Item 8EAGENDA ITEM # 8E
JULY 13, 2009
CITY OF ATLANTIC BEACH
CITY COMMISSIONER MEETING
STAFF REPORT
AGENDA ITEM: Settlement Agreement and Back Pay Award
SUBMITTED BY: George Foster, Human Resource Manager (~
DATE: July 7, 2009
BACKGROUND: In June 2005 a Police Officer was terminated and subsequently filed a
grievance pursuant to the Collective Bargaining Agreement. During the grievance process, the
arbitrator found that the employee was guilty of the misconduct and inappropriate use of farce
while affecting an arrest; however, the arbitrator determined that termination was an
inappropriate punishment and directed that the employee be reinstated. The City did not agree
with this decision and the Union petitioned the circuit court for reinstatement while the City
filed a counterclaim and motion to vacate the arbitrator's decision, alleging that the arbitrator
exceeded his powers under the Collective Bargaining Agreement. The circuit court grained the
City's motion whereupon the Union appealed to the First District Court of Appeal where the
circuit court's ruling was reversed. The employee was reinstated in July 2008.
After negotiations, a tentative settlement agreement has been reached for $245,000 and
reinstatement of 224.59 hours of Personal Leave.
BUDGET: Funds of $251,989.97 which include the City's benefit costs ($6,989.97) for this
action are included within the submitted budget ordinance.
RECOMMENDATION: City Commission approve the settlement agreement, related budget
ordinance and authorize the City Manager to sign the final settlement agreement.
ATTACHMENT: 1. Settlement Agreement
REVIEWED BY CITY MANAGER:
AGENDA ITEM # 8E
NLY 13, 2009
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (the Settlement
Agreement) is made and entered into by VICTOR L. RAYNOR (hereinafter
"RAYNOR") and the CITY OF ATLANTIC BEACH, FLORIDA, a municipal corporation
(hereinafter "CITY").
DEFINITIONS
A. As used in this Settlement Agreement and General Release, the term
"RAYNOR" shall mean VICTOR L. RAYNOR, as well as his heirs, executors,
administrators, personal representatives, successors and assigns, singular
or plural, where ever the context so admits or requires.
B. As used in this Settlement Agreement and General Release the term "CITY"
shall mean City of Atlantic Beach, Florida, as well as its past and present
officials, commissioners, officers, directors, employees, boards, agents and
attorneys, in both their individual and official capacities, jointly or severally,
singular or plural, where ever the context so admits or requires.
RECITALS
WHEREAS, RAYNOR was terminated from his position as a police officer in
June 2005 and subsequently filed a grievance pursuant to the CITY's collective
bargaining agreement (CBA) between the City and Fraternal Order of Police,
Florida State Lodge, Inc. (dated October 1, 2004 through September 30, 2007).
The grievance proceeded through the grievance procedure and was heard by
arbitrator Stanley Sergent in April 2006. On June 22, 2006, Sergent issued his
opinion and award, which determined RAYNOR should be reinstated and made
whole. The CITY appealed this decision to the Circuit Court in and for Duval
County, Florida, but ultimately, during a review of the arbitrator's decision at the
First District Court of Appeal, the Court upheld the arbitrator's decision to
reinstate RAYNOR and make him "whole." The parties have an ongoing
disagreement as to the amount of specific consideration to make RAYNOR whole,
but have agreed to a settlement as recorded in this settlement agreement and
release to avoid further attendant costs of litigating this issue. Specifically, the
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AGENDA ITEM # 8E
JULY 13, 2009
parties have agreed to a monetary amount comprising back pay, benefits, and
other payments to RAYNOR.
WHEREAS, RAYNOR and CITY have entered into good faith settlement
negotiations resulting in this Agreement. The purpose of this Agreement is to
settle and compromise any and all prior and existing disputes, claims and
controversies between the parties, without any future costs and expenses of
litigation and to bar any and all future disputes claims and controversies between
the parties which may arise out of any conflicts or events, known or unknown,
that have occurred up to the date of the execution of this Agreement, including
but not limited to those which relate directly or indirectly to RAYNOR's
employment with the CITY; and
WHEREAS each party believes settlement of this dispute is in their mutual
best interest and acknowledge and agree that settlement of this claim does not
constitute an admission of liability or responsibility on the part of the CITY; and
WHEREAS the parties desire to memorialize their Agreement.
NOW THEREFORE, in consideration of the mutual covenants to be
performed by each of the parties hereto and set forth in their entirety herein, the
parties agree as follows:
1. Agreement
A. Release and Discharge
In consideration for the payments and other good and valuable
consideration set forth in Raragraph (2) below, RAYNOR agrees, upon receipt of
the consideration due hereunder, and further hereby agrees to release, acquit,
and forever discharge CITY of and from any and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, claims far
attorneys' fees, interest, or costs, executions, claims and demands whatsoever, in
law or in equity, of whatever nature, which RAYNOR ever had, now has, or which
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AGENDA ITEM # 8E
JULY 13, 2009
any personal representative, successor, heir or assign of RAYNOR, hereafter can,
shall or may have against CITY by reason of any matter, cause or thing, occurring
prior to the date of this Agreement, including but not limited to those claims or
demands which arise out of or are related to RAYNOR's employment with the
CITY. RAYNOR acknowledges and agrees that this is a General Release of any and
all claims, including but not limited to claims, grievances or charges for wages,
salary, back pay, front pay, and any and all employment benefits of any nature
whatsoever; of breach of employment agreement or contract; defamation,
including slander or libel; battery; assault; employment discrimination, including
age, race, sex, religion, or natural origin discrimination; hostile work environment;
discrimination based upon actual or perceived disability or other protected
characteristics; retaliation; workers' compensation, or the violation of any
administrative, local, State or Federal Constitution, statute, rule, regulation,
ordinance or law. RAYNOR acknowledges that he is aware of nv facts or
circumstances which would give rise to a claim against the CITY for the following
but nonetheless specifically waives, releases, acquits, and forever discharges any
claims, actions, right of action whatsoever he may have against the CITY, under
the United States Constitution, the Florida Constitution, Title VII of the Civil Rights
Acts of 1964, the Civil Rights Act of 1991, 42 U.S.C. § 1983, § 1985, § 1988, the
Age Discrimination in Employment Act (ADEA), the Florida Human Rights Act, the
Florida Civil Rights Act of 1992 (§§ 760.01-760.11 and 509.092, Fla. Stat.), the
Americans with Disabilities Act (42 U.S.C. § 12132 et. seq) the Florida Whistle
Blower Act (§ 112.3187 et. seq. Fla. Statutes), the Florida Workers' Compensation
Act, Unemployment Compensation, § 119.07, Fla. Stat., including attorneys' fees
or costs, or any other state, federal or administrative rule, statute, ordinance or
law of any nature relating to employment.
B. RAYNOR acknowledges and agrees that the Release and discharge set
forth above is a General Release of all claims. RAYNOR expressly waives and
assumes the risk of any and all claims, disciplinary disputes or grievances, in law
or in equity, which exist as of this date, but of which RAYNOR does not know or
suspect to exist, whether through ignorance, oversight, error, negligence, or
otherwise and, which, if known, would materially affect RAYNOR's decision to
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AGENDA ITEM # 8E
JiJLY 13, 2009
enter this Settlement Agreement. RAYNOR further agrees that he has agreed to
accept payment of the sum specified herein as a complete compromise of
matters involving disputed issues of law and fact. RAYNOR assumes the risks that
the facts or law may be other than he currently believes or understands.
C. It is understood and agreed by the parties that this settlement is a
compromise of a litigated and disputed claim and neither this Agreement, nor any
consideration to be paid hereunder shall be construed as an admission by the
CITY of any unlawful, tortious or wrongful acts whatsoever towards RAYNOR.
2. Consideration
A. Inconsideration of the General Release set forth above, RAYNOR was
reinstated to his former position of employment on July 28 2008, and the CITY
agrees to pay to RAYNOR the sum as outlined below.
B. Consideration in the amount of TWO HUNDRED FORTY-FIVE THOUSAND
DOLLARS ($245,000.00), comprising two separate checks made payable to VICTOR
L. RAYNOR. The first check, in the amount of $177,473.44 (first payment) will be
issued to RAYNOR via the CITY's payroll system for reimbursement of wages and
salary.
The second check, in the amount of $67,526.56 (second payment) will be
issued to RAYNOR via the CITY's vendor payment system. The total consideration
to RAYNOR (first and second payments) will represent complete and total
satisfaction of the arbitrator's determination that RAYNOR be reinstated and
made "whole".
i. The parties acknowledge and agree that the first payment set
forth in subsection (B) above does constitute wages or salary
to RAYNOR, and accordingly the CITY will take payroll
deductions, withholding, employee pension contributions or
other deductions from said payments, will make payment of
appropriate payroll taxes, and will report said income to the
Internal Revenue Service as reimbursement far wages of
salary. The City shall utilize the IRS standard tax table for the
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AGENDA ITEM # 8E
JULY 13, 2009
first payment. RAYNOR shall have the option to complete an
IRS Form W-4 to increase or decrease taxes withheld; however,
in no case shall the City withhold less than that required by
law.
ii. The parties acknowledge and agree that the second payment
set forth in subsection (B) above does not constitute wages or
salary to RAYNOR, and accordingly the CITY will not take
payroll deductions, withholding, employee pension,
contributions or other deductions from said payments, will not
make payment of appropriate payroll taxes, and will not report
said income to the Internal Revenue Service as reimbursement
for wages of salary. The second payment of said amounts will
be reported by the CITY to the Internal Revenue Service by way
of issuance of a 1099 reflecting the payment.
C. Further, RAYNOR and the CITY agreed that as additional
consideration, RAYNOR will be credited with 224.59 hours of personal leave.
RAYNOR will have the option to "purchase back" an additional 727.73 hours of
personal leave at $22.38 per hour, and any amounts .purchased back will be
deducted from the total payroll payment made in the first check under Section
2.B.
D. Contingent upon approval of the City of Atlantic Beath Police Officer
Pension Board, the parties agree to the terms and conditions set forth in
Attachment A.
E. It is further agreed and understood that future tax liabilities, if any,
including penalties and interest, which may be incurred by RAYNOR or CITY in
association with said payments will be the sole responsibility and liability of
RAYNOR, and RAYNOR agrees to indemnify and hold harmless CITY for any
additional tax liability which may arise from said payments. Said tax liability shall
not be a ground for avoiding or setting aside this Settlement Agreement.
3. Severability
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AGENDA ITEM # 8E
JULY 13, 2009
If any clause or provision of this Agreement is found to be void, invalid, or
unenforceable, it shall be severed from the remaining provisions and clauses
which shall remain in full force and effect.
4. Governing Law
The parties hereto agree that the law of the State of Florida shall govern
this Agreement and all respects in the event any action must be instituted for
breach of this Agreement, the parties agree that the sole venue shall be Duval
County, Florida.
S. Miscellaneous
A. Each of the parties expressly agree, acknowledge and warrant that
they have read carefully and fully understand all provisions of this Agreement and
that they are entering into this Agreement of their own free will and with the
advice of their respective attorneys. Each party represents that they are
voluntarily entering into this Agreement with the intent to be bound thereby and
they have not been coerced or induced by anyone to enter into this Agreement.
The parties acknowledge that they have read and fully understand the
Agreement's terms, conditions, meaning and intent, including but not limited to
the final binding effect of the General Release.
B. This Agreement constitutes the entire agreement between the
parties, and no other promises or agreements shall be binding unless signed by all
parties. All prior representations regarding the Agreement are hereby expressly
disclaimed by all parties unless incorporated herein.
C. All parties shall take such further action and shall execute and deliver
such further documents as may be reasonably requested by the other party in
order to carry out the provisions and purposes of this Agreement.
D. The recitals are incorporated herein by reference.
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AGENDA ITEM # 8E
JULY 13, 2009
VICTOR L. RAYNOR
STATE OF FLORIDA
COUNTY OF
The foregoing was acknowledged before me this day of ,
2009, by VICTOR L. RAYNOR, who is personally known to me or who has produced
as identification and who did/did not take an oath.
Notary Public
My Commission Expires:
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AGENDA ITEM # 8E
JULY 13, 2009
AUTHORIZED REPRESENTATIVE OF
CITY OF ATLANTIC BEACH
STATE OF FLORIDA
COUNTY OF
The foregoing was acknowledged before me this day of ,
2009, by who is personally known to me or who has
produced as identification and who did/did not take an oath.
Notary Public
My Commission Expires:
s
SETTLEMENT AGREEMENT & RELEASE
BETWEEN VICTOR RAYNOR AND
CITY OF ATLANTIC BEACH
ATTACHMENT "A"
AGENDA ITEM # 8E
JULY 13, 2009
Contingent upon approval of the City of Atlantic Beach Police Officer Pension Board, the
following is hereby agreed to by the parties:
Credited Service. Raynor shall be provided with Credited Service for the period of tune 7,
2005 through July 27, 2008. (Ref; Section 2-301 and Section 2-310.1, Supplement No. 36,
City Code of Ordinances).
Final Average Compensation (FAC). Upon retirement, the period, or portions thereof, from
October 30, 2004 through July 27, 2008 may need to be utilized to determine the Final
Average Compensation which is one-sixtieth (1/60th) of the aggregate amount of
compensation paid during the period of sixty (60) months of the member's credited service
in which the aggregate amount of compensation is greatest. If this period, or portions, of
time is utilized to determine Final Average Compensation, then the following FAC shall be
utilized. (Ref: Section 2-301, Supplement No. 36, City Code of Ordinances).
Period
From To
10/30/04 06/06/05
06/07/05 09/30/05
10/01/05 09/30/06
10/01/06 09/30/07
1OJ01/07 07/27/08
07/28/08 Retirement
Final Averaee Compensation (FAC)
FAC during administrative leave will be adjusted by +$ 7.92 per day
FAC to be utilized during this period will be $142.12 per day
FAC to be utilized during this period will be $149.12 per day
FAC to be utilized during this period will be $157.35 per day
FAC to be utilized during this period will be $157.42 per day
FAC to be utilized during this period wilt be actual compensation paid.
EmnloYee Pension Contribution. Employee will have $6,543.01 deducted from gross pay on
a pre-tax basis and contributed to the Police Pension Plan for the period of 6/7/05 to
7/27/08 based upon the gross salary credit being provided and the varying pension
contribution rates in affect aver this period of time. (Ref: Section 2-310.27, Supplement
No. 34, City Code of Ordinances).
SETTLEMENT AGREEMENT & RELEASE
BETWEEN VICTOR RAYNOR AND
CITY OF ATLANTIC BEACH
AGENDA ITEM # 8E
JULY 13, 2009
Period Number Compensation Pension Employee
From Thru Davs and Benefits Rate Contributions
10/30/04 06/06/05 n/a $ 1,741.85 2.8150% $ 49.03
06/07/05 09/30/05 116 $ 16,4$5.51 2.8150% $ 464.07
10/01/05 09/23/06 357 $ 53,281.80 2.8150% $ 1,499.88
09/24/06 09/30/06 8 $ 1,148.24 3.8150% $ 43.81
10/01/06 09/22/07 356 $ 56,068.10 3.8150% $ 2,139.00
09/23/07 09/30/07 9 $ 1,365.01 4.8150'/0 $ 65.73
10/01/07 07/27/08 301 $ 47,3$2.94 4.8150% $ 2,281.49
Total: $ 6,543.01