HomeMy WebLinkAboutHuntington Beach Police Officers' Association - HBPOA - 2008-04-21CITY OF HUNTINGTON BEACH
Interdepartmental Communication
TO: JOAN FLYNN, City Clerk
FROM: JENNIFER McGRATH, City Attorney
DATE: April 24, 2008
SUBJECT: Settlement Agreement Between the City of Huntington Beach and the
Huntington Beach Police Officers' Association Re Compensatory
Time Off
At the April 21, 2008 Closed Session, the City Council approved the settlement with the
Huntington Beach Police Officers' Association, and authorized the City Administrator to
sign the settlement agreement in the above -mentioned case.
Attached please find the original, executed Settlement Agreement with the request that
you keep the agreement on file in your office.
JENNIFER McGRATH
City Attorney
Attachment
21842
SETTLEMENT AGREEMENT AND RELEASE
This SETTLEMENT AGREEMENT AND RELEASE is entered into by and between the
City of Huntington Beach (City), through its authorized representatives, and the Huntington
Beach Police Officers' Association (the Association), an employee organization recognized by
the City to represent certain safety and non safety personnel employed by the Huntington Beach
Police Department in their employment relations with the City, through its authorized
representatives, with reference to the following facts:
A. For the period between (a) fifty-two biweekly pay periods immediately preceding the
biweekly pay period commencing September 8, 2006 and (b) the date the Settlement
Agreement takes effect (hereinafter referred to as the applicable time frame), the
applicable collective bargaining agreement (hereinafter referred to as the Memorandum
of Understanding or MOU) between the Association and the City governing the terms
and conditions of employment of employees in all job classifications represented by the
Association provided that each such employee may elect to receive compensatory time
in lieu of pay to a maximum of one hundred sixty (160) hours pursuant to Article IX B.1
of the MOU. When an employee has accumulated 160 hours and requests additional
compensatory time off for overtime worked, the employee receives a cash payment for
that overtime instead of the requested compensatory time off.
B. The Association contends that, during the applicable time frame, the City incorrectly
calculated the compensation due for overtime paid in cash to an employee who has
accumulated 160 hours of compensatory time banked and requests additional
compensatory time earned (hereinafter referred to as "cash in lieu overtime") by omitting
from those calculations the value of specialty pay received by the individual employee as
required by the MOU. The term "specialty pay" includes additional pays as required by
the MOU under Article VII and collectively these payments plus the employee's base
salary may be characterized as "Regular Rate of Pay."
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C. Had the value of the specialty pay been included as part of the employee's compensation
for cash in lieu overtime, as claimed by the Association, each employee earning cash in
lieu overtime during the applicable time frame would have received greater compensation
than that actually provided by the City.
D. The claims by the Association described above shall be referred to collectively as the
Association's claims.
E. The City disputes all the Association's claims.
F. The Association is participating in the terms of this Settlement Agreement and Release
on behalf of the employees it is recognized to represent. The City and the Association
may be referred to individually as "Party" or collectively as "Parties."
G. Had the Parties not settled, the Parties expected costly litigation including a trial on the
Association's claims. The Parties fully expected that, whatever the outcome in the trial
court, there was a high probability of appeal by either side on the numerous issues raised
in that litigation. In reaching this Settlement Agreement and Release, the Parties took
into account the unpredictability inherent in trying this matter before a jury, as well as the
likelihood of success on the legal issues to be decided .by the Court. The Parties view this
settlement as a compromise of the risks attendant to both sides in litigating this matter
and a fair and just adjustment of the claims made.
Based on the foregoing recitals, the terms of the Settlement Agreement and Release are set forth
below:
1. PANTIES:
This Settlement Agreement and Release is made by and between the Association
and the City.
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2. DEFINITIONS:
2.1 AGREEMENT:
"Agreement."
This Settlement Agreement and Release shall be referred to herein as the
2.2 FLSA:
As used in this Agreement, "FLSA" refers to the Fair Labor Standards Act of
1938, 29 U.S.C. §§ 201-219 and the Portal -to -Portal Act of 1947, 29 U.S.C. §§ 251-262.
3. PURPOSE OF AGREEMENT:
The purpose of this Agreement is to resolve and settle all outstanding claims,
issues and disputes by the Association, and the employees it is recognized to represent against the
City arising from it's claims, including, but not limited to, all the Association's claims for
additional compensation for employees in job classifications it represents as described above, all
claims for retaliation under 29 U.S.C. § 215(a) (3) and for whistleblower liability under
California Labor Code § 1102.5 and/or other California law relating to this compensation arising
from any wage and hour claim described above. The Association's claims were, and continue to
be, denied by the City. The Parties wish to finally settle and resolve all disputes and
controversies between them arising from claims described in this Agreement, including, but not
limited to, all the Association's claims for additional compensation for employees in job
classifications it represents, as described above, all claims for retaliation under 29 U.S.C. §
215(a) (3) relating to this compensatory time compensation, and all claims for whistleblower
liability under California Labor Code § 1102.5 and/or other California law arising from any wage
and hour claim described above in order to make their peace and to avoid the uncertainties of
further litigation and the expense incident thereto.
4. WAIVED OF CALIFORNIA CIVIL. CODE SECTION 1542:
The Parties understand that this Agreement extends to all grievances, disputes or
claims of every nature and kind, known or unknown, suspected or unsuspected, arising from
claims for additional compensation for employees in job classifications the Association
represents under the applicable MOU, including, but not limited to, all claims for retaliation
under 29 U.S.C. § 215(a) (3) and for whistleblower liability under California Labor Code
07-950/HBPOASettlementAg Bement-FINAL-11-29-07 3
§ 1102.5 and/or other California law relating to this compensation arising from any wage and
hour claim described above. The Parties understand that this release does not address claims
relating to any conduct or activity which occurs after the date that the Agreement is fully
executed, nor any claim related to number of hours worked, nor any individual claim of any
employee represented by the Association under the FLSA. The Parties further acknowledge that
any and all rights granted them under Section 1542 of the California Civil Code regarding the
Association's claims, including, but not limited to, claims for additional compensation for
employees in job classifications it represents under the applicable MOU1 and all claims for
retaliation under 29 U.S.C. § 215(a) (3), and for whistleblower liability under California Labor
Code § 1102.5 and/or other California law relating to this compensation, arising from any wage
and hour claim described above, are hereby expressly waived. Section 1542 of the California
Civil Code reads as follows:
SECTION 1542. GENERAL RELEASE; EXTENT. 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.
4.1 RELEASE:
The Association and all of its respective agents directors, officers, members and
assignees do hereby fully and forever release and discharge the City and its past or present
governing bodies, boards, officers, directors, agents and employees, from any and all causes of
action, actions, judgments, liens, indebtedness, damages, losses, claims, liabilities, grievances
and demands arising from the Association's claims against the City, including, but not limited to,
the Association's claims for additional compensation for employees in job classifications it
represents under the applicable MOU, and all claims for retaliation under 29 U.S.C. § 215(a)(3),
and for whistleblower liability under Labor Code § 1102.5 and/or other California law relating to
this compensation arising from any wage and hour claim described above.
The City hereby fully and forever releases and discharges the Association, its
directors, officers, the employees it is recognized to represent and all of its respective attorneys,
agents and assignees from any and all causes of action, actions, judgments, liens, indebtedness,
07-950/H$pOASetBementAgreement-FINAL-11-29-07 4
damages, losses, claims, liabilities, grievances and demands arising from the Association's
claims.
5. PAYMENT OF ADDITIONAL COMPENSATION TO EMPLOYEES IN
JOB CLASSIFICATIONS REPRESENTED BY THE ASSOCIATION
WHO EARNED PAY FOR CASH IN LIED OVERTIME DURING THE
APPLICABLE TIME FRAME
5.1 In settlement of all claims asserted by the Association and the employees
in all job classifications it is recognized to represent with respect to cash in lieu overtime earned
during the applicable time frame, the City shall recalculate the cash in lieu overtime
compensation due and owing each employee represented by the Association during that time
frame by the following methodology:
A The City shall pay to each such employee the difference between the (a)
value of the compensation for cash in lieu overtime actually paid to the employee for the
fifty-two biweekly pay periods immediately preceding the pay period commencing
September 8, 2006 and (b) value of the compensation for cash in lieu overtime
calculated at the regular rate of pay via the formula below.
B. The City will calculate the compensation due and owing each employee
represented by the Association for that time period by ascertaining the number of cash
in lieu overtime hours that were earned for each employee during that time period and
applying the regular rate of pay of the employee on the last pay period preceding
September 8, 2006 wherein the employee received compensation for cash in lieu
overtime with respect to all hours earned during that time period.
C. The payment of this difference for all compensation owed under the MOU
will be considered "back pay" for purposes of paragraph 12 of this agreement. There is
no payment due pursuant to the FLSA for this compensation.
D. City shall pay all compensation owed for cash in lieu overtime at the
regular rate of pay commencing September 8, 2006.
5.2 As soon as reasonably practicable after execution of this Agreement by
City and the Association, the City shall forward to each of the eligible employees or former
employees as described above in Paragraph 5.1 who has executed an individual waiver of all
claims that could have been asserted under the FLSA during the applicable time frame, the
individual sum representing the gross back pay amounts and applicable liquidated damages
07-950/HBPOASettlementAgreement-FfN'AL-11-29-07 5
consistent with the methodology described in Paragraph 5.1, less applicable withheld taxes. No
payment shall be made to any eligible employee or former employee unless and until he or she
submits an executed individual waiver, a copy of which is attached hereto as Exhibit "A.
6. IDISCLOSURES AND REPRESENTATIONS:
6.1 CONSULTATION WITH COUNSEL:
The Association has had sufficient time to consult with independent counsel with
respect to the advisability of accepting the terms of this Agreement and with respect to the
releases, waivers, and all matters contained herein. The City and the Association acknowledge
that they have executed this Agreement without fraud, duress, or undue influence.
6.2 NO RELIANCE ON PRIOR REPRESENTATIONS:
Statements made in the past have been modified by changing circumstances. The
Association and the City acknowledge that the circumstances of the Association's claims and of
this Agreement are unique. Neither the City nor the Association nor any other officer, agent,
employee, representative, or attorney of the City nor the Association or others, has made any
statements, representations, or promises to the City regarding any facts which may be relied upon
in executing this Agreement, except as expressly stated in this Agreement.
6.3 VOLUNTARY AND KNOWING WAIVER OF RIGHT:
Each of the Parties acknowledges that he, she or it has carefully read this
Agreement. Each of the Parties acknowledges that the only promises made to induce him, her or
it to sign this Agreement are those stated herein. Having been fully advised and informed, each
of the Parties voluntarily enters into this Agreement and the waiver of rights covered by this
Agreement.
Each Party understands, acknowledges, and agrees that this is a compromise and
settlement of disputed claims and that nothing herein shall be deemed or construed at any time or
for any purpose as an admission of the merits of any claim or defense.
6.4 ASSIGNMENT OF RIGHTS:
Except for such assignments, transfers, or grants which may have occurred upon
operation of law, the Parties have not heretofore assigned, transferred, or granted, or purported to
assign, transfer, or grant, any of the claims, demands, causes of action, obligations, liens,
judgments, orders, damages, liabilities, losses, costs and expenses of any kind, in law or in
07-950/HBPOASettlementAgreement-FINAL-11-29-07 6
equity, whether known or unknown, that the Parties now hold, will ever hold, or have ever held
against the others related to the subject matter of this Agreement, including, but not limited to:
(1) the Association's claims for additional compensation for employees in job classifications it
represents, all claims for retaliation under 29 U.S.C. § 215(a)(3) relating to this compensation,
and all claims for whistleblower liability under California Labor Code § 1102.5 and/or other
California law relating to this compensation; (2) any and all claims, demands, or causes of action
arising out of or in any way connected with any transactions, occurrences, acts or omissions of
the City for alleged violations of the applicable MOU, including the Association's claims for
additional compensation for employees in job classifications it represents, all claims for
retaliation under 29 U.S.C. § 215(a)(3) relating to this compensation, and all claims for
whistleblower liability under California Labor Code § 1102.5 and/or other California law relating
to this compensation arising from any wage and hour claim described above; or (3) any and all
claims, demands, or causes of action arising out of or in any way connected with any
transactions, occurrences, acts or omissions relating to the subject matter of this Agreement
occurring prior to the effective date of this Agreement.
7. NO INTEREST PAYMENTS:
No interest shall be paid to the recipients of the additional compensation payable
under Paragraph 5 of this Agreement.
8. REIMBURSEMENTS:
The Parties further agree that any attorneys' fees and costs associated with the
Association's claims under the applicable MOU and/or the FLSA for additional compensation
for employees in job classifications it represents, all claims for retaliation under 29 U.S.C. §
215(a) (3), and for whistleblower liability under California Labor Code §1102.5 and/or other
California law relating to this compensation arising from any wage and hour claim described
above shall be paid by the City up to a maximum payment of $2,500. This provision does not
apply to any member's individual claim or proceeding brought independent of this Agreement.
9. ENTIRE AGREEMENT IS INTEGRATED:
The Parties agree that the obligations contained in this Agreement are the sole and
only consideration for it, and that no representations or inducements have been made by any
07-950/HBPOASettlementAgreement-FINAL-11-29-07 7
Party, or such Party's employees, agents, or attorneys, except as specifically set forth in this
Agreement. There is no other Agreement, written or oral, express or implied, between the
Parties with respect to the subject matter of this Agreement except as explicitly referred to
herein. This Agreement supersedes any previous oral or written agreements or understandings
between the Parties regarding any matter contained in the Agreement. The recitals shall be
deemed an integral part of the Agreement.
10. SUCCESSORS:
This Agreement shall be binding upon the Association and the individuals
employed in job classifications it represents in this informal grievance during the applicable time
frame, and their heirs, representatives, executors, administrators, successors and assigns, and
shall inure to the benefit of each and all of their heirs, representatives, executors, administrators,
successors and assigns.
11. JOINT DRAFTING OF AGREEMENT:
The Association, through its attorneys, and the City, through its attorneys have
participated in the drafting of this Agreement. The attorneys for all Parties, by their signature on
this Agreement, approve it as to form, and accordingly, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting parties will not be employed in
any interpretation of this Agreement.
12. WITHHOLDING OF TAXES FROM SETTLEMENT AMOUNTS:
The Parties agree that the cash payments set forth in Paragraph 5 of this
Agreement that are designated as back pay under paragraphs 5.1 and 5.2 are wages subject to full
withholding of federal and state income and other payroll withholding taxes. The City shall base
the amount of tax to withhold on the latest W-4 forms submitted by the recipients to the City,
unless the recipients submit updated W-4 forms to the City within five (5) days of execution of
this Agreement.
07-950/HBPOASettlementAgreement-FINAL-11-29-07 8
13. SEVERABILITY:
This Agreement shall be considered severable, such that if any provision or part
of the Agreement is ever held invalid under any law or Court ruling, that provision or part of the
Agreement shall remain in force and effect only to the extent allowed by law or Court ruling, and
all other provisions or parts of the Agreement shall remain in full force and effect.
14. EXECUTION OF THIS AGREEMENT:
14.1 EXECUTION BY THE CITE':
This Agreement may be executed on behalf of the City by a representative of the
City's City Council. A facsimile copy of the signature of the City's representatives shall have
the same force and effect as an original.
14.2 EXECUTION BY THE ASSOCIATION:
The Association shall execute this Agreement through an authorized officer.
14.3 COUNTERPARTS:
Each of the Parties may execute this Agreement in counterparts by signing a copy
of the signature page for this Agreement. A facsimile copy of a signature shall have the same
force and effect as an original. Each of the signed signature pages shall be incorporated into this
Agreement and have the same legal effect as if each of the Parties had signed the original copy of
this Agreement.
For City of Huntington Beach
�&��, (��A 6-4 . -
enelo Culbreth-Graft
City Administrator
Approved as to form:
Je Znifer McGrath
City Attorney
For Huntington Beach Police Officers' Association
By:
B
Approved as to form:
Steplid Silver, -Esq.
Silver, Hadden & Silver
07-950/HBPOASettlenientAgreement-FINAL-11-29-07 9
13. SEVERABILITY:
This Agreement shall be considered severable, such that if any provision or part
of the Agreement is ever held invalid under any law or Court ruling, that provision or part of the
Agreement shall remain in force and effect only to the extent allowed by law or Court ruling, and
all other provisions or parts of the Agreement shall remain in full force and effect.
14. EXECUTION OF THIS AGREEMENT:
14.1 EXECUTION BY THE CITY:
This Agreement may be executed on behalf of the City by a representative of the
City's City Council. A facsimile copy of the signature of the City's representatives shall have
the same force and effect as an original.
14.2 EXECUTION BY THE ASSOCIATION:
The Association shall execute this Agreement through an authorized officer.
14.3 COUNTERPARTS:
Each of the Parties may execute this Agreement in counterparts by signing a copy
of the signature page for this Agreement. A facsimile copy of a signature shall have the same
force and effect as an original. Each of the signed signature pages shall be incorporated into this
Agreement and have the same legal effect as if each of the Parties had signed the original copy of
this Agreement.
For City of Huntington Beach
LAC,"
OeneI4 Culbreth-Graft
City Administrator
For Huntin ton Beach Police Officers' Association
By:
Approved as to form: Approved as to form:
jJn"nifcrWCGrath 'Ste-pNE Silver, Esq.
City Attorney Silver, Hadden & Silver
07-950/HBPOASettlementAgreement-FINAL-11-29-07 9
13. SEVERABII.ITY:
This Agreement shall be considered severable, such that if any provision or part
of the Agreement is ever held invalid under any law or Court ruling, that provision or part of the
Agreement shall remain in force and effect only to the extent allowed by law or Court ruling, and
all other provisions or parts of the Agreement shall remain in full force and effect.
14. EXECUTION OF THIS AGREEMENT:
14.1 EXECUTION BY THE CITY:
This Agreement may be executed on behalf of the City by a representative of the
City's City Council. A facsimile copy of the signature of the City's representatives shall have
the same force and effect as an original.
14.2 . EXECUTION BY THE ASSOCIATION:
The Association shall execute this Agreement through an authorized officer.
14.3 COUNTERPARTS:
Each of the Parties may execute this Agreement in counterparts by signing a copy
of the signature page for this Agreement. A facsimile copy of a signature shall have the same
force and effect as an original. Each of the signed signature pages shall be incorporated into this
Agreement and have the same legal effect as if each of the Parties had signed the original copy of
this Agreement.
For City of Huntington Beach
enelo e Culbreth-Graft
City Administrator
For Huntington Beach Police Officers' Association
By: /
eyv: '�—
Approved as to form: Approved as to form:
► r, Ae�
ennifer Mc rath Ste en Silver, Esq.
City Attorney Silver, Hadden & Silver
07-950/HBPOASettlementAgreement-FINAL-11-29-07 9