Resignation agreement to govern employee's references
April 17, 2008
By Greg Elias
An outgoing town employee has struck an unusual agreement that forbids bad references from his bosses.
Williston zoning administrator D.K. Johnston signed the resignation agreement last month. The seven-page document was also signed by Town Manager Rick McGuire and Johnston's immediate supervisor, Town Planner Lee Nellis.
Much of the agreement is written in thick legalese common to contracts. But the heart of the agreement concerns provisions for references.
Town employees "shall not make any negative or derogatory comments about Johnston or the performance of his work with the Town," the agreement states.
Known among human resource professionals as a "non-disparagement clause," it permits town officials to simply state what position Johnston held and for how long. The clause also allows Nellis to provide a positive letter of reference that is pre-approved by Johnston, then give verbal references consistent with the letter.
The agreement requires Johnston to be paid for accrued vacation, compensatory time and personal time – 151 hours in all. He will continue to be covered under the town's insurance policy through the end of the year.
Williston officials were tight-lipped about the circumstances of Johnston's departure from a job he held for almost 3.5 years. It is unclear whether he was asked to resign or quit.
"It's not quite that clear cut," McGuire said. "I guess it was a decision by both parties that it would be best if he moved on to another position."
The agreement states the town wanted to restructure the zoning administrator and assistant town planner positions held by Johnston and that they "will no longer exist in their present form."
Reached at home, Johnston declined comment on the agreement, although he did thank members of the volunteer boards he worked with during his tenure.
"I think the agreement kind of speaks for itself," Johnston said. "I'm really not allowed to say anything."
The agreement forbids any statement by Johnston or town employees that "impacts negatively on either the Town's or Johnston's reputation in the community."
Under the agreement, Johnston is allowed to continue working for the town of Williston through June 30 as assistant town planner. McGuire said Johnston is still "doing some work" for the town.
But he is no longer zoning administrator, a position that has among its duties enforcement of the town's land-use rules. Nellis said he has for now taken on the zoning administrator's responsibilities.
Johnston is currently paid $23.71 an hour, said Susan Lamb, the town's finance manager. The total payment for accrued benefits will therefore be $3,580.21. Lamb noted that all employees are paid for accrued benefits when they leave.
The agreement allows Johnston to resign before June 30 and still collect the pay that would be coming to him through that period as well as the accrued vacation and comp time.
Employment experts say resignation agreements, while not routine, are becoming increasingly common.
"It's really to avoid future litigation that relates to what can be an emotionally charged situation," said Bill Reynolds, general counsel with the Vermont Department of Human Resources.
The state of Vermont employs about 7,000 people. Reynolds estimated that more than a dozen resignation agreements are struck with state workers each year.
Mark Heyman, president of Cope Human Resources in Burlington, said resignation agreements have in the past been more common in the private sector than in the public sector, but that is changing.
Heyman said non-disparagement clauses are often used to smooth over disagreements that arise when employees leave.
"In general, nobody wants bad things to be said about them," he said. "In employment disputes, there are very often going to be contested facts."
Contracts that restrict what can be said by and about a former employee let private firms avoid situations that can turn into public relations problems, said Heyman, formerly deputy counsel with the Vermont State Employees Association. But he acknowledged that such agreements with public employees raise more complex issues.
"The difference in the public sector is there is an interest in knowing about the way government works," he said. "The public's right to know needs to be balanced with the employee's right to privacy."
A common way employers avoid problems is to simply refuse to give detailed references. Heyman estimated more that 75 to 80 percent of private firms now have policies against providing references that go beyond confirming dates of employment and job duties.
The town of Williston appears to be headed in that direction. Earlier this month, the Selectboard discussed a draft policy that would require employees to sign a form releasing the town from legal liability before receiving a detailed reference.
Johnston's departure was complicated by the fact that under state law zoning administrators are appointed, not hired like most municipal employees. The statute requires planning commissions to recommend candidates, who are then appointed by selectboards to three-year terms.
Johnston's term ends June 30. McGuire said the Williston Selectboard was advised of Johnston's pending departure and the agreement.
Johnston was hired by the town in December 2004. The job has at times thrust him into the middle of heated land-use disputes. He has dealt with issues ranging from a disagreement over whether a Little League scoreboard should be permitted in the town's historic district to enforcement of rules against temporary signs.
Nellis said the zoning administrator position as currently configured is both stressful and frustrating, so the town is considering changes to make the job more appealing.
Most of the zoning administrator's duties involve answering questions from the public about land-use rules and attending board meetings. Enforcement has in practice been a relatively small part of the job, Nellis said, but is perhaps the most difficult duty.
"Time-wise, enforcement is a very minor component of the position, but stress-wise it makes a huge impact," he said.