may be renewed through December 31, 2013 does not preclude the
County and Employee from entering into a written renewal for a subsequent one-year
term(s) in accordance with Section 12, below. Furthermore, for any term after the Initial
Term or any subsequent renewal thereof, the Parties may decide on other terms and
conditions of employment for such subsequent terms, in accordance with Section 12,
6. The County’s renewal of this Agreement from the Initial Term to the First
Renewal Term shall be conclusively determined by the Board’s enactment, on or before
December 1, 2012, of an ordinance or resolution expressing the Board’s desire to renew
at a minimum the same Agreement for Fiscal Year 2013 as this Agreement. In the event
Employee does not accept in writing such offer to renew the Agreement no later than ten
(10) calendar days from the date of the Board’s enactment, Employee shall be
conclusively determined to have rejected the offer of renewal and then Employee shall be
conclusively determined to have resigned employment as of December 31, 2012, and,
therefore, the provisions considered in Section 14, below, shall apply.
7. In the event the County and Employee renew this Agreement from the
Initial Term to the First Renewal Term as provided in Section, 6, above, hereinafter
referred to as the First Renewal Term Agreement, the County’s renewal of the First
Renewal Term Agreement for Fiscal Year 2014 shall be conclusively determined by the
Board’s enactment, on or before December 1, 2013, of an ordinance or resolution
expressing the Board’s desire to renew at a minimum the same First Renewal Term
Agreement for Fiscal Year 2014. In the event Employee does not accept in writing such
offer to renew at a minimum the First Renewal Term Agreement no later than ten (10)
days from the date of the Board’s enactment, Employee shall be conclusively determined
to have rejected the offer of renewal and then Employee shall be conclusively determined
to have resigned employment as of December 31, 2013, and, therefore, the provisions
considered in Section 14, below, shall apply. In the event the Board fails to enact an
ordinance or resolution by December 1, 2013 that expresses the Board’s desire to renew
at a minimum the First Renewal Term Agreement for Fiscal Year 2013, the First
Renewal Term Agreement shall be conclusively determined to have expired on
December 31, 2013 and, therefore, Employee’s employment to have terminated on
December 31, 2013, and the resulting termination of Employee’s employment with
County shall be a termination without cause as considered in Section 9, below.
8. Employee shall serve at the will of the Board, and Employee’s
employment may be terminated by a majority vote of the Board, with at least three (3)
votes being required for termination of employment. Other than a termination by
expiration as defined above, the termination of Employee’s employment may be with or
without cause during any term. Thirty (30) days notification of such termination shall be
given by the Board to Employee of its intent to terminate Employee during the term of
this Agreement, including any renewal(s) thereof, and Employee may be relieved of
duties during this Notice Period and placed on administrative leave with pay. However,
the Board may require Employee to perform the normal duties of employment during the
30-day notice period, and such requirement will not void or otherwise make ineffective
the Board’s notification of termination.
9. If the termination is without cause, as “cause” is defined in Section 11 of
this Agreement, Employee shall receive six (6) months of compensation and six (6)
months of 100% County paid health benefits, provided Employee signs a Waiver and
Release document satisfactory to the County. At a minimum, such Waiver and Release
document shall contain a provision releasing County from all known and unknown claims
of any kind, existing as of the date such Waiver and Release is signed.
10. If the termination is with cause as defined in Section 11c., d., e., or f.,
Employee shall be entitled only to 90 days of 100% County paid health benefits from the
date of Employee’s termination of employment. If the termination is with cause as
defined in Section 11 a. or b., Employee shall receive no additional compensation or
benefits; however, Employee will receive the normal compensation and benefits any
terminating County employee would receive based on years of service.
11. For purposes of this Agreement “cause” shall mean:
a. Any fraud, theft or misappropriation perpetrated by Employee
against the Board or County.
b. Employee’s conviction of any felony, or any other criminal offense
involving moral turpitude.
c. A material breach of this Agreement by Employee, if Employee
does not correct such breach within thirty (30) days after the Board gives notice
to Employee of such breach.
d. Gross misconduct by Employee in the performance of Employee’s
duties under this Agreement, as determined in the discretion of the Board.
e. Any on- or off-duty conduct by Employee that is materially
injurious (or potentially so) to the operation, financial condition or reputation of
the County or County government, as determined in the discretion of the Board.
f. Failure of Employee to perform satisfactorily Employee’s duties to
the County in the Position, if Employee does not correct such failure after
Employer gives Employee written notice to Employee of Employee’s deficient
12. During the Initial Term or the First Renewal Term of this Agreement, and
notwithstanding any other provisions of this Agreement, the Board shall not reduce
Employee’s salary and/or her benefits unless the reduction in compensation and/or
benefits applies proportionately to all County employees reporting directly to the Board.
Nevertheless, the Board may change Employee’s salary and benefits in its discretion for
the First Renewal Term or any succeeding term of this Agreement. The Board shall
inform Employee concerning any change before the first day of any term. Furthermore,
nothing in this Section prohibits the Board from taking disciplinary action against
Employee, including disciplinary suspension, consistent with Employee’s status as an
exempt employee under the Fair Labor Standards Act.
13. During the term of this Agreement, Employee shall continue to report
directly to the Board and serve at the will of the Board.
14. If Employee resigns employment with the County, Employee shall provide
the Board no less than thirty (30) days written notice of such intended resignation. In
such an event, no severance or benefits will be provided; however, Employee will receive
the normal compensation and benefits any terminated County employee would receive
based on years of service. Should Employee give notice of resignation, the Board, at its
discretion, may relieve Employee of any duties and terminate Employee’s employment
immediately by paying such amount of salary for the notice period then remaining at the
time of termination. In such a case, again, no severance benefits of any kind shall be
owed to Employee.
15. The Board may establish yearly performance objectives for Employee
during the term of the Agreement. The Board may complete a performance review on
Employee and, further, the Board, or its designee, may discuss Employee’s performance
review with Employee.
16. If a court of competent jurisdiction determines that any term or provision
hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be
unimpaired and (b) such court shall have authority to replace or amend such invalid or
unenforceable term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable term or
17. This Agreement will be governed by and construed according to the
internal laws of the State of Colorado, without regard to conflict of law principles. The
Parties further agree that any action brought to enforce this Agreement, or to review or
enforce any arbitration award rendered pursuant to the arbitration procedures in this
Agreement, must be brought exclusively in the Fourth Judicial District Court, Colorado,
and the Parties consent to personal jurisdiction of such court and waive any objection or
defense of forum non conveniens, improper venue or lack of personal jurisdiction.
18. All notices, requests, demands, claims, and other communications under
this Agreement must be in writing. Any notice, request, demand, claim, or other
communication under this Agreement will be deemed duly given only if it is sent by
registered or certified mail, return receipt requested, postage prepaid, or by handdelivery,
or by facsimile, and must be addressed to the intended recipient as follows:
If to County: Chair, El Paso County Board of
200 S. Cascade Ave.
Colorado Springs, CO 80903
If to Employee: Employee’s residence, as shown on Employer’s
Notices will be deemed given and received three (3) days after mailing if sent by certified
mail, when delivered if sent by hand-delivery, and one business day after receipt of
confirmation by person or machine if sent by facsimile transmission. Either Party may
change the address to which notices, requests, demands, claims and other
communications under this Agreement are to be delivered by giving the other Party
notice in the manner set forth above.
19. The failure to enforce any right arising under this Agreement or any
similar agreement on one or more occasions will not be deemed or construed to be a
waiver of that right under this Agreement or any other agreement on any other occasion,
or of any other right on that occasion or any other occasion.
20. Subject to the availability to Employer of equitable relief under Section
24, County and Employee agree to arbitrate any and all claims, disputes, or controversies
between Employee and County, or between Employee and any of County’s elected
officials, including, but not limited to, those claims arising out of or related to this
Agreement or the breach thereof. Said arbitration shall be held under the American
Arbitration Association’s Rules for the Arbitration of Employment Disputes (“the
Rules”). A Party wishing to arbitrate any dispute shall serve a written notice of its
demand to arbitrate to the other Party within the limitation period under federal or
Colorado law pertaining to the demand or claim in question. The Parties will attempt to
agree on the appointment of an arbitrator. If they are unable to agree on the appointment
of an arbitrator within 15 days following the date that either Party gives notice to the
other that it wishes to arbitrate a claim, dispute or controversy that has arisen between the
Parties, then an arbitrator will be appointed by the Chief Judge, Fourth Judicial District,
Colorado. Each Party will bear their respective costs of arbitrating the dispute, and the
cost of the American Arbitration Association and any arbitrator will be borne equally by
the Parties, unless the arbitrator awards either Party such costs or attorneys’ fees pursuant
to the Rules. Any arbitration commenced under this Agreement will be held in Colorado
Springs, Colorado, and the award of the arbitrator will be final and binding.
21. Immediately upon termination of Employee’s employment with County or
at any time upon notice to Employee from County, Employee will deliver to County all
memoranda, notes, plans, records, reports and other documents and information provided
to Employee by County or created by Employee in connection with Employee’s
employment and all copies of all such documents in any form which Employee may then
possess or have under Employee’s control.
22. During the period that Employee is employed by County and thereafter for
one (1) year, Employee will not solicit or attempt to solicit for employment, or employ,
any person while such person is an employee of County, and Employee will not solicit
for employment or employ any such person within six (6) months after such person
ceases to be an employee of County.
23. The Employee will not disparage, criticize, or demean County, its
reputation, employees, Board, Commissioners, services, manner of conducting business,
or any other aspect of County, by any communication or conduct whatsoever.
24. Both Employee and County expressly acknowledge that the subject matter
of this Agreement is unique, and that any breach of Employee’s obligations under Section
22 and 23 is likely to result in irreparable injury to the County, and the Parties therefore
expressly agree that the County will be entitled to obtain specific performance of this
Agreement through injunctive relief and such ancillary remedies of an equitable nature as
a court may deem appropriate. Such equitable relief will be in addition to, and the
availability of such equitable relief will not preclude any legal remedies or other remedies
that might be available to such Party. If Employee breaches any provisions in Sections
22 or 23, County is entitled to apply for equitable relief in the District Court, Fourth
Judicial District, Colorado, prior to initiation of arbitration. County’s application for
temporary injunctive relief will not limit the County from pursuing any other available
remedies for such breach. Employee specifically agrees with the designation of this
court and waives any objection or defense based on forum non conveniens, improper
venue or lack of personal jurisdiction.
25. This Agreement is the complete and exclusive statement of the agreement
between the Parties and supersedes all proposals, prior agreements, and all other
communications between the Parties, oral or in writing, relating to the subject matter of
this Agreement. This Agreement, including this Section 25, may be amended or
superseded only by an agreement in writing, approved by the Board in an open and public
meeting, and signed by Employee and the Board’s Chair. Accordingly, in the event of a
non-renewal of this Agreement by action, inaction or otherwise, this Agreement shall not
preclude the Board from extending an offer to the Employee to continue as an employee
of the County in an arrangement other than as set forth in this Agreement and further
provided that the Parties mutually agree in writing to such other arrangement. No oral
modification of this Agreement, including this Section 25, shall be binding on the Parties.
26. In the event of any civil litigation involving the County and/or the
Employee in the Employee’s official capacity with the County, and regardless whether
the litigation arises during or after Employee’s employment with the County, the
Employee shall cooperate in good faith with the County regarding such litigation,
provided that the Employee receives reimbursement for any reasonable and necessary
expenses actually incurred in providing such cooperation.
27. This Agreement repeals in its entirety any and all contracts and
agreements, including any extensions or modifications thereof, previously entered into
between the County and Employee.
IN WITNESS WHEREOF, the Parties hereto have set their hands and seals the
day and year first written above.
Amy R. Folsom
BOARD OF COUNTY COMMISSIONERS OF
EL PASO COUNTY, COLORADO:
Amy Lathen, Chair
County Clerk and Recorder
APPROVED AS TO FORM:
Office of the County Attorney
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EL PASO, STATE OF COLORADO
Resolution to Approve Appointment of Amy Folsom, Esq. as El Paso County
Attorney and to Approve an Employment Agreement
WHEREAS, pursuant to §§30-11-101(1)(e), and 30-11-107(1)(e), C.R.S., the
Board of County Commissioners of El Paso County, Colorado (hereinafter “Board”) has
the legislative authority to make such orders concerning the management of the business
of the County; and
WHEREAS, the Board is authorized to appoint a county attorney pursuant to
Article XIV, Section 8 of the Colorado Constitution, and Section 30-11-118, C.R.S.,
2012, as amended; and
WHEREAS, on June 30, 2012 at 11:59 p.m. the tenure in office of William H.
Louis, the currently serving El Paso County Attorney, will expire automatically by
operation of law, thereby creating a vacancy in said Office; and
WHEREAS, in order to fill said vacancy in Office, the Board desires to appoint
the currently serving Chief Assistant County Attorney, Amy Folsom, Esq., (hereinafter
“Ms. Folsom”), to serve as County Attorney, which appointment shall be deemed
effective July 1, 2012 at 12:00 a.m.; and
WHEREAS, upon the effective date and time of Ms. Folsom’s appointment she
shall have full power and authority to act as conferred upon the Office of County
Attorney by Colorado Law and under established El Paso County policies and
WHEREAS, the Board desires to compensate Ms. Folsom for her services as
County Attorney at a salary leval and benefits package as set forth in the attached
Employment Agreement, a copy of which is attached hereto as Exhibit A, and which
Exhibit A is incorporated by reference into this Resolution as if fully set forth herein.
NOW, THEREFORE, BE IT RESOLVED that the Board of County
Commissioners of the County of El Paso, State of Colorado, hereby appoints Amy
Folsom, Esq. as County Attorney, which appointment shall be effective July 1, 2012 at
12:00 a.m., and upon such effective date and time she shall have full power and authority
to act as conferred upon the Office of County Attorney by Colorado Law and under
established El Paso County policies and procedures.
AND BE IT FURTHER RESOLVED that the Board hereby approves the
Employment Agreement between the Board and Ms. Folsom, which Employment
Agreement is attached hereto as Exhibit A, and which Exhibit A is incorporated by
reference into this Resolution as if fully set forth herein.
AND BE IT FURTHER RESOLVED that the Board hereby authorizes the
Chair or Vice-Chair of the Board to execute all document reasonable and necessary to
carry out the intent of the Board as expressed in this Resolution.
Done this ___ day of June 2012 at Colorado Springs, Colorado.
BOARD OF COUNTY COMMISSIONERS
ATTEST: EL PASO COUNTY, COLORADO
County Clerk and Recorder Amy Lathen, Chair
APPROVED AS TO FORM:
William H. Louis, County Attorney