Former city DPW director wants opportunity to 'defend my actions' in light of separation agreement

A 15-page separation agreement between the city of Batavia and former Public Works Director Tom Phelps bars him from publicly disparaging the municipality, pays his health insurance as if he were employed through Nov. 30, and provides a total severance and unused vacation package of $30,630.49.

The agreement, obtained by The Batavian with a Freedom of Information request, stipulates the terms of separation for Phelps, who was hired by the city on Oct. 7, 2024, and whose employment was ended on May 29 this year.

Before this situation with city management, Phelps has "never been put on a performance improvement plan, been written up, or disciplined," he said. He now would like something beyond severance.

"I believe every employee deserves the opportunity to respond to concerns before decisions affecting their career and reputation are finalized. I am asking for that opportunity so I can defend my actions, answer questions directly to council members, and request fair consideration regarding my reinstatement. In front of more than just one body of judgment," Phelps said to The Batavian. "Several past and present employees and business professionals have commented positively on my professionalism, work ethic, and decision-making, along with the ability to bring the departments together and accomplish more in-house.

My hope would be to return to my job and contribute constructively toward transparency, accountability, and public confidence in the city government.

"I remain committed to working collaboratively with other city leadership to help move the city community in a positive direction while ensuring that decisions are based on accurate information, responsible stewardship of public resources, and the best interests of the citizens we serve," he said. "The city should not be about personal conflict. It is about transparency, accountability, responsible governance, and ensuring that the city is moving in the right direction for the benefit of all its residents."

Benefits include a severance of $19,551.38 "in full and complete settlement of all claims to the maximum extent permitted by law that could have been asserted by employee or any other claims to the maximum," the agreement states.

In addition to the severance money, the city also agreed to pay a lump sum for accrued but unused vacation time of 191.25 hours, for a total of $11,079.11.

The accrued time payment is expressly conditioned upon employee's full and continuing compliance with all terms and conditions set forth in this agreement, including but not limited to the return of "all employer property, confidentiality, and non-disparagement obligations."

In the event of any breach by employee of the terms and conditions set forth in this agreement, employer shall have the right to withhold, discontinue, or recover the accrued time and/or severance payments provided under this agreement.

The City agreed to continue his current health insurance coverage through Nov. 30, as if he remained an active employee and is responsible for the employee's portion of the premium.

Employer also agrees not to contest employee's application for unemployment benefits, though employer will comply with any legal obligation to provide "true and accurate information to the New York State Department of Labor or any government entity assessing a claim for unemployment insurance benefits," the agreement states.

Other portions of the agreement include:

* Employee has not alleged, asserted, or made any complaints or reports of discrimination or harassment based on any protected class or otherwise engaged in protected activity under applicable law.

* Employer and employee, without any admission of liability or wrongdoing whatsoever and to avoid further expense, wish to completely resolve all issues between them based on employee's employment with employer and termination of said employment.

* This agreement has been reached between employee and employer for the payment by employer of certain unearned monies to employee that employer would not otherwise be obligated to provide to employee, and each party has given certain assurances to the other about its conduct with regard to their future relationship.

* This agreement does not constitute and shall not be construed as an admission by the city of any violation by employer of any federal, state, or local law, ordinance, or regulation, any violation of any policy or procedure or of any liability or wrongdoing whatsoever. Or as admissible in any proceeding as evidence of liability or wrongdoing by employer.

* TOM PHELPS, for himself and for his agents, attorneys, heirs, executors, administrators, successors, and assigns (collectively, "Releasors"), hereby unconditionally and irrevocably releases the City of Batavia, New York and each and every affiliate, subsidiary, division, department, or other entity that is directly or indirectly related to the City of Batavia, each of its and their respective (present, former, and future) officers, directors, city council members, managers, agents, administrators, employees, fiduciaries, attorneys, representatives, successors and assigns, as well as each of the foregoing individual's heirs, executors and representatives, and any person or entity acting for or on behalf of Employer both past and present (collectively, "Releasees") to the maximum extent permitted by law, from any and all claims, debts, obligations, demands, judgments, or causes of action of any kind whatsoever.

* All Claims asserted by any other employee of the City of Batavia in

which Employee has claimed or could claim any interest.

* If Employee breaches or is found by any court of competent jurisdiction to have breached any provision set forth in Paragraph 9(a) of this Agreement (relating to Confidential Information), Employee shall pay to Employer, as liquidated damages and not as a penalty, the amount of ten thousand dollars ($10,000.00) for each such breach or violation, and for each separate disclosure, publication, communication, or use of Confidential Information constituting a distinct violation (it being understood and agreed that each separate unauthorized disclosure, publication, communication, or use of Confidential Information shall constitute a separate breach giving rise to a separate liquidated damages obligation).

* Not as a penalty, the amount of seven thousand five hundred dollars ($7,500.00) for each such breach or violation, and for each separate disclosure, publication, or communication of Confidential Agreement Terms constituting a distinct violation (it being understood and agreed that each separate unauthorized disclosure, publication, or communication of Confidential Agreement Terms shall constitute a separate breach giving rise to a separate liquidated damages obligation).

* Notwithstanding any other provision of this Agreement, the liquidated damages set forth in this Paragraph 10(b) shall be in addition to, and not in lieu of: (a) any and all attorneys' fees, costs, expenses, and disbursements incurred by Employer to investigate, respond to, or enforce any provision of Paragraphs 8 or 9 or this Agreement (which Employee agrees to pay in full upon demand, regardless of whether Employer is the prevailing party in any action or proceeding.

* Employer's right to withhold, discontinue, suspend, or recover any Severance Payment, Accrued Time Payment, or other benefits provided pursuant to this Agreement, as provided in Paragraphs 3(c) and 3(d); (d) any actual, compensatory, consequential, or punitive damages to which Employer may be entitled under applicable law to the extent such damages exceed the liquidated damages amounts set forth herein; and (e) any other legal or equitable remedies available to Employer under applicable law, all of which rights and remedies are cumulative and not exclusive, and the exercise of any one remedy shall not preclude the exercise of any other remedy.

* Cooperation. To the maximum extent required or permitted by law, Employee agrees to cooperate with Employer to provide all information or testimony that Employer may hereafter reasonably request with respect to matters including but not limited to administrative, judicial, or other proceedings, inquiries or investigations, involving Employee's former relationship with Employer, the work Employee performed for the City, or present or former employees or clients of the City, so long as such requests do not unreasonably interfere with any other job in which the Employee is engaged. Employer agrees to reimburse Employee for all reasonable out-of-pocket costs Employee shall incur in connection with such cooperation.