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Res 077-2014 7/15/2014PAGE 1 OF 6 PAGES AGENDA ITEM NO. 8.A RESOLUTION NO. 77-2014 Resolution authorizing the City Manager to execute all documents necessary to provide for the settlement of the disciplinary appeal of Police Officer Anthony Gerald Morgan and civil service issues related thereto in the amount of $60,000 WHEREAS, the City of Wichita Falls is a party to the pending Civil Service disciplinary appeal of police officer Gerald Anthony Morgan; and WHEREAS, the parties have reached a settlement of all pending matters in the Civil Service disciplinary appeal. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute all documents necessary to provide for the settlement of the disciplinary appeal of Police Officer Anthony Gerald Morgan and civil service issues related thereto in the amount of $60,000 , including the attached Release, with changes to said release and other documents as approved by the City Attorney. PASSED AND APPROVED this the 15th day of July, 2014. ______________________________ M A Y O R ATTEST: ______________________ City Clerk PAGE 2 OF 6 PAGES AGENDA ITEM NO. 8.A GENERAL RELEASE, WAIVER AND SETTLEMENT AGREEMENT This General Release, Waiver and Settlement Agreement (“Agreement”), is made by and between the City of Wichita Falls, Texas (“City”), a municipal corporation; and Gerald A. Morgan, (“Employee”), (collectively referred to as “the Parties”). Recitals WHEREAS, Employee was employed by City as a police officer; and WHEREAS, On June 6, 2012, the Employee was indefinitely suspended from his employment as a police officer with the Wichita Falls Police Department; and WHEREAS, On June 11, 2012, the Employee filed a timely appeal with the City’s Director of Civil Service requesting that his appeal be heard by an independent third-party hearing examiner pursuant to Section 143-057 of the Texas Local Government Code; and WHEREAS, the appeal was subsequently placed in abeyance pending the disposition of criminal charges against Employee; and WHEREAS, as of the date of this agreement, the civil service appeal is pending a full evidentiary hearing before an independent hearing examiner; and WHEREAS, Employee and City find that bona fide disputes and controversies exist between the parties as to the issue of reinstatement to employment and what employee wages and benefits may be owed to Employee, and by reason of such disputes and controversies, the parties hereto desire to compromise and settle all claims and causes of action of any kind whatsoever which either Employee or City has which in any way relate to Employee’s right to reinstatement to his employment with City and intend that the full terms and conditions of the parties’’ compromise settlement and release be set forth in this instrument; and WHEREAS, as of the date of this agreement, (the criminal charges have been dismissed against Employee and) a civil service appeal (of Employee's Indefinite Suspension) is pending a full evidentiary hearing before an independent hearing examiner. Agreement NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, including the recitals set forth above, the parties agree as follows: 1. City agrees to correct its records by removing Employee’s indefinite suspension from the personnel files of the Wichita Falls Police Department, City, and Civil Service Commission, and to correct its records to reflect that the Chief of Police withdrew the indefinite suspension. PAGE 3 OF 6 PAGES AGENDA ITEM NO. 8.A 2. City agrees to notify the Texas Commission on Law Enforcement that the indefinite suspension of Employee was set aside pursuant to this Agreement. The City agrees to complete all required notification and filing of forms and documents, including an amended F5 reflecting Employee’s resignation and an “Honorable Discharge” effective June 6, 2012. 3. Employee agrees to withdraw his pending appeal of the “indefinite suspension” imposed on June 6, 2012. 4. Employee hereby agrees to submit his irrevocable letter of resignation to City immediately after the signing of this instrument by both parties, and that the said resignation shall be effective on the 6th day of June 2012. The City agrees to accept the said resignation of Employee, and to waive any rule or policy of the City which would otherwise require a certain number of days’ advance notice of a resignation, i.e., Employee’s failure to give such minimum notice will not be considered by the City as a violation of personnel or other rules. 5. Subsequent to Employee’s resignation, Employee will receive a lump sum payment of $60,000 in back pay less appropriate and regular deductions for employment and federal taxes. Employee will receive an additional and separate lump sum payment of $18,780.17 which represents 240 hours of accrued vacation and 514.83 hours of accrued sick leave for a total of 754.83 hours paid out at the rate of $24.880 per hour which was Employee’s rate of pa y as of June 6, 2012. 6. City agrees to provide a neutral, non-derogatory reference to all prospective employers who call the City for employment verification. This does not prohibit the City or the Wichita Falls Police Department from releasing any and all employment records pursuant to a written release signed by Employee. 7. Employee agrees that he will not apply for reemployment with the City of Wichita Falls. 8. Release of All Claims. Employee, on behalf of himself, and for his spouse, family, agents, executors, administrators, heirs and assigns, and in exchange for consideration heretofore mentioned and agreed to, hereby fully releases, holds harmless, indemnifies, and discharges City, including its employees, officers, agents, and all other affiliated persons and associations, known or unknown, from any and all claims which have been sustained, or may be sustained in the future, arising out of or as a result of the above-described indefinite suspension administrative matter between Employee and the City, its officers, employees, agents and volunteers, whether negligent, grossly negligent, or intentional actions of City, its officers, employees, agents or volunteers. 9. Legal Advice. Employee warrants and represents that in executing this Agreement, Employee has had the reasonable opportunity to rely on legal advice from an attorney of Employee’s choice, so that the terms of this Agreement and its consequences have been or could have been completely read and explained to Employee by an attorney and that Employee fully understands the terms of this Agreement. PAGE 4 OF 6 PAGES AGENDA ITEM NO. 8.A 10. Information Relied Upon. Employee acknowledges and represents that Employee has been apprised of all relevant information and data furnished by Employee’s attorney or expert and all other information relevant to Employee’s claim and this Agreement, including, without limitation, future claims or costs. Employee further acknowledges and represents that, other than the recitals herein, Employee has not relied on any inducements, promi ses, or representations made by City or any party representing or serving City in executing this Agreement. Employee acknowledges and warrants that his execution of this Agreement is free and voluntary. Finally, Employee acknowledges and warrants that this Agreement shall not be subject to attack on the grounds that any or all of the legal theories or factual assumptions used for negotiating purposes are for any reason inaccurate or inappropriate. 11. Disparaging Comments. Employee and Employer mutually agree to make no negative or disparaging comments or remarks about each other as a result of the subject matter of this Agreement. 12. No Admission of Liability. Neither the execution nor the performance of this Agreement shall constitute or be construed as an admission of any liability whatsoever; this Agreement is entered into by the Parties solely to avoid the cost and inconvenience of further litigation. 13. Indemnification. As a further material inducement to the City to enter into the Agreement, Employee hereby agrees to defend, indemnify and hold City harmless from and against any and all loss, cost, damages or expenses, including without limitations, attorneys’ fees and related expenses and costs incurred by City, its officers or employees or any of them, arising out of any breach of this Agreement by the Employee. 14. Entire Agreement. This Agreement constitutes and contains the entire agreement and understanding concerning Employee’s resignation and all other subject matter addressed herein between the Parties, and supersedes and replaces all prior negotiations and all prior agreements proposed or otherwise, whether written or oral, concerning the subject matter hereof. 15. Modification. Any modification to this Agreement must be in writing and signed by duly authorized representatives of each of the Parties and must expressly state that it is the intention of each of the Parties hereto to amend the Agreement. 16. Severability. In the event that one or more of the provisions of this Agreement shall, for any reason, be held to be illegal or unenforceable, this Agreement shall be revised only to the extent necessary to make such provision(s) legal and enforceable. 17. Governing Law. This Agreement shall be construed and governed by and subject to the laws and exclusive jurisdiction of the State of Texas. Jurisdiction and venue for all claims related to this Agreement shall be in Wichita County, State of Texas. 18. Acknowledgements. Employee acknowledges that he has read and understands the following: PAGE 5 OF 6 PAGES AGENDA ITEM NO. 8.A a. Employee is advised to, and understands his opportunity to consult his respective attorney regarding this Agreement before executing it; b. Employee acknowledges that he executed this Agreement in exchange for the consideration described herein; The parties acknowledge that they have read the foregoing Agreement, understand its contents, and accept and agree to the provisions it contains and hereby execute it voluntarily and knowingly, and with full understanding of its consequences. 19. It is understood and agreed that this agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. Statements and representations contained herein are to be considered contractual in nature and not mere representation of fact. The obligations and agreements of the parties created by this instrument are not released herein and shall survive the execution of this instrument. WITNESS our hands on the dates of our acknowledgements. EMPLOYEE By: ______________________________ Gerald A. Morgan, Employee CITY OF WICHITA FALLS, TEXAS By: ______________________________ Darron Leiker, City Manager CITY OF WICHITA FALLS, TEXAS POLICE DEPARTMENT By_______________________________ Manuel Borrego, Chief of Police PAGE 6 OF 6 PAGES AGENDA ITEM NO. 8.A APPROVED AS TO FORM AND SUBSTANCE: By_______________________________ Vincent E. Wisely, Staff Attorney THE COMBINED LAW ENFORCEMENT ASSOCIATIONS OF TEXAS (CLEAT) 904 Collier Street Fort Worth, Texas 76102 817.882.9548 telephone 817.882.9586 facsimile Attorney for Employee By_______________________________ Julia Vasquez, First Assistant City Attorney THE CITY OF WICHITA FALLS, TEXAS Post Office Box 1431 Wichita Falls, Texas 76307 1300 7th Street, Room 108 Memorial Auditorium Wichita Falls, Texas 76301 Phone: (940) 761-7625 Fax: (940) 761-7626 Attorney for City