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Here’s The Scoop …. Case No. 10 26301 … Town Of Lauderdale-By-The Sea Plaintiff v. Esther Colon Defendent ….”Defendent Has Been Unjustly Enriched” …

FORGET ABOUT “IF IT WALKS LIKE A DUCK”…

WHAT MATTERS NOW… WHO HAS THEIR “DUCKS IN A ROW”….

Dear Readers… as previously posted the Town of LBTS filed their case No. 10 26301 in the Circuit Court Of The 17th Judicial Circuit In And For Broward County, Florida on June 12, 2010…(see below)…

The Interim Town Manager along with a consultant, who we now know is our new Int. Finance Director and the Town’s law firm Weiss, Serota agreed former Town Manager Esther Colon was overpaid by $69, 308.62 …Early on this writer and the BTSFuture explained in posts and articles that Ms. Colon would leave with close to $300,000 …and that Ms. Colon was never go to walk away from her severance … It was apparent to most (65% of voters) that Ms. Colon wanted to be fired and collect her severance … During the election those voters stated over and over to those candidates that eventually won in March…it was worth it to get rid of her!… The problem turned out not to be the severance (prev. posts) …It is the overpayment of funds beyond the one year severance made by former Asst. Town Manager John Olinzock and former HR/Risk Mgr. Kathy O’Brien despite being asked by all 5 Commissioners and the Town’s law firm to let them verify it before it was transferred at the end of the week she was terminated …

This writer has heard all sorts of absurdities coming from those leftover straggler “Colon-istas” who believe she should keep the “public funds” because it will cost the taxpayers to get the money back .. HUH?… At any time Ms. Colon and her counsel could have and should have sat down with the Town and come to terms on what was or was not correctly distributed… She did not!…. Now it is in court…and yes, there can and should still be arbitration…But…. if it continues on Defendant Colon will be on the hook to pay back not only the $69,308.62 but also…”prejudgment interest court costs and any other relief the Court deems appropriate.”…OUCH!…

This writer made public record requests for former Town Manager Bob Baldwin’s agreements, memos, or anything beyond what I already had and posted over the last few years.for salary and benefits as well as payouts …..The Town produced the Oct. 2000 Commission meeting (prev. post) where Comm. Marc Furth made the motion to increase Baldwin’s vacation days to 20 annually and it was made evident from those minutes it was for Baldwin alone..due to the item itself on the agenda placed by Comm. Wessels …I made a follow-up for any backup to that meeting or other changes made after the 5-0 vote …I received a response a few days ago that stated there was nothing else … Word on the street is that some are saying Colon has proof she is entitled the whole $69,308.62 …Hmmm… That could only be true if….1-The Town has not been forthcoming in my PRRs…2-Defendant Colon took that “proof”when she left and the Town no longer has in its possession ….3-The persons making these statements are full of you know what…4-Defendant Colon is feeding them a load of you know what!….In any event, none of these four scenarios are acceptable if they were to pan out ….The rest of the overpayment, as posted previously by this writer will fall to the Arbiter or the Judge to decide which sides interpretation of the contract/Personal Policy Manual is correct……Those issues could offer some wiggle room for both sides …again, in this writer’s opinion… This writer has also repeatedly been told by voters…public funds should always be recovered …

All 5 Commissioners sat on the dais and voted the Int. Town Manager out for his actions in distributing the funds without verification by the Town Attorneys…

All 5 Commissioners voted to proceed upon the recommendation of the Int. Town Manager and the Town Attorneys…

All 5 Commissioners¬† must realize they owe it to the taxpayers to recover any and all overpayment made in error to Defendant Esther Colon…

“CASE 10 26301

Town of Lauderdale-By-The-Sea Plaintiff v. Esther Colon Defendant

COMPLAINT FOR DAMAGES

Plaintiff: Town of Lauderdale-By-The-Sea, by and through the undersigned counsel, hereby files this complaint for damages against Defendant, Esther Colon, and alleges as follows:

GENERAL ALLEGATIONS

1. This is an action for damages which exceed fifteen thousand dollars ($15,000.00), exclusive of interests, costs, and attorney fees.

2. Plaintiff, Town of Lauderdale-By-The-Sea (the “Town”), is a municipal corporation located in Broward County, Florida.

3. Upon information and belief, Defendant Esther Colon (“Defendant”), is a resident of Miami,-Dade County, Florida, and is sui juris.

4. Venue is proper pursuant to Defendant’s Employment Agreement with the Town, which Agreement forms the basis for this lawsuit, and because the claims asserted herein arose in Broward County.

5. In this action, the Town seeks the return of public funds mistakenly overpaid to Defendant, the Town’s former Town Manager, as part of her final severance and leave payouts pursuant to her Employment Agreement with the Town.

6. All conditions precedent to the filing of this lawsuit have been compiled by the Town.

7. The Town has retained the undersigned to represent its interests in this matter and has agreed to pay the undersigned a reasonable sum representing its attorney’s fees.

FACTUAL ALLEGATIONS

8. On May 22, 2007, Defendant entered into an Employment Agreement with the Town (the “Agreement”), pursuant to which she was employed as the Town Manager. A copy of the agreement is attached hereto as Exhibit “1”.

9. Under Sections 4.1.3 and 5.0 of the Agreement, the Town had the ability to terminate Defendant’s Town employment at any time with or without cause.

10. Under Section 5.0 of the Agreement, Defendant is entitled to the following in the event that she is terminated by unilateral action of the Town:

5.1.1 three hundred and sixty-five (365) days of severance pay, less customary withholding.

5.1.2 reimbursement for as- yet unreimbursed expenses.

5.1.,3 an amount for all accrued and unused vacation leave.

5.1.4 an amount for accrued and unused sick leave.

5.1.5 an amount for accrued compensatory time accrued prior to appointment as Town Manager.

See Exhibit “1”, Section 5.0

11. During its April 20, 2010 Commission meeting, the Town Commission voted 4-1 to unilaterally terminate Defendant’s employment in accordance with section 5.0 of the Agreement. A copy of the minutes from April 20, 2010 Commission Meeting are attached hereto as Exhibit “2.”

12. Immediately following the April 20, 2010 Commission meeting during which Defendant was terminated and unbeknownst to the Town Commission or Town Attorney, the Town’s former Human Resources and Risk Manager, Kathy O’Brien, processed Defendant’s severance and leave payouts.

13. After Defendant’s severance and leave payouts were processed, the Town Attorney’s and certain members of the Town Commission attempted to determine whether the severance and leave payouts processed for the Defendant were correct and requested that the payouts not be deposited into Defendant’s account until such time as the payouts could be reviewed and approved by the Town Attorney.

14. Notwithstanding such efforts, four separate direct deposits purportedly consisting of the severance and leave payouts that Defendant was entitled to under the Agreement were made into Defendant’s bank account on April 23, 2010.

15. The deposits were as follows:

a. a deposit in the gross amount of $169,276.84, which consisted of $160,541.94 for one year’s severance pay, $7,499.96 for one year’s worth of deferred compensation, and $1,234.94 in wages for April19, 2010 and April 20, 2010;

b. a deposit in the gross amount of $41,479.25 for accrued vacation leave;

c. a deposit in the gross amount of $56,293.88 for accrued sick leave; and

d. a deposit in the gross amount of $29,138.36 for accumulated compensatory time.

16. Because of the manner in which the foregoing payouts were processed and the fact that, despite their requests, neither the Town Attorney nor Town Commission was provided with requested documentation establishing the payouts made to Defendant were correct, the Town Commission directed that an investigation into the propriety of Defendant’s final payout take place.

17. As such, the Town’s Interim Town Manager, Connie Hoffmann, engaged an independent and experienced municipal finance professional to assist her in investigating the propriety of Defendant’s severance and leave payout.

18. Based on the Town’s investigation into Defendant’s payout, the Town determined that Defendant had been overpaid in the amount of $69, 308.62 as set forth below. A copy of the report from the Town’s investigation into the leave payouts provided to Defendant is attached as Exhibit “3.”

DEFERRED COMPENSATION

19. Section 10.4 of the Agreement provides that the Town shall pay $7,500.00 annually into a deferred compensation account on behalf of the Defendant.

20. Nowhere in the Agreement does it state that the foregoing deferred compensation is to be provided to Defendant as severance pay.

21. Notwithstanding the foregoing, Defendant received $7,499.96 in deferred compensation as part of her severance and leave payout.

22. Defendant was not entitled to such payout and, as such, was overpaid in the amount of $7,499.96

VACATION LEAVE

23. Pursuant to Section 10.2 0f the Agreement, Defendant was to accumulate vacation leave as provided under the rules and regulations for other managerial employees of the Town.

24. The Town’s Personal Policy Manual (the “Manual”) sets forth the rules and regulations with regard to vacation accrual for Town Employees. Under the Manual, employees with up to ten (10) years of service with the Town accumulate ten (10) days of annual (vacation) leave per year. A copy of the section of the Town Manual addressing annual leave is attache hereto as Exhibit “4.”

25. Because Defendant was employed by the Town for less than Ten (10) years, she should have accumulated the (10) days of vacation per year while employed as Town Manager.

26. During the investigation into Defendant’s severance and leave payouts, the Town determined that, instead of accumulating the (10) vacation days per year, Defendant had been accumulating twenty (20) vacation days per year. As a result, Defendant was paid $18,304.89 for 237.16 vacation leave hours she was not entitled to accrue.

27. The investigation further revealed discrepancies between the Town leave slips and timesheets and the Town’s payroll system which revealed that Defendant was overpaid by 3.74 hours or $288.67 in addition to the other 237.16 vacation leave hours.

28. In total, Defendant received an overpayment of $18,593.56 for accrued vacation pay.

SICK LEAVE

29. Pursuant to Section 10.3 of the Agreement, Defendant was to accumulate sick leave as provided under the rules and regulations for other managerial employees of the Town, including pay-out for unused sick leave on termination.

30. Pursuant to the Town’s sick leave policy as set forth in the Manual, there is a 480 hour cap on accumulated sick leave. A copy of the section of the Manual addressing sick leave is attached hereto as Exhibit “5.”

31. Based on the investigation, it was determined that, before she was promoted to the position of Town Manager, Defendant had accrued 527.85 hours of sick leave, which exceeded the 480 hour cap by 47.85 hours.

32. Concurrent with her appointment as Town Manager, Defendant’s sick leave accrual should have been reset to 480 hours; however, this was not done. As a result, at the time of her separation from the Town, Defendant was paid for 47.85 hours of sick leave time that she was not entitled to.

33. Further, the Manual provides that employees are to be compensated for 25% of their accumulated and unused sick leave upon separation from the Town. Because the Agreement expressly states that Defendant was to “accumulate sick leave as provided under the rules and regulations for other managerial employees,” Defendant only should have been provided with a payout for 25% of the value of her accumulated sick leave.

34. Notwithstanding the limit on sick leave payouts,Defendant received a payout for 100% of the value for her accumulated sick leave.

35. As a result, Defendant was overpaid for sick leave in the amount of $43,215.10.

36. As a result of these findings, on May 28,2010, the Interim Town Manager sent a demand letter to Defendant, advising her in detail of the overpayment and seeking reimbursement of the overpayment. A copy of the may 28, 2010 demand letter is attached hereto as Exhibit “6.”

37. The Town Attorney thereafter submitted a follow-up demand letter to Defendant’s Counsel on or about June 15, 2010. A copy of the June 15, 2010 demand letter is attached hereto as Exhibit “7.”

38. Despite these demands, Defendant has refused to reimburse the Town for the overpayments that were erroneously made to her on April 23, 2010.

COUNT I: MONEY HAD AND RECEIVED

39. Plaintiff incorporates by reference the allegations set forth in paragraph 1-38, as if fully set forth herein and further states:

40. Defendant was erroneously overpaid in the amount of $69,308.62 as part of the final payout she received on or about April 23, 2010 following her termination from the Town’s employment.

41. The Town has made several requests to Defendant for reimbursement of the overpayment.

42. Defendant refused to repay the overpayment to the Town.

43. As a result, there is now due, unpaid , and owing from the Defendant to the Town $69,308.62 representing money had and received by Defendant from the Town.

44. It is unconscionable and unjust for Defendant to retain the overpayment–which represents public funds—despite being advised that the overpayment was in error and that she is not entitled to the overpayment, and despite repeated demands by the Town for reimbusement.

WHEREFORE, Plaintiff demands judgment for damages in excess of fifteen thousand dollars ($15,000.00) against Defendant Esther Colon, together with prejudgment interest, court costs and any other relief this Court deems appropriate.

COUNT II: UNJUST ENRICHMENT

45. Plaintiff incorporates by reference the allegations set forth in paragraph 1-38, as if fully set forth herein and furthe states:

46. Defendant was erroneously overpaid in the amount of $69,308.62 as part of a final payout she received on or about April 23, 2010 following termination from the Town’s employment.

47. Subsequent to the overpayment, the Town made Defendant aware of the miscalculation of her final payout, resulting in the overpayment, and demanded reimbursement of the overpayment by Defendant.

48. Defendant insists upon retaining the overpayment and refuses to repay the Town.

49. Defendant has no legitimate interest in or right to overpayment she received and has retained.

50. In retaining the overpayment despite being repeatedly requested for its return, Defendant has been unjustly enriched . Therefore, in equoity and good conscience, she should not be allowed to keep the overpayment.

WHEREFORE, Plaintiff demands judgment for damages in excess of fifteen thousand dollars ($15,000.00) against Defendant Esther Colon, together with prejudgment interest, court costs and any other relief this Court deems appropriate.

Respectfully Submitted,

Weiss Serota Helfman

Pastoriza Cole & Boniske P.L.

Attorneys for Town of Lauderdale-By-The-Sea”

By: Brett Schneider/Allison Smith

…………….

BC- The only points I need to add…

1-#11 states the April 20, 2010 meeting was a Commission Meeting…it was a Special Meeting …as was the April 26, 2010 meeting that covered the payout and termination of Int. TM Olinzock for the payout …Link to archived 4/20 & 4/26 Sp. Mtgs …¬† http://www.lauderdalebythesea-fl.gov/town/spc-meetings-10.htm

Link to Backup online Town’s website under Town Manager Report for investigation May 25, 2010 used for the May 28 2010 demand letter as well as TM Reports to date… http://www.lauderdalebythesea-fl.gov/town/backuparchive2010.htm

Former Town Manager Colon’s Employment Agreement …Bob Baldwin’s Agreement/memos…as well as Atty. letters back and forth leading up to this case are under the scoops / local government/local politics categories on this site…

2-#12 states HR/Risk Mgr. Kathy O’Brien ….Why no mention about Int. Town Manager John Olinzock and his primary role in the payout?

3- #13 states “certain” commissioners…. I believe all 5 stated they asked for the Int. TM (Olinzock) to hold off on payment to Colon on the dais on April 26, 2010

4- #26 does not include the continuation of Bob Baldwin’s 20 days annual vacation leave …

5- #44-50… WOW!…

We now await the response from Defendant Colon’s counsel…. A PRR has been made for it …..

more to come….

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