Accident victim files lawsuit against Kennett Township
07/28/2015 02:47PM ● Published by Richard Gaw
By Richard L. Gaw, Staff Writer
Kennett Township resident Michael Hammon has filed a lawsuit against Kennett Township and its three supervisors that claims that one or more of the four parties are in violation of the Sunshine Act, for what the suit claims involved a "secret retirement agreement" the township fostered with now-retired Police Chief Albert McCarthy – one that will cost Kennett Township residents more than $45,000, in order to pay McCarthy a salary through the end of September.
The lawsuit asks the Chester County Court to render the agreement as "unlawfully-transacted agency business"; to determine that the township and its supervisors have violated the Sunshine Act; to invalidate the retirement agreement the township negotiated with McCarthy; and award Hammon the cost of his legal fees and costs of litigation.
The complaint, filed on July 22 with the Chester County Court, alleges that at no time between the meeting dates of April 15 through July 15 did Board Chairman Scudder Stevens and Supervisors Dr. Richard Leff and Robert Hammaker publicly vote on or approve any retirement agreement with McCarthy, nor invite or receive comment from the public on the retirement agreement it brokered with McCarthy on May 7, which has been obtained by the Chester County Press.
Section 2.B.11 of the retirement agreement, entitled "Non Disclosure," gives evidence that may support Hammon's claims that the retirement agreement the township negotiated with McCarthy was done in secret.
"Except as specifically provided in this statement, McCarthy and the Township agree that, as a material part of the consideration for this Agreement, they will not disclose or discuss, other than with legal counsel, the existence of this Agreement or any of its terms except to the extent properly subpoenaed under applicable court rules or otherwise compelled by law or court of competent jurisdiction," the section states. "The parties acknowledge the possibility that the Township may be compelled to disclose this Agreement pursuant to a lawful request made by the Pennsylvania Open Records Law."
The lawsuit further stated that at no time during Stevens' public statements at McCarthy's retirement ceremony, held May 20 at the Kennett Township Building, did he "disclose or allude to" the existence of any retirement agreement between the township and McCarthy. Further, the lawsuit said that at no time during the meeting did the supervisors "receive public comment on, discuss, deliberate, vote upon or approve" the retirement agreement.
"When the lawmakers enacted the Sunshine Act, they explicitly found that the right of the public to be present at all meetings of governmental agencies and to witness the deliberation and decision-making of governmental agencies is vital to the enhancement and proper functioning of the democratic process, and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society," said Mark A. Sereni, of the Media-based law firm of DiOrio and Sereni, and Hammon's attorney.
The terms of McCarthy's retirement agreement, obtained by the Chester County Press, spell out the benefits he will continue to receive from the township, which include McCarthy being paid his "normal" salary through Oct. 1, 2015, which will be estimated at $45,000 in payment; payment for any unused sick or vacation leave; and continuation of McCarthy's healthcare coverage through March 31, 2016.
Under the agreement, which was signed on May 6 by McCarthy, McCarthy agreed to direct any employment references to Township Manager Lisa Moore, who will provide a reference limited to McCarthy's dates of employment, position held and salary at the time of separation, and confirmation that McCarthy voluntarily retired.
Additional caveats of the agreement include:
* McCarthy will make himself available to help in the transition of the police department, as well as assist in the completion of any additional pending investigations;
* The township will continue to defend and indemnify McCarthy about any legal claims against him which occurred while he was employed by the township;
* McCarthy waives any right to monetary relief from the township in any legal action he may be involved with;
* McCarthy waives any rights to regain employment by the township; and
* The township and its elected and appointed officials will agree not to disparage McCarthy, and that McCarthy agrees not to disparage the township or its elected or appointed officials.
The lawsuit is merely the latest touchstone in an entire timeline of events that first began at the noon hour of April 13, when the 2006 Honda Accord Hammon was driving on Hillendale Road was struck from behind by a Kennett Township police vehicle that was being driven by McCarthy. A public information release report issued by State Police Avondale said that McCarthy was following the vehicle ahead of him too closely and at a high rate of speed. Both vehicles proceeded to the intersection of Hidden Pond Drive and East Hillendale Road, before they both stopped. Hammon sustained a minor injury but did not require EMS transportation. McCarthy was uninjured in the accident.
Both vehicles were removed from the scene by Blittersdorf Towing. Although McCarthy was not charged in the accident, the primary violation was identified as "VC 3310(A) Following Too Closely."
Two days later, on April 15, McCarthy was placed on administrative leave from his duties, as agreed by the board of supervisors, who also voted 3-0 to appoint Kennett Township officer Lydell Nolt to serve as the acting interim police chief for the township. McCarthy’s administrative leave was identified as "non-disciplinary."
Soon after, the Chester County Press learned that the April 13 accident was caused by a seizure McCarthy revealed that he had at the time of the accident. He told State Trooper Erick Baker of the State Police – who was the attending officer at the crash – that he suffered from a seizure that was caused by a previous brain injury.
On May 14, in an e-mail to township residents, the township announced that McCarthy officially retired from his position on May 7 would retire from law enforcement after 42 years of service. On May 20, before a packed audience at the Kennett Township Building, the supervisors arranged a retirement ceremony for McCarthy, who spoke briefly and received a retirement badge.
"[Chief McCarthy] educated hundreds and hundreds of children throughout the year, and many of these children who still call him today to ask for help and guidance," Stevens said at the ceremony. "He was always firm, fair and consistent. You knew where you stood with him. He was a good listener and delegator. He followed the maxim, 'The best way to keep power is to share it, and the best way to influence is to listen.'"
Less than one week after the ceremony, further details began to emerge about the April 13 accident. Chester County Press a hand-written document from an unnamed witness at the scene of the crash, who shared what he observed at the scene to a licensed private investigator on April 15. While driving a dump truck, the witness said he was about to turn left onto Hidden Pond Drive, when he heard a loud noise, which he described as a screech and dragging noise. He told the investigator that he looked into his rear-view mirror and saw Hammon's and McCarthy's vehicles "connected to each other...A white unmarked police car was in the trunk of the black car in front of it," the witness stated.
The witness then said that after the two vehicles stopped, McCarthy's police vehicle backed up, disconnecting itself from Hammon's vehicle. Soon after, the police vehicle's horn was activated. When he approached McCarthy's vehicle to see if McCarthy was okay, the witness stated he saw McCarthy attempt to push the driver's side air bag in the police vehicle – which had deployed during the accident – back into the steering wheel.
The witness then noted to McCarthy that the police vehicle's air bag had deployed, which at first, McCarthy denied. Later, the witness stated, McCarthy said that the bag did deploy.
On July 15, in a ceremony held at the Kennett Township building, Nolt was sworn in as the township's new police chief.
A public notice published on July 28 indicated that the board will hold a special meeting on July 29, beginning at 7:30 p.m., to discuss the retirement agreement it brokered with McCarthy. "If appropriate," the notice said, the board "may take action relative to both the agreement and prior payments made to McCarthy pursuant to the agreement."
To contact Staff Writer Richard L. Gaw, e-mail firstname.lastname@example.org .