Update: To public questions about the City Council vote on the Settlement Agreement, public record reveals that Attorney Tracy stated that Councilman Stottlemyre made the motion to approve the Agreement and the vote was unanimous in favor.
Update: David Buckingham has been appointed as the Morro Bay City Manager, effective September 29th.
Monday night, the Bishop City Council agreed to pay a former candidate for City Administrator, retired Colonel David W. Buckingham of Arlington, Virginia, $38,000 to avoid litigation. Tuesday, officials released the Settlement Agreement with Buckingham. In that Agreement, both sides concur not to make critical or disparaging statements about each other. So, details of what actually happened remain largely undisclosed.
The agreement says, “The City considered hiring Buckingham as its City Administrator, but ultimately decided to hire another individual as City Administrator. Buckingham claims he was employed by the City, disputes the City’s right to hire the other individual and not to hire him, and claims damages.”
The agreement goes on to say that recognizing the expense and uncertainty involved in litigation, both sides wanted to settle all claims related to this dispute.
Credible sources have said City officials had sent Buckingham a contract to work for the City which he reportedly signed. Sources say City officials later withdrew their offer, and on July 28th they gave the Administrator job to Jim Tatum.
The Settlement Agreement says the City of Bishop will pay Buckingham a City check for $38,000 transmitted by express delivery when the Agreement becomes effective – on or before August 22nd. The Agreement also includes releases and waivers of potential future claims and no admission of liability or wrongdoing. The Agreement does not admit that Buckingham was ever an employee of the City. David Buckingham signed the Agreement on August 9th.
It is unknown if internet stories about Buckingham influenced his hiring by the City. It was reported that the Army had relieved Buckingham as the commander of U.S. Army Garrison Vicenza, Italy, as a result of allegations that he argued publicly with a military policeman. Reports said nothing unethical or criminal was found in his behavior. Other reports called his behavior and use of profanity “unprofessional”.
Below is entire Settlement Agreement:
SETTLEMENT AGREEMENT AND
MUTUAL GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE (“Agreement”) is made and entered into at Bishop, California by and between David W. Buckingham (“Buckingham”) and the City of Bishop, a California general law city (“City”). Buckingham and City are sometimes collectively referred to in as the “Parties.”
City considered hiring Buckingham as its City Administrator, but ultimately decided to hire another individual as City Administrator. Buckingham claims he was employed by City, disputes City’s right to hire the other individual and not to hire him, and claims damages (“Dispute”);
Buckingham sent City a letter claiming that he suffered damages as a result of City’s actions;
Recognizing the expense and uncertainty involved in litigation, the Parties now desire to settle fully all claims arising from, or related to, the Dispute;
By this Agreement, the Parties intend to settle all claims which each Party has, or may have, against the other, which arise from or are related to, the Dispute, whether such claims are made or un-made, asserted or un-asserted, state or un-stated, known or unknown;
AGREEMENT AND RELEASE
The Parties therefore agree as follows:
Recitals Incorporated. The Recitals set forth above are incorporated into this Agreement as an operative part hereof.
Payment of Settlement Sum. City shall pay Buckingham the total sum of $38,000.00 in full settlement of all claims. City shall pay such sum by sending Buckingham a City check payable to him to: 610 21st Street South, Arlington, VA 22202. Such payment shall be mailed or otherwise transmitted to Buckingham by express delivery after this Agreement becomes effective, and on or before August 22, 2014.
General Mutual Release. The Parties, individually, and on behalf of their respective successors, assigns, principals, agents, employees, consultants, representatives, attorneys, bonding companies and insurers, release and forever discharge each other, and all of their current and past elected and appointed officials, employees, agents, officers, and representatives, their respective successors, assigns, principals, agents, consultants, representatives, attorneys (including the Law Firm of Jones & Mayer and its attorneys, Ryan J. Jones, Esq., Bishop City Attorney, and Peter E. Tracy), bonding companies and insurers from any and all claims, demands, rights, actions, causes of action, debts, obligations, expenses, damages, losses, costs, (including attorneys’ fees), warranties, covenants, contracts, agreements, controversies, liens, losses, legal assertions, representations, promises, undertakings, demands, and liabilities of any and every kind, whether made or un-made, asserted or un-asserted, stated or un-stated, known or unknown, or that could have been made, asserted, stated or known, of any kind or nature whatsoever.
Buckingham’s Specific Waivers and Releases. In consideration of the payment of the settlement sum set forth above, and other good and valuable consideration, Buckingham for himself, his successors, assigns and representatives, does hereby release City and all of its current and past elected officials, employees, agents, officers, and representatives, and each and all of them, as well as its respective successors, assigns, principals, agents, employees, consultants, representatives, attorneys (including the Law Firm of Jones & Mayer and its attorneys, Ryan J. Jones, Bishop City Attorney, and Peter E. Tracy), bonding companies and insurers, of and from any and all claims, actions, causes of action, warranties, covenants, contracts, agreements, controversies, liens, liabilities, losses, legal assertions, representations, promises, undertakings, demands, damages of any and every kind, attorney’s fees, expenses, and costs arising from or in any way related to the Dispute, whether made or un-made, asserted or un-asserted, stated or un-stated, known or unknown, or that could have been made, asserted, stated or known, of any kind or nature whatsoever, anticipated or unanticipated, arising out of or in any way related to Buckingham’s claimed employment by City or the claimed termination of that employment (collectively “Claims”). The matters released include by way of example and not limitation: claims for injury to Buckingham arising out of or relating to the course and scope of his claimed employment by City; claims for alleged violations of any contract, express or implied, or any covenant of good faith or fair dealing, express or implied; claims of any legal restrictions on City’s right to discipline, terminate or lay off its employees; any allegations of constructive discharge or wrongful discharge or tort; claims for defamation, invasion of privacy, emotional and/or personal injury or distress of the like; claims for sick leave, vacation, compensated time off, separation pay or severance pay; and claims for violation of any contractual agreement or any local, state, federal or governmental constitutional provision, statute, regulation or ordinance, as amended, or any public policy expressed in any statute, regulation or ordinance, including, without limitation, the following: Title VII of the Civil Rights Act of 1964 (race, color, religion, sex, national origin); 42 U.S.C. 1981 and 1983 (discrimination in the making and enforcement of contracts, deprivation of rights); Age Discrimination in Employment Act (29 U.S.C. sections 621-634); federal and state Equal Pay Acts (29 U.S.C. section 206(d)(1) and California Labor Code sections 3200 et seq.); California Fair Employment and Housing Act, California Government Code sections 12940 et seq. (discrimination, including race, color, national origin, ancestry, physical handicap, mental condition, marital status, age, gender or retaliation); Labor Code section 1102.1 (sexual orientation); Executive Order 11246 (race, color, religion, sex, national origin discrimination); Executive Order 1141 (age discrimination); Rehabilitation Act of 1973 (27 U.S. C. sections 503 and 504); Older Workers Benefit Protection Act amendments to the Age Discrimination in Employment Act (29 U.S.C. sections 621 et seq.); Civil Rights Act of 1991; Americans with Disabilities Act; Employment, Retirement and Income Security Act of 1974 (ERISA); state or federal Family Medical Leave Act; the Unruh Civil Rights Act (California Civil Code sections 51, et. Seq.); and the California Government and Labor Codes.
Buckingham’s Age Discrimination Act Waivers and Release. Buckingham expressly acknowledges and agrees that by entering into this Agreement, he is waiving any and all rights or claims that he may have arising under the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, on or before the date of execution of this Agreement. Buckingham further expressly acknowledges and agrees that (a) he has entered into this Agreement voluntarily, free from duress, coercion, or mistake of facts; (b) that this Agreement is in writing and understandable; (c) that he is waiving current ADEA claims explicitly and cannot waive future ADEA claims; (d) in return for this Agreement he will receive consideration beyond what which he was already entitled to receive before entering into the Agreement; (e) he has been advised in writing to consult with an attorney before signing this Agreement; (f) he has been given a copy of this Agreement and informed that he has twenty-one (21) days, within which to consider the Agreement, which period of consideration he hereby waives; and (g) he is hereby informed that he has seven (7) days following the date of execution of this Agreement in which to revoke the Agreement. Any notice of revocation must be in writing and shall be delivered to and received by, Ryan Jones, Bishop City Attorney, prior to the end of the seventh calendar day following the date of execution. The Agreement shall become binding and effective on the eighth day after the date of execution unless Buckingham has given written notice of revocation as provided in paragraph 5 above.
Notices. All notices related to this Agreement shall be in writing, and shall be mailed or delivered to the following addresses, or such other addresses as the parties may later designate in writing:
Buckingham: 610 21st Street South, Arlington, VA 22202.
City: Ryan R. Jones, Esq., Jones & Mayer, 3777 N. Harbor Boulevard, Fullerton, CA 92835. All notices given to City shall also be sent by facsimile
transmission to: (714) 446-1448.
Non-Disparagement. City agrees not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or criticize the personal or business reputation, practices, or conduct of the Buckingham.
Buckingham agrees not to make any statements, written or verbal, or cause or encourage others to make any statement, written or verbal, that defame, disparage or criticize the City or the personal, business or governmental reputation, practice, or conduct of City’s current or past elected officials, employees, agents, officers, and representatives, and each and all of them, as well as their respective successors, assigns, principals, agents, employees, consultants, representatives, and attorneys ( including the Law Firm of Jones & Mayer and its attorneys, Ryan J. Jones, Bishop City Attorney, and Peter E. Tracy).
The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, current or past elected officials, current or past employees, citizens and residents of the City of Bishop, and clients of the attorneys.
California Cities have a legal obligation to inform their citizens of actions taken by the City and the reasons therefor. This obligation cannot be waived. Therefore, nothing in this paragraph is intended to limit current elected officials of the City, city staff and city attorneys from exercising their duties to describe their actions and the reasons therefor within the legal requirements of the Brown Act or other law concerning this settlement. Notwithstanding this sub-paragraph, City officials shall take all reasonable precautions not to disparage Buckingham as set forth above.
The Parties understand and agree that this paragraph is a material provision of this Agreement, that any breach of this paragraph shall constitute a material breach of this Agreement, and that each Party shall be irreparably harmed by violation of its provisions.
Civil Code 1542 Release. The Parties are aware of all rights that may be granted to them pursuant to California Civil Code section 1542, which section reads, in pertinent part, as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
The Parties nevertheless waive all rights granted to them, respectively, by California Civil Code section 1542, and any similar statute, code, law or regulation of any state of the United States, or of the United States. The Parties assume all risks for releasing claims related to the Dispute, whether made or un-made, asserted or un-asserted, stated or un-stated, known or unknown, or that could have been made, asserted, stated or known, of any kind or nature whatsoever. Further, the Parties agree that the actual facts may turn out to be different from the facts now known by them, respectively, or believed by them, respectively, to be true regarding the matters referred to above. Nevertheless, the Parties accept and assume the risk that such facts may turn out to be different than they believe them to be, and agree that the terms of the release will, in all respects, be effective and not subject to termination, rescission, modification by any such difference in the facts.
No Admission of Liability or Employment. The Parties agree that his Agreement shall not be construed as an admission of liability or wrongdoing on the part of either Party, or their agents, servants, employees or attorneys. This Agreement is made solely for the purpose of avoiding the expense and uncertainty of litigating the Dispute. Nothing herein constitutes an admission by City that Buckingham was ever, in fact, an employee of City.
No Assignment. The Parties, and each of them, represent and warrant that they have not assigned or transferred, or purported to assign or transfer, and will never assign or transfer, any obligations, liabilities, demands, claims, costs, expenses, debts, controversies, damages, actions, and causes of actions released under this Agreement.
Consultation With Attorney. Each Party declares that prior to the execution of this Agreement, they have consulted with their attorney in order that they may intelligently exercise their own judgment in deciding whether to execute this Agreement.
Authority to Execute Agreement. Each Party declares that they have read this Agreement, understand and know its contents, represent and warrant that they are empowered to enter into and execute this Agreement, and that they intend to bind themself, and all of their successors, assigns, principles, agents, employees, consultants, representatives, attorneys, bonding companies and insurers to its terms.
Counterparts. This Agreement may be executed in counterparts. All counterparts so executed shall constitute an agreement binding on the Parties. The Parties further agree that a facsimile or electronically transmitted copy of the executed counterparts shall have the same force and effect as an original.
Applicable Law. This Agreement shall in all respects be interpreted, construed, enforced and governed by and under the laws of the State of California. This Agreement is fully enforceable pursuant to California Code of Civil Procedure section 664.6.
Jurisdiction and Venue. The Parties agree that the sole proper jurisdiction and venue for any action arising out of the breach, interpretation or construction of this Agreement, or other documents delivered under any of its provisions, is the Superior Court of California, County of Inyo.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties. Each Party acknowledges that no Party, agent or representative of the other Party has made any promise, representation or warranty, express or implied, which is not expressly contained in this Agreement that induced them to sign this Agreement. This Agreement shall not be construed against a Party because that Party’s representative drafted it or any portion of it.
Amendment and Modification. The Parties agree that this Agreement can only be amended or modified by a document signed by both of them. Any such amendment or modification document shall not be construed against a Party because that Party’s representative drafted the amendment or modification document or any portion thereof.
Additional Acts. The Parties agree to perform such further acts, and to execute and deliver such further documents, as may be reasonably necessary to carry out the terms of this Agreement
No Other Promise or Warranty. No promise or warranty shall be binding on any Party except as expressly contained in this Agreement.
If Any Provision Is Void. If any provision of this Agreement could be interpreted or construed to be invalid, void or illegal, such provision shall be interpreted and construed in a manner which would permit that provision’s validity, legality and enforceability. However, if such provision is nonetheless determined to be invalid, void or illegal, such determination shall not affect, impair or invalidate any other provision of this Agreement.
Agreement Binding on Successors. The Parties agree that this Agreement, together with its releases, is binding upon and intended to inure to the benefit of the heirs, executors, administrators, personal representatives, successors in interest and assigns of each of the Parties.
Gender and Number. Within this Agreement, words of any gender will be held and construed to include any other gender, and words in the singular number will be held and construed to include the plural, unless the context otherwise requires.
Effective Date. The Agreement shall become binding and effective on the eighth (8th) day after the date of execution unless Buckingham has earlier given written notice of revocation as provided in paragraph 5 above.
WHEREFORE, the undersigned having read the foregoing Agreement, and having fully understood it, agree to its terms, and hereby execute this Agreement on the dates set forth hereunder.
DATED: August ___, 2014CITY OF BISHOP
By: ______________________________________Jim Ellis
DATED: August ___, 2014DAVID W. BUCKINGHAM
David W. Buckingham
APPROVED AS TO FORM:
DATED: August ___, 2014JONES & MAYER
Ryan R. Jones, Esq.
Bishop City Attorney