This post has been updated.

The top three Palomar College employees to benefit from an early retirement incentive approved last week are also the ones who structured and negotiated the deal.

College President Robert Deegan and two vice presidents, John Tortarolo and Berta Cuaron, will retire June 30 and take home roughly $150,000 each as an incentive.

The offer – negotiated with the faculty union as a cost-saving measure – provides employees 55 and older who have at least five years of employment a 75 percent base salary payout, capped at $150,000, to retire.

The deal was extended to unrepresented staff, managers and administrators, even though conservative projections show the administrator incentives won’t save the college money in the long run.

Still, across all employee groups, savings are projected to land somewhere between $683,800 and $1.98 million in five years. The board unanimously approved the deal last Tuesday.

But the involvement of Deegan, Tortarolo and Cuaron – and the benefits they’ll be receiving – concerned the college’s faculty union leadership, especially after the trio refused to exempt themselves from the deal, as negotiating union leaders did, said Shannon Lienhart, president of the Palomar Faculty Federation.

Another thing also seemed odd, she said. The college would not accept a 15-year employment threshold, insisting on the lower (but still common) five-year mark. Cuaron has been at Palomar 12 years, Deegan for 10 years and Tortarolo less than that.

“I believe that there were other people who could have stepped in and done the negotiating,” Lienhart said before the vote. “The conflict concerns come in if they were negotiating to benefit their own situations. … We are honestly trying to protect (the incentive) so there is no do-over.”

An April 27 letter written by attorney Ricardo Ochoa on behalf of the faculty union urged the college “to exclude administrators who have ‘sat on both sides of the table’ during the SRP discussions” in order to avoid possibly violating state conflict-of-interest and anti-self-dealing laws.

The deal was pulled from the governing board’s April 28 agenda for legal review, but was brought back Tuesday without any changes.

College officials declined to release any legal opinion on the matter.

“It was determined that the actions of the administrators were consistent with the board’s direction, within the scope of their job duties and lawful,” said Palomar spokeswoman Laura Gropen.

Neither Deegan, Tortarolo nor Cuaron answered inquiries about their involvement in the deal.

Tortarolo, Palomar’s vice president of human resources, defended himself in a May 11 email sent to all employees and obtained by Voice of San Diego.

“When employees act within the scope of their employment, and when all employees receive the same program benefit, there is no conflict of interest,” he wrote.

Several experts disagreed.

“I doubt a court will view it that way when we are dealing with a golden parachute and management is all taking it,” said Michael Colantuono, a veteran municipal attorney.

University of San Diego School of Law professor Shaun Martin, who teaches courses in civil procedure, criminal law and professional ethics and responsibility, said this all should have been avoided.

“There’s no real need to apply this policy to the president and other senior administrative officials at the college who were involved in crafting the policy. They are differently situated than the usual employee, and the fact that many of them will benefit from this policy is a real problem,” Martin said. “The better policy would definitely have been to exclude from creating the retirement deal those employees who might benefit from it. That would have been eminently possible here.”

Terry Francke, general counsel for the nonprofit watchdog group Californians Aware, said, “The issue is not a complicated one. How can those appointed as the government’s labor negotiators be expected to work diligently to control the costs of labor if they share in its winnings at the bargaining table?”

The California Supreme Court addressed a similar concern in 2010 involving San Diego city employees serving on the city pension board who gained benefits they’d voted on.

In that case, the court found, “there is no conflict so long as the services are broadly available to all others similarly situated, rather than narrowly tailored to specially favor any official or group of officials, and are provided on substantially the same terms as for any other constituent.”

Unlike uniform pension decisions though, early retirement incentives by nature are tailored for older, costlier employees so employers can replace them with cheaper ones. Records show Palomar is counting on that and also holding some positions open for four to eight months in order to wring savings out of the deal.

None of Palomar’s five governing board members responded to requests for comment.

Deegan took the top post at Palomar in 2005 after spending six years as vice president of Santiago Canyon College in Orange County, and 19 years working at Irvine Valley College. His Palomar base pay in 2013 topped $268,500.

Deegan told the college’s student newspaper The Telescope last fall his decision to retire had nothing to do with the board’s Sept. 9 decision to explore and pursue the retirement incentive.

Ashly is a freelance investigative reporter. She formerly worked as a staff reporter for Voice of San Diego.

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