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City to Hernandez: Decision to not renew contract is not a termination

Expectation is city manager will continue to end of current contact term

By VALARIE HARRING - | Feb 4, 2023

City Manager Rob Hernandez

In a pair of hand-delivered letters, the city has notified its top administrator that Cape Coral City Council’s vote to not renew his contract is not a termination of employment subject to a charter-provided hearing and that the city anticipates his employment to continue until it expires in August.

Council voted 5-3 Wednesday to provide City Manager Rob Hernandez with the six-months notice his contract calls for should either party opt not to renew. The contract would have rolled over for an additional year had Council not taken any action.

The first letter was a notice of non-renewal, the second a response to Mr. Hernandez’s request for a hearing as allowed by a city charter provision for terminations.

The first letter states:

“Dear Mr. Hernandez:

“As you are aware, City Council voted February 1, 2023, not to renew your employment agreement as City Manager and to allow your contract to expire on its natural expiration date of August 11, 2023. This letter constitutes the timely notice of non-renewal required by Section 1, Term, of your employment agreement.

“The city appreciates the professional contributions you have made to the city.”

It is signed by Mayor John Gunter.

The second letter, in response to Hernandez’ request for a public hearing to be scheduled in March, rejects that request saying the charter only provides for a hearing when Council terminates a city manager for cause. This is not the case, the letter states:

“Dear Mr. Hernandez:

“On Feb. 3, 2023, the City received your e-mail requesting a public hearing pursuant to the City’s Charter to discuss the February 1, 2023, decision by City Council to not renew your employment contract. Please be advised, however, that a public hearing as provided by Section 5.02, Removal, of the Charter is only available if Council is proposing to terminate a city manager for cause. You have not been removed from your position as City Manager and your employment has not been terminated. Rather, your employment is anticipated to continue until the end of your current contract term.”

It is signed by Mayor John Gunter.

The special council meeting held Wednesday had members of Council about evenly split between non-renewal and allowing the contract to roll over for an additional year.

Voting against renewal was Gunter and council members Dan Sheppard, Keith Long, Patty Cummings and Bill Steinke with Gunter, Sheppard, Long and Cummings citing areas of performance or problem-solving they deemed problematic.

Supporting an extension of Hernandez’s contract were council members Jessica Cosden, Robert Welsh and Tom Hayden, each of whom spoke in favor of rollover.

Steinke, who cast the deciding vote but did not weigh in with arguments against renewal, said what was shaping up as a 4-4 deadlock was, in essence, a no-confidence vote. The effect of that was that Hernandez was not going to stay beyond his current contract term either way.

He then cast his vote for non-renewal at the end of a meeting that featured impassioned discussion on both sides.

Hernandez, who was not present at the meeting due to medical-related time off, responded by telling Council he deserved better than to hear of the decision from a reporter, adding he was entitled to have an opportunity to respond.

“Words cannot express the depth of my disappointment in learning of council decision to terminate my employment for performance reasons from an NBC2 reporter. I think I deserved better than that, he said via email.

“As provided for in the City Charter, I am requesting a public hearing be scheduled in March to discuss this decision with me present. Given my current medical condition I cannot prepare for a meeting before then.”

Council had provided Hernandez with a performance review about two months ago, shortly before Cummings and Steinke took office following the November election.

Individual numerical rankings as per tasks and goals measured varied with the elected board determining Hernandez’s performance at a 3.8 out of a possible 5.

A score of 3 is average — generally meets the performance standard. A 4 is above average — generally exceeds the performance standard.

Council unanimously approved a 3 percent salary increase with a 3.25 percent merit increase for a total of 6.25 percent. The increase was effective as of Oct. 1.

The overall performance ranking was cited Wednesday as both a reason to renew and a reason to not.

“My belief is that the city manager has been average in his performance. I’m not looking for average. I want exceptional,” Gunter said. “I’ve always tried to be exceptional I haven’t always succeeded, but I’ve always tried. When I see his record, I see an average city manager. Is that what you’re looking for? If you have an average leader, you have an average organization.”

Those who voted to not renew also listed concerns they said have arisen since the evaluation and in the wake of Hurricane Ian.

Hernandez took over as the city’s top administrator on Aug. 12, 2020.

He was hired by the city from a field of five finalists, replacing former city manager John Szerlag, who retired after serving as the Cape’s city manager for eight years.