HomeMy WebLinkAboutHarvey, Alan E. Settlement Agreement - 0205182I
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-40--3091-
SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR JEFFERSON COUNTY
Alan E. Harvey, ) Case No.: 17-2-00216-16
Plaintiff,
vs.
JEFFERSON COUNTY, a political) SETTLEMENT AGREEMENT
subdivision of the State of Washington, )
Defendant.
WHEREAS, Plaintiff Alan E. Harvey ("Mr. Harvey") made a Public Records Request on
November 17, 2016 ("the Request"); and,
WHEREAS, Mr. Harvey has asserted claims in this lawsuit that Jefferson County ("the
County") violated the Public Records Act by failing to provide records responsive to the Request
in a timely manner; and,
WHEREAS, the Mr. Harvey and the County (collectively "the Parties") wish to settle and
resolve Mr. Harvey's claims and potential claims arising out of, or relating to, the Request and this
lawsuit, subject to the terms and conditions in this Agreement; and,
WHEREAS, the purpose of this Agreement is to forever settle and resolve the disputes,
claims and controversies between and among the Parties, existing as of the date the last Party signs
this Agreement.
NOW THEREFORE, the Parties by and through their signatures agree to settle on the
following terms:
1. Consideration. The Parties agree as follows:
SETTLEMENT AGREEMENT Michael Haa!
PAGE I Jefferson County Prosecuting Attorney
1820 Jefferson SuwVP.O. Box 122(
Port Townsend, WA 9836£
(360) 385-918(
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1.1. Within 5 days of his execution of this Agreement, Mr. Harvey's counsel shall
provide counsel for the County the exact name of the payee for the settlement check to be issued
in accordance with Section 1.2 and the address to which the settlement agreement is to be sent.
1.2. Within 10 days of its execution of this agreement, the County shall pay Fifty
Thousand Dollars ($50,000.00) to Mr. Harvey in full settlement of all claims in this matter.
1.3. Upon Mr. Harvey's receipt of full and final payment of the full settlement amount
set forth in Section 1.2 and fully executed copies of this Agreement are exchanged between the
Parties, the Parties shall promptly sign and cause to be entered a Stipulated Order of Dismissal of
all claims in this Lawsuit with prejudice and without costs or fees.
2. Release. Mr. Harvey releases all claims against the County, its elected officials,
employees, officers, attorneys, and departments arising from the Request, as well as any other
claims for damages, debts, losses, expenses, warranty, attorney's fees, rights of action, and causes
of action, whether statutory, contractual, based in tort, and whether at law or in equity, past, present
or future, known or unknown, that may exist on the date the last Party signs this Agreement.
3. Representations and Warranties. The Parties represent and warrant as follows:
3.1. That Mr. Harvey expressly has the authority to execute this Agreement and that this
Agreement as so executed shall be binding upon Mr. Harvey, his heirs, executors, administrators,
agents, representatives, successors, and assigns;
3.2. That, upon approval of the Board of County Commissioners, the County expressly
has the authority to execute this Agreement and that this Agreement as so executed shall be binding
upon the County, its agents, representatives, successors, and assigns;
3.3. That the representations, terms, and conditions of this Agreement shall endure
forever and shall survive the execution of this Agreement and the settlement of the claims
described in it; and,
3.4. That the Parties have read and fully understand and assent to the representations,
terms, and conditions of this Agreement.
4. General Conditions. The parties agree to the following general conditions.
s
SETTLEMENT AGREEMENT Michael Haa
PAGE 2 Jefferson County Prosecuting Attome,
1820 Jefferson Street/P.O. Box 1221
Port Townsend, WA 9836
(360) 385-9181
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4.1. Controlling Law. It is understood and agreed that this Agreement is entered into in
the State of Washington. It is agreed that this Agreement shall be governed by and construed in
accordance with the laws of the United States and of the State of Washington as if applied to
transactions entered into and to be performed wholly within Washington between Washington
residents. No Party shall argue or assert than any law other than Washington law applies to the
governance or construction of this Agreement.
4.2. Entire Agreement. No representation or promise not expressly contained in this
Agreement has been made. The Parties to this Agreement further acknowledge that they are not
entering into this Agreement based on any promise or representation, expressed or implied, which
is not expressly contained in this Agreement. This Agreement supersedes any prior agreement
with respect to those subjects embraced within this Agreement. This Agreement memorializes the
entire agreement of the Parties.
4.3. No Assignment. The Parties represent, warrant and agree that they have not
assigned, transferred, conveyed, encumbered or in any manner otherwise disposed of all or any
portion of the claims, actions, causes of action, suits, potential causes of action, demands, disputes,
rights, obligations, or interests of any nature or kind whatsoever covered by this Agreement,
whether before or after they occurred, regardless of whether they have occurred as of the date of
this Agreement.
4.4. No Inducements. The Parties acknowledge that there have been no inducements or
representations upon which any of the Parties have relied entering into this Agreement, except as
expressly set forth in this Agreement.
4.5. No Third -Party Beneficiaries. The Parties do not intend, and nothing in this
Agreement shall be construed to mean, that any provision in this Agreement is for the benefit of
any person or entity who is not a Party.
4.6. Modification of this Agreement. This Agreement may be amended or
supplemented only by a writing that is signed by duly authorized representatives of all the Parties.
SETTLEMENT AGREEMENT
PAGE 3
Michael Haa
Jefferson County Prosecuting Attome,
1820 Jefferson Street/P.O. Box 122(
Port Townsend, WA 98361
(360) 385-918(
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4.7. Signature in Counterparts. The Parties agree that separate copies of this Agreement
may be signed by each of the Parties and this Agreement will have the same force and effect as if
all the Parties had signed the original.
4.8. Facsimile Signatures. The Parties agree that facsimile signatures sent by fax or
email will have the same force and effect as original signatures.
4.9. Cooperation. The Parties agree that they shall facilitate, in good faith, the
effectuation of this Agreement.
4.10. Voluntary Undertaking. The Parties acknowledge that they have read this
Agreement and are fully aware of the contents of this Agreement and its legal effect.
4.11. Investigation and Complete Understanding_ The Parties acknowledge that they
have made such investigation of the facts pertaining to this Agreement and all matters contained
herein as they deem necessary, desirable, or appropriate. The Parties expressly understand that the
facts later may turn out to be other than or different from the facts now known or believed to be
true. The Parties expressly assume the risk of such different facts and agree that all provisions of
this Agreement shall remain in all respects effective and enforceable and not subject to termination
or rescission by reason of any such different facts.
4.12. Independent Legal Advice and Investigation. In entering into this Agreement, the
Parties acknowledge that they have received independent legal advice from their own counsel and
have relied on their own investigation and upon the advice of their own attorney with respect to
the advisability of making the settlement provided in this Agreement.
4.13. No Oral Waiver. No term or provision of this Agreement will be considered waived
by either Party, and no breach excused by either Party, unless such waiver or consent is in writing
signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to,
or waiver of, a breach by either Party, whether express or implied, will constitute a consent to,
waiver of, or excuse of any other, different, or subsequent breach by either Party.
4.14. Arms -Length Negotiations. The Parties agree that this Agreement has been
negotiated at arms -length, with the assistance and advice of competent, independent legal got}nsel.
SETTLEMENT AGREEMENT '— Michael H
PAGE 4 Jefferson County Prosecuting Attorr
1820 Jefferson Street/P.O. Box 12
Port Townsend, WA 983
(360)385-91
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4.15. Vigorously Contested Claims. This Agreement is a settlement of claims which
were vigorously contested, denied, and disputed as to validity and amount.
4.16. Joint Drafting Effort. The Parties acknowledge and agree that the drafting of this
Agreement has been a joint effort by the Parties and that this Agreement shall not be deemed
prepared or drafted by any one of the Parties. The terms of this Agreement shall be interpreted
fairly and in accordance with their intent and not for or against any one of the Parries. The Parties
further acknowledge and agree that each of the Parties possess equal bargaining power with respect
to this Agreement.
4.17. Admissibility of this Agreement. Any evidence of the existence, terms or
negotiation of this Agreement shall be inadmissible in any litigation, provided, however, that such
evidence may be offered in any dispute concerning this Agreement itself and the Parties may offer
such evidence in response to any allegation of misconduct by them. This Agreement has been
entered into in reliance upon the provisions of Rule 408 of the Federal Rules of Evidence ER 408,
and similar state law provisions in other states which preclude the introduction of evidence
regarding settlement negotiations or agreements.
4.18. No Admission of Liability. The payment of the amounts described in this
Agreement is for the compromise of disputed claims, and neither such payment nor its receipt shall
be construed as an admission by either Party. By entering into this Agreement, the Parties make
no admission that they have any liability or obligation to each other or to any other person. Each
Party understands and agrees that nothing in this Agreement is intended to nor shall be deemed
nor construed to be an admission of liability by any Party in any respect or to any extent
whatsoever.
4.19. Severability. Provided it does not result in a material change in the terms of this
Agreement, if any provision of this Agreement or the application of this Agreement to any person
or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this
Agreement and the application this Agreement shall not be affected and shall be enforceahle_to the
fullest extent permitted by law.
SETTLEMENT AGREEMENT Michael Haa
PAGE S Jefferson County Prosecuting Attome;
1820 Jefferson StreetlP.O. Box 1221
Port Townsend, WA 9836
(360)385-9181
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4.20. Additional Documents and Action. Each Party to this Agreement agrees to execute,
or cause their counsel to execute on their behalf, any additional documents and to take any further
action which may reasonably be required to fulfill the obligations of the Parties under this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Settlement Agreement on
the date inserted by their respective signatures.
(SIGNATURES FOLLOW ON NEXT PAGES)
SETTLEMENT AGREEMENT
PAGE 6
Michael Haa:
Jefferson County Prosecuting Attome}
1820 Jefferson Street/P.O. Box 122(
Port Townsend, WA 9836E
(360)385-918(
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Dated; ._SCJit Lvli
Kcv,6„a�u412' Z'3 �� 5>
STATE OF WASHINGTON )
COUNTY OF CIa V V--) ss )
ALAN E. HARVEY
SUBSCRIBED AND SWORN to before me this 'Y-Iday of m , 2018 by
ALAN E. HARVEY.
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r
Notary Public in and for the State of
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PUBLIC F` *
Washington, residing at C lav IC. C U . VJA
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My Commission Expires 1 a a aG3 C�
SETTLEMENT AGREEMENT Michael Haa;
PAGE 7 Jefferson County Prosecuting Attorne}
1820 Jefferson Street/P.O. Box 122(
Port Townsend, WA 9836E
(360) 385-918(
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JEFFERSON COUNTY
Dated: 5~ �% By:
David Sullivan, Chair
Jefferson County Board of Commissioners
STATE OF WASHINGTON )
ss
COUNTY OF -r-6Dy1 )
SUBSCRIBED AND SWORN to before me this 5 day of lt-e1XZtA , 2018 by
DI M & I //VttO , known to be the � m�%SS! de r 6 -o -i C �; �h�r/rof
JEFFERSON COUNTY.
A ved a t for
_ Date: _ — O
Philip C. Hunsucker, Chief Civil Deputy Prose , iting A torncy
Jefferson County Prosecuting Attorney's Office
SETTLEMENT AGREEMENT
PAGE 8
C -N4 iVw / 110e y
Notary Public in and for the State of
Washington, residing at f orf 70whWIL-W
My Commission Expires 3Z -2q
/
Michael
Jefferson County Prosecuting Att
1820 Jefferson Street/P.O. Box
Port Townsend, WA 5
(360)385,
Regular Agenda
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of Commissioners
FROM: Philip Morley, County Administrator
Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney
DATE: February 5, 2018
RE: Settlement of Harvey Public Records Act Lawsuit
STATEMENT OF ISSUE:
Board of County Commissioners should approve a Settlement Agreement between Alan E.
Harvey and Jefferson County ("the County"), regarding Mr. Harvey's 2017 lawsuit against the
County under Washington's Public Records Act, related to a public record request Mr. Harvey
made in 2016. The County and Mr. Harvey jointly have negotiated a settlement agreement
that resolves the lawsuit, and eliminates potential exposure to the County from the lawsuit in
excess of the settlement amount. Mr. Harvey signed the Settlement Agreement. A copy of the
Settlement Agreement is attached, as well as an accompanying news release.
ANALYSIS:
Mr. Harvey requested records from the County on November 16, 2016. A timely response to
the request was sent on November 18, 2016, promising responsive records by January 13,
2017. Unfortunately, by mistake, the records were not provided as promised. Mr. Harvey
filed a lawsuit on November 17, 2017, seeking penalties and attorney's fees under the Public
Records Act. All responsive records were provided to Mr. Harvey within a short time after the
mistake was discovered, at the time the lawsuit was served on the County.
The Public Records Act provides for penalties of up to $100 per day per record for each day a
responsive record is not provided in response to a request under the Public Records Act. In
addition, the Public Records Act authorizes attorney's fees and costs to requestors who file
Public Records Act litigation and prevail. Often, the exposure to a defendant in a Public
Records Act lawsuit is greater for attorney's fees, than for penalties.
The County's purchase of GovQA on August 28, 2017 should greatly reduce the chances that
a mistake like the one on Mr. Harvey's records request would be made in the future because it
provides a feature for tracking requests until they are completely closed. Further, in July of
2017, the County hired a full-time public records administrator to facilitate the County's
Regular Agenda
timely and effective responses to public records requests. As a result of the County's upgrades
to its public records system, the chances of a repeat of Mr. Harvey's experience will be greatly
diminished.
FISCAL IMPACT:
The settlement payment of $50,000 will be paid out of the Non- Departmental budget. A
subsequent Supplemental Budget Appropriation from the General Fund will appropriate the
funds into the Risk Management portion of Non -Departmental budget.
RECOMMENDATION:
The Prosecuting Attorney's Office and the County's Risk Manager recommend this settlement
be approved to eliminate potential exposure above the settlement amount, avoid the further
expense of litigation, and to focus the County's resources on making continued improvements
to the County's system for managing public record requests. The Settlement Agreement
should be signed immediately and the settlement funds should be paid, so the litigation can be
dismissed as required by the Settlement Agreement.
DEPARTMENT CONTACTS:
Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney at Extension 219.
REVIEWED BY:
clip Morle� ounty Adm' inis r Date
NA
4�w4SON `0 JEFFERSON COUNTY ADMINISTRATOR
1820 Jefferson Street • P.O. Box 1220 • Port Townsend, WA 98368
www.co.jefferson.wa. us
9SH 1 N Geo
FOR IMMEDIATE RELEASE: Thursday, February 1, 2018
Contact: Philip Morley, County Administrator
pmorley@co.iefferson.wa.us (360) 385-9100
Jefferson County and Alan Harvey Settle Public Records Case
Jefferson County today announced that it has reached tentative settlement with Alan Harvey on a
2017 lawsuit over a requests Mr. Harvey made in 2016 under Washington State's Public Records Act.
The Jefferson County Board of County Commissioners will consider approving a $50,000 settlement
agreement at its next meeting, Monday, February 5, 2018.
Mr. Harvey requested records from Jefferson County on November 16, 2016. A timely response to
the request was sent on November 18, 2016, promising responsive records by January 13, 2017.
Unfortunately, by mistake, the records were not provided as promised. Mr. Harvey filed a lawsuit on
November 17, 2017, seeking penalties and attorney's fees under the Public Records Act. All
responsive records were provided to Mr. Harvey within a short time after the mistake was
discovered, at the time the lawsuit was served on the County.
The County's purchase of the GovQA public records management program on August 28, 2017
should greatly reduce the chances that a mistake like the one on Mr. Harvey's records request would
be made in the future, because it provides a feature for tracking requests until they are completely
closed. Further, in July of last year, the County hired a full-time public records administrator to
facilitate the County's timely and effective responses to public records requests. Jefferson County is
dedicated to full compliance with the Public Records Act, and has been taking proactive steps to
strengthen its systems for tracking and fulfilling requests, well before the lawsuit came to light in
November.
According to Philip Morley, Jefferson County Administrator, "As a result of the County's upgrades to
its public records system, the County believes the chances of a repeat of Mr. Harvey's experience will
be greatly diminished." Morley added, "We successfully fulfill hundreds of requests each year, and
sincerely regret that our old system allowed timely fulfillment of Mr. Harvey's request to fall through
the cracks. We are continuing to make improvements to ensure all public requests are handled fully
and promptly."
The County's Risk Manager and Prosecuting Attorney's Office recommended the settlement to admit
the County's error and to quickly move on to focusing on continued improvements.
All questions about the settlement should be directed to Philip Morley at
pmorley@co.iefferson.wa.us or (360) 360-385-9100.
Phone (360) 385-9100 Fax (360) 385-9382 pmorley@co.jefferson.wa.us