Terminating the Employment Relationship

b. Specify When Disclosure Is Permitted A separation or settlement agreement should specifically identify when disclosure may occur and who will be responsible for disclosure. It is absolutely necessary that an agency include a catch- all phrase that allows the agency to disclose the sealed documents when required to do so by law or court order. The following sample language applies to a peace officer, but can be easily tailored for an agreement involving a non-public safety employee:

The City’s Chief of Police shall not order the Separate File to be opened or released, except as otherwise provided herein, unless in response to a Court Order, upon receiving written authorization from Jones, or unless otherwise compelled to do so in order to comply with any state or federal law or regulation. The Parties understand and agree that the Chief of Police may authorize disclosure of the Separate File in the following circumstances:

To a Law Enforcement agency upon receiving a valid waiver to do so in accordance with Government Code section 1031.1 , or any similar law from another state. “Law Enforcement agency” shall be defined as any State of California or non-California (including federal) agency employing, independently contracting with or otherwise affiliating in any manner with “peace officers” as that term is defined in the California Penal Code and in any counterpart sections in non-California jurisdictions, or by any non- governmental entity. During defense by the City of any other proceeding or claim brought by Jones (whether administrative, quasi-civil, civil or criminal) to which the City is either a party or a real party in interest, whether or not the bringing of said proceeding violates this Agreement, or in any administrative, quasi- civil, civil or criminal case where Jones testifies or is designated as a potential witness on behalf of any party where the City is also a party (whether or not such act(s) are violates this Agreement). In the course of any such defense or prosecution, there shall be no prohibition upon use by the City of the content of the general personnel file and/or other files as a defense to the proceeding(s) and/or in opposition to Jones’ participation, and/or to impeach or otherwise counter his testimony, and no discovery procedures shall be required as a condition precedent to such use by the City.

The example above permits an employer to disclose sealed documents when required by law, when it receives an authorization to release the records signed by the employee, and when the agency needs to use the sealed documents to defend itself in a legal proceeding.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 116