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HomeMy WebLinkAbout1990-12-18; City Council; 10949; Settlementn 9 2 0 pe P .. z 0 F 0 a =! 0 z 3 0 0 AB#-, MTG. 12/18/90 DEPT. CA 4$4 @ CIT- OF CARLSBAD - AGEND-BILL CARLSBAD, CASE NOS. 89 1222 S (CM) I CITY A CITY MG TITLE: SETTLEMENT OF PIETI V. CITY OF L48143 and N48205 RECOMMENDED ACTION: That the City Council, by motion, approve the settlement agreement and general release between the City of Carlsbad, certain individuals and Jerome N. Pieti. (Pieti v. Carlsbad, Case Nos. 89 1222 S (CM), L48143, N48205) ITEM EXPLANATION Special counsel for the City recommends that the City Council approve the attached Settlement Agreement and General Release between the City of Carlsbad and certain individuals and Jerome N Pieti to resolve all outstanding federal and state, judicial and administrative matters. This is a complex personnel matter which was made much more difficult by the Public Employee Retirement System's reversal of the previously approved disability retirement. Mr. Pieti's pending claims against the City exceed $50 million. Although continuing to believe the City's position is correct, substantial additional litigation and protracted appeals would be required. Special counsel recommends approval of the settlement as the most cost effective way to resolve the matter. By its own terms, it is not in any way an admission of any liability for any wrong doing on the part of either Mr. Pieti, the City of Carlsbad . or the individuals involved. FISCAL IMPACT There are sufficient funds in the liability account to cover the settlement. EXHIBITS Resolution No. 5% $443 Settlement Agreement and General Release 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h RESOLUTION NO. 90-443 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE SETTLEMENT OF PIETI V. CITY OF CARLSBAD WHEREAS, on recommendation of special counsel the Citj Council of the City of Carlsbad, California has determined tc approve a settlement in the case entitled Pieti v. Carlsbad, et al., Case Nos. 89 1222 S (CM), L48143, and N48205. WHEREAS, after the transfer of funds there will bc sufficient funds available in the Human Resources salary account tc pay the settlement, NOW, THEREFORE, BE IT RESOLVED by the City Council of thc City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Mayor is authorized to sign the Settlement Agreement and General Release which is hereby approved. 3. That the Finance Director is authorized to transfei $75,000 from the liability self-insurance account and $65,000 fron the contingency fund account into the Human Resources salary account to fund this agreement. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 18th day of December 1990, by the following vote, to wit: AYES: Council Members Lewis, Larson, Stanton and Nygaard NOES: None ABSENT: Council Mem - ATTEST : l2&2A?vRP- ALETHA L. RAUTENKRANZ, CityJlerk . .. '; .. SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (hereafter 8tAgreement18) is made this - day of October 1990, by and between Jerome N. Pieti (hereafter "Pieti") and the City of Carlsbad, Raymond Patchett, Frank Mannen, and Frank Aleshire (hereafter A collectively 'ICity"). a has WHEREAS,Adispute# kave arisen between Pieti and the City db abed- .. thzwghe& Pieti's employment as the City's Personnel Director regarding the terms and conditions of Pieti's employment; WHEREAS, Pieti has filed administrative charges of discrimi- nation with the Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission against the City from 1986 to the present; WHEREAS, Pieti has filed tort claims against the City from 1986 to the present; WHEREAS, on August 14, 1989, Pieti filed U.S. District Court Case No. 89 1222 S (CM) alleging various employment discrimination claims ; WHEREAS, on July 30, 1990, Pieti filed San Diego Superior Court Case No. N 48205 requesting reinstatement and backpay; WHEREAS, on September 20, 1990, the City offered to pay Pieti 3@sspy'f heaerfk MbyPrcr LMfi $66,279.02)as compensation for backpay and kumeh4s ' for the period Y&, 4.1G*oo A J @ between December 31, 1988 and October 1, 1990; dAd WHEREAS, on September 20, 1990, the City offered to reinstate Pieti to the position of Personnel Director in the reorganized Department of Human Resources; -1- WHEREAS, on September 21, 1990, Pieti and the City stipulated on the record in Superior Court Case No. N 48025 that the matter would be continued to allow the parties to attempt to settle Pieti's pending state, federal, and administrative claims; WHEREAS, on September 24, 1990, the parties appeared before U.S. Magistrate McKee to attempt to settle all matters between the parties and agreed to settle this matter upon the terms set forth in this Agreement; WHEREAS, this Agreement is a settlement of disputed claims and is not, in any way, an admission of any liability, fault or wrongdoing on the part of either Pieti or the City. NOW, THEREFORE, IT IS AGREED, WARRANTED AND REPRESENTED as a , matter of settlement and compromise as follows: 1. The City shall pay Pieti as soon as re sonably but no later than October 5, 1990, the sum of $66,279.09 as back pay and for the period January 1, 1989 to September 30, 1990, and Pieti is returned to employee status. hen4 LuhuU'u- il 2. The City will pay Pieti the sum of $140,000 to reimburse him for attorneys fees and costs, disputed back pay and any and all other damages claimed by Pieti. The City shall pay Pieti this sum within a reasonable time after final approval of this Agree- q! /& %,.h && SCB, fl'i40, uikcjssk 9- 0- Lzfk ment by the City Councill h4f G%d- &hhL kwh H( f9q0* 3. Beginning on October 1, 1990, Pieti will be placed on sick leave and when he has exhausted his sick leave, he will be allowed to utilize his accrued vacation until February 28, 1991 Between October 1, 1990 and February 28, -2- its to whic ay Pieti for The City will cooperate with Pieti to facili- tate processing of that application. 5. In consideration of the sums described here, Pieti agrees to execute, concurrently with this Agreement, both the dis- missal with prejudice of U.S. District Case No. 89 1222 S (CM) (attached hereto as Exhibit A) and the dismissal with prejudice of San Diego County Superior Court Case No. N 48205 (attached as Exhibit B). Pieti further agrees that this Agreement completely settles all litigation, tort claims, administrative charges of discrimination, and any other charges or complaints filed by Pieti to date regarding his employment. Pieti agrees to prepare, exe- cute, and file any documents necessary to dismiss any such charges and complaints in addition to the federal and state cases listed in this paragraph. 6. The parties agree that all proceedings presently sched- uled in both the federal court d state court will be taken off gr calendar pending the City Agreement. 7. In consideration Pieti, on behalf of himself, Council's final approval of this and inducement for this Agreement, his successors and assigns does fully -3- release and discharge the City, its past and present Council- members, officers, agents, employees, attorneys, successors, and assigns from all actions, damages, liabilities of whatsoever kind and character, including but not limited to attorneys' fees, any common law contract or tort causes of action, unemployment insurance, employment discrimination of any kind, or violation of any other federal, state, rule, or order arising out matter of this Agreement. has not assigned any other claim on his behalf. b&iW @!/ local or City ordinance, regulation, of his employment and/or the subject fl 54- Pieti represents and warrants that he - 8. As a further consideration and inducement for this Agreement, Pieti agrees that this Agreement shall apply to all unknown and unanticipated injuries and damages resulting from the issues raised in connection with the subject matter of this Agree- ment, and hereby expressly waives the provisions of California Civil Code Section 1542, which states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 'I 9. Pieti agrees, warrants and represents for himself, his heirs, executors, administrators and assigns to indemnify and hold harmless the City from any claim, expense, demand, cause of action or loss incurred directly or indirectly through the assertion of any stranger hereto of a claim or claims connected with the issues raised in connection with the subject matter of this Agreement, -4- *. I- including attorney's fees, and from any loss incurred directly or indirectly by reason of the falsity or inaccuracy of any represen- tation herein by the undersigned. 10. Pieti expressly waives any and all rights of reim- bursement for damages or of legal representation that he might have pursuant to the Government Code Sections 825 and 995, respectively, and which arise out of the subject matter of this Agreement. 11. This Agreement contains the entire understanding between Pieti and the City. The terms of this Agreement are contractual and not a mere recital. 12. This Agreement shall be construed and enforced pursuant to the laws of the State of California. All executed copies are duplicate originals and are equally admissible in evidence. 13. Pieti warrants that no promise, inducement or agreement not expressed herein has been made to him in connection with this Agreement. Pieti acknowledges and agrees that he has been repre- sented by an attorney with respect to the matters which are the subject of this Agreement, that his attorney has discussed this Agreement with him and has fully advised him with respect to the rights and obligations he assumes by executing this document, and that said attorney is hereby authorized and directed to take such action that may be necessary or appropriate to complete this Agreement. Pieti has entered into this Agreement voluntarily. 14. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid, or -5- QhJ dLtN&5 4e44-f -/ /$* e remainder of this Agreement shall be deemed severable, shall not be affected, and shall remain in full force FOR PIETI: Dated: [ZAqO rome N. Pieti APPROVED AS TO FORM: FOR CITY: Dated: Dated: Dated: Dated: APPROVED AS TO FORM: Dated: &- < 1440 Claude A. Lewis Mayor of the City of Carlsbad on behalf of the City of Carlsbad Raymond Patchett City Manager City of Carlsbad Frank Mannen Assistant City Manager City of Carlsbad Frank Aleshire Richard S. Whitmore, Esq. Whitmore, Kay & Stevens Attorneys for City of Carlsbad Raymond Patchett, Frank Mannen, and Frank Aleshire k t KNOW ALL MEN BY THESE PRESENTS: That the Undersigned, being of lawful age, for sole consideration of ) Dollars ($ 16,500 00 Sixteen Thousand Five Hundred ------------------ ------------ to be paid to Rosana Leqaspi-Cavin do/does hereb and for my/our/its heirs, executors, administrators. successors and assigns release, acquit and forever discharge dlber Lee Hoff and The City of Carlsbad and his, her, their, or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights. damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/ have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown. foreseen and unforeseen bodily and personal injuries and Dropertydamageand theconsequences thereof resulting orto result from the accident, casualty or event which occurred on or aboutthe 8th day of June 19 89 at or near 1000 "E" Street, San Dieqo, CA It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace. It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States are hereby expressly waived. Said section reads as follows: "1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The undersigned hereby declare(s) and represent(s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely(ies) wholly upon the undersigned's judgement, belief and knowledge of the nature, extent, effect, and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed. The undersigned further declare(s) and represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital. I hereby represent that at the time I sign this Release I am not hospitalized in a medical facility nor was I admitted to a medical facility within the past 15 days. THE UNDERSIGNED HAS READ DS IT TO BE A FULL AND FINAL RELEASE OF ALL CLAIMS. Signed, sealed and delivered this I19 a. CAUTION: READ BOTH SIDES BEFORE SIGNING. Address of witness Signature Witness to signature Signature - - Address of witness TURN OVER For your protection California law requires the following to appear on thlr form. Insurance Code Section 556. “(a) It is unlawful to: (1) Knowingly present to or cause to be presented any false or fraudulent claim for the payment of a loss under a contract of insurance. (2) Knowingly file multiple claims for the same loss or injury with more than one insurer with an intent to defraud the unsurer. (3) Knowingly prepare, make, or subscribe any writing, with intent to present or use the same, or to allow it to be presented or used in support of any such claim. (b) Every person who violates any provision of this section is punishable by imprisonment in the state prison, for two, three, or four years, or by fine not exceeding ten thousand dollars, ($10,000), or by both. (c) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of a sentence be suspended for, any adult person convicted of a violation of this section who has been previously convicted of violations of this section as an adult under charges separately brought and tried two or more times. The existence of any fact which would make a person ineligible for probation under this subdivision shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by thecourt where guilt is established by plea of guilty or nolo contendre or by trial by the court sitting without a jury. Except where the existence of such fact was not admitted or found to be true or the court finds that a prior conviction was invalid, the court shall not strike or dismiss any prior convictions alleged in the information or indictment. This subdivision does not prohibit the adjournment of criminal proceeding pursuant to Division 3 (commencing with Section 3000) or Division 6 (commencing with Section 6000) of the Welfare and Institutions Code.” ACKNOWLEGEMENT UNDER OATH . } 55. Before me this dav of 19 ~LJ .came fl&An/A /I F07SR,’ -YHc /’, known to me to be the individual who executed this release, and acknowledged that fully (HE-SHE-THEY) understood its contents and freely executed same for the sole considpration therein_ expressed. ,.=j P I. ‘/ Notary Public