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Item 8FAGENDA ITEM # 8F AUGUST I Q 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: August 3, 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 force 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 granted 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 with the key provisions being $245,000 and reinstatement of 224.59 hours of Personal Leave. BUDGET: Funds of $2S 1,989.97 which include the City's benefit costs ($b,989.97) for this action have been approved by the City Commission per Ordinance No. 20-09-98 an July 27, 2009 (second and final reading). RECOMMENDATION: City Commission approve the settlement agreement and authorize the City Manager to sign agreement and any related documents. ATTACHMENT: Settlemerrt Agreement REV~WED BY CITY MANAGER: ~U1.3~. 2449 14:50Af~ DE~E6AL lAia OFFICES AGENDA ITEM#8F ' AUGUST I0, 2009 This Settlement Agreement and General Release (the Settlement Agreement} is made and entered into by VICTOR tr RAYNOR Chereinafter "RAYN~R"} and the CI'~Y OF ATLANTIC BEACH, F"~RlbA, a municipal corporation (hereinafter "CITY"'}. D~FtNiTtONS A. As used in this Settlement Agreement and General Release, the term "RAYNORs shall mean VICTOR L. RAYNOR, as well as his heirs, executors, administrators, persona! representatives, sucxressors and assigns, singular or plural, where ever ttte content 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 officals, commissioners, officers, directors, employees, boards, agents and attorneys, in bath their individual and official capacities, jointly or severally, singular or plural, where ever the context so admits or requires. aECITALS . WHERCAS, RAYNOR was terminated from his position as a police officer In June 21105 and subsequently flied a grievance pur&uarrt to the CITY's collective bargaining ailment (CBA} between the City and Fraternal Order of Police, Florida State lodge, inc. (dated Oetaber 1, 2804 through September 30, 2007}, The grievance proceeded through the grievance procedure and was heard by arbitrator Stanley Sargent in April 2006. On .lone Z2, 206, Sargent issued h(s opinion and award, which determined RAYNOR should be reinstated and made whale, The CITY appealed this decision to the Circuit Court In and for Dwal County, Florida, but ultimately, during a review of the arbitrator's decision at the First bistrlct Court of Appeal, the Court upheld the arbitrator's decision to reinstate RAYNOR and make him "whale." 'Ctrs parties have an ongoing d'~sagreement as to the amount of specafic consideration to make RAYNt~ whole, but have agreed to a settlement as recorded to this settlement agreeme~ and release to award further attendant costs of litigating this issue, specificarry, the i` _ Jul. 31. 2004 10:50AM DE~EGAL LAW OFFICES AGENDA ITEM#8F ' ~ AUGUST 10, 2009 parties have agreed to a monetary amount comprising back pay, benefl#s, and othet payments to RAYNQR. WHEREAS, RAYNOR and CRY have entered Into good faith settlement negotiations resulting in this Agreement. The purpose of this Agreement is t4 settle and compromise any and all prior and existing disputes, claims snd s:antraversies between the parties, without any future casts and expenses of litigation and to bar any and ail future disputes claims and controversies between the parties which may arise out of any conflicts or evtrrta, known or unknown, that have occurred up to the date of the execution of this Agreernen#, Including but not limited to those which relate directly ar indirectly to RAYNOR's employment with the CRY; 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 Iiabillty or responsibility on the part of the CITY; artd WHEREAS the parties desire to memorialize their Agreement. NOW THEREFORE, In consideration of tie mutual covenants to be performed by each of the parties hereto and set forth In their entirety herein, the parties agree as follows: ~• Agreement A. Release and plecharge to consideration for the payments and other good and valuable aonsideratlon set forth in Paragraph (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 Qf actlai? and actions, cause and causes aF action, salts, debts, dues, sums of money, accounts, reckonings, bonds. bills, speciattles, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, Judgments, claims for attorneys' fees, Irrtensst, or costs, executions, claims and demands whatsoever, in law or in equity, of whatever nature, which RAYNDR ever had, now has, or which 2 Ju1.31. 7009 10:SOAM DFLEGAI EAW OFFICES AGENDA ITEM # 8F AUGUST 10, 2009 any personal representative, successor, heir or assign afi RAYNOR, hereafter can, shaft or may have against CITY by reason of any matter, cause or thing, occurring prior to the date of #his Agreement, including but not limited to those claims or demands which arise out of or are related to IiAYNOR's employment with the CiTY. RAYNOR acknowledges and agrees that this is a Genera) Release of any and a!! claims, induding but not limfted to claims, grievances or charges for wages, salary,. bade pay, front pay, and any and aU employment heneflts of any nature whatsoever; of breach of employment agreement or contract; defamation, including slander ar libel; battery; assault; employment discrimination, induding a$e, race, sex, religion, or natural origin discrirnlnation; hostile work environment; discrimination based upar~ actual or perceived disability or other protected characteristics; retaliation; workers' compensation, or the violation of any administrative, tonal, State or Federal Constitution, statute, role, regulation, ardimm~ce at law. RAYNOR acknowledges that he (s aware of no facts or circumstances which vur~utd give rise to a claim against the CiTY for the following but nonetheless spedfically waives, releases, acquits, and forever discharges any claims, actions, rigFit of action whatsoever he may have against the CITY, under the United States Cansgtution, the Florida Constitution, Title Vii of the Civil Rights Acts of 1964, the Civil Rights Act of 1991, 42 U.S.G. §1983, §1985, $19$8, the Age Discrimination in Employment Act (ADEA), the Florida Muman Rights Act, the Florida Civil Rights Act of 1992 (§§ 760,01760.11 and.S09.092, Fla. 5tat.), the Americans with Disabilities Act (42 U,S.C. §12132 et. seq) the Florida Whistle Blower Act (§ X12.3187 et. seq. Fla. Statutes), the Florida Workers' Compensation Act, Unemployment Compensation, § 119.07, Fla. Seat., including attorneys' fees or costs, ar any other state, federal or administrative rule, statute, ordinance or law of any nature relating to employment. B. RAYNOR acknowledges and agrees that the release and discharge set forth above is a General Release of all claint5. RAYNgR expressly waives and assumes the risk of any and alt claims, disciplinary disputes or grievances, in law or in equifir, which exist as of this date, but of which RAYNOR does not know or suspect to exist, whether through Ignorance, oversight, error, negligence, or otherwise and, which, if known, would materially affect RAYNQR's deasian to 3 Jul. 3i. 1009 10:50AM OELEGAL LAIN OFFICES AGENDA ITEM # 8F AUGUST 10, 2009 enter this Settlement Agreement, RAYNOR further agrees that he has agreed to accept payment of the sum specified herein as a complete compromise of matters invaiWng disputed issues of law and fact. RAYNQR assumes the risks that the facts or law maybe other than he currenNy believes or understands: C. tt is understood and agreed by the parties that this settlement is a compromise of a litigated and disputed claim and neither this Agreement, nor any conslderggon to be paid hereunder shall be construed as an admission by the CRY of any unlawFul, torrtlqus or wrongful acts whatsoever towards RAYNOR. 2. Consideration A. In consideration of the General Release set forth above, RAYNUR was reinstated to his farmer position of employment on Juty 28 2008, and the CRY agrees to pay to RAYNOR the sum as outlined bekfw. B. Consideration in the amount of TWO HUNDRED FQRTY i=NE'i'1fpUSA,NI~ DOLLARS t$Z45,000.00), comprising two separate checks made payable to VICTOR L. RAYNOR. The first thecl4 in the amount of $177,478,44 (first payment) will be issued to RAYNt~R via the CITY's payroll system fnr reimbursement of wages and Mary. The second check, in the amount of $67,526.56 (second payment) will be issued to RAYNOR via the Ci1Y's vendor payment system. The total consideration to RAYNDR (first and second payments) will represent complete and total satisfactiarr of the arbitrator's determinadon that RAYNtiR be reinstated and made "whole". i. The parties acknowledge and agree that the first payment set forth in subsection (8) above does k~onstitute wages ar sa[ary to RAYNOR, and accordingly the CRY will take payroll deductions, withholding, employee pension contributions or other deductions from said paymer~, will make payment of appropriate payroll tares, and wilt report said Income to the Internal Revenue Send as reimbursement for wages of salary. the qty shall utilize the !RS standard tax ~bie far th® Jul. 31. 2009 16:50AM DELEGAL LAN+ OFFICES AGENDAiTEM#8F AUGUST 10, 2009 first payment. RAYNQR shelf have the option to complete an IRS t:onn W~4 to increase or decrease taxes withheld; however, in nv case shall the Gty withheld less than that required by taw. li. The parties acknowledge and agree that the second payment set forth in subsection (13~ above does not const'rrute Wages or salary to RAYNOR, and acxordingly the CITY will not take payroll deductions, withholding, employee pension, contnlbutions or other deductions from said payments, will not make payment of 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 Ci7Y to the Internal Revenue Sdrvlce byway of issuance of a 1099 reflecting the payment, iii. Upon issuance, both checks will be mailed by certified m8il to Delegal Law t~fflCes, P.A., 4~i E, Monroe Street, Jacksonville, FL 32Zt)2. C. Further, RAYNOR and the CRY agreed that ~as additional ronslderation, RAYNOR will be credited with 224.59 hours of persona! leave. RAYNOR will have the option to "purchase bact~' an additional 727'.73 hours of personal leave at $2Z.3B pet hour, and any amounts purchased back will be deducted from the total payroll payment made in the first check under Section 2.8, . Q, Contingent upon approval of the City of Atlantic Beach Felice Officer laension Board, the parties agree to the terms and condtflons set forth in Attachment A. E. tt is further agreed and understood that future tax liabilities, if any inducting penalties arxi into rest, which may be Incurred by RAYNOR or CRY in association with said payments will be the sole responsibility and liability of RAYNOR, and RAYNaR agrees to indemnify and bald harmless CRY for any 5 Ju1.31. 2449 f0:51AM DELEGAL l~W OFFICES. AGENDA ITEM # 8F AUGUST 10, 2009 additional tax Itabtiity which may arise from said payments. Saki tax liability shall not be a ground for avoiding or setting aside this Se~.tlement Agreement. 3. Severabiiity If any clause or provision of this Agreement is found to be void, Invalid, ar unenforceabie, It shall be severed from the remaining provisbns and clauses which shall remain In full force and effect. 4. Ga~nerrting haw The parties hereto agree float the law of the State trf Florida shall govern #his Agreement and atl respects in the event any action must be instituted far breach of this Agreement the parties agree that the sale venue shall be t?uval County, Florida. 5. 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 represer~s that they are voluntarily enrtering irrto this Agreement with the interrt to be bound thereby and they have not been coerced or induced by anyone tv enter Into this Agreemenrt. The parties acknowledge that they have read and fully understand the Agreement's terms, condition, meaning and Intent, inducting but not limited to the final binding effect of the General Release. g, This Agreement constitutes the entire agreement between the parties, and n4 other promises or agreements shall be binding unless signed by sit 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 carryout the provisions and purposes of this Agreement. 6 .Ju1.31. ~~09 i0:5iAM DELE~AL LAM OFFICES AGENDA ITEM#8F 3 ~ • AUGUST I0, 2009 1). The recitals are Inc+arparated herein by reference. VlCTQR L. RAYNOR ~ STATE a~ Fl.oRIDA OOUNTY OF t.~ The foregoing was acknowledged bein~re me this ,~ day of .~ k- !~-~ by VICTOR L RAYNQR, who Js personalty known to me ar who h~ produced ~. ~-•- as identification and who did/did net take an oath. Notary public My Commissfcn Expires: 7 ,Ju1.31. 20D9 14:51AM DELEGAI LAW OFFICES AUTHORIZED REPRESi;NI'ATIVE 4F cmr of aT~.AniTi~ sEACH STATE OF FLQRipA COUN7Y OF AGENDA TCEM # 8F AUGUST 10, 2009 The fiaregaing was acknowiedRed before me this ._ day aF ~. ~~ by who is personally la~own to me or wha has produced ~___ __ „~ identification and who did/did nattake an oath. Notary Public My Commissiion Expires: 8 Ju1,31, 2409 10:51AM D€LEGAL LA~1 OFFICES SJ:TiI.EAAENTAGREEAAENT3k RELEASE Bi; (11VEEN VICTdit RAYNQR ANb CITY OF ATIAIYi'7C BEACH ATTACHf1AEN7' "A" Cantingent upon eppravaC of the City of Atlantic Beach Police Officer Pension Board, the following is hereby agreed to by the pilrties: AGENDA ITEM # 8F AUGUST 1Q 2009 Credited ~~!~, Raynor shall be provided with Credited Service for the period of June 7, 2005 through July Z7, 20013. (Ref; Sec~lon 2-301 and SQd1on 2-310.x, Supplement iota. 36, City Cie of ©rdirlanCes). Final` Comnensarl~.. reert- Upon retirement, the prarlod, or portions thereof, from October 30, ZOQ4 through July 27, 2005 may need tQ be utilized to determine the Final Average Compensation which is one~sixtieth (1/60s'j of the aggn~ate amount of aampensAtion paid dutirtg the period of sixty (6oj months of the member's credited service in which the aggregate amount pf compensation is greatest. If this period, or p,~tions, of time is utilized tv determine Ftnai Average Comper-satian, then the following FAC shall be utilized. (Ref: 5ectlon z-90i, auppfertrent No. 36, Crty Code of Ordtnanoesj. Period To Final Average Cornoensation iFACI 10113d/04 Og/D6/05 FAC dyrtryt edml~tratMe leave wifi be adjusted by+$ 7.91 per day 06J07i05 0913d/t?S FAC to be utilked during thb period aril) be $ 7r4Z.iZ per day 10/01/05 09/30J0B FAC to be utill~d duHng thlm period wiN be $139.12 per clay 1q/ObJ06 09%7 FAC to be utt[ized durlr~ this period will be $157.35 per day 10/07,JC}7 07/27/1, FAC to be utl4ted durmg this paced wiA be $157'A3 per day ~! Ratiram+errt FAC to be utilized during this period will be ectuil cornpensetlon paid. ~"1>~n.~SBl1>3'~l.4,iL._ Employee will have $8,543.01 deducted from gross pay on a pre-tax basis end contributed to the Police Pen~ian plan for the period of 6J7/05 to 7/27'/08 based upon the gross salary credit being provided and the varying pension contribution rates in affect otter this period of time. (Ref: Section 2-310,27, Supplemerrt No. 34, City Code of Ordinances). ,Ju1.31. 2009 1D:51AM DELEGAI 1AW OFFICES 5E"tT1.EMENTA6REEMEWT llk RELEASE BEiIAfEEAt VICTOR RAYNOR AtdD gTYOF ATIAl~71C BEAM AGENDA ITEM # 8F AUGUST 10, 2009 Period Number Gnmpensatio~t Parudan irnpfoyee F!*~m I4~3t ~ ~I..@ffifi8~ 1G/3Q/04 06r/06d/d5 n/e $2,741.85 2.81509L ~ 49.03 06x07/05 09/30/O5 1.16 $ 7.5{85.51 2.$25096 S 464.07 10/D7,/05 09/x3/~06~ 357 X53,281.$0 2.$15096 $ 1,99,88 ~/~ 08/30/06 8 $ 2,L4$.24 3.815096 S 43.$1 10/O1J~06 09j22/07 355 ~ 56,066.10 3.61S09f $ 2,139.00 09/7$J07 09/30/07 9 $1.365.07, 4v81SQ96 $ 65,73 1Q/01/aT 07/27/08 901 $ 47,382.94 4.8190 $ 2.28L49