City attorney urges council to tune out Culbreth-Graft's claim

April 27, 2010
photo - Penny Culbreth-Graft Photo by THE GAZETTE, FILE PHOTO
Penny Culbreth-Graft Photo by THE GAZETTE, FILE PHOTO 

Colorado Springs City Attorney Patricia Kelly urged the City Council on Tuesday to tune out a request from former City Manager Penelope Culbreth-Graft’s for a $105,000 payout.

In an e-mail to council members, Kelly said she hasn’t heard back from the attorney representing Culbreth-Graft, who claimed April 13 that the city violated her employment agreement by swearing in her replacement three days before she was scheduled to leave.

“I have not received a response to my letter and do not intend to discuss this matter with the media at all,” Kelly wrote in the e-mail, obtained exclusively by The Gazette.

“It is in the City’s best interest, I believe, to let this matter drop,” Kelly wrote.

Last week, The Gazette filed an open-records request for the letter in which Culbreth-Graft claimed she was fired without cause. The newspaper also requested Kelly’s written response to Culbreth-Graft’s lawyer, identified in the documents as local attorney Beverly Lopez.

A response to the open-records request was due Tuesday.

“After research, I could not locate any legal exemption to keep them from being released,” Kelly said in the e-mail to council members, who hadn’t seen the letters. “I wanted you to have these letters in advance of that release to the media.”

According to the documents, Culbreth-Graft claims the city gave her “constructive notice of termination of my employment contract” because Rivera administered the oath of office to Fire Chief Steve Cox as interim city manager.

Culbreth-Graft’s claim could be tough to prove, Scott Moss, a law professor at the University of Colorado at Boulder, said last week. Employees who claim constructive termination typically have to prove that their working conditions were “intolerable to a reasonable employee such that any reasonable person would resign,” Moss said.

In the letter to Kelly, Culbreth-Graft claims she was fired without cause.

“I am expecting all rights and contract obligations of the City be met under my contract,” she wrote in the letter, which is dated April 13, the same day Cox was sworn into office.

The contract between Culbreth-Graft and the city states that the city “shall pay” six months of salary and benefits if she’s fired without cause.

Culbreth-Graft was paid $210,000 a year; six months’ compensation would be $105,000.

In Kelly’s response, addressed to Lopez, Kelly said Culbreth-Graft’s March 19 resignation letter “clearly states that her last day is April 16” and that the resolution appointing Cox as interim city manager also “clearly states that this position begins April 16.”

In addition, “the oath of office that was administered contains the same statement that the Interim City Manager position does not start until April 16,” Kelly wrote in the letter.

“Thus, I am confused by Dr. Culbreth-Graft’s position of constructive notice of termination,” she wrote in the letter. “If you have any other facts to present for consideration, I am willing to discuss this matter with City Council.”

Lopez did not respond to requests for comment Tuesday. Culbreth-Graft has declined interview requests about her departure.

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