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Sunshine Act lawsuit against Kennett Township and McCarthy settled

10/14/2015 08:19AM ● Published by J. Chambless

By Richard L. Gaw
Staff Writer

The lawsuit filed by Kennett Township resident Michael Hammon that claimed Kennett Township's three supervisors were in violation of the Sunshine Act for a retirement agreement that the suit claimed was brokered in secret with former Police Chief Albert McCarthy, has effectively been settled. As a result, those named in the lawsuit are released from any further liability.

At its Oct. 7 meeting, the supervisors authorized the township's defense counsel – The Pennsylvania Intergovernmental Risk Management Association – to confirm the township's position that non-disclosure provisions in township agreements are potentially subject to disclosure under the Sunshine Act and The Right To Know Act, and that the board does not object to the settlement of this case.

The Pennsylvania Intergovernmental Risk Management Association [PIRMA] is a municipal statewide risk-sharing group that provides liability and property coverage to about a quarter of the municipalities in the Commonwealth. Explaining the details of the settlement, Township Solicitor David O. Sander said that under the township's contract with PIRMA, were the township object to the conditions of the settlement, the township would have to continue to fight the lawsuit on its own.

Counsel on both sides of the lawsuit also agreed that the township's liability carrier will be repsonsible for reimburisng Hammon's legal costs in the suit.

The suit, filed by Hammon in the Chester County Court of Common Pleas on July 22, claimed that the township had brokered a “secret retirement agreement” with McCarthy, and that at no time between the board's 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 agreement.

As further evidence to support its claim, the suit pointed to Section 2.B.11 of the retirement agreement, which stated:

“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 jurisdiction.”

Despite the fact that McCarthy officially resigned from his post as Police Chief in April, the meeting to agree on the specifics of his retirement agreement was not originally scheduled until Aug. 5. The date for the sign-off was then moved back to July 22, but on July 28, a notice was published in a local daily newspaper announcing that the meeting would be held on July 29 – when the retirement agreement was officially approved.

The seedlings of this lawsuit date back to April 13, when Hammon was involved in a vehicular crash involving a police vehicle driven by McCarthy at approximately 12 noon on Hillendale Road. Soon after the incident, McCarthy told attending officer State Trooper Erick Baker of the State Police that he suffered from a seizure that was caused by a previous brain injury, which he said contributed to the collision of his 2015 Ford Taurus Kennett Township police vehicle with Hammon's 2006 Honda Accord. The public information police report said that McCarthy was following Hammon's vehicle too closely, and at a high rate of speed. Hammon is still receiving medical tratment for injuries he sustained in the accident. McCarthy was uninjured in the accident, and a family member picked him up from the scene.

It was announced at the township's April 15 board of supervisors meeting that McCarthy was placed on administrative leave from his duties. McCarthy subsequently retired from his position on May 7, was the recipient of a retirement ceremony at the Board of Supervisors meeting on May 20, before a packed house of well-wishers and law enforcement officials at the Kennett Township Building.

“There is no admission of liability on either side,” Sander said of the settlement. “There is no admission that anybody did anything wrong, but as with 90 percent of litigation, it is settled before going trial, so that's what's happening here,” Sander said.

“This is a settlement, so neither side gets what they really want,” Stevens said. “We [Kennett Township] are out, so to speak. The insurance company wants to be out for nothing, and the plaintiff want a great big bundle of gold at the back end of it. Neither of us wins. It's somewhere in between. Both sides figured that this is probably a better long-term result than getting tied up in litigation, and what happens then, is up to the Gods.”

"Secrecy not only destroys people's faith in government, it also ruins their ability to serve their proper role in a democracy," said attorney Mark Sereni of the Media-based law firm of DiOrio & Sereni, LLP, Hammon's legal counsel in the lawsuit. "I'm proud of my client for stepping up to enforce the rights of his fellow township residents to open government. And I'm glad that he will be fully reimbursed for what his investment in the public good had personally cost him."

To contact Staff Writer Richard L. Gaw, e-mail rgaw@chestercounty.com.


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