DATE: August 21, 1990
CASE NO. 9O-SWD-3

IN THE MATTER OF

EVERETT R. FITZGERALD,
    COMPLAINANT,

    v.

THE ADAMSON COMPANY, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   On July 5, 1990, Administrative Law Judge (ALJ) Theodor P. von Brand issued a Recommended Order of Dismissal (R.O.D.) in this case which arises under the employee protection provisions of the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1982), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610 (1982). The ALJ recommended that the case be dismissed with prejudice based on his review of an executed Settlement Agreement and Release, the terms of which he found to be fair, adequate and reasonable, and in the public interest.

   The Settlement Agreement and Release has been carefully reviewed, and, with the exceptions and limitations discussed below, I find its terms fair, adequate and reasonable.

    Preliminarily, the Settlement Agreement and Release appears to encompass the settlement of matters arising under various laws, besides the SWDA and CERCLA. See, e.g., Settlement Agreement and Release, ¶¶ 4,5. For the reasons set forth in Poulos v. Ambassador Fuel Oil Co.. Inc., Case No. 86-CAA-1, Sec. Order, November 2, 1987, slip op. at 2, I have limited my review of the agreement to determining whether its terms are a fair, adequate and reasonable settlement of Complainant's allegations that Respondent violated the SWDA and CERCLA. Paragraphs 7 and 8 of the Settlement Agreement and Release, in relevant part, provide as follows:

7. It is further understood that the Fitzgeralds and their attorney will not hereafter reveal in any manner the terms, substance or contents

of this Settlement Agreement and Release, or any matters pertaining to the claims made. or resolution of, the case styled Everett R. Fitzgerald III v. The Adamson Company. Inc., Case No. 90-SWD-3, except as required by law, without the express written consent of Adamson....

8. The Fitzgeralds agree that they will not induce, encourage, aid or abet any person or state Federal or local Governmental agency to bring or maintain any charge. demand complaint or cause of action against Adamson or any of its former or current employees, officers or agents, unless required to do so by applicable law or pursuant to subpoena or court order. They also agree that they will neither offer nor provide voluntary assistance to any other individual or entity having claims against Adamson or participate in any investigation or proceeding either through the furnishing of information documentation. or testimony a except as may be required by law.

(Emphasis supplied).

   The above-quoted language on its face restricts Complainant from bringing information obtained in the course of this case or other cases to the Environmental Protection Agency (EPA) or any other agency. Such information could be relevant and material to law enforcement investigations by the EPA or other agencies under the SWDA, CERCLA or other laws.

   The limitation in Paragraphs 7 and 8 that Complainant may make disclosures or provide information where required to do so by law or, in the case of Paragraph 8, pursuant to subpoena or court order, does not go far enough to neutralize the restriction on bringing information to the government's attention. The information sought may not necessarily be required of Complainant by law or be sought pursuant to subpoena or court order, but may nevertheless be sought for legitimate governmental reasons.

   Paragraphs 7 and 8 of the Settlement Agreement and Release may accordingly restrict access by government agencies to information Complainant may be able to provide relevant to the administration and enforcement of the SWDA, CERCLA and many other laws. So construed, its effect would be to "dry up" channels of communication which are essential for government agencies to carry out their responsibilities. See Polizzi v. Gibbs & Hill. Inc., Case No. 87-ERA-38, Sec. Order, July 18, 1989, slip op. at 3-6 (copy appended). In Polizzi,

similar settlement provisions in an ERA case were held to be void as against public policy, inasmuch as they would have had the effect of drying up channels of information for the Department of Labor in ERA cases and under other laws, as well as for other agencies in carrying out their responsibilities. See Cassinelli v. The City of Duvall, Case No. 90-SWD-2, Sec. Order, June 6, 1990, slip op. at 2-3; Macktal v. Brown & Root Inc., Case No. 86-ERA-23, Sec. Order, November 14, 1989, slip op. at 10-13, appeal docketed, No. 90-4029 (5th Cir. January 12, 1990). For the reasons set forth in Polizzi, slip op. at 5-7, I hold that Paragraphs 7 and 8 of the Agreement are void to the extent that they would prohibit Complainant from communicating to federal or state enforcement authorities as identified above.

   The remainder of the agreement may be enforceable if "performance as to which the agreement is unenforceable is not an essential part of the agreed exchange." EEOC v. Cosmair. Inc., 821 F.2d 1085, 1091 (5th Cir. 1987) (quoting the Restatement (Second) of Contracts, § 184(1) (1981)). See also Nichols v. Anderson, 837 F.2d 1372, 1375 (5th Cir. 1988) ("[I]f less than all of a contract violates public policy, the rest of the contract may be enforced unless the unenforceable term is an essential part of the contract."). Thus, in McCall v. United States Postal Service, 839 F.2d 664 (Fed. Cir. 1988), an employee had settled an action challenging his removal by agreeing that, upon reinstatement for a one year probationary period, he would not appeal any disciplinary action taken against him and also waived his right to file a charge with EEOC. The court held that "even if [the employee's] attempted waiver of his right to file EEOC charges is void, that would not affect the validity of the other portions of the agreement. n 839 F.2d at 666 n.*.

   Unlike the record before me in Polizzi, there is no information in this record from which I can determine whether Complainant and Respondent intended to agree to the remainder of the settlement if the provisions I have found void, as discussed above, are severed. Accordingly, Complainant and Respondent will be given an opportunity to show cause why the restrictions of Paragraphs 7 and 8, as construed above, should not be severed and the remainder of agreement approved and the case dismissed.

   A further issue must also be addressed. While the ALJ found that the Settlement Agreement and Release was "fully encompassed within the four corners of the executed document," R.O.D. at 1, the letter

transmitting to the ALJ the executed Settlement Agreement and Release indicates otherwise. In this letter, counsel for Complainant represents that the Settlement Agreement and Release contains a contingency, agreed to by the parties, namely, that it must be approved by the Secretary of Labor no more than forty-five (45) days from the ALJ's decision in this matter.¹ Letter of June 27, 1990, from Jack W. Burtch, Jr., to Honorable Theodor P. von Brand. I do not find it necessary to determine the legal effect of this representation vis-a-vis the parties' formally executed Settlement Agreement and Release. Inasmuch as the settlement agreement cannot be approved until the parties have had an opportunity to respond to the present show cause order, which cannot likely occur within the 45 days imposed

by the contingency, the parties shall also be given an

opportunity to show cause why the Secretary should not proceed to review this case without regard to the forty-five day period imposed by the parties for review of the case.

   Accordingly, Complainant and Respondent may show cause within 20 days of receipt of this order why the provisions of Paragraphs 7 and 8 of the Settlement Agreement and Release, to the extent that they may prohibit Complainant from communicating to the authorities as identified above should not be severed and the remainder of the settlement approved. Complainant and Respondent also are given 20 days from receipt of this order to show cause why this case should not be reviewed by the Secretary without regard to the forty-five day time limitation from the date of the ALJ's R.O.D. If no cause is shown by the parties within 20 days as indicated, a final order will be issued approving the settlement as severed and interpreted in this order, and the case will be dismissed with prejudice.

   SO ORDERED.

      ELIZABETH DOLE
      Secretary of Labor

Washington, D.C.

¹While the existence of a contingent provision in some cases will preclude any review of the settlement agreement, Polydorou v. A.J. Clarke Management Corp., Case No. 88-CAA-7, Sec. Order, August 3, 1989, I believe efficiency will be better served in the present case by permitting the parties to address the contingency issue at the same time they address the severability of those provisions of the agreement which have been found to be void.