Woika, Michael

From: Tammy Fields K. (mailto:TFields@pbcgov,org]

Sent: Tuesday, October 16, 2012 2:08 PM To: Frieser, Diana Grub; Sharon Burrows G. Cc: Denise Nieman; Hamilton, Joni Subject: RE: Nondiscriminatory Provision Within City/County Interlocal Agreement
Thanks for condensing this into a logical summary. I believe it accurately summarizes our discussions. As Denise mentioned, we are working on the process of including third-party beneficiary language into standard agreements.
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Chief Assistant County Attorney Palm Beach County Attorney's Office 301 North Olive Avenue, Suite 601 West Palm Beach, FL33417 (561) 355-2592 Fax: (561) 355-4398 From: Frieser, Diana Grub [mailto:DGFrieser@ci.boca-raton.fJ.us]

Sent: Monday, October 15, 2012 3:14 PM To: Tammy Fields K.; Sharon Burrows G. Cc: Denise Nieman; Hamilton, Joni Subject: Nondiscriminatory Provision Within City/County Interlocal Agreement
Sharon and Tammy, Thank you for speaking with us regarding the City of Boca Raton's opt-out of Palm Seach County's Equal Employment Ordinance ("PSC Ordinance") and certain related issues. Our discussion also focused on the standard nondiscrimination clause included in the County interlocal agreements with the City, such as in the pending, proposed Hazardous Materials Emergency Response Services Interlocal CHaz Mat Agr"). As we discussed, this email confirms our discussion and our agreement/understanding as to the following issues. Generally regarding the PBC Ordinance: The PSC Ordinance provides protection to classes of employees protected under state and federal law plus additional categories identified by the County. City employees receive the benefit of protections set forth in state and federal law. While the City is committed to an equal employment workplace policy, the City has not elected to expand the categories of protected classes beyond those specified in state and federallaw. Pursuant to the "opt-out" language of the PBC Ordinance, the City opted out and the opt- out was affirmed in City Ordinance No. 5161 (the "City Ordinance"). A copy of this City Ordinance is attached for your reference. The City Ordinance had the effect, consistent with the terms of the PSC Ordinance, of removing the City of Boca Raton from the jurisdiction of the PBC Ordinance as an employer, including both the substantive provisions and the regUlatory/procedural ones. The City Ordinance results in an opt-out for the City as an employer, and does not impact the rights/obligations of other employers and employees within the City that are otherwise covered by the PBC Ordinance. Based on the City's opt-out, the City and County agree that the County would not have jurisdiction over an employment discrimination claim filed by a City employee against the City under the PBC Ordinance. Generally regarding the inclusion of an EEO provision in interlocal agreements between the City and the County: It is the County's policy to include nondiscrimination provisions in its contracts consistent with Resolution 92-13, as amended by Resolution R-2012-0197. The nondiscrimination provision does not provide any third parties (e.g., a member of the public or a County/City employee) with any rights under an interlocal - t.e. the agreements are not intended to create third party
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beneficiaries. By including the nondiscrimination provision in the interlocals, the County did not intend to create, and does not believe it created, a private cause of action or claim (which could be prosecuted in a court or through the County's Office of Equal Opportunity) that could be exercised by a City employee or a member of the public who may claim discrimination based on grounds protected by the PSC Ordinance . In the proposed Haz Mat Agr, the County has also included an express provision in the remedies section to reaffirm this conclusion, as follows: "No provision of this Agreement is intended to, or shall be construed to, create any third party beneficiary or to provide any rights to any person or entity not a party to this Agreement, including but not limited to any citizen or employees of the County and/or the City." The County has advised the City that they are willing to include the above remedies provision (affirming no third party beneficiaries) in all future intertocals as it is consistent with their intent and understanding of the termsof the interlocals; except in the event an agreement expressly identifies third party beneficiaries (which the Haz Mat Agr does not), in which case the third party beneficiary provision would be specific to the nondiscrimination provision. Taken together, the nondiscrimination provision and the remedy provision reaffirm that the interlocal does not create any rights for the benefit of City employees or the public, and that the nondiscrimination provision represents only a contractual provision which, in the event of breach, may allow for termination of the contract or ofher contractual remedies. Therefore, the remedy available to the County and City under the interlocal based on a breach of the nondiscrimination provision is a contractual remedy, and no other rights are created by or derive from the interlocalin favor of City or County employees or members of the public. The Haz Mat Agr provides for a termination "with or without cause, by either party, at any time upon ninety (90) days notice to the other party". The County believes the nondiscrimination provision in the Haz Mat Agr does not require the City to provide domestic partnership benefits.

I believe the above represents our mutual understanding, and I would appreciate if you would confirm this fact by email response. Thanks for all your help in connection with these issues. Diana cc: Denise Nieman Joni Hamilton

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