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Home My WebLink About20190500.tiffMEMORADUM To: Bruce Barker, Weld County Attorney From: Karin McDougal, Assistant Weld County Attorney Date: January 10, 2019 Re: Substitution of Weld County and the Board of County Commissioners for the Office of Clerk for Weld County and Carly Koppes. As part of the attached settlement agreement, the parties have agreed to substitute Weld County and the Board of County Commissioners for the originally named Defendants, the Office of the Clerk for Weld County and Carly Koppes, and with this substitution, dismiss those original Defendants. The reason for the substitution is administrative. Weld County as the political body, agency of the State and legal entity under which the Weld County Clerk and Recorder resides is the proper entity for suit in this case. As stated below, the Charter provides that the County is the entity that shall exercise the powers and functions as provided by law. "Except as this Charter provides to the contrary, Weld County shall exercise and provide all mandatory and permissive county powers and functions as provided by law and shall have all rights and powers now or hereafter granted or allowed by the laws of the United States and under the Constitution and laws of the State of Colorado for exercise by counties." Section 30-11-101, C.R.S, which outlines statutory powers for counties provides additional guidance on this issue. It states that each county organized within the state shall be the body corporate and political and it shall be empowered with a variety of powers including to sue or be sued. Therefore, the County itself is the proper entity to name in the lawsuit. The Board of County Commissioners is then also named, as it is the entity charged with litigation decisions for the County. Weld County is the legal entity for suit, but all the executive, administrative, and legislative powers, functions, duties and prerogatives are vested with the Board of County Commissioners, including the power to approve the County's annual budget and emergency appropriation. Because of these powers the Board of County Commissioners is also the proper entity to be named in the suit as they have the final say over administrative and financial matters of the County. 2ICa11°l 2019-0500 CRc o Co SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Agreement") is entered into by and between Elise Kunkel ("Releasor") and Weld County, Colorado, acting by and through its Board of County Commissioners ("Weld County"). For purposes of this Agreement, Weld County shall include all past, present and future elected officials including but not limited to the Clerk and Recorder, County Commissioners, appointees, directors, managers, employees, agents, representatives, insurers, attorneys and self- insurance pools (collectively, the "Releasees"). Releasor and Releasees are collectively referred to in this Agreement as "the Parties.' RECITALS A. Releasor was an employee of Weld County working in the Office of the Clerk and Recorder from May 22, 2000, until approximately June 21, 2016, at which point in time she began working in another Weld County office, In this Agreement, all elements of all events involving any interaction between Releasor and Releasees, at any time whatsoever before the date of this Agreement, shall be included and encompassed by any reference to the "Incident." B. On December 27, 2017, Releasor filed a Complaint and Jury Demand with the United States District Court for the District of Colorado, Civil Action No. 17-cv- 03141-KLM (the "Lawsuit"). The Lawsuit brings four federal and state law claims for relief arising from allegations related to Releaser's employment within the Office of the Clerk and Recorder in Weld County. C. Releasees deny each and every claim of wrongdoing and impropriety of any kind, however asserted by Releaser in the Lawsuit related to her employment by Weld County, including specifically her allegations against the Clerk and Recorder. D. The Parties now wish to resolve their disputes on the terms and conditions described herein, without any acknowledgement of liability or wrongdoing by Releasees or their elected officials, including the Clerk and Recorder, or other employees. E. The Parties Intend by this Agreement to enter into a settlement dismissing with prejudice all claims or potential claims arising from the Incident, as well as to secure the complete and absolute release of any and all claims that are or could have been made with respect to Releaser's employment with Releasees, on the terms and conditions set forth in this Agreement. 35821 6.1 Settlement Agreement and Release Er.lisa Kunkel v. Weld County Page 2 of 10 TERMS The Parties hereby agree as follows; 1. Dismissal of Claims As an initial matter, each Party has agreed to stipulate to the substitution of the Board of County Commissioners for Weld County as the sole Defendant in place of the previously named defendants in the Lawsuit, who will be voluntarily dismissed with prejudice as a first step in the effectuation of this Agreement. Each Party also agrees that this Agreement shall resolve each and every issue concerning the Lawsuit to be dismissed as described herein, each Party also represents and warrants, that as a result of this Agreement, the parties, upon receipt by Releasor of the settlement payment described in paragraph 6 below, will submit a Joint Stipulated Motion to Dismiss the Lawsuit, with prejudice, each Party to bear his or its own costs and fees, including attorney fees, to seek the complete dismissal of the Lawsuit in its entirety. 2. Agreement Respecting Continued Employment Releaser ceased employment within the Office of the Clerk and Recorder on or about June 23; 2016. Since then, Releasor has remained employed by Weld County within another office. Releaser understands end agrees that she will not be re-employed in any position within the Office of the Weld County Clerk and Recorder, and agrees that she will not knowingly apply for any job or position in the Office of the Weld County Clerk and Recorder, until after such time as Carly Koppes no longer holds the elected position of Clerk and Recorder. Releasor agrees that should she knowingly or unknowingly apply for any position within the Office of the Weld County Clerk and Recorder while Carly Koppes remains the elected Clerk and Recorder, and if she is ever offered or accepts any position with the Office of the Clerk and Recorder during this time period, any such offer may be withdrawn and Releasor may be terminated from the position without notice, cause, or legal recourse. This agreement does not limit Releaser's ability to maintain or seek employment for any position with Weld County other than within the Office of the Clerk and Recorder during the time Carly Koppes remains the elected official for that office. When Ms. Koppes ceases to hold the position of Clerk and Recorder, Releaser may apply for any positions that may be available in the Office of the Clerk and Recorder through the standard procedures for other applicants. This Agreement does not provide any guarantee of employment to Releasor for any future position to which she applies. The parties understand and agree nothing in this Agreement shall confer upon Releaser the right to continued employment or otherwise constitute a contract of employment that would alter her at -will employment status for her present position or affect any right which Weld County may have to terminate her employment in the future. Settlement Agreement and Release Elise Kunkel v. Weld County Page 3 of 10 3. Complete and Unqualified Release of All Claims, Actual and Potential This Agreement is intended by the Parties to constitute a complete and unqualified release of all claims, actual and potential, whether or not already asserted by Releasor in the Lawsuit, any other civil action, any administrative proceeding, or elsewhere. The commitments of the Parties that follow establish the basis for the Agreement and the resultant release. 4. Full Release of Liability and Commitments from Releaser In consideration of a share of the payment provided in this Agreement, Releasor hereby releases and forever discharges Releasees from any and all past, present, or future claims, demands or obligations, actions, causes of actions, claims for loss of services, damages, casts, expenses, and compensation of any nature whatsoever, that Releaser now has, or that may hereinafter accrue or otherwise be acquired, on account of, or in any way growing out of the Incident, including, without limitation, any and all known and unknown claims for personal injuries of Releaser and the consequences thereof, payment of healthcare expenses, and claims for past and future loss of income which have resulted or may result from any alleged wrongful acts or omissions of any Releases. This release and discharge includes, but is not limited to, all claims contained in any Notice of Claim or Charge of Discrimination, and any claim that could ever be asserted in any court of law regarding any act or omission arising out of, or relating to Releasor's employment with Weld County. Specifically, but not by way of limitation, this Agreement includes any conceivable claim under: • The Equal Pay Act. • Title VII of the Civil Rights Act of 1964. • The Americans with Disabilities Act. 1973, • The Fair Labor Standards Act. • The Post -Civil War Reconstruction Acts (42 U.S.C, §§ 1981-1988). a The Rehabilitation Act of • The Civil Rights Act of • The Family and Medical 1991. Leave Act • The National Labor Relations Act. • The Age Discrimination in Employment Act and Older Worker Benefits Protection Act. • The Employee Retirement Income Security Act. • Any other federal statute. • Any state civil rights act. • Any state wage claim, • Any other state statute. 3 Settlement Agreement and Release Elisa Kunkel v, Weld County Page 4 of 10 • Any claim of retaliatory • Any claim of wrongful • treatment. discharge against public policy or any other tort. • Any state or federal Constitutional provision. • Any claim seeking declaratory, injunctive, or equitable relief. Any claim for breach of contract or for violation of the covenant of good faith and fair dealing. • Any other claim of any type whatsoever, arising out of federal, state or local law. This release and discharge shall be a fully binding and complete settlement with respect to the Incident, as to the Parties to this Agreement and all Parties represented by or claiming through such Parties. Releasor understands injuries perhaps were suffered with respect to the Incident that may be unknown at the present and that unknown complications may arise in the future, Releaser acknowledges that the sum paid in consideration of this Agreement is intended to and does release and discharge any claims in regard to any unknown or future injuries and complications. Further, Releaser expressly stipulates and agrees, in consideration of the payment provided herein, to indemnify and hold harmless all Releasees against any loss from any further claims, demands or actions that may subsequently be brought by Releasor or anyone acting on her behalf or in her stead with respect to the Incident. Releaser further states that she shall not bring any lawsuit or proceeding against any Releasees for any matter in any way related to the Incident, Releasor hereby asserts and affirms that no one received any Medicare or Medicaid support of any kind or nature in conjunction with any aspect of any claim or contention associated in any way with the Incident, and that no one received any conditional payment of any kind or nature from Medicaid or Medicare in conjunction with any such claim or contention, Releasor also hereby states that no person has any lien against the settlement amounts paid under this Agreement, other than her attorney of record. To any extent there are any liens, Releaser agrees to satisfy any lien. Releaser further also warrants that no person, party, or other entity not mentioned in this Agreement received any assignment, subrogation, or other right of substitution to the claim or claims made or that could have been made and asserted against Releasees, Releaser understands and agrees that, in the event any payment is sought or becomes due as a result of any claim or lien from anyone, including without limitation any doctor or other healthcare practitioner, hospital, lender or lending institution, insurer, governmental or quasi -governmental agency, Medicare. Medicaid, attorney or firm, or other individual or entity who accrued any right to payment through Releaser, including anyone who rendered any care to, paid for any care for, tent money to, or represented Releasor or anyone associated with Releaser at any time in relation 4 Settlement Agreement and Release Elise Kunker v. Weld County Page 5 of 10 to the Incident, Releasor, not Releasees, shall pay any amount determined to be due pursuant to any such claims or liens, and Releaser agrees and covenants to hold harmless, indemnify, and defend Releasees from any claims for any such amounts in every respect. 5. Claims under 29 U.S.C. Sections 621 et seq. Releasor understands with respect to any rights or claims that she has or may have arising under the Age Discrimination in Employment Act, 29 U.S.C. 621, et seq„ that all of those rights or claims are released by this Settlement Agreement and Release. Releasor further understands that she has waived her period of at least twenty-one (21) days within which to consider this Agreement before she signed it if this Agreement is signed before the expiration of this twenty-one (21) day period, and that she has seven (7) days following his execution of this Agreement to revoke the Agreement to the extent that it waives and releases those rights or claims. Releasor understands that this Agreement is not effective or enforceable with respect to the waiver or release of those rights or claims until after the seven (7) day period, If Releasor elects to revoke this Agreement with respect to her waiver of rights or claims arising under 29 U.S.C. 521, et seq. within the seven (7) day period, she must advise Releasees by delivering a written notice of revocation to Christina Gunn of Hall & Evans, L.L.C., 1001 17th Street, Suite 300, Denver, Colorado 80202. For the revocation to be effective, the written notice must be received by Ms. Gunn no later than 5:00 p.m, on the seventh (7th) calendar day after signing this Agreement. RELEASEE ACKNOWLEDGES THAT SHE HAS BEEN ADVISED BY LEGAL COUNSEL IN RELATION TO THIS AGREEMENT. 6, Covenant Not to Sue Releaser agrees not to sue, or to assert any federal or state cause of action, of any kind or nature, at law or in equity, whether before a court of law or an administrative agency, against Releasees for any claims, causes of action, liabilities, expenses, or damages arising out of any acts by any such person or entity arising out of, or relating to the Incident, whether or not raised in any prior writing. 7. Payments Within thirty (30) days of the full and complete execution of this Agreement by Releaser and her counsel, Weld County will pay a total sum of Four thousand five hundred dollars and no/100 ($4,500.00) in full and final settlement of any and all claims asserted by Releaser against Releasees. Weld County will issue Iwo checks payable as follows: 1) to the trust account of counsel for Releaser for $1,800.00, and 2) to Elise Kunkel for $2,700.00. The checks will separately be sent to each payee by U.S. Certified Mail with return receipt to be i?S2IIG.I 5 Settlement Agreement and Release Elise Kunkel v. Weld County Page 6 of 10 executed by each payee. Releaser is responsible for distribution of any settlement funds to Releaser, her counsel, and any others entitled to some share of that amount. Releaser will satisfy any lien or claim that might exist out of the settlement proceeds. Releasees do not participate in any allocation of the settlement payment between Releaser and anyone else, including attorney who may be entitled to fees Or costs. Releasor shall be responsible for any reporting necessary to any court or government agency respecting the settlement payment described in this Agreement. 8. Agreement Respecting Taxes Releaser is solely responsible for any and all federal, state, or local taxes claimed or owed as a result of any settlement payment described in this Agreement. Releasees withhold no taxes from the payment and make no representation and take no position as to the taxability or non -taxability of any payment. Prior to payment, a fully executed IRS Form W-9 shall be executed and provided by the Releaser and her attorney respecting any payment from Releasees, A Form 1099 will be issued for any payment made, as appropriate, If Releasees are ever found responsible for any tax liability arising from any failure of Releaser to satisfy any tax liability she may owe on any payment described herein, Releaser agrees to defend, indemnify, and hold Releasees harmless for any tax, interest, or penalty assessed on a tax liability owing by Releaser, within twenty-one (21) days after receipt of notice of the tax liability by Releasees, or following such longer period of time es specified by the taxing authorities; provided that Releaser reserves the right to defend and oppose, lawfully and appropriately, any asserted tax liability. 9. Final Compromise: No Admissions The Parties agree and acknowledge that payment of the sum specified in this Agreement is accepted as a full and complete compromise, of matters involving the Incident; that neither payment of the sum nor the negotiations of this Agreement (including all statements, admissions, or communications) by the Parties and their attorneys or representatives shall be considered admissions by anyone; end, that no past or present wrongdoing on the part of anyone shall be implied by such payment or negotiations. Releaser also expressly agrees that the terms and conditions of this Agreement shall not constitute and shall not be asserted to constitute any admission respecting any facts or liability for claims regarding any aspect of this dispute. The Parties intend that this Agreement attain and receive the broadest possible application and interpretation to support the finality, release, and settlement of any past or existing dispute between the Parties regarding the Incident. 10. No Lawsuits As a first step in the implementation of this Agreement, and in exchange for a part of the consideration described in Paragraph 6 above, Releaser hereby states and directs that there is not and shall not be any lawsuit filed against Releasees by anyone ,5S"I16.1 6 Settlement Agreement and Release Elise Kunkel v. Weld County Page 7 of 10 in connection with any claim by Releasor associated with the Incident. To any extent any lawsuit related in any way to the Incident is ever initiated against the Releasees in the future in any court, the Parties agree that Releasees may file an unopposed motion to dismiss with prejudice in relation to any such lawsuit, and that the matter shall then be dismissed by the Court with prejudice. 11. Integration Clause This Agreement contains the entire agreement of the Parties with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the parties hereto, jointly and severally, and the executors, administrators, personal representatives, heirs, and successors of each. 12. Jurisdiction This Agreement is entered into in the State of Colorado and shall be construed and interpreted in accordance with its laws. 13. Velyntar\r Acceptance AFTER DUE DELIBERATION, RELEASOR VOLUNTARILY DECIDES TO ENTER INTO THIS AGREEMENT, RELEASOR REPRESENTS THAT SHE IS COMPETENT TO ENTER INTO THIS AGREEMENT, THAT SHE HAS READ ALL OF THE TERMS OF THIS AGREEMENT IN FULL, THAT SHE WAS AFFORDED THE OPPORTUNITY TO RETAIN LEGAL COUNSEL TO EXPLAIN THE MEANING AND THE LEGAL SIGNIFICANCE OF EACH AND EVERY TERM OF THIS AGREEMENT, THAT SHE DID RETAIN THE SERVICES OF LEGAL COUNSEL FOR THIS PURPOSE. THAT SHE FULLY UNDERSTANDS AND VOLUNTARILY ACCEPTS THOSE TERMS AFTER RECEIVING COUNSEL, AND THAT SHE SIGNS THIS AGREEMENT WITHOUT DURESS OR UNDUE INFLUENCE. 14. Cooperation of Parties All Parties agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect lo the basic terms and intent of this Agreement, and that are not inconsistent with its terms. 15. Modification or Amendment No provision of this Agreement shall be modified or amended except pursuant to a writing signed by each of the Parties executing this Agreement, 3582116A 7 Settlement Agreement and Release Elise Kunkel v. Weld County Page 8 of 10 READ BEFORE StGN(NG! Elise Kunkel STATE OF COLORADO ) ss. COUNTY OF WELD SUBSCRIBED AND SWORN TO before me this 6 t b day of _Jan tia ' y , 2011_, by the person known to me as Elise Kunkel. Witness my hand and official seal. My commission expires:., .�t� c cla 0, 2 0 21 Notgty Public, JUil-y 1't. 130ker JUDY M. Dr,ukER U` COLORADO LORADO NOT/ Sid ';_;0':),IiJQrr';a I:{!Y Gtl1t:`�;ft/ tt1 ExP.i,ia W. 2021 35S2116, I 8 Settlement Agreement and Release Elise Kunkel v Weld County Page 90114 For Defendant: Bar ara Kirkmeye,iChair of he Board of County Commissioners for Weld County, Colorado STATE OF COLORADO Ss. couNrY of SUBSCRIBED AND SWORN TO before me this ay 20'1 `f_ by the person known to me as Barbara Kirkmeyer Witnd sJmy hand and official seal. My c mansion expires DIANE K. BECKMAN NOTARY PUBLIC STATE OF COLORAD NOTARY ID 1992407.3 MY COMMISSION EXPIRES OCT. ;5821 lo, 7 9 blic Settlement Agreement and Release Elisa Kunkel v. Weld County Page 10 of 10 APPROVED AS TO FORM: Robert Mark Liechty, Esq. Robert M Liechty PC 5105 DTC Parkway Suite 475 Greenwood Village, CO 80111-2784 Attorneyor Elisa Kunkel Christina S. Gunn, Esq. Gillian Dale, Esq. Hall & Evans, 1001 Seventeenth Street, Suite 300 Denver, CO 80202 Attorneys for Weld County, Colorado 10 Hello