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HomeMy WebLinkAboutMINUTES - 06251996 - CS1 Contras Costa TO: BOARD OF SUPERVISORS ' County rGT C� CV K FROM: Phil Batchelor, Administrator DATE: June 25, 1996 SUBJECT: Settlement of Threatened Litigation-Rosenberg. Wilson, Yaney, and Brown v. County of Contra Costa SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Approve final settlement and authorize payment as per the attached agreement from the General Liability Trust Fund. BACKGROUND/REASONS FOR RECOMMENDATIONS Deputy County Counsel. Gregory C. Harvey and Peter Edriggton, defense counsel for the County, have advised the County Administrator that within authorization a final agreement has been reached settling the prelitigation claim of Rosenberg, Wilson, Yaney, and Brown v. County of Contra Costa. This case involves the alleged harassment of four staff employees by an elected supervisor. A copy of the release is attached. This action is being taken so that terms of this final settlement and the earlier June 25, 1996 closed session vote of this Board authorizing its negotiated settlement are known publicly Supervisors Smith, Torlakson, DeSaulnier, and Rogers voted to approve the settlement. upervisor Bishop did not participate. S SG �J CONTINUED ON ATTACHMENT: x YE I NATU 7� X RECOMMENDATION OF COUNTY ADMINISTRATOR —RECOMMENDATION OF BOARD COMMITTEE X APPROVE _ OTHER SIGNATURE(S): ACTION OF BOARD ON _June 25, 1996 APPROVED AS RECOMMENDED XX OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT 3 ) TRUE AND CORRECT COPY OF AN AYES: NOES:_. ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. ATTESTED June 25 , 1996 PHIL BATCHELOR,CLERK OF THE BOARD OF SUPERVISORS LNDLINTY INISTRATOR BY , DEPUTY CONTACT: Gregory C. Harvey. 335-1824 cc: Auditor-Controller Risk Management County Counsel df10(2):cl-ses.bm r COMPROMISE SETTLEMENT AND RELEASE AGREEMENT This Agreement is entered into in the County of Contra Costa, State of California by and between PATRICIA ROSENBERG, JANET BROWN, AVON WILSON and LYNN YANEY (hereinafter referred to collectively as "Claimants") and the COUNTY OF CONTRA COSTA, a governmental entity, (hereinafter referred to as"County"). 1. Recitals. 1.1 Claimants are each employees of County. 1.2 During their employment by County, Claimants had for a portion of that time been employed at the offices of Supervisor Gayle Bishop ("Bishop"), a County Supervisor of County. 1.3 While employed in the offices of Bishop, Claimants contend that they observed various activities that were forbidden by law, including Bishop's use of County materials and facilities for the conduct of Bishop's private law practice, and Bishop's instructions to Claimants that they participate in her election campaign for County Supervisor, and Bishop's use of County's supplies and facilities for that purpose. 1.4 Claimants contend that they were subjected to a working environment that was oppressive, including, but not limited to, verbal harassment, threats of job termination if they did not engage in illegal activities, and conduct by Bishop intended and designed to inflict emotional distress upon Claimants. 1.5 Claimants contend that County, as well as others, were responsible for fostering a hostile work environment in which Claimants were employed, and for emotional distress inflicted on Claimants. County denies any wrongful conduct of the County and denies County liability for Claimants' alleged injuries. The County does not admit the contentions of claimants stated in parts 1.3 and 1.4. 1.6 County and Claimants wish to enter into an agreement to settle any and all claims arising from their employment by County through the date of this Agreement, without any party admitting liability for any of the acts, conduct, or allegations referred to herein, and therefore agree as follows: 2. Release and Waiver of Claims. 2.1 Release and Discharge. Claimants hereby release and forever discharge the County and its Board of Supervisors, employees, agents and representatives, excepting Supervisor Gayle Bishop, (who specifically is not released), from any claims by Claimants, whether such claims, 1 demands, obligations, or causes of action of any nature are based on tort, contract, indemnity, rescission, restitution, or any other theory of recovery, arising from the actions described in the recitals. Claimants hereby expressly waive all rights which may accrue.to them pursuant to Section 1542 of the California Civil Code, which states as follows: A general release does not extend the 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. 2.2 Reservation of Claims Against Others. This Compromise and Release Agreement applies only to the settling parties and those parties released herein. Claimants expressly reserve any and all causes of action that Claimants have against any and all other persons arising from, or connected with, the events described in the Recitals. 3. Consideration. 3.1 Release Agreement. The promises and covenants contained in this Agreement are a material part of the consideration for the execution of this Agreement, and the undertakings set forth herein. 3.2 Undertakings by County. a. County will provide full-time employment to Claimants, and each of them,at a pay and benefit level at least equal to that held by Claimants while employed in the office of. Bishop, and no less than the compensation and benefits payable for the job classification in which Claimants are ultimately placed by County. Claimant AVON WILSON will be provided at least a four-fifths(4/5) position with County, with the option to convert to a full-time position in the future within five years of the effective date of this agreement. The employment provided by County to Claimants will include fifty (50) hours of annual administrative leave (the same as that which Claimants received in connection with their employment in Bishop's office). b. Claimant JANET BROWN will receive all back pay and benefits entitlements (as if a full-time employee) for the period during which she had been reduced from a full-time employee to a part-time employee by Bishop. The sum of these payments is Twelve Thousand, five hundred and twenty-two dollars ($12,522.00). c. The job assignments provided by County to Claimants will be reasonably acceptable to Claimants. Claimants may be terminated from such employment only"for cause" until such time as Claimants have been fully vested in County's retirement system. "For cause" is defined in section 1104 of the County's Personnel Management Regulations and shall not include 2 a any budget shortfalls existing or alleged to exist by County. A copy of said section is attached and incorporated into this agreement as though fully set forth herein. d. The salaries paid to Claimants for the positions in which they are placed will include comparable pay increases made to other County employees who are similarly situated during the term of Claimants' employment by County. e. Claimants will be eligible to receive such training for their positions as may be offered and made available by County for similarly situated positions and employees of County. f. In the event Claimants are required to give testimony in any future civil or criminal matter relating to their employment by County, Claimants will be granted leave with pay for the dates when such testimony is required, as well as the day before and after testimony is given. g. County will issue a public statement in the form attached as Exhibit"A" acknowledging that Claimants have not asked for any monetary damages or awards payable to them as part of a settlement of their claims against County. h. County will pay all attorney's fees incurred on behalf of Claimants for services rendered in connection with their employment by County in all matters related thereto for the period commencing February 21, 1996, when Claimants retained the offices of Gagen, McCoy, McMahon& Armstrong, a Professional Corporation, until execution of this Agreement. The amount of said fees is agreed to be Seventeen Thousand, Five Hundred Dollars($17,500.00). i. If any future legal action is initiated against Claimants as a result of, or relating to their employment with County, County will defend and indemnify Claimants in connection with any and all such claims, and shall provide them with counsel of their selection from the list of County approved attorneys pursuant to California Government Code Section 825, Defense of County Employees, with all claims of damages, fees, costs and expenses associated with such litigation to be paid for by County. Indemnity of punitive damages, if awarded, shall be subject to the terms and conditions of Government Code section 825(b). j. The County shall not be required to pay fees, costs or expenses of any cross complaint against Bishop which claimants may elect to file as part of any litigation brought by Bishop. Nor in any action initiated by Bishop shall any attorney, hired by the County pursuant to section"i" of this agreement to provide a defense to claimants pursuant to Government Code section 825, be required to pursue a cross complaint against Bishop on claimants' behalf. If claimants elect to pursue a cross complaint against Bishop, their attorney shall be selected, and paid for, by claimants. 3.3 Undertakings by Claimants. In the event litigation is commenced by Claimants against Bishop for actions that have occurred through the date of this agreement, either.directly or by cross complaint, and such litigation results in a judgment against Bishop, Claimants agree that 3 they will indemnify the County for any damages which County is required to pay on behalf of Bishop under the provisions of Government Code sections 825, et seq. In the event any court or jury determines by specific findings that Bishop committed an intentional tort as defined in .Government Code section 815.3 and that Bishop's alleged acts or omissions did not arise from or were not directly related to the performance of official duties as an elected official, no indemnity will be required. Any funds expended for attorneys' fees and court costs by County in the defense of any such action shall not be subject to the County's right to be indemnified for amounts the County is required to pay under Government Code section 825. 4. Miscellaneous Provisions. 4.1 Warranty of Capacity to Execute. Each party represents and warrants that all appropriate action has been taken to authorize the execution of this Agreement on such parties' behalf and, excepting the parties released herein, that no other person or entity has or has had any interest in the claims, demands, obligations, or causes of actions referred to in this Agreement; and that each party has the sole right and exclusive authority to execute this Agreement and to receive the consideration referred to above; and, that each party has, respectively, not sold, signed, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of actions referred to in This Agreement. 4.2 Attorney's Fees and Costs. In the event that a dispute arises concerning the enforcement or interpretation of any of the terms and provisions of this Agreement, and an action, or arbitration proceeding, is commenced to enforce said agreement or to obtain such interpretation, the prevailing party shall be entitled, in addition to any other relief as may be appropriate under the circumstances, to an award of reasonable attorneys' fees and costs incurred. 4.3 Entire Agreement. This Agreement contains the entire agreement between'the parties and supersedes and replaced any and all prior or contemporaneous agreements or understandings, written or oral, with regard to the matter as set forth herein. This Agreement may be amended or modified in whole or in any part at any time, only by an agreement in writing, executed in the same manner as this Agreement. 4.4 Counterpart. This Agreement may be executed in counterparts for the convenience of the parties, and when all parties have executed the Agreement, the parties shall provide each other with original executed signature pages of the Agreement, and the Agreement as so executed will constitute one legal, valid, binding, and enforceable agreement. 4.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties, and their respective executors, administrators, heirs, successors, and assigns. 4.6 Construction by California Law-Joint Preparation. This Agreement is entered into in the State of California, and shall be construed and interpreted in accordance with its laws. Each party, and counsel for each party, has reviewed and revised, or has had the opportunity to revise, 4 this Agreement, and accordingly, any rules of construction of this state to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment of it. 4.7 Comprehension. In entering into this Agreement, each party represents and warrants that they have relied on the legal advice of their respective attorneys, who are the attorneys of their own choosing. All parties further represent and warrant that the terms of this Agreement have been completely read and explained to them by their attorneys, and that those terms are fully understood and voluntarily accepted by both their attorneys and themselves. 4.8 Effective Date. This Agreement shall be effective on the date it is approved by the Contra Costa County Board of Supervisors. IN WITNESS WHEREOF, each party has executed this Agreement as of the date set forth beside their signature below. Dated: June c 1996 PATRICIA ROSENBERG Dated: June ,1996.. J ROWN Dated: June:x5, 1996 V N ILSON i Dated: June--�,� 1996 s 1 \ _.LYNN Y Y 1 �J Dated- June Z 1996 CoUN OF CONT C SiA By: ,�'j/Z 5 � C) ! APPROVED AS TO FORM AND CONTENT: Dated: June_, 1996 GAGEN, McCOY, McMAHON& ARMSTRONG A Professional Corporation By: GREGORY L. McCOY Attorneys for Claimants Dated: June_, 1996 PETER P. EDRINGTON Attorney for CONTRA COSTA COUNTY 6 JOINT PRESS RELEASE For Further Information Contact: Gregory McCoy, Law Offices of Gagen, McCoy, McMahon, & Armstrong, phone number(510) 837-0585. - The County of Contra Costa announced today that it had entered into a settlement agreement with the four former staff members of Supervisor Gayle Bishop. In their settlement, Bishop's four former staff members, Patricia Rosenberg, Avon Wilson, Lynn Yaney, and Janet Brown, requested that the County inform the public that the four had never requested, or received, any monies from the County for monetary damages, but requested only that they be transferred to other comparable County employment under the terms of the settlement agreement. The four former staff members followed appropriate procedures in reporting what they contended was a hostile work environment and violations of law. "Although such monetary claims could have been made, it was never the interest of these four women to seek profit at the expense of the County. Their intent was simply to be made whole, and-not suffer any monetary loss, or job loss because of the actions they took respecting their employment in Supervisor Bishop's office.", said Gregory McCoy, attorney for the four former staff members. In agreeing to the settlement, the County issued a statement confirming that there had not been any claims for monetary damages made by the four women. Janet Brown made a separate request for reimbursement of backpay and benefits lost because of a personnel action which the County is also resolving by this agreement. H:�GROUMTORT-%CASF SW,20IMGRMT3.%VPD 7 EXHIBIT A 1103. TENURE AND DISMISSAL, SUSPENSION_ AND REDUCTION. The tenure of every officer or employee holding permanent status in a position in the merit system shall be during good behavior, and the rendering of efficient service, but any such officer or employee may be dismissed, suspended or reduced in rank or compensation for cause. 1104. CAUSE_ The appointing authority may dismiss, suspend or demote any employee for cause_ The following are sufficient causes for such- action; the list is indicative rather than inclusive of restrictions and dismissal , suspension or demotion may be based on reasons other than those specifically mentioned: (a) absence without leave, (b) conviction of any criminal act involving moral turpitude, (c) conduct tending to bring the merit system into -disrepute, (d) disorderly or immoral conduct, (e) incompetence or inefficiency, (f) insubordination, (g) being at work under the influence of liquor or drugs, carrying onto the premises liquor or drugs or consuming or using liquor or drugs during work hours and/or on County premises, (h) neglect of duty, (i) negligent or willful damage to public property or waste of public supplies or equipment, (j) violation of any lawful or reasonable regulation or order given by a supervisor or department head, (k) willful violation of any of the provisions of the Merit System Ordinance or Personnel Management Regulations, (1 ) material and intentional misrepresentation or concealment of any -fact in connection with obtaining employment, (in) misappropriation of County funds or property, (n) unreasonabl e fai 1 ure or- ' refusal' to -undergo any physi calk medical and/or psychiatric exam and/or treatment authorized by these regulations, (o) dishonesty or theft, (p) excessive or unexcused-absenteeism and/or tardiness, (q) sexual harassment including but not limited to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when such conduct has the purpose or effect of affecting employment decisions concerning an individual , or unreasonably interfering with an individual 's work performance, or creating an intimidating or hostile working environment. (Amended 09/25/84) 1104.1 Suspension. Notwithstanding Section 1104, management and {professional employees may not be suspended for a period of less than one (1) week. (Added '11/17/93-),, 1105. DISABILITY. (a) An employee physically or mentally incapacitated for the performance of duty is subject to dismissal , suspension or demotion, subject to the County -Employees Retirement Law of 1937_ An appointing authority after giving notice may place an employee on Ieave if the appointing authority has ;filed an application for disability retirement for the employee, or whom the appointing authority believes. to be temporarily or permanently physically or mentally incapacitated for the performance of the employee's duties. EXHIBIT B 11 - 2 (11/9 ) G�j 3 J(JH-27-199G 11:44 EDP I NGTON SCH I PMeP MUP,PHY P.01 c s APPROVED AS TO FORM AND CONTENT: Dated: June 1996 CsA.GEN,McCOY,WMAHON&ARMSTRONG A Professional Corporation By: GREGORY L.McCOY Attorneys for Claimants Dated; June )._$-1996 PETER P. EDRINGTON Attorney for CONTRA COSTA COUNTY 6 TOTAL P.01 -a zoo-d S86S 828 OTS 02:9T 9662-SZ-Nnf JUN-20-1996 i6tO2 mRINWON SCHIRMER MURPHY P.07 APPROVED AS TO FORM AND CONTENT: Dated:June 5,996 GAGEN,McCOY,McMAIKON&ARMSTRONG A ProfeWcnat Corporation GREGORY L.MCCOY Attorneys for Cis;tttaots Dated:June 1946 PETER P.EDRINGTON Attorney for CONTRA COSTA COUNTY 6 �.,. ...r.-.. ,,. r.._ ..T ...- ..� . .-... .�..�., nnn nT!`. 11T � i •iniiii-iii n-�- ii .i�nun GENERAL LIABILITY PROVISIONS § 825 ; Div. 3.6 i (2) At the time of the act giving rise to the liability, the employee or former employee acted, or failed to act, in good faith, without actual malice and in the - apparent best interests of the public entity. (3) Payment of the claim or judgment would be in the best interests of the public entity. The discovery of the assets of a public entity and the introduction of evidence of the assets of a public entity shall not be permitted in an action in which it is alleged that.a public employee is liable for punitive or exemplary damages. The possibility that a public entity may pay that part of a judgment that is for punitive damages shall not be disclosed in any trial in which it is alleged that a public employee is liable for punitive or exemplary damages, and that disclo- sure shall be grounds for a mistrial. (c) Except as provided in subdivision (d), if the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of under- standing require the expenditure of funds, the provisions shall not become Cr. effective unless approved by the Legislature in the annual Budget Act. (d) The subject of payment of punitive damages pursuant to this section or any other provision of law shall not be a subject of meet and confer under the provisions of Chapter 10 (commencing with Section 3500) of Division 4 of Title N•./l 1, or pursuant to any other law or authority. RR' (e) Nothing in this section shall affect the provisions of Section 818 prohibit- - = ing the award of punitive damages against a public entity. This section shall not be construed as a waiver of a public entity's immunity from liability for J punitive damages under Section 1981, 1983, or 1985 of Title 42 of the United States Code. (f)(1) Except as provided in paragraph (2), a public entity shall not pay a judgment, compromise, or settlement arising from a claim or action against an elected official, if the claim or action is based on conduct by the elected official by way of tortiously intervening or attempting to intervene in, or by way of j tortiously influencing or attempting to influence the outcome of, any judicial } action or proceeding for the benefit of a particular party by contacting the trial judge or any commissioner, court-appointed arbitrator, court-appointed media- tor, or court-appointed special referee assigned to the matter, or the court j clerk, bailiff, or marshal after an action has been filed, unless he or she was counsel of record acting lawfully within the scope of his or her employment on behalf of that party. Notwithstanding Section 825.6, if a public entity conduct- ed the defense of an elected official against such a claim or action and the elected official is found liable by the trier of fact, the court shall order the elected official to pay to the public entity the cost of that defense. (2) If an elected official is held.liable for monetary damages in the action, the plaintiff shall first seek recovery of the judgment against the assets of the elected official. If the elected official's assets are insufficient to satisfy the total , § 825 ACTIONS—PUBLIC ENTITIES AND EMPLOYEES Title 1 judgment, as determined by the court, the public entity may pay the deficiency if the public entity is authorized by law to pay that judgment. (3) To the extent the public entity pays any portion of the judgment or i' entitled to reimbursement of defense costs pursuanttoparagraph (1), the public entity shall pursue all available creditors remedies against the elected official, including garnishment, until that party has fully reimbursed the public entity. (4) This subdivision shall not apply to any criminal or civil enforcement action brought in the name of the people of the State of California by an elected district attorney, city attorney, or attorney general. (Added by Stats.1963, c. 1681, p. 3270, § 1. Amended by Stats.1972, c. 1352, p. 2685, § l; Stats.1979, c. 1072, § 47, eff. Sept. 28, 1979; Stats.1985, c. 1373, § 1; Stats.1994, c. 794 (A.B.2467), § 1.) - Legislative Committee Comments—Senate The sections in this article require public entities to pay claims and judgments against public employees that arise out of their public employment where the public entity has been tendered the defense. However, if the public entity provides the defense pursuant to a reservation of rights, it is required to pay a judgment, compromise or settlement only if the plaintiff establishes that the employee was in the scope of his employment at the time the claim against him arose. Historical and Statutory Notes Application of Stats.1963, c. 1681, see Histor- exception at the beginning of subd. (c); and j ical and Statutory Notes under Government added subds. (d) and (e). Code § 810. The 1994 amendment, at the beginning of The 1972 amendment inserted "and the em- subd. (a), inserted "Except as otherwise provid- ployee or former employee reasonably cooper- ed in this section"; added subd. (0, relating to ates in good faith in the defense of the claim or payments of judgments, compromises, or settle- action in the first paragraph and "with his ments against elected officials who have tor- reasonable good faith cooperation' in the sec- tiously influenced or attempted to influence ju- ond paragraph. dicial actions; made gender-related changes; The 1979 amendment added the fourth para- and made nonsubstantive changes throughout graph, relating to memoranda of understanding. the section. The 1985 amendment designated the first Derivation: Former§ 2002.5, added by Stats. three paragraphs as subd. (a); inserted subd. (b) 1955, c. 1785, p. 3294, § 1, amended by Stats. r' relating to punitive damages; designated the 1957, c. 2124, p. 3763, § l; Stats.1961, c. 94, p. former last paragraph as subd. (c); added the 1102, § 1. ` West's California Code Forms See West's California Code Forms, Government. Cross References Memorandum of understanding involving higher education employer and employees to control over this section if in conflict, see Government Code § 3572.5. Law Review Commentaries Liability for constitutional torts and the risk- and its political subdivisions against tort claims. averse public school official. Mark G. Yudof, James M. Fizzolio (1969) 44 Los Angeles Bar 49 S.Cal.L.Rev. 1322 (1976). Bull. 343. Negligence liability of school teachers in Cali- fornia. 15 Hastings L.J. 567 (1964). Police brutality—problems in use of force by i police to preserve law and order. 10 Santa Piercing the protective shield of immunity Clara L.Rev. 168 (1969). ` given public employees of state of California JOINT PRESS RELEASE For Further Information Contact: Gregory McCoy, Law Offices of Gagen, McCoy, McMahon, & Armstrong, phone number(510) 837-0585. �< The County of Contra Costa announced today that it had entered into a settlement agreement with the four former staff members of Supervisor Gayle Bishop. In their settlement, Bishop's four former staff members, Patricia Rosenberg, Avon Wilson, Lynn Yaney, and Janet Brown, requested that the County inform the public that the four had never requested, or received, any monies from the County for monetary damages, but requested only that they be transferred to other comparable County employment under the terms of the settlement agreement. The four former staff members followed appropriate procedures in reporting what they contended was a hostile work environment and violations of law. "Although such monetary claims could have been made, it was never the interest of these four women to seek profit at the expense of the County. Their intent was simply to be made whole, and not suffer any monetary loss, or job loss because of the actions they took respecting their employment in Supervisor Bishop's office.", said Gregory McCoy, attorney for the four former staff members. In agreeing to the settlement, the County issued a statement confirming that there had not been any claims for monetary damages made by the four women. Janet Brown made a separate request for reimbursementofbackpay and benefits lost because of a personnel action which the County is also resolving by this agreement. H:K'iROUMTOP,r CASES\9(,20101AGRMT3.WPD 7 i COMPROMISE SETTLEMENT AND RELEASE AGREEMENT This Agreement is entered into in the County of Contra Costa;-State of California by and between PATRICIA ROSENBERG, JANET BROWN, AVON WILSON and LYNN YANEY (hereinafter referred to collectively as "Claimants") and the COUNTY OF CONTRA COSTA, a governmental entity, (hereinafter referred to as"County"). 1. Recitals. 1.1 Claimants are each employees of County. 1.2 During their employment by County, Claimants had for a portion of that time been employed at the offices of Supervisor Gayle Bishop ("Bishop"), a County Supervisor of County. 1.3 While employed in the offices of Bishop, Claimants contend that they observed various activities that were forbidden by law, including Bishop's use of County materials and facilities for the conduct of Bishop's private law practice, and Bishop's instructions to Claimants that they participate in her election campaign for County Supervisor, and Bishop's use of County's supplies and facilities for that purpose. .1.4 Claimants contend that they were subjected to a working environment that was oppressive, including, but not limited to, verbal harassment, threats of job termination if they did not engage in illegal activities, and conduct by Bishop intended and designed to inflict emotional distress upon Claimants. 1.5 Claimants contend that County, as well as others, were responsible for fostering a hostile work environment in which Claimants were employed, and for emotional distress inflicted on Claimants. County denies any wrongful conduct of the County and denies County liability for Claimants' alleged injuries. The County does not admit the contentions of claimants stated in parts 1.3 and 1.4. 1.6 County and Claimants wish to enter into an agreement to settle any and all claims arising from their employment by County through the date of this Agreement, without any party admitting liability for any of the acts, conduct, or allegations referred to herein, and therefore agree as follows: 2. Release and Waiver of Claims. 2.1 Release and Discharge. Claimants hereby release and forever discharge the County and its Board of Supervisors, employees, agents and representatives, excepting Supervisor Gayle Bishop, (who specifically is not released), from any claims by Claimants, whether such claims, 1 demands, obligations, or causes of action of any nature are based on tort, contract, indemnity, rescission, restitution, or any other theory of recovery, arising from the actions described in the recitals. Claimants hereby expressly waive all rights which may accrue to them pursuant to Section 1542 of the California Civil Code, which states as follows: A general release does not extend the claims which the creditor- does reditordoes 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. 2.2 Reservation of Claims Against Others. This Compromise and Release Agreement applies only to the settling parties and those parties released herein. Claimants expressly reserve any and all causes of action that Claimants have against any and all other persons arising from, or connected with, the events described in the Recitals. 3. Consideration. 3.1 Release Agreement. The promises and covenants contained in this Agreement area material part of the consideration for the execution of this Agreement, and the undertakings set forth herein. 3.2 Undertakings by County. a. County will provide full-time employment to Claimants, and each of them, at a pay and benefit level at least equal to that held by Claimants while employed in the office of Bishop, and no less than the compensation and benefits payable for the job classification in which Claimants are ultimately placed by County. Claimant AVON WILSON will be provided at least a four-fifths(4/5)position with County, with the option to convert to a full-time position in the future within five years of the effective date of this agreement. The employment provided by County to Claimants will include fifty(50) hours of annual administrative leave(the same as that which Claimants received in connection with their employment in Bishop's office). b. Claimant JANET BROWN will receive all back pay and benefits entitlements (as if a full-time employee)for the period during which she had been reduced from a full-time employee to a part-time employee by Bishop. The sum of these payments is Twelve Thousand, five hundred and twenty-two dollars($12,522.00). c. The job assignments provided by County to Claimants will be reasonably acceptable to Claimants. Claimants may be terminated from such employment only"for cause" until such time as Claimants have been fully vested in County's retirement system. "For cause" is defined in section 1104 of the County's Personnel Management Regulations and shall not include 2 any budget shortfalls existing or alleged to exist by County. A copy of said section is attached and incorporated into this agreement as though fully set forth herein. d. The salaries paid to Claimants for the positions in which they are placed will include comparable pay increases made to other County employees who are similarly situated during the term of Claimants' employment by County. e. Claimants will be eligible to receive such training for their positions as may be offered and made available by County for similarly situated positions and employees of County. f. In the event Claimants are required to give testimony in any future civil or criminal matter relating to their employment by County, Claimants will be granted leave with pay for the dates when such testimony is required, as well as the day before and after testimony is given. g. County will issue a public statement in the form attached as Exhibit"A" acknowledging that Claimants have not asked for any monetary damages or awards payable to them as part of a settlement of their claims against County. h. County will pay all attorney's fees incurred on behalf of Claimants for services rendered in connection with their employment by County in all matters related thereto for the period commencing February 21, 1996, when Claimants retained the offices of Gagen, McCoy, McMahon&Armstrong, a Professional Corporation, until execution of this Agreement. The amount of said fees is agreed to be Seventeen Thousand, Five Hundred Dollars ($17,500.00): i. If any future legal action is initiated against Claimants as a result of, or relating to their employment with County, County will defend and indemnify Claimants in connection with any and all such claims, and shall provide them with counsel of their selection from the list of County approved attorneys pursuant to California Government Code Section 825, Defense of County Employees, with all claims of damages, fees, costs*and expenses associated with such litigation to be paid for by County. Indemnity of punitive damages, if awarded, shall be subject to the terms and conditions of Government Code section 825(b). j. The County shall not be required to pay fees, costs or expenses of any cross complaint against Bishop which claimants may elect to file as part of any litigation brought by Bishop. Nor in any action initiated by Bishop shall any attorney, hired by the County pursuant to section"i" of this agreement to provide a defense to claimants pursuant to Government Code section 825, be required to pursue a cross complaint against Bishop on claimants' behalf. If claimants elect to pursue a cross complaint against Bishop, their attorney shall be selected, and paid for, by claimants. 3.3 Undertakings by Claimants. In the event litigation is commenced by Claimants against Bishop for actions that have occurred through the date of this agreement, either.directly or Eby cross complaint, and such litigation results in a judgment against Bishop, Claimants agree that 3 z. 05,/ they will indemnify the County for any damages which County is required to pay on behalf of Bishop under the provisions of Government Code sections 825, et seq. In the event any court or jury determines by specific findings that Bishop committed an intentional tort as defined in Government Code section 815.3 and that Bishop's alleged acts or omissions did not arise from or were not directly related to the performance of official duties as an elected official, no indemnity will be required. Any funds expended for attorneys' fees and court costs by County in the defense of any such action shall not be subject to the County's right to be indemnified for amounts the County is required to pay under Government Code section 825. 4. Miscellaneous Provisions. 4.1 Warranty of Capacity to Execute. Each party represents and warrants that all appropriate action has been taken to authorize the execution of this Agreement on such parties' behalf and, excepting the parties released herein, that no other person or entity has or has had any interest in the claims, demands, obligations, or causes of actions referred to in this Agreement; and that each party has the sole right and exclusive authority to execute this Agreement and to receive the consideration referred to above; and, that each party has, respectively, not sold, signed, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of actions referred to in this Agreement. 4.2 Attorney's Fees and Costs. In the event that a dispute arises concerning the enforcement or interpretation of any of the terms and provisions of this Agreement, and an action, or arbitration proceeding, is commenced to enforce said agreement or to obtain such interpretation, the prevailing party shall be entitled, in addition to any other relief as may be appropriate under the circumstances, to an award of reasonable attorneys' fees and costs incurred. 4.3 Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes and replaced any and all prior or contemporaneous agreements or understandings, written or oral, with regard to the matter as set forth herein. This Agreement may be amended or modified in whole or in any part at any time, only by an agreement in writing, executed in the same manner as this Agreement. 4.4 Counterpart. This Agreement may be executed in counterparts for the convenience of the parties, and when all parties have executed the Agreement, the parties shall provide each other with original executed signature pages of the Agreement, and the Agreement as so executed will constitute one legal, valid, binding, and enforceable agreement. 4.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties, and their respective executors, administrators, heirs, successors, and assigns. 4.6 Construction by California Law-Joint Preparation. This Agreement is entered into in the State of California, and shall be construed and interpreted in accordance with its laws. Each party, and counsel for each party, has reviewed and revised, or has had the opportunity to revise, 4 this Agreement, and accordingly, any rules of construction of this state to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment of it. 4.7 Comprehension. In entering into this Agreement, each party represents and warrants that they have relied on the legal advice of their respective attorneys, who are the attorneys of their own choosing. All parties further represent and warrant that the terms of this Agreement have been completely read and explained to them by their attorneys, and that those terms are fully understood and voluntarily accepted by both their attorneys and themselves. 4.8 Effective Date. This Agreement shall be effective on the date it is approved by the Contra Costa County Board of Supervisors. IN WITNESS WHEREOF, each party has executed this Agreement as of the date set forth beside their signature below. Dated: June,.; 1996 ___-z' _-t*,L �x.�<_ . �r�,_u� z—• sr PATRICIA ROSENBERG Dated: June;b, 1996 J T BROWN Dated: June.rb, 1996 2WILSON Dated: June,2`�1996 Y' Y (, Dated: June , 1996 COUNTY OF CONTRA COSTA By: 5 APPROVED AS TO FORM AND CONTENT: Dated: June 11996 GAGEN,McCOY, McMAHON&ARMSTRONG A Professional Corporation By: GREGORY L. McCOY Attorneys for Claimants Dated: June 1996 PETER P. EDRINGTON Attorney for CONTRA COSTA COUNTY 6 JOINT PRESS RELEASE For Further Information Contact: Gregory McCoy, Law Offices of Gagen,McCoy,McMahon, & Armstrong, phone number(510) 837-0585. = �< The County of Contra Costa announced today that it had entered into a settlement agreement with the four former staff members of Supervisor Gayle Bishop. In their settlement, Bishop's four former staff members, Patricia Rosenberg, Avon Wilson, Lynn Yaney, and Janet Brown, requested that the County inform the public that the four had never requested, or received,,any monies from the County for monetary damages,but requested only that they be transferred to other comparable County employment under the terms of the settlement agreement. The four former staff members followed appropriate procedures in reporting what they contended was a hostile work environment and violations of law. "Although such monetary claims could have been made, it was never the interest of these four women to seek profit at the expense of the County. Their intent was simply to be made whole, and-not suffer any monetary loss, or job loss because of the actions they took respecting their employment in Supervisor Bishop's office.", said Gregory McCoy, attorney for the four former staff members. In agreeing to the settlement, the County issued a statement confirming that there had not been any claims for monetary damages made by the four women. Janet Brown made a separate request for reimbursement.of backpay and benefits lost because of a personnel action which the County is also resolving by this agreement. H.'1GROUMTORr CASM96-20101AGR Wn.WPD 7 Cs i 1103. TENURE AND DISMISSAL, SUSPENSION AND REDUCTION_ The tenure of every officer or employee holding permanent status in a position in the merit system shall be during good behavior, and the rendering of efficient service, but any such officer or employee may be dismissed, suspended or reduced in rank or compensation for cause_ 1104. CAUSE. The appointing authority may dismiss, suspend or demote any employee for cause_ The following are sufficient causes for such- action; the list is indicative rather than inclusive of restrictions and dismissal , suspension or demotion may be based on reasons other than those specifically mentioned_ (a) absence without leave, (b) conviction of any criminal act involving moral turpitude, (c) conduct tending to bring the merit system into disrepute, (d) disorderly or immoral conduct, (e) incompetence or inefficiency, (f) insubordination, _ (g) being at work under the influence of liquor or drugs, carrying onto the premises liquor or drugs or consuming or using liquor or drugs during work hours and/or on County premises, (h) neglect of duty, (i) negligent or willful damage to public property or waste of public supplies or equipment, (j) violation of any lawful or reasonable regulation or order given by a supervisor or department head, (k) willful violation of any of the provisions of the Merit System Ordinance or Personnel Management Regulations, (1) material and intentional misrepresentation or concealment of any -fact in connection with obtaining employment, (in) misappropriation of County funds or property, (n) unreasonable failure or- * refusal* to -undergo any- physical ,. medical and/or psychiatric exam and/or treatment authorized by these regulations, (o) dishonesty or theft, (p) excessive or unexcused•absenteeism and/or tardiness, (q) sexual harassment including but not limited to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when such conduct has the purpose or effect of affecting employment decisions concerning an individual , or unreasonably interfering with an individual 's work performance, or creating an intimidating or hostile working environment. (Amended 09/25/84) 1104.1 Suspension- Notwithstanding Section 1104, management and professional employees may not be suspended for a period of less than one (1) week- (Added -11/17/9341i eek.(Added "11/17/93411 1105. DISABILITY. (a) An employee physically or mentally incapacitated for the performance of duty is subject to dismissal, suspension or demotion, subject to the County Employees Retirement Law of 1937_ An appointing authority after giving notice may place an employee on leave if the appointing' authority has ;filed an application for disability retirement. for the employee, or whom the appointing authority believes. to be temporarily or permanently physically or mentally incapacitated for the performance of'the employee's duties_ 2 EXHIBIT B 11 - 2 § 815.2 ACTIONS—PUBLIC ENTITIES AND EMPLOYEES a Note 74 Title 1 attached to complaint and admitted in districts' hence they could not contend on appeal that answer, districts' failure to object to introduc- there was a fatal variance between claim, alle. tion of evidence on ground of variance,and fact gations,and evidence. .Lorenz v.Santa Monica that districts introduced controverting evidence, City High School Dist. (App. 2 Dist. 1942) 51 showed that districts were not misled, and Cal.App.2d 393, 124 P.2d 846. § 815.3. Intentional torts (a) Notwithstanding any other provision of this part, unless the elected official and the public entity are named as codefendants in the same action, a public entity is not liable to a plaintiff under this part for any act or omission of an elected official employed by or otherwise representing that public entity, which act or omission constitutes an intentional tort, including, but not limited to, harassment, sexual battery, and intentional infliction of emotional distress. For purposes of this section, harassment in violation of state or federal law constitutes an intentional tort, to the extent permitted by federal law. This section shall not apply to defamation. o� (b) If the elected official is held liable for an intentional tort other than 1: defamation in such an action, the trier of fact in reaching the verdict shall i determine if the act or omission constituting the intentional tort arose from and ua Z5 <-.I was directly related to the elected official's performance of his or her official duties. If the trier of fact determines that the act or omission arose from and was directly related to the elected official's performance of his or her official duties, the public entity shall be liable for thejudgment as provided by law. For the purpose of this subdivision, employee managerial functions shall be deemed to arise from, and to directly relate to, the elected official's official duties. However, acts or omissions constituting sexual harassment shall not be deemed to arise from, and to directly relate to, the elected official's official ..,.�. ,k duties. (c) If the trier of fact determines that the elected official's:-act or omission did not arise from and was not directly related to the elected official's performance of his or her official duties, upon a final judgment, including any appeal, the plaintiff shall first seek recovery of the judgment against the assets of the elected official. If the court determines that the elected official's assets are insufficient to satisfy the total judgment, including plaintiff's costs as provided by law, the court shall determine the amount of the deficiency and the plaintiff may seek to collect that remainder of the judgment from the public entity. The public entity may pay that deficiency if the public entity is otherwise authorized by law to pay that judgment. (d) To the extent the public entity pays any portion of the judgment against the elected official pursuant to subdivision (c) or has expended defense costs in an action in which the trier of fact determines the elected official's action did not arise from and did not directly relate to his or her performance of official duties, the public entity shall pursue all available creditor's remedies against the elected official in indemnification, including garnishment, until the elected official has fully.reimbursed the public entity. 206 t. GENERAL LIABILITY PROVISIONS § 815.4 ! Div. 3.6 i (e) If the public entity elects to appeal the judgment in an action brought o this section the entity shall continue defense for the pursuant t ty tilnue to provide a def official until the case is,finally adjudicated, as provided by law. (f) It is the intent of the Legislature that elected officials assume full fiscal responsibility for their conduct which constitutes an intentional tort not directly related to their official duties committed for which the public entity they represent may also be liable, while maintaining fair compensation for those persons injured by such conduct. (g) This section shall not apply to a criminal or civil enforcement action brought on behalf of the state by an elected district attorney, city attorney, or Attorney General. (h) If any provision of this section or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or f applications of the section which can be given effect without the invalid provision or application, and to this end the provisions of this section are severable. (Added by Stats.1994, c. 796 (A.B.2508), § 1.) s c^• e r. ^; § 815.4. Injuries by independent contractors ` a� A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent .`n that the. public entity would be subject to such liability if it were a private ZL— person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been `� liable for the injury had the act or omission been that of an employee of the public entity. (Added by Stats.1963, c. 1681, p. 3268, § 1.) Law Revision Commission Comments The California courts have held that public entities—and private persons, too—may at times be liable for the acts of their independent contractors. ' Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 285 P.2d 912 (1955) (discussing general rule); Los Angeles County Flood Control Dist, v. Southern Cal. Bldg. & Loan Assn., 188 Cal.App.2d 850, 10 Cal.Rptr. 811 (1961). This section retains that liability. Under the terms of this section, though, a public entity cannot be held liable for an independent contractor's act if the entity would have been immune had the act been that of a public employee. [4 Cal.L.Rev.Comm. Reports 801 (1963)] Historical and Statutory Notes Application of Stats.1963,c. 1681,see Histor- ical and Statutory Notes under Government Code§ 810. Law Review Commentaries California negotiated health care: Implica- tions for malpractice liability. 21 San Diego L.Rev. 455 (1984). 207 M § 825 ACTIONS—PUBLIC ENTITIES AND EMPLOYEES Title 1 Law Review Commentaries Civil liability for illegal arrests and confine- Public entity immunity for tort claims by pris- ments in California. 19 Hastings L.J. 974 oners. 19 Hastings L.J. 573 (1968). (1968). Statutory modification of inverse condemna- Governmental immunity: Has a change final- tion: Deliberately inflicted injury or destruc- ly come? Clifford J. Peterson, 2 West.St. tion. Arvo.Van Alstyne, 20 $,Wn.L.Rev. 617 U.L.Rev. 209 (1975). (1968). Liability of public entity for nuisance. 61 Stop and frisk: Civil suits against police. 5 Cal.L.Rev. 648 (1973). Ca1.W.L.Rev. 278 (1969). Library References Sovereign immunity study. 5 Cal.Law West's California Handbook--California Med- Rev.Comm.Reports 11 (1963). ical Malpractice, McDonald, § 9.6. Tort liability of public entities and public em- ployees; recommendation. 4 Cal.Law Rev.Comm.Reports 807 (1963). § 825. Defense by public entity; payments of judgments, compromises or settlements; punitive damages; memorandum of understanding; elected officials; tortious influencing of judicial actions (a) Except as otherwise provided in this section, if an employee or former employee of a public entity requests the public entity to defend him or her against any claim or action against him or her for an injury arising out of an act or omission occurring within the scope of his or her employment as an employee of the public entity and such request is made in writing not less than 10 days before the day of trial, and the employee or former employee reason- ably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed. If the public entity conducts the defense of an employee or former employee against any claim or action with his or her reasonable good-faith cooperation, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity ,has agreed. However, where the public entity conducted such defense pursuant to an agreement with the employee or former employee reserving the rights of the public entity not to pay the judgment, compromise, or settlement until it is established that the injury arose out of an act or omission occurring within the scope of his or her employment as an employee of the public entity, the public entity is required to pay the judgment, compromise, or settlement only if it is established that the injury arose out of an act or omission occurring in the scope of his or her employment as an employee of the public entity. Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages. (b) Notwithstanding subdivision (a) or any other provision of law, a public entity, other than the state as defined in Section 900.6, is authorized to pay that part of a judgment that is for punitive or exemplary damages if the governing body of that public entity, acting in its sole discretion, finds all of the following: (1) The judgment is based on an act or omission of an employee or former employee acting within the course and scope of his or her employment as an employee of the public entity.