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HomeMy WebLinkAbout2002-12-17; City Council; 17015; Settlement in Personnel Action - Virginia McCoyCITY OF CARLSBAD - AGENDA BILL 8 AB# 17,015 DEPT. CA CITY ATTY. SETTLEMENT AS REQUIRED BY THE BROWN ACT IN MTG. ." 'x''''a ~ DEPT. HD. TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF THE PERSONNEL ACTION: IN RE MCCOY RECOMMENDED ACTION: There is no action the Council needs to take. ITEM EXPLANATION: At its closed session meeting of October 15, 2002, the City Council discussed and approved (3-2 (Hall, Finnila) a proposed settlement of the above referenced case subject to approval by all parties. This item satisfies the Brown Act requirement to report the fact of a settlement of litigation approved in a prior closed session, and makes the terms and conditions of the settlement available to the public. The General Release and Settlement Agreement (attached) is provided for public review. FISCAL IMPACT: The cost of the settlement is $45,540 including a PARS annuity. EXHIBITS: General Release and Settlement Agreement SEVERANCE AGREEMENT AND GENERAL RELEASE This Severance Agreement and General Release of All Claims (hereinafter “Agreement”) is made and entered into by and between the CITY OF CARLSBAD (hereinafter “CITY”) and VIRGINIA McCOY (hereinafter “McCOY”) and is made in light of the following: RECITALS ’ ‘ 1. . McCOY was employed by CITY as Administrative Coordinator-Special Projects for Public Works. On March 10,2002, McCOY was served with a.Notice of Intent to Terminate her from her employment. On April 5,2002, McCOY and her attorney met with Assistant City Manager Frank Mannen to respond to the Notice. On May 17,2002 Assistant City Manager, Frank Mannen issued his Notice of Termination effective May 24, 2002. McCOY filed an appeal from her termination with the City of Carlsbad Personnel Board. The parties have agreed to stay fiuther action on the proposed discipline pending resolution of this matter as described below. 2. McCOY has informed the CITY that she wishes to voluntarilyresign her employment with the CITY in lieu of her termination. A copy of McCOY’s resignation, retroactive to May 24, 2002, is attached hereto as Exhibit “A” and incorporated herein. 3. CITY hereby accepts McCOY’s resignation subject to the terms and conditions set forth in this Agreement. 4. McCOY and the CITY acknowledge that each has denied, and continues to deny, any and all claims asserted by, or which might be asserted by, the other, but they desire to settle fully and finally all disputes between them, including, but in no way limited to, all disputes arising out of McCOY’s employment with the CITY and termination fiom the CITY. 5. This Agreement and compliance with this Agreement shall not be construed in any way as an admission by the CITY of any liability whatsoever, or that the CITY has acted wrongfully with respect to McCOY, or that McCOY has any rights whatsoever against the CITY and/or its council members, officers, employees, agents or attorneys. The CITY specifically disclaims any liability to, or wrongful acts against, McCOY. AGREEMENT 6. McCOY agrees that she has not and will not file any complaints, charges or lawsuits at any time hereinafter with any governmental agency or any court arising out ofher employment with and termination from the CITY and arising during the Independent Consultant’s Contract set forth in paragraph 7(d), provided, however, she shall not be limited fiom pursuing claims or other enforcement activities for the sole purpose of enforcing her rights under this Agreement. McCOY further agrees not to institute or join any action, lawsuit or proceeding against the CITY arising out of her employment with and termination from the CITY and arising during the Independent Consultant’s Contract set forth in paragraph 7(d), provided, however, she shall not be limited from SDLITUPV69564 -1- pursuing claims or other enforcement activities for the sole purpose of enforcing her rights under this Agreement. 7. CITY and McCOY agree as follows: a) The City may record her separation from the City of Carlsbad as voluntary when applying for a service retirement with the California Public Employees’ Retirement system (CalPERS). McCOY agrees to use the date of May 25, 2002 as the effective date of retirement and will attach a separate request along with her Application for Retirement requesting that CalPERS accept this date as her effective date of retirement. b) CITY will provide McCOY with the option of a lump sum distribution in the amount of $38,040 or a lifetime annuity payable monthly in an amount of approximately $250 based on annuity rates with a two percent (2%) annual cost-of-living adjustment. These monies will be paid by the Public Agency Retirement System (PARS) trust administrator upon McCOY’s enrollment into the Separation Incentive Plan, referred to as the PARS SIP. McCOY will be enrolled into the PARS SIP as soon as practical following approval of this agreement. McCOY may only be enrolled in the PARS SIP Agreement if she is PERS eligible. The monthly allotment provided by PARS for MCCOY’s retirement will begin on the first of the month following her enrollment into the PARS SIP and will remain in effect as long as she is collecting a retirement pension from PERS. c) IUwhen CalPERS determines that McCOY’s effective date of retirement is May 25, 2002, CITY will continue her enrollment in the CalpERS Health Program and will contribute sixteen dollars ($16.00) per month toward the cost of McCOY’s enrollment in the CalPERS Health Program effective July 1,2002. McCOY will be responsible for requesting a refund from her health insurance provider for the health insurance premiums that she has paid since being enrolled through COBRA. CITY will provide McCOY with additional compensation to reimburse her for the cost of her enrollment in a CalPERS Health Medicare supplement plan for a two year period effective on the first of the month following her enrollment into the PARS SIP. The total of this benefit is $7500, which would be administered and paid through the PARS SIP agreement as well. The total benefit of $7500 will not increase should medical premiums deviate from current projections, or for any other reason. d) CITY will enter into an Jndependent Contractor Consultant Contract (“Contract”) with McCOY for a one year period, from October 15,2002 to October 15, 2003 to perform certain services which will be detailed in the Contract but which will consist of administrative duties associated with the CITY’S Lighting and Landscape District No. 1 and the Buena Vista Channel -2- Maintenance District No. 1. McCOY will be paid a total of $25,000.00 for those services. e.) The City’s obligations as set forth in this paragraph do not arise until after expiration of the 7 day revocation period set forth below. 8. McCOY agrees that she will keep the fact and the terms of this Agreement confidential and that she will not disclose any information concerning the fact or the terms of this Agreement to any other person, entity or organization, except to her immediate family members, personal tax advisors and attorneys, and as necessary for the enforcement or compliance with this Agreement. The parties acknowledge that the CITY is a public entity and this Agreement and its terms may be a public record within the meaning of the Public Records Act, and therefore the CITY will, upon request, and if deemed legally necessary, release the Agreement andor its terms. 9. McCOY agrees that she will not make application for employment or be entitled to further employment with the CITY, except as set forth above in paragraph 7. In the event McCOY does seek or obtain such employment in any capacity, it is understood and agreed that this Agreement shall constitute good cause for refusal to hire or for termination of such employment. 10. McCOY agrees that all employment reference checks initiated by her or at her request will be directed to Julie Clark, Human Resources Director, City of Carlsbad, 1635 Faraday Avenue, Carlsbad, California 92008-073 14, telephone: (760) 602-2440, or to her successor, who will state only the dates of McCOY’s employment and the position held. 1 1. McCOY, on behalf of herself, her relatives, heirs, estate, executors, administrators, successors and assigns, fully releases and discharges the CITY, its council members, officers, employees, agents and attorneys, from all actions, causes of action, claims, judgments, obligations, damages, and liabilities ofwhatsoever kind and character, including, but not limited to, any actions, causes of action, claims, judgments, obligations, damages, or liabilities relating to McCOY’s employment with and termination fiom the CITY, and arising during the Contract set forth in Paragraph 7(d), including, but not limited to, those arising out of any claims for violation of any alleged contract, express or implied; any covenant of good faith and fair dealing, whether express or implied; any tort; any administrative remedy; any federal, state, or local law, statute or regulation based on or related to the Americans with Disabilities Act (42 U.S.C. §$12101-12213); the Federal Family Medical Leave Act (29 U.S.C. 2601-2654); the CaliforniaFamily Rights Act (Gov. Code 9912945.1-12945.2); the Age Discrimination in Employment Act (29 U.S.C. $4621 -634); Title VII, Civil Rights Act of 1964 (42 U.S.C. 942000-2000 (e)-1 -17); and the CaliforniaFair Employment and Housing Act (Gov. Code @j12900-12996). Further, McCOY represents and warrants that she has not filed any complaints, charges, grievances or lawsuits against the CITY with any governmental agency arising out ofher employment with and termination from the CITY and arising during the Contract set forth in Paragraph 7(d), and that she will not do so at any time hereinafter. However, the parties shall not be limited from pursuing claims for the sole purpose of SDLIW69564 -3- enforcing their rights under this Agreement. Further, McCOY agrees that under this Agreement, she waives any claim for damages incurred at any time after the date of this Agreement because of alleged continuing effects of any alleged unlawful acts or omissions involving McCOY's employment with and termination from the CITY, and any right to sue for injunctive relief against the alleged continuing effects of alleged acts or omissions. 12. McCOY understands and expressly agrees that this Agreement extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present, and all rights under Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 reads 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. 13. McCOY represents and agrees that she has filly discussed all aspects of this Agreement with her attorney, and that she has carefully read and fully understands all of the provisions of the Agreement, that she is voluntarily entering into this Agreement, and that she I has the capacity to enter into this Agreement. 14. McCOY represents and acknowledges that in executing this Agreement she does not rely and has not relied upon any representation or statement not set forth herein made by any of the parties or any of the parties' agents, representatives, or attorneys with regard to the subject matter, basis or effect of this Agreement or otherwise. 1 5. This Agreement sets forth the entire Agreement between the parties hereto and fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof. 16. This Agreement is made and entered into in the State of California and shall in all respects be interpreted and enforced and governed by and under the law of the State of California. 17. This Agreement may be executed in any number of counterparts. Any such counterpart when executed shall constitute an original of the Agreement and all such counterparts together shall constitute one and the same agreement. 18. Each party shall bear their own attorneys' fees and costs with respect to the matters settled hereby. McCOY REPRESENTS THAT SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS ITS CONTENTS AND FULLY UNDERSTANDS IT; THAT SHE HAS HAD THE OPPORTUNITY TO HAVE IT SDLIWD69564 -4- FULLY EXPLAINED TO HER BY AN ATTORNEY OF HER CHOICE AND HAS EITHER DISCUSSED THIS AGREEMENT WITH AN ATTORNEY OR HAS VOLUNTARILY CHOSEN TO SIGN IT WITHOUT CONSULTING AN ATTORNEY; THAT SHE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT; THAT THE ONLY PROMISES MADE TO HER TO SIGN THIS AGREEMENT ARE THOSE STATED ABOVE; AND THAT SHE IS SIGNING IT VOLUNTARILY. IN ACCORDANCE WITH THE AGE DISCRIMINATION IN EMPLOYMENT ACT (29 U.S.C. §§621-634), McCOY HAS BEEN GIVEN AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND UNDERSTANDS THAT AFTER IT IS SIGNED, SHE MAY REVOKE THIS AGREEMENT BY DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE CITY MANAGER OF THE CITY OF CARLSBAD NO LATER THAN SEVEN (7) DAYS AFTER SHE EXECUTES THIS AGREEMENT, AND THAT THIS AGREEMENT DOES NOT BECOME EFFECTM OR ENFORCEABLE UNTIL AFTER THE SEVEN (7) DAY PERIOD HAS EXPIRED. 3?k Executed this.& day o 2002 at-km- , California. - I Executed this k day of City Manager CITY OF CARLSBAD I Michael L. Klkin Attorneys for Virginia McCoy Dated: I 02 Attorneys for City of Carlsbad SDLIW69564 -5- May 24,2002 Ray Patchett, City Manager City of Carlsbad 1200 Carlsbad Village Drive Cdsbad, CA 92008- 1989 Dear Mr. Patchett: Effective the close ofbusiness on May24,2002 I hereby resign my position as Administrative Coordinator-Special Projects, Public Works for the City of Carlsbad. Sincerely, EXH. “A”