Professional Documents
Culture Documents
and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
Mark F. Pacholec ("Pacholec" or "Employee") and the Town of orchard park ("Town"),
wishing to resolve completely and fully any and all disagreements, disputes or claims
arising out of Pacholec's employment or Pacholec's separation from that employment with
the Town, enter into this Separation and Waiver and Release Agreement ("Agreement'),
1. Employee hereby agrees that, effective May 3, 2019 at 5:00 p.m., his
employment with the Town shall terminate. Pacholec will continue to be on paid
administrative leave until his retirement upon the close of business (5:00 p.m.) on Apil29,
2019; however, it is understood that Pacholec shall make himself available during this
period for consultation and transition. Requests for assistance by the Town shall be made
through counsel. Pacholec will use available Personal Leave days from April 30, 2019
through May 3, 2019. Employee's execution of this Agreement shall constitute his
irrevocable written letter of retirement to the Town with the effective date of May 3,2019,
even if it is signed thereafter. It is understood and agreed that his position will be
terminated immediately at the close of business (5:00 PM) on May 3.20191' provided
however, that if this Agreement is executed and becomes fully effective as set forth herein,
the Town will reclassiff Pacholec's termination to a retirement and he shall be entitled to
Agreement ("Agreement") by all parties, and the occurrence of all other conditions set forth
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herein, this Agreement shall become fulIy effective and enforceable in accordance with its
3. In consideration of the foregoing and the terms of this Agreement, upon the
execution of this Agreement and following the expiration of the revocation period
(provided Pacholec does not revoke), the Town agrees to adopt the following additional
items of compensation in a formal Resolution on the record before April 17, 2019 for
2019 only.
the retirement system shall be paid at Pacholec's rate of pay prior to the Apil 17, 2019
upon his retirement from the Town, the Town agrees to pay Pacholec the sum of one
hundred thousand and no/100 ($100,000) Dollars, less applicable withholdings and
deferred compensation that may be elected by Pacholec. The Town shall submit payment
to Pacholec in a payroll check within 30 days after the later of the ef[ective date of this
agreement or the expfuation of the revocation period, whichever is later.
6. Pacholec and his dependents shall have health insurance paid for by the
Town. Reference Article III, section 3.08 of the Town of Orchard Park Personnel Policy
Manual adopted by the Town on December 5, 2018, which states that the Chief of Police
will follow Article XII of the Command OfEcer Association Agreement, also referenced
in Town Board resolution dated August 21,2013 (copies of relevant sections are attached
hereto as EXHIBIT A). Pacholec will have the right to the use of unused sick -time upon
retirement as provided for by article IV, section 4.02 of the Town of Orchard Park Policy
Manual adopted by the Town on December 5,2018, Articles XV and XVI of the Command
maximum accumulation of 2,160 hours or the maximum accumulation permitted under the
Command Officers Association Agreement, whichever is greater. The Town agrees to pay
Pacholec the value of his 2019 vacation time, which is 160.5 hours, within thirry days (30)
of the execution ofthis Agreement. Pacholec agrees and understands that his 2019 vacation
time shall be based upon his salary prior to the April 17, 2019 resolution set forth in
paragraph "3" ($156,879). The Town agrees to pay Pacholec the value of his remaining
compensatory time, which is 120 hours, within thirty days (30) of the execution of this
agreement. Pacholec agrees and understands that his 2019 compensatory time shall be
based upon his salary prior to the April 17, 2019 resolution set forth in paragraph "3"
($156,879). The Town agrees to pay Pacholec the value of his remaining sick time up to a
maximum of the amount permitted per Article XV of the Command Of[rcers Association
Agreement or 2,160 hours, whichever is greater, with the personal leave time already being
added in per the Command Officers Association Agreement (75 % is approximately 1,476
hours), within thirty (30) of the execution of this agreement, unless Pacholec elects to be
paid the value of the sick time over a t'wo (2) year period, per section l5-7 of the Command
Officers Association Agreement. Pacholec agrees and understands that his total sick and
personal time shall be based on his salary prior to the April 17 ,2019 resolution set forth in
paragraph "3" (S156,879). The Town agrees to allow Pacholec to pay for dental
insurance, at the Town rate, as is the common practice for retirees. The Town agrees to
issue a standard Police identification retirement card, and to allow Pacholec to participate
in annual HR 218 qualifications for retirees. Pacholec aclmowledges and agrees that he is
not entifled to receive any other or firrther compensation or benefits of any kind or
description from the Town or from or under any employee benefit plan sponsored by the
Town, except for any benefits to which Pacholec is or may become entitled under or from
any pension/retiremenVsavings plan or account available through his employment with the
Town.
the sums outlined in paragraphs "3" and "5", and other promises entered into herein, are
in exchange for this Agreement, his waiver and release of claims, and the other covenants
and promises set forth herein. Pacholec agrees he is not otherwise entitled to receive such
benefits.
benefits which the Town may pay, except as provided in paragraph 6, or make available to
its employees following the execution ofthis Agreement. Pacholec hereby waives any and
all rights he has under the Civil Service Law or any applicable law to contest any action by
the Town concerning Employee prior to his retiremenl, including his separation from
employment with the Town.
and other promises herein, Pacholec does hereby firlly and forever discharge and release
the Town, its Supervisor, Town Board, individual Town Board members, officers,
employees, agents, attorneys, successors and assigns and each and all of the foregoing
from any and all claims, demands, causes of action, damages, complaints, expenses, costs
and compensation of any nature whatsoever (collectively "claims") that Pacholec now has
or may have, or that any person or entity may have on Pacholec's behalf, on account of or
arising out of any matter or thing which happened, developed or occurred prior to
Pacholec's signing of this Agreement, including, without limitation and by way of example
only, all matters pertaining to Pacholec's employment with the Town, Pacholec's
separation and/or retirement from service with the Town, and Pacholec's other
relationships and dealings with the Town and the Releasees. Pacholec hereby waives any
and all such claims that he has or might have against the Town and/or any of the other
Releasees. This release, discharge and waiver includes, but is not limited to, any and all
ii) The Federal Title VII of the Civil fughts Act of 1964, as
among other things, prohibits, under certain circumstances, discrimination in pay on the
basis of sex.
which, among other things, prohibits interference with individual rights protected under
the statute.
contractors and subcontractors), which, Exnong other things, requires affirmative action for
which, among other things, requires affirmative action for and prohibits discrimination
Federal Government contractors and subcontactors), which, among other things, requires
handicap or disability.
x) The Uniformed Services Employment and Reemployment
Rights Act of 1994, as amended, which, among other things, prohibits discrimination on
account of a person's service in the uniformed services of the United States or any state.
concerted activities.
person's race, color, religious creed (including religious dress and grooming practices),
national origin (including language use restictions), ethnicity, ancestry, disability (mental
and physical) including HIV and AIDS, citizenship status, veteran status, sex (which
age, sexual orientation, gender (including gender identity or gender expression), marital
association with members of a protected class, or any other characteristic protected under
applicable law.
xiii) Section 194 of the New York State Labor Law, as amendedo
which, among other things, prohibits, under certain circumstances, discrimination in pay
political activities outside of working hours, a person's legal use of consumable products,
Act, as amended.
xv) Section 740 of the New York State Labor Law, as amended,
which, among other things, prohibits retaliatory action against an employee because of
whistle-blower activity.
xvi) Sections 120 and 241 of the New York State Workers'
Compensation Law, as amended, which, among other things, prohibit discrimination on
account of a person having filed or attempted to file a claim for Workers' Compensation
or disability benefits or for having testified at a hearing held under the Workers'
Compensation Law.
xvii) Sections 75 and 76 ofthe New York State Civil Service Law,
which provides a procedure for the removal of competitive class employees as well as
xviii) Section 155 of the New York State Town Law, which
provides a procedure for the removal of competitive class employees as well as certain
order or guideline, including, but not limited to, those laws specifically described above.
those that could be asserted under 42 U.S.C. $ 1983 or the New York State constitution),
defamation, wrongful discharge, attorney fees, costs, breach of contract, breach of implied
contract, negligence of any kind, including, but not limited to, negligent performance of
contractual obligations, breach of the covenant of good faith and fair dealing, tortious
interference with business and/or contractual relationship (or prospective relationship),
action which has been or could have been alleged under the common law, any civil rights
or equal opportunity employment law, or any other statute, regulation, ordinance or rule.
and/or other Releasees, express or implied, or any oral or written agreement, express or
employment does not violate or disregard any oral or written promise or agreement, of any
concerning the employment of Pacholec by the Town and/or other Releasees, or the terms
and conditions of such employment or the termination of such employment, whether oral
or written, express or implied, that contract or agreement is hereby terminated and is null
and void.
11. This release includes, but is not limited to, a waiver, discharge and release
by Pacholec of the Town and other Releasees from any damages or relief of whatever
nature or description, including, but not limited to, compensatory, liquidated, and punitive
damages and equitable forms of relief, as well as any claim for attomeys fees or costs,
which may arise from any of the claims waived, discharged or released.
12. Pacholec agrees that this Complete Release may be enforced in any court,
federal, state or local, and before any administrative agency or body, federal, state or local
or in arbitration.
13. It is understood and agreed that this waiver and release does not apply to an
obligation that the Town may be required to provide to Pacholec under Section l8 of the
New York Public Officers Law ("POL"). The Town's obligation will arise only to the
extent that POL Section 18 is applicable and only where the Town is legally obligated to
14. Pacholec agrees that if he violates any of the terms of this Agreement, he
shall be liable to the Town for any and all sums of money as well as the costs and fees
incurred by the Town in enforcing its rights in this Agreement, including attorney's fees,
in addition to any other remedy that the Town may have in law or in equity. The Town's
enforcement of its rights under this Section will not affect the validity and enforceability
15. Pacholec agrees that he shall not disparage, harass, or threaten or causie
any social media, or through text message, the Town, its Supervisor, Town Board, Town
Board Members, the Police Department, Department Heads, employees, agents, attorneys,
or services. If the Town believes that this provision, or other term of this Agteement, has
been violated, as a condition precedent to bring suit the Town shall immediately notiff
Pacholec in writing, and with specificity set forth the content and source of the claimed
violation of this Agreement. The parties shall thereupon discuss in good faith whether the
16. The Town, its Supervisor, Town Board, Town Board Members, Department
Heads, employees, agents, and/or attorneys agree that it shall not disparage, harass or
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threaten Pacholec orally, in writing, or on any social media, or through text message.
17. Pacholec agrees that his separation from employment with the Town and
his position at the Police Department shall be final, and he shall not apply for, nor is he
eligible for, employment with the Town at any time in the future, other than elected office.
Pacholec acknowledges that he has no interest in future employment with the Town.
18. The Town agrees to issue the following statement with respect to
The Town accepts retirement of Chief Mark Pacholec with greatregret. The
Town appreciates Chief Pacholec's over 22 years of service and dedication
to the Orchard Park Police Departrnent. He has been a hard worker,
conscientious, dedicated, and strong leader. We wish him and his fa:rrily
well in future endeavors.
19. Pacholec agrees to issue the following statement with respect to his
retirement:
I would like to thank the Town of Orchard Park for allowing me to serve
our community, which I am very proud of. After having served in the United
States Marine Corps for 26 years, the Orchard Park Police Departrnent was
another way to serve and protect the community that I chose to raise my
family in. The time has come now to pursue future endeavors. My family
and I wish the Town and the Departrnent great success going forward.
20. Pacholec agrees and promises that he shall stay away from and not enter the
Town administrative ofEces or any other Town property, except on official business as a
Town resident or otherwise. Pacholec understands and agrees that this paragraph is an
essential part of this Agreement. In the event Pacholec violates this paragraph, the Town
shall be entitled to a1l relief permitted in this Agreement and/or under the law.
21. To the extent such terms are not otherwise required to be made available
to the public pursuant to law or in accordance with legal process, the Town and Pacholec
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agree to keep the terms and the existence of this Agreement completely confidential and
shall not disclose any information concerning the existence or terms of this Agreement or
provide a copy of this Agreement to anyone except the United States lnternal Revenue
Service, the New York State Ta,x Commission, the United States Equal Employment
Opportunity Commission, the New York State Division of Human Rights, a Court, an
unemployment insurance authority (for all the above, if legally compelled to do so), or a
party's attorney, accountant, or other professional advisor to whom disclosure must be
made in order for them to render professional services, or to Pacholec's lawful spouse or
partner. Prior to disclosing any such information to any third party, Pacholec shall advise
such person that the terms of this Agreement are confidential and that unauthorized
disclosure ofthe terms of the Agreement will subject such person to suit by the Town. The
parties agree to notiff all other parties in writing within five (5) business days of receipt of
any subpoena seeking to discover a copy of this Agreement and will permit such other
party, alone or through its designated representative, to review and investigate and, if
necessary, quash such subpoena prior to compliance. In the event an inquiring prospective
employer shall enquire regarding his employment with the Town, the Town's Personal
Department shall provide only Pacholec's position, date of hire and date of separation from
employment with the Town. If asked for further inforrration about Pacholec's
employment, the Personnel Department shall advise that he/she is only able to provide the
foregoing information. The parties fi.uther agree that they will make no public
which is described in paragraphs 18 and 19. The town, its agents, and employees will
state to retirement, when asked, either verbally, or in writing, that all the items listed in
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para$aph three (3), salary, holiday pay, longevity pay, and compensatory time pay, are
22. As of the date ofthis Agreement, Pacholec agrees that he has not sustained any
disabling personal inj,rry and/or occupational disease which has resulted in a loss of wage
earning capacity during his employment with the Town or due to the separation from that
employment and that he has no personal injury and/or occupational disease which has been
with the Town and/or the separation from that employment. The Town acknowledges that
Pacholec has submitted paperwork related to previous on the job injuries and exposures,
and to the extent that there is any Workers Compensation Claims for the same, Pacholec
and any other Town materials that have been kept off site prior to the close of business
24, Neither the Town nor Pacholec, by signing this Agreement, make any
25. Pacholec represents and warrants that the Town has encouraged and advised
26. Pacholec represents and warants that: (i) he has carefully read each and
every provision of this Agreement; (ii) he has consulted with counsel regarding the same;
(iii) he fully understands all of the terms and conditions of this Agreement; and, (iv) he
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enters into this Agleement voluntarily of his own free will.
27. Pacholec understands that Pacholec has up to twenty-one (21) days from
April 1,2019, the date the Agreement was delivered to Pacholec's attorney, to consider
its terms, sign it and return it to the Employer. Pacholec agrees that any changes made to
this Agreement, whether material or immaterial, do not restart the running of the twenty-
one (21) day period. During this twenty-one (21) day period and before signing below,
Pacholec is advised to consult with his attorney, should Pacholec so desire, regarding the
terms of this Agreement, at Pacholec's own expense. The terms of the offer contained in
this Agreement will expire at the conclusion of the twenty-one (21) day period, if not
accepted during that period of time. Pacholec may sign the Agreement prior to the
conclusion of the twenty-one (21) day period. If Pacholec elects to do so, Pacholec
acknowledges that Pacholec has done so voluntarily. Pacholec's signature below indicates
that Pacholec is entering into this Agreement freely, knowingly and voluntarily, with a full
28. This Agreement may be revoked by Pacholec within seven (7) days after
the date this Agreement is signed by Pacholec by delivering written notice ofhis revocation
to John Bailey, Esq., Town Attorney. This Agreement shall not become effective or
enforceable until the revocation period has expired. None of the agreements/payments
described in this Agreement, including the decision to forgo instituting disciplinary action,
shall be made or provided unless Pacholec signs this Agreement and does not revoke this
in such manner as to be effective and valid under applicable Federal law and the laws of
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New York State; however, if any provision of this Agreement is held to be prohibited by
or invalid under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such provision or the
30. This Agreement when executed and upon expiration of the revocation
period without Pacholec revoking his assent to this Agreement, constitutes the entire
agreement between the parties and supersedes and replaces any and all prior agreements
between Pacholec and the Town. This Agreement may not be amended or modified except
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FOR MARK PACHOLEC
Dated: ,l
----7---7 ,
Mark Pacholec
On this 16th day of April, 2019, before me personally appeared Mark Pacholec, to me
known, and known to me to be the same person described in and who executed the
foregoing instument, and he acknowledged to me that she
Notary Public
State ofNew York
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