2013 Settlement Agreement between David Bashore and Radnor Township

7/29/2019 2013 Settlement Agreement between David Bashore and Radnor Township

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WHEREAS, Bashore dual-filed a complaint, dated May 11, 2009, and an amended

complaint, dated July 23, 2009, against Osborne and the Township, with the Pennsylvania Human

Relations Commission (PHRC) (PHRC Case No. 200805700) and the U.S. Equal Employment

Opportunity Commission (EEOC) (EEOC Case No. 17F200962137), alleging workplace

discrimination, harassment and hostility and the aiding and abetting thereof and other claims

(Discrimination Complaints); and

WHEREAS, on or about December 14, 2009, the Bashores filed a privacy action against the

Board of Commissioners of Radnor Township, Joseph S. Barbagallo and Marcum LLP, Radnor

Township Forensic Auditors, in the Delaware County Court of Common Pleas at Docket No. 09-

16265 (Privacy Action) alleging the improper release of certain joint tax returns; and

WHEREAS, subsequently, the parties in the Privacy Action filed a Stipulation for voluntary

dismissal of the Privacy Action against Defendants, Radnor Township Board of Commissioners on

or about May 19, 2010, however, Bashores right to proceed with its causes of action against

Barbagallo and Marcum were not affected by the dismissal of the Commissioner Defendants; and

WHEREAS, on or about December 16, 2009, Osborne, in his capacity as the elected

Township Treasurer, filed a surcharge action against Bashore in the Delaware County Court of

Common Pleas (Court) at Docket No. 09-16582 for the benefit of the Township, alleging the

unauthorized expenditure of $1,008,512 in Township funds while Bashore served as Manager

(Surcharge); and

WHEREAS, on or about February 19, 2010, Bashore filed with the Court a Petition to Open

Judgment on said Surcharge and to dismiss the surcharges entered against him; and

WHEREAS, any further action on the Surcharge and Petition has been stayed as a result of a

Stipulation of Counsel representing the parties filed with the Court on or about August 25, 2010; and

WHEREAS, in a letter dated April 28, 2010, The Hartford Fire Insurance Company

(Hartford) demanded that Bashore reimburse the Township an amount up to $1,064,677.68 for


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alleged losses incurred while Bashore served as Manager, and Hartford further advised Bashore that,

in lieu of such reimbursement, it would seek recovery from him if it were required to make payment

to the Township; and

WHEREAS, in an agreement dated May 24, 2010, the Township and Bashore settled a

dispute solely regarding a housing loan the Township provided to Bashore pursuant to Section 14 of

his Contract; and

WHEREAS, as a result of a consent agreement Bashore entered into with the Pennsylvania

State Ethics Commission (Commission), and Order No. 1563 issued on October 19, 2010, by the

Commission pursuant thereto, Bashore has repaid the sum of $55,331.21 (equivalent to $81,500 on a

pre-tax basis) to the Township for certain compensation he received in 2004-2008 that was not

expressly authorized by the Township, receipt of which is acknowledged by the Township; and

WHEREAS, on or about December 1, 2010, Hartford reimbursed the Township the sum of

$500,000.00 for certain insurance claims submitted by the Township involving alleged losses

incurred by the Township while Bashore served as Manager; and

WHEREAS, Bashore claims that he is entitled to $102,300 (on a gross, pre-tax basis) for

1,114 hours of unused vacation and personal leave accumulated as of April 13, 2009, $990 (on a

gross, pre-tax basis) for longevity pay for Bashores employment from January 1, 2009, through

April 13, 2009, $74,218 (on a gross, pre-tax basis) payable when he reaches his normal retirement

age of 62 on June 2, 2018, representing 45% of the value of 1,796 hours of unused sick leave

accumulated as of April 13, 2009, and an amount in excess of $100,000 pursuant to Section 17 of his

employment agreement for certain legal expenses he incurred (collectively Accrued Leave and

Benefit Pay); and

WHEREAS, Bashore contends that the Township has wrongfully interfered with his legal

right to make withdrawals from his ICMA-RC Section 457 tax-deferred compensation account (the


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457 Plan) and from his after-tax retirement savings plan account (Group No. 59736) administered

by John Hancock or its successors or assigns (the John Hancock Plan); and

WHEREAS, on April 12, 2011, the Township filed a petition for supplementary relief in aid

of execution to preserve and prevent dissipation of property, subject to levy or execution, freezing

any withdrawals from Bashores 457 Plan and/or John Hancock Plan (Petition in Aid of

Execution); and

WHEREAS, on or about May 13, 2011, Bashore filed an Answer to the Townships Petition

in Aid of Execution; and

WHEREAS, Bashore and the Township appeared before the Court of Common Pleas on

December 7, 2011, January 10, 2012, February 14, 2012, and April 10, 2012 for settlement

discussions with the court; and

WHEREAS, the court on April 10, 2012 approved a settlement of all outstanding claims,

subject to the preparation and approval by the parties of a written Settlement Agreement to be

entered as an order of the court.

NOW, THEREFORE, IT IS AGREED by and among the undersigned parties as follows:

1. Consideration.

a. The Bashores agree to forever waive and release all claims to Accrued Leave and Benefit

Pay in the amount of $277,508.

b. No later than ten days after court approval of this Agreement, Bashore shall withdraw or

cause to have withdrawn, with prejudice, all claims and actions he now has pending

against the Township, its current and former elected officials, and Osborne, including, but

not necessarily limited to, Case Nos. 200805700 and 17F200962137, before the PHRC

and the EEOC, respectively.

c. No later than ten days after court approval of this Agreement, the Township shall file

with the Court of Common Pleas of Delaware County an Order to Mark Judgment


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Satisfied in the Surcharge action, and to withdraw or cause to have withdrawn, with

prejudice, all other claims and actions now pending against Bashore, including, but not

necessarily limited to, the Petition for Supplementary Relief in Aid of Execution to

Preserve and Prevent Dissipation of Property Subject to Levy or Execution filed in the

Surcharge Action on or about April 12, 2011.

d. No later than ten days after court approval of this Agreement, Bashore shall withdraw, or

cause to have withdrawn, with prejudice, all claims and actions he now has pending

against Barbagallo and Marcum in the case docketed at 09-16265 in the Delaware County

Court of Common Pleas.

e. Bashore will pay $80,000 to the Township, $10,000 in cash, check or money order within

30 days from court approval of this Agreement, with the balance of $70,000 to be paid in

nine equal annual payments of $7,778.00 beginning on January 15, 2016. The fourth

through ninthpayments will be deducted from Bashores Township Pension commencing

on January 1, 2019, and shall be deducted in equal amounts of $3,889.00 during the first

two months of each of those years from 2019 through 2024. Nothing in this Agreement

shall prevent Bashore from paying any balance due earlier than as provided for herein.

f. The Township acknowledges that Bashore is entitled to a monthly pension benefit and

certain death, survivor and other related benefits under the Townships Civilian

Employees Pension Plan, all as contained in Chapter 62, Article I of the Townships

Administrative Code (Plan), and that Bashore shall receive such monthly pension

benefit commencing July 1, 2018. Under the Township's pension calculation, dated

November 16, 2012, attached hereto as Exhibit A, Bashore shall receive a monthly

pension benefit of either (i) $6,481 as the normal 10-year certain and continuous form of

benefit, or (ii) $6,193 as the optional joint and 50% survivor benefit, or (iii) $5,592 as the


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optional joint and 100% survivor benefit, which option he shall select prior to July 1,

2018.

g. The Bashores will execute an asset disclosure affidavit concurrently with court approval

of this Agreement. This asset disclosure affidavit shall be considered an integral part of

this settlement, and enforceable by the court. However, because of the detailed nature of

the personal financial information contained therein, especially as it relates to Kelly

Bashore, the asset disclosure affidavit shall be considered confidential, shall be filed with

the Court under seal, and shall not be subject to disclosure under the Pennsylvania Right

to Know Act or any similar statute or ordinance. Furthermore, the only copy of the asset

disclosure affidavit retained by the Township or Osborne shall be a copy maintained in

the offices of the Townships solicitor. In the event the Township determines that the

asset disclosure affidavit was either incomplete or deficient in any material respect in

terms of full disclosure of all assets, the Township shall have the right to petition the

court for a determination as to whether the affidavit was in fact incomplete or deficient in

any material respect, and for monetary fines and penalties. Any such Petition, and any

response thereto, shall be filed under seal unless and until the Court orders otherwise.

h. The Township shall, within 30 days from court approval of this Agreement, immediately

complete, approve, sign, and return any paperwork that may be requested by Bashore that

is necessary to effectuate any withdrawals and/or transfers of Bashores assets held in an

after-tax retirement savings plan account (Group No. 59736) administered by John

Hancock or its successors or assigns.

i. The Township shall, within 30 days from court approval of this Agreement, immediately

complete, sign, and return any paperwork that may be requested by Bashore that is

necessary to effectuate any withdrawals and/or transfers of Bashores assets held in trus t

in a Section 457 tax-deferred compensation plan account administered by the


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International City/County Management Association Retirement Corporation or its

successors or assigns.

2. Releases.

a. The Bashores hereby release the Township, all of its current and former elected and

appointed officials, and Osborne (collectively, the Township Releases) from all claims

he ever had or might now have against them arising out of or relating in any way to his

employment with the Township, or the termination of that employment. This release

applies to all claims whether or not he is now or ever was aware that they existed, and

also to the continuing or future consequences of those claims. This release does not apply

to any claims that might arise in the future due to acts beyond the date of this Agreement

and approval by the court.

i. The claims Bashore is releasing specifically include, but are not limited to, any

claims he might have under any federal, state or local law concerning discrimination

on the basis of age, sex, race, religion, national origin, disability, or the like. These

laws include, but are not limited to, the Americans with Disabilities Act, 42 U.S.C.

12101 et seq., the Family Medical Leave Act, 29 U.S.C. 2601 et seq., the Age

Discrimination in Employment Act, 29 U.S.C. 621 et seq., Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000-e et seq., the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. 1001, et seq., and the Pennsylvania

Human Relations Act, 43 Pa.C.S. 951 et seq. (and any other similar law,

regulation or ordinance adopted by the Federal Government, Commonwealth of

Pennsylvania or any political subdivision thereof). The claims he is releasing also

include, but are not limited to, claims for retaliation under any of the laws described

above, any claims for breach of express or implied contract, any claims for severance


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pay, any claims for wrongful discharge, any claims for defamation, any claims for

infliction of emotional distress, and any claims under any federal, state or local law

governing salary, wages, bonuses, benefits or other compensation. The release also

specifically applies to any claims he might have for attorneys fees arising out of any

of the above.

ii. Bashore represents that he will not hereafter file or permit to be filed on his behalf

with any court or government agency any charge or claim seeking personal relief

(either money or other benefit, injunction, or declaration of rights) for him against the

Township Releasees involving any matter relating to his employment with the

Township, or the termination of that employment, which occurred at any time in the

past up to and including the date of this Agreement, or which involved any

continuing effects of any acts or practices which may have occurred up to and

including the date of this Agreement. Furthermore, Bashore agrees that he will not

encourage or cooperate with anyone else in the filing of any such actions against the

Township Releases, and if anyone else files any such action, he agrees that he will

not, except as legally required, share in any personal monetary or other relief granted.

b. The Township and Osborne, individually and collectively, hereby release Bashore and

Kelly Bashore from all claims any of them ever had or might now have against Bashore

and/or Kelly Bashore arising out of or relating in any way to Bashores employment with

the Township, or the termination of that employment, or Bashores entitlement to benefits

under the 457 Plan, the John Hancock Plan, and/or the Radnor Township Civilian

Employee Defined Benefit Pension Plan (the Pension Plan), including but not limited

to any claims that Bashore has forfeited his entitlement to benefits under any of those

Plans, and including any and all claims for attorneys fees and costs. This release applies

to all claims whether or not the Township or Osborne is now or ever was aware that they


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existed, and also to the continuing or future consequences of those claims. This release

does not apply to any claims that might arise in the future due to acts occurring after the

date of this Agreement and approval by the Court.

i. The Township and Osborne each represents that he/it will not hereafter file or permit

to be filed on his/its behalf with any court or government agency any charge or claim

seeking relief (either money or other benefit, injunction, or declaration of rights) for

him/it against the Bashore or Kelly Bashore involving any matter relating to

Bashores employment with the Township, or the termination of that employment,

which occurred at any time in the past up to and including the date of this Agreement,

or which involved any continuing effects of any acts or practices which may have

occurred up to and including the date of this Agreement. Furthermore, the Township

and Osborne each agrees that he/it will not encourage or cooperate with anyone else

in the filing of any such actions against Bashore or Kelly Bashore.

3. Return of Property. The Township and Bashore acknowledge that Bashore has returned all

Township-owned property, including but not necessarily limited to the keys and key fobs to the

Townships offices, a laptop computer, cell phone, and any official Township records. The

Township shall promptly return to Bashore his personal property that was in its possession on his

Date of Separation.

4. Severability. If any of the provisions of this Agreement is determined to be invalid or

unenforceable for any reason, the remaining provisions and portions of this Agreement shall be

unaffected thereby and shall remain in full force to the fullest extent permitted by law.

5. Successors and Assigns. This Agreement is binding on all parties to this Agreement, and

their predecessors, successors, heirs and assigns, as applicable.

6. No Admission. This Agreement shall not be admissible in any court of law as evidence of

any unlawful behavior by any party. Each party hereto specifically disclaims any liability to or


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wrongful acts on his or its part. The parties have entered into this Agreement for the sole purpose of

resolving disputed claims without the expense of further litigation, and to achieve finality.

7. Miscellaneous. All executed copies of this Agreement, and photocopies thereof, shall have

the same force and effect and shall be as legally binding and enforceable as the original.

8. Entire Agreement; Amendments. This is the complete and final agreement between the

parties and supersedes all prior or contemporaneous agreements, offers, negotiations, representations,

discussions, or communications, whether oral or written, with respect to any subject matter or this

Agreement. No representations, warranties or promises have been made by or to any party to this

Agreement with respect to the subject matter of the Agreement other than as expressly set forth

herein. In deciding whether to enter into this Agreement, no party is relying on any promises,

statements, or representations other than those that are expressly set forth herein. This Agreement

shall not be modified or amended except by a further written agreement signed by all parties affected

by the modification or amendment.

9. Choice of Laws. This Agreement will be governed by Pennsylvania law (without regard for

conflicts of and choice of laws principles), except to the extent it is governed by the laws of the

United States.

10. Older Workers Benefit Protection Act Knowing and Voluntary Waiver/Revocation.

Bashore acknowledges that he has been given a period of at least twenty-one (21) days to consider

this agreement before signing it. Bashore further acknowledges that he has been advised of his right

to consult with his own attorney before signing this Agreement, and he represents that he in fact has

consulted with his attorney. Bashore acknowledges that he is signing this Agreement voluntarily and

of his own free will, with full knowledge of the nature and consequences of its terms. Bashore may

revoke this Agreement within seven (7) days after signing it, by sending a written notice of

revocation to the President of the Board of Commissioners and the Township Solicitor. Such written

notice may be sent by mail, fax or hand delivery. If a written revocation is received within that seven


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(7) day period, this Agreement shall be null and void for all purposes. If a written revocation is not

received within that seven (7) day period, this Agreement will go into effect on the first day

immediately following the expiration of said seven (7) day period.

11. Construction. This Agreement shall be constructed and interpreted to effectuate the intent of

the parties, which is to provide, through this Agreement, for a resolution of the all claims between

and among them.

12. Release/Consent by Hartford. This Agreement shall be void and of no force and effect

unless and until:

a. An acceptable agreement is entered into between Hartford and Bashore

b. Hartford consents to the Townships settlement of its surcharge action.

RADNOR TOWNSHIP: DAVID A. BASHORE:

_____________________________ _____________________________President, Board of Commissioners David A. BashoreDate: Date:

KELLY F. BASHORE:

_____________________________Kelly F. BashoreDate:

JOHN E. OSBORNE:

______________________________

John E. OsborneTreasurer of Radnor TownshipDate:

2013 Settlement Agreement between David Bashore and Radnor Township

Documents

Transcript of 2013 Settlement Agreement between David Bashore and Radnor Township