Adam Moniz: ‘Voting to ratify the proposed Settlement Agreement with Rich Guillen…would result in rewarding a wrong-doer; would reflect the utmost of fiscal irresponsibility; would set a dangerous precedent as to any future attempts by the City to enforce its harassment policy; would be a dereliction of your individual duties as sworn public officials; would be wholly inconsistent with the values of our small and close-knit community’

ABSTRACT: At the 5 April 2011 City Council Meeting, former mayoral candidate and resident Adam Moniz pulled Item J. Ratify Settlement Agreement between the City of Carmel-by-the-Sea and Richard Guillen, City Administrator from the Consent Calendar. Item J was placed at the end of the agenda. Adam Moniz’s remarks are reproduced. At the end of Moniz’s remarks, Council Members had no comments; furthermore, Council Members and the City Attorney Don Freeman did not address Adam Moniz’s questions. The City Council voted unanimously to ratify the Settlement Agreement between the City and Rich Guillen.

Thank you very much Mayor McCloud and Members of the City Council for allowing me to pull this item.

Don is entirely correct. What he didn’t point out however is that there was never an opportunity for public comment on that so we are going to take this opportunity to serve that purpose.

I would like to start by showing you the current Monterey County Weekly that came out this week. Specifically I am going to turn and read to you from page 13: “all totaled, Guillen’s tally of harassment victims cost the City more than $1 million.” I want to make sure that everyone watching or listening understands the context of what’s happening right now. The City is getting ready to pay out more money. In other words, we’re going to add to that already over $1 million figure. What I am objecting to on principle is not necessarily the amount, though it’s significant, rather it’s who you want to give this money to. And why you want to pay out city money to Rich Guillen himself, I think it’s preposterous.

Generally speaking, best practices dictate that a proposed settlement should be memorialized and reduced to writing at the earliest possible moment.

QUESTION #1: Why did approximately a full month and a half elapse between the time Guillen announced his retirement in mid-February, and the time he signed the proposed Settlement Agreement at the tail-end of March?

QUESTION #2: Why is the City trying to approve a Settlement Agreement with Guillen Now, on April 5, 2011, nearly a week after Guillen has already retired and has already left? It strikes me that there is a better use of City money than throwing it at a problem that appears to have already resolved itself. This is especially true in these challenging economic times, when our village’s business district is still a far cry from being vibrant, when our city’s Scout House still remains ADA un-compliant, and when residential streets throughout Carmel could arguably hold the collective record for the most pot-holes in a 1.1 square mile area. My point – we could do a lot of good with this money by spending it to help our residents and local business owners, instead of giving it away to someone who quite frankly doesn’t deserve it. If you ask me, I think Rich Guillen should give the City of Carmel money, instead of the other way around.

Now let’s turn to the proposed Settlement Agreement itself...

Section 4, subpart E, of the proposed Settlement Agreement states as follows:

“Carmel will respond to any and all inquiries regarding Guillen’s employment by directing Carmel’s head of Human Resources to provide Guillen’s date of hire, date of retirement and his last position before retirement.”

QUESTION #3: What is the name of the person who currently holds the position of Carmel’s “head of Human Resources?”

Section 11, which states as follows:

“The terms of the Agreement reflect a compromise settlement of disputed claims arising from Guillen’s employment with Carmel.”

QUESTION #4: What specifically are the “disputed claims arising from Guillen’s employment with Carmel,” as that phrase is used in Section 11 of the proposed Settlement Agreement?

QUESTION #5: Again referencing Section 11 of the proposed Settlement Agreement -- do you believe that the generic reference in Section 11 to the undefined phrase “disputed claims” is vague? If you do not believe it’s vague, then please explain your personal interpretation or what you believe the specific “disputed claims” are.

For any one of the eight following reasons, you should each vote tonight to not ratify the proposed Settlement Agreement with Rich Guillen.

Voting to ratify the proposed Settlement Agreement with Rich Guillen:

1. would result in rewarding a wrong-doer;

2. would add insult to injury, especially for the victims and their families;

3. would reflect the utmost of fiscal irresponsibility;

4. would further divide our community, at a time when I believe we need to come together more than ever, for the common good;

5. would further exacerbate the loss of public confidence in the elected members of the Carmel City Council;

6. would set a dangerous precedent as to any future attempts by the City to enforce its harassment policy or revised harassment policy;

7. would be a dereliction of your individual duties as sworn public officials;

8. And, lastly, voting to ratify the proposed Settlement Agreement with Rich Guillen would be wholly inconsistent with the values of our small and close-knit community.

Finally, following public comment on this matter, many of you may try to convince the public that Guillen is entitled to this money under his original contract that has been in place for a number of years; that is irrelevant to this conversation. Further, such an argument is unpersuasive. There are a multitude of reasons why that contract provision is unenforceable at this point in time. If any member of the council does not fully understand and appreciate why and is still unconvinced that they should vote no, then at an absolute minimum you need to move that this matter be continued so you have time to do your homework and due diligence, instead of giving away more taxpayer money.

Council Members and the City Attorney had no comments and made no attempt to address any of Adam Moniz’s questions.

Council Member TALMAGE moved to approve Consent Agenda Item J, seconded by Council Member BURNETT and carried by the following roll call vote:

AYES: COUNCIL MEMBERS: BURNETT; HAZDOVAC; SHARP; TALMAGE & McCLOUD
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE

SOURCE:
Archived Video, Regular City Council Meeting, April 05, 2011, 04:07:35 – 04:15:25

ADDENDUM:
KION Video: Carmel City Manager Done, Gets Settlement For Retiring
Posted Apr 05, 2011 5:49 PM PDT Updated: Apr 05, 2011 7:42 PM PDT
By Brooke Holmquist
KION CENTRAL COAST NEWS
Duration: 2:21

KION Article: Carmel City Manager Done, Gets Settlement For Retiring
Posted Apr 05, 2011 5:49 PM PDT Updated: Apr 05, 2011 7:42 PM PDT
By Brooke Holmquist
KION CENTRAL COAST NEWS

Highlights, as follows:
Adam Moniz: "I think a city policy should be that Carmel government does not reward a wrong do-er and that's what they are getting ready to do tonight."

City Council Member Jason Burnett: "This is part of his original contract that has been in place for a number of years that provides that if he resigns or retires he is provided 6 months severance."

“But Burnett said the community should consider, this option could be the lesser of three evils.

Guillen could still be there. If he chose to stay, a majority vote would be needed to terminate him. And, if council did terminate him, he wouldn't get the severance package, but he could have sued.”

Adam Moniz: "That's irrelevent, it's about what's good for the city and the city should not be rewarding a wrong-doer.”

SETTLEMENT AGREEMENT AND GENERAL RELEASE between Richard Guillen & City of Carmel-by-the-Sea

ABSTRACT: On the 5 April 2011 Regular City Council Meeting Agenda, Consent Calendar (“routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action”), Item J concerns the Settlement Agreement between the City and Rich Guillen, City Administrator, as follows: J. Ratify Settlement Agreement between the City of Carmel-by-the-Sea and Richard Guillen, City Administrator. Excerpts from the Agenda Item Summary are presented and the SETTLEMENT AGREEMENT AND GENERAL RELEASE is reproduced.

Regular Meeting
Tuesday, April 5, 2011
4:30 p.m., Open Session

Live & Archived video streaming

City Hall
East side of Monte Verde Street between Ocean and Seventh Avenues

VII. Consent Calendar
These matters include routine financial and administrative actions, which are usually approved by a single majority vote. Individual items may be removed from Consent by a member of the Council or the public for discussion and action.

J. Ratify Settlement Agreement between the City of Carmel-by-the-Sea and Richard Guillen, City Administrator.

City Council
Agenda Item Summary

Description: Agreement reached between the City Council and the City Administrator on February 15, 2011.

Overall Cost:
City Funds: Six months severance pay and health benefits as specified

Staff Recommendation: Authorize Mayor to sign agreement.

Important Considerations: The Settlement was negotiated by the Council on February 15, 2011 and has been reviewed by the City Attorney.

NOTE: Six months severance pay and health benefits amounts to approximately $100,000.


SETTLEMENT AGREEMENT AND GENERAL RELEASE

1. This Settlement Agreement and General Release (“Agreement”) is made and entered into by and between Rich Guillen (“Guillen”) and the City of Carmel-by-the-Sea (“Carmel”).

2. Guillen was hired by Carmel as an interim City Administrator on October 9, 2000, and then hired as the permanent City Administrator on January 1, 2001. On February 15, 2011, Guillen announced his retirement from his position. Guillen and Carmel have decided to resolve any and all issues arising from Guillen’s employment with Carmel in a cooperative manner pursuant to the terms and conditions set forth in this agreement.

3. The parties to this Agreement are Guillen and Carmel, each of whom expressly deny liability to each other.

4. In exchange for the following good and valuable consideration, and the promises set forth herein, the parties hereby agree to the following terms:

a. Effective upon the hiring of a successor to the City Administrator’s position or on March 31, 2011, whichever occurs earlier, Guillen will officially retire from his position with Carmel.

b. Guillen will receive six months severance pay from the date he is replaced, or after March 31, 2011, whichever is earlier.

c. Guillen will receive health benefits for the duration of his severance period unless he finds another job that provides health insurance.

d. Guillen will receive no additional wages or any other benefits from Carmel other than as specifically set forth in this Agreement.

e. Carmel will respond to any and all inquires regarding Guillen’s employment by directing Carmel’s head of Human Resources to provide Guillen’s date of hire, his date of retirement and his last position before retirement.

f. Carmel’s official files concerning Guillen will be treated as confidential pursuant to Carmel policy and California law. Guillen’s personnel records will be made available only to authorized persons within the City as necessary, but Carmel will not make his personnel records available to any third party absent a court order or a signed authorization from Guillen granting Carmel permission to release those records.

5. In consideration for the full and timely performance of all terms and conditions of this Agreement, Guillen, for and on behalf of himself, and his respective heirs, administrators, executors, insurers, principals, agents, partners, employees, representatives, attorneys, officers, directors, parents, spouses, guardians, conservators, assigns, subsidiaries, predecessors in interest, successors in interest, or affiliates, hereby agrees to completely release and fully discharge Carmel, together with its principals, agents, officers, directors, partners, council members, employees, assigns, subsidiaries, predecessors in interest, successors in interest, affiliates, representatives, insurers and attorneys, and any other person, firm, entity or corporation with whom any of the former have been affiliated of and from any and all rights, claims, demands, causes of action and damages, compensatory, exemplary or other, that Guillen had, now has, or in the future may have of any kind, whether the same be now known or unknown, anticipated or unanticipated, which arise from the scope of Guillen’s employment with Carmel, except for obligations and duties arising from this Agreement. However, notwithstanding the foregoing, Guillen retains the right to exercise his rights under Government Code § 995.

6. Guillen hereby relinquishes and waives all rights conferred upon him by the provisions of Section 1542 of the Civil Code of the State of California, which reads as follows:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT 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.”

Guillen acknowledges that he is aware that he may hereafter discover facts different from or in addition to those which he or his attorneys now know or believe to be true with respect to the matters released in Paragraph 5 above, and agree that the releases so given in Paragraph 5 above will be and remain in effect as a full and complete release of the respective claims, notwithstanding any such different or additional facts. However, notwithstanding the foregoing, Guillen retains the right to exercise his rights under Government Code § 995.

Guillen acknowledges and agrees that these waivers are essential and material terms of this Agreement and the release provisions contained herein, and that without such waivers the settlement described in this Agreement would not have been entered into.

7. At the time of the execution of this Agreement, Guillen represents the following:

One: Guillen has no outstanding claims or suits filed or potential claims or suits contemplated to be filed against Carmel at the time of the execution of this Agreement.

Two: Guillen represents that he is of good health and has at the time of the execution of this Agreement no known or anticipated on-the-job injuries or illnesses.

The foregoing representations are material representations to Carmel to enter into this Agreement and the enforceability of this Agreement is conditioned upon the truth and accuracy of those representations.

8. At the time of the execution of this Agreement, Carmel represents that it is not aware of any outstanding claims or suits filed or potential claims or suits contemplated to be filed against Guillen or Carmel which arise from Guillen’s employment with Carmel.

9. As a further and material consideration for this settlement, Guillen will cooperate with Carmel in its defense against any claim or legal action which arises in any way from his employment with Carmel.

10. In executing the Agreement, the parties have not relied on statements or representations regarding their rights and claims for damages. On the contrary, the parties have considered all of these matters themselves and have relied entirely on their own judgment and consultation with counsel.

11. The terms of the Agreement reflect a compromise settlement of disputed claims arising from Guillen’s employment with Carmel. The terms of settlement reflected in the Agreement are not to be considered as an admission by Guillen of any responsibility whatsoever, in whole or in part, for any claims concerning Guillen’s employment.

12. Guillen and Carmel acknowledge and agree that they will bear their own costs, expenses and attorney’s fees arising out of the negotiation, drafting and execution of the Agreement, except that in the event any action is brought, or any order of judgment is obtained by Guillen or Carmel to enforce the Agreement, the prevailing party shall by entitled to reasonable attorney’s fees and costs in addition to all other relief to which that party may be entitled.

13. This Agreement contains the sole and entire agreement and understanding of Guillen and Carmel with respect to the entire subject matter hereof, and no other agreement, oral or written, will be deemed to exist or to bind them.

14. Guillen warrants that he is the owner and holder of the claims released; that he has the power and authority to make the representations and execute the releases contained in this Agreement; that he has made no assignment and will make no assignment of any claims, cause of action or right embodied in any of the claims that are the subject of the Agreement; and that no person or entity of any kind including any known or unknown heirs or executors may have or has any interest in any of the demands, obligations, actions or causes of action, debts, liabilities, rights, contracts, damages, attorneys fees, costs, expenses, losses or claims to which this Agreement applies.

15. The provisions of the Agreement are intended to be binding on Guillen and Carmel, and their respective assigns, successors, agents, heirs, beneficiaries, insurance carriers and representatives.

16. This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced, and covered under the laws of California.

17. Guillen and Carmel agree that each negotiated and contributed equally to the drafting of this Agreement and that no one party is deemed to have drafted it.

18. Guillen and Carmel agree that no provision hereof may be waived unless in writing, signed by Guillen and Carmel. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.

19. This Agreement may be enforced by any party hereto by a motion under Code of Civil Procedure section 664.6 or by any other procedure permitted by law in the Superior Court of the State of California for the County of Monterey.

20. This Agreement may be executed in counterparts.

THE UNDERSIGNED HEREBY CERTIFY to have read this entire Agreement, consisting of five (5) pages. The undersigned fully understand the terms and consequences of this Agreement, and whereof, have executed this Agreement.

Dated: __3-29-11____

By: ______________(signed)
Rich Guillen

Dated:____________

By:_______________
Sue McCloud, Mayor
City of Carmel-by-the-Sea


Approved as to form:

Dated: __3/29/2011_

SPIERING, SWARTZ & KENNEDY

By: ____________(signed)
Andrew H. Swartz

Dated:__________

KENNEDY, ARCHER & HARRAY

By:_____________
Jon R. Giffen


Approved as to form:

Dated:_____________
SPIERING, SWARTZ & KENNEDY

By:________________
Andrew H. Swartz

Dated:__March 29, 2011_

KENNEDY, ARCHER & HARRAY

By:______________(signed)
Jon R. Giffen

ADDENDUM:
Agenda Packet
City Council
Regular Meeting
Tuesday, April 5, 2011