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HomeMy WebLinkAboutScarantino Settlement Agreement - 051021SETTL 0���Rm,m May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 1 of 12 SETTLEMENT AGREEMENT AND RELEASE This Agreement is made between the Settling Parties. (All terms in bold in this Agreement are defined in 5,ection 2.4, below.) RECITALS 1.1 WHEREAS, on November 23, 2021, Scarantino filed the Lawsuit against the County in the United States District Court for the Western District of Washington; 1.2 WHEREAS, Settling Parties desire to avoid the cost of additional attorney's fees and expenses associated with the Lawsuit; 1.3 WHEREFORE, Settling Parties hereby agree to the terms and conditions in this Agreement; 1.4 NOW, THEREFORE, in consideration of the mutual promises and obligations in this Agreement and pursuant to the material terms of settlement reached between Settling Parties and for other good and valuable consideration, the receipt and sufficiency of which Settling Parties hereby acknowledge, Settling Parties agree to the following terms and agree to be bound by the terms and conditions in this Agreement. 2 TERMS OF THIS AGREEMENT 2.1 Parties Bound. This Agreement applies to and is binding upon, and inures to the benefit of, each of the Settling Parties and their Related Persons. The persons signing this Agreement on behalf of Settling Parties certify that they are fully authorized to enter into the terms and conditions of this Agreement and to execute this Agreement. 2.2 Effective Date. This Agreement is effective on the date the last Settling Party executes this Agreement or 30 days after Jefferson County executes this Agreement, whichever is earlier. 2.3 Purpose of this Agreement. The purpose of this Agreement is to resolve the disputes between Settling Parties regarding the matters released in Section 2.6. 2.4 Definitions. 2.4.1 Words used in this Agreement are to be taken and understood in their natural and ordinary sense. Words not defined in this request are meant to have their usual and ordinary meaning in the context used and as defined in the Dictionary by Merriam-Webster (httrts;7jwwwmerriarn-welhster.cdttt/), unless this Agreement indicates that a different meaning May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 2 of 12 was intended. Whenever the following terms are used in this Agreement (including, without limitation, in this Section 2.4), the meanings in this Section 2.4 apply. 2.4.2 Singular/Plural: The use of the singular form of a word includes the plural form and vice versa. 2.4.3 And & Or: "and" means "or" and "or" means "and," so as to make the term inclusive rather than exclusive. 2.4.4 "Agreed Modification of the Social Media Policy" means the modification of the Social Media Policy required by Section 2.9. 2.4.5 "Agreement" means this Settlement Agreement and Release. 2.4.6 "Claims" means any and all damages, attorney's fees, costs and actual or alleged claim, demand, request, action, duty, right, obligation (including contractual, common law or statutory), fine, penalty, sanction, liability, action, order, suit, lawsuit or proceeding of every kind and nature, wherever and whenever occurring, whether at law or in equity, and whether sounding in tort, contract, equity, nuisance, trespass, negligence, strict liability or any statutory or common law cause of action, duty or obligation of any sort. For the avoidance of doubt, Claims includes the Lawsuit and any requests made under the Public Records Act made to Jefferson County by or on behalf of Scarantino before the Effective Date. 2.4.7 "Complaint" means the complaint filed in the Lawsuit on November 23, 2020. 2.4.8 "County Facebook Page" means the "County Facebook Page" referenced in Paragraphs 8 and 9 of the Complaint. 2.4.9 "Director" means the Jefferson County Central Services Director or the Director's designee. 2.4.10 "Effective Date" means the date set forth in Section 2.2. 2.4.11 "Jefferson County" means Jefferson County Washington and all its Related Persons. For the avoidance of doubt, "Jefferson County" includes but is not limited to the Central Service Department, the Central Services Department Director, the County Administrator, the Jefferson County Public Records Act Administrator, the Jefferson County Public Records Act Officer and the Jefferson County Prosecuting Attorney's Office. 2.4.12 "Jefferson County Accountability Project" means the pro-bono legal project sponsored by Joseph N. D'Amico. 2.4.13 "Lawsuit" means the lawsuit filed by Scarantino against Jefferson County, titled James R. Scarantino v. Jefferson County, in the United States District Court for the Western District of Washington, Case No. 3:20-cv.06146. 2.4.14 "Public Records Act" means Chapter 42.56 RCW. May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 3 of 12 2.4.15 "Past Public Records Act Requests" means any Public Records Act request made on or before the Effective Date by Scarantino to Jefferson County or any of his Related Persons. 2.4.16 "Related Persons" means a Settling Party's assigns, attorneys, administrators, departments, employees, executors, heirs, insurers, marital communities, officers (including elected and appointed officers), officials, personal representatives, successors, subrogees, trustees, and volunteers, including each of their agents, representatives, and attorneys. In addition, a related person for Scarantino is the Jefferson County Accountability Project. 2.4.17 "Release" means to waive, abandon, relinquish, discharge any rights, Claims, causes of action, Lawsuits, suits, or actions, of any sort, from now until the end of time. 2.4.18 "Scarantino' means James R. Scarantino, and all his Related Persons; 2.4.19 "Settlement Payment" means the payment required by Section 2.5 2.4.20 "Settling Parties" means Scarantino and Jefferson County, and their Related Persons; 2.4.21 "Settling Party" means one of the Settling Parties; and, 2.4.22 "Social Media Policy" means the "Social Media Policy" adopted by Jefferson County in Resolution 14-20 on March 16, 2020, and referenced in Paragraph 14 of the Complaint. 2.5 Settlement Lament, Within 30 days of the Effective Date and after Scarantino has provides Jefferson County an IRS form W-9, Jefferson County will pay to Scarantino or his designee (in writing) the settlement amount of $12,500.00. 2.6 Release. Scarantino, on his own behalf and on behalf of his Related Persons, hereby Release Jefferson County and its Related Persons from Claims Scarantino may have against Jefferson County on or before the Effective Date. 2.7 Known and Unknown Claims Release and Waiver. 2.7.1 With respect to the release given in Section 2.6 for the Claims, Scarantino expressly, knowingly, and voluntarily Releases any known or unknown consequences of the Claims are being released. 2.7.2 With respect to the release given in Section 2.6 for the Claims all known or unknown consequences of the Claims are being released. May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 4 of 12 2.7.3 With respect to the releases given in Section 2.6, Scarantino expressly, knowingly, and voluntarily waives and relinquishes any and all rights that he may have under any state or federal statute or case law that protects a settling party from releasing claims which the settling party does not know or suspect to exist in the settling party's favor at the time of executing the release, which if known by the settling party must have materially affected the settlement. 2.7.4 Scarantino understands and acknowledges the significance and potential consequences of the Known and Unknown Release and Waiver and hereby assume the risk of any changed circumstances or facts concerning the Known and Unknown Release and Waiver in this Section 2.7. Scarantino expressly acknowledges and agrees that the Known and Unknown Release and Waiver extends to any claims concerning the specific matters being released in Section 2.6, whether or not Scarantino knew or should have known about such claims or the possibility of such claims at the time that Scarantino executed this Agreement. 2.8 Stipulated Motion to Dismiss and Proposed Order. Within 10 days of Scarantino's receipt of the Settlement Payment or implementation of the Agreed Modification of the Social Media Policy, whichever is later, Scarantino will promptly sign and Jefferson County will file a stipulated motion to dismiss and proposed order in the Lawsuit with prejudice and without costs or fees. 2.9 Agreed Modification of the Social Media Policy, 2.9.1 Within 30 days of the Effective Date, Jefferson County will by resolution adopted by its Board of County Commissioners modify the Social Media Policy as required in Section 2.9.2 and Section 2.9.3. 2.9.2 Section 7.2 (Comments Policy) shall language: "Political statements, including comments campaigns or ballot measures" with the following candidates or ballot propositions." be amended to replace the following in support of, or opposition to, political language: "Support or oppose political 2.9.3 Language in substantially the same form as below shall be added to Section 7.2 (Comments Policy): Authorized agents shall not restrict individuals from interacting with County -sponsored social media accounts. For purposes of this policy, "restrict" includes both blocking and hiding comments. If an authorized agent feels it is necessary to restrict an individual from interacting with County -sponsored social media accounts, they must consult with the Director before doing so. In determining whether an individual will be restricted the Director may consider, among other factors, whether restricting is allowed under these procedures, applicable laws, the nature of the incident on the County sponsored social media account that prompted review, whether restricting would entail viewpoint discrimination, and May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 5 of 12 whether other actions could be attempted to stop or prevent further violations without restricting an individual. If an individual is restricted on authority of the Director, documentation must be kept, such as screenshots of the data that prompted the restriction and the reason for the restriction. The Director is responsible for conducting an audit of social accounts every six months, to ensure they are being maintained in compliance with this policy. 2.10 Withdrawal of Past Public Records Requests. Scarantino acknowledges and agrees that he hereby withdraws immediately and without limitation any and all Past Public Records Requests, Settling Plaintiffs also hereby acknowledge and agree that this Agreement constitutes a knowing and voluntary waiver of any right to obtain such records from Jefferson County or any of its Related Persons. For the avoidance of doubt, the withdrawal of public records requests required by this Section 2.1`0 includes but is not limited to all Past Public Records Act Requests made to Jefferson County or any of its Related Persons by Scarantino and Greg Overstreet on Scarantino's behalf. 2.11 Taxes. Scarantino acknowledges and agrees that Jefferson County makes no representation as to any tax consequences arising from the Settlement Payment. Moreover, Scarantino understands and agrees that any tax consequences or liability arising from the Settlement Payment will be his sole responsibility. 2.12 Payments by the Jefferson County Accountability Project. Scarantino assumes any responsibility for payment of any amounts paid by the Jefferson County Accountability Project to fund the Lawsuit, including costs and attorney's fees. 2.13 Non -Di paraaement. The Settling Parties understand that this Agreement may become the subject of a request for public records under the Public Records Act and that Jefferson County likely would be required to produce it. The Settling Parties agree that if asked about the settlement, they will respond only by referring any person asking to the terms of this this Agreement and each Settling Party agrees not to make any Public Negative Statements or Communications Disparaging the Other Settling Party. 2.13.1 For purposes of this Section 2.13: "Public Negative Statements or Communications Disparaging the Other Settling Party" includes but is not limited to any remarks, statements, comments or criticisms that disparage, call into disrepute, defame, slander or that can be reasonably be construed to be derogatory or critical of, or negative toward a party whether made directly or indirectly, alone or in concert with others, whether orally or in writing, made to any person who is not a party to this Agreement; and, 2.13.2 The provisions of this Section 2.13 will not be violated by truthful statements about the settlement in response to legal process, required governmental testimony or filings, or May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 6 of 12 administrative or arbitration proceedings (including, without limitation, depositions in connection with such proceedings). 2.13.3 For the avoidance of doubt, this Section 2.1.3 does not apply to any comments other than about this settlement. For example, the provisions of this Section 2.13'' will not be violated if Settling Party provides comments regarding proposed legislation or administrative actions by Jefferson County or any other governmental entity. 2.14 No Admission of Liability. Scarantino agree that this Agreement is not an admission that Jefferson County is liable to Scarantino for the Claims or has violated any law or failed to fulfill any duty to any Scarantino. Jefferson County specifically denies liability and declares that this settlement is to secure peace and end further litigation. 3 GENERAL PROVISIONS 3.1 +Cuntrollina Law. It is understood and agreed that this Agreement is entered into in the State of Washington. It is agreed that this Agreement is 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 Settling Party may argue or assert than any law other than Washington law applies to the governance or construction of this Agreement. 3.2 Attorney's Fees. Except for the explicit provision in Section 2.5 about the payment of a settlement, Settling Parties will bear their own attorney's fees and costs related to the matters released in Section 2.6. Further, in the event of any controversy, claim or dispute between any of Settling Parties arising out of this Agreement, Settling Parties will bear their own attorney's fees and costs. 3.3 Entire Agreement. This Agreement is an integrated agreement and it contains the entire agreement between Settling Parties relating to this subject matter and its terms are contractual, not a mere recital. Except as specifically provided in this Agreement, this Agreement supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. This Agreement supersedes and controls all prior communications between the Settling Parties or their representatives relative to the matters contained in this Agreement. 3.4 No Inducements. Settling Parties acknowledge that there have been no inducements or representations upon which any of Settling Parties have relied in entering into this Agreement, except as expressly set forth in this Agreement. May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 7 of 12 3.5 Third -Party Beneficiaries. Settling Parties do not intend, and nothing in this Agreement will be construed to mean, that any provision in this Agreement is for the benefit of any other person or entity who is not a Settling Party. 3.6 Modification of this Agreement. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of all Settling Parties. 3.7 Effect of Partial Invalidity. If any term or provision of this Agreement is found to be invalid, in violation of public policy or unenforceable to any extent, such finding will not invalidate any other term or provision of this Agreement and such other terms and provisions will continue in full force and effect. Settling Parties understand, intend, and agree that this Agreement and each of the terms, covenants, and provisions of this Agreement will be enforced to the greatest extent permitted by law. If any part of this Agreement is found invalid or, unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force. 3.8 Signature inCountertlarts, Settling Parties agree that separate copies of this Agreement may be signed by each of Settling Parties and this Agreement will have the same force and effect as an original signed by all Settling Parties. 3.9 Facsimile Signatures. Settling Parties agree that a facsimile, copied, or scanned signature of this Agreement will have the same force and effect as an original signed by all Settling Parties. 3.10 Cooperation. Settling Parties agree that they will facilitate, in good faith, the effectuation of this Agreement. 3.11 Voluntary .Undertaking: Settling Parties acknowledge that they have read this Agreement and are fully aware of the contents of this Agreement and its legal effect. This Agreement is entered into voluntarily and without any coercion by or undue influence on the part of any person, firm, or corporation. 3.12 investigation and Complete Understanding. Settling Parties acknowledge that they have made such investigation of the facts pertaining to this Agreement and all matters contained in this Agreement as they deem necessary, desirable, May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 8 of 12 or appropriate. Settling 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. Settling Parties expressly assume the risk of such different facts and agree that all provisions of this Agreement will remain in all respects effective and enforceable and not subject to termination or rescission because of any such different facts. 3.13 Independent Legal Advice and Investigation. In entering into this Agreement, Settling 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. 3.14 No Oral Waiver. No term or provision of this Agreement will be considered waived by either Settling Party, and no breach excused by either Settling Party, unless such waiver or consent is in writing signed on behalf of the Settling Party against whom the waiver is asserted. No written consent by either Settling Party to, or waiver of, a breach by either Settling Party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Settling Party. 3.15 Arms-LenIlth Negotiations. Settling Parties agree that this Agreement has been negotiated at arms -length, with the assistance and advice of competent, independent legal counsel. 3.16 Joint Drafting Effort. Settling Parties acknowledge and agree that the drafting of this Agreement has been a joint effort by Settling Parties and that this Agreement will not be deemed prepared or drafted by any one of Settling Parties. The terms of this Agreement will be interpreted fairly and in accordance with their intent and not for or against any one of Settling Parties. Settling Parties further acknowledge and agree that each of Settling Parties possesses equal bargaining power with respect to this Agreement. 3.17 Admissibility of this Agreement. Any evidence of the existence, terms or negotiation of this Agreement will be inadmissible in any Lawsuit between the Settling Parties; provided, however, that such evidence may be offered in any dispute concerning this Agreement itself and Settling Parties may offer such evidence in response to any allegation of breach by them. This Agreement has been entered into in reliance upon the provisions of Washington ER 408 and Rule 408 of the Federal Rules of Evidence. May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 9 of 12 3.18 Headings. The section headings in this Agreement are included as a matter of convenience and are not intended to and will not be construed as affecting the terms and conditions of this Agreement. 4 REPRESENTATIONS AND WARRANTIES. The Settling Parties represent and warrant: 4.1 That each is fully authorized to enter into this Agreement; 4.2 That each has taken all necessary actions to duly approve the making and performance of this Agreement and that no other approval is necessary; and, 4.3 That each has read this Agreement in its entirety and know the contents of this Agreement, that the terms of this Agreement are contractual and not merely recitals, and that each has signed this Agreement, having obtained the advice of legal counsel. (SIGNATURES FOLLOW ON NEXT PAGES) May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 10 of 12 THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO ITS TERMS: PLAINTIFF Approved as to Form: Gtlaa"� Greg 0(drstreet, Counsel for Plaintiff Date: __:�A/zo),. May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 11 of 12 THE UNDERSIGNED HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO ITS TERMS: JEFFERSON COUNTY, WASHINGTON BOARD OF COUNTY COMMISSIONERS KATE DEAN Ka Dean, Chair Date: 5/10/2021 GREG BRO RTON Greg Brotherton Date: 5/10/2021 HEIDI EISENHOUR -1641 ._ Heidi Eisenhour Date: p Z Approved as t Form. Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney and Counsel for Jefferson County Date: 5/10/2021 May 3, 2021 Version SETTLEMENT AGREEMENT AND RELEASE Page 12 of 12