The Berry Agreement

Ron Bolin — October 1, 2010
The newspapers have recently carried stories about former City Manager Jerry Berry’s annual raise as we come up to the one year anniversary (Oct. 5) of the settlement for his departure between him and  the City of Nanaimo.  I thought it would be useful to examine the settlement itself and to make it available for comment to any current, retired, or wannabe lawyers among our readership.  The agreement can be seen here .  Many of its terms have been discussed in the press.  Among these are:

  • Continuance of salary for 24 months (2008 = $228,038; 2009 = $180,764 (i.e. part time, but one assumes that the increment will be paid on the full salary.  I’m not sure why the full 2009 figure is not shown as it was paid to him under the agreement.  Has he been eligible for unemployment?) ;
  • Salary increases as set by “Hay”;
  • Additional months of salary based on his accrued vacation or an equivalent lump sum payment;
  • A lump sum payment of up to 60 days of sick leave;
  • For both the severance period and vacation/sick days, the following benefits: medical, extended health, dental benefits, EFAP, pension benefits, and car allowance;
  • Up to $7,500 in legal costs for the agreement;
  • Up to $2,500 for counseling.

It is noted that the terms of the settlement are not confidential, “but that any discussion of the settlement or the reasons it was entered will be consistent with the terms agreed herein…”, but that “this limitation applies to the employee and City Council members and officers…”  Curious.

In exchange for these terms, Mr. Berry agrees “to execute a comprehensive release of claims in the form attached hereto as Appendix 2.”  Appendix 2 – RELEASE and INDEMNITY, seems to state that both parties release each other from claims not covered in the agreement.  Only a lawyer could determine the full implication of this release, but in reading the Agreement and the Release one is struck by the apparent imbalance between all the benefits that accrue to Mr. Berry, while the City doesn’t seem to get anything more than a release from any claims that Mr. Berry may have previously made or in future make against it.  It reads to me like a veiled take-it-or-leave-it threat and this leads one to wonder what it is that is being silenced.  Something seems rotten, and its not in Denmark.

Practicing, retired or wannabe legal eagles are urged to read the Agreement and the Release and Indemnity and comment.  No rants, please.