OPA: Settlement Agreement between the USDOJ and City of New Haven

 
SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE CITY OF NEW HAVEN, CONNECTICUT
Department of Justice Complaint Nos. 204-14-143/204-14-144
________________________________________

WHEREAS, this matter was initiated by two complaints filed pursuant to title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, by the Office of Protection and Advocacy (hereinafter “OPA”) on behalf of Mr. Vincent Valanzuolo (hereinafter “Valanzuolo”).  The complaints allege, inter alia, that from at least 2008 to 2011, the City of New Haven’s Livable City Initiative which oversees and has responsibility for housing and code enforcement (also known as the “Livable City Initiative”) and the New Haven Police Department (hereinafter “NHPD”) failed to effectively communicate with people who are deaf or hard of hearing in that they failed to provide interpreters during investigations, meetings, enforcement actions, arrests, and detentions.  The complaints further allege that the City has failed to establish and enforce sufficient policies and training for its personnel regarding how to obtain interpreters, when to obtain interpreters, and how to interact with people who are deaf or hard of hearing. 

WHEREAS, the City of New Haven (“City” or “New Haven”) does not admit and denies any and all liability arising out of the allegations contained in said complaints;

WHEREAS, the United States of America, through the United States Department of Justice, United States Attorney’s Office, District of Connecticut, (the “United States”) is authorized under 28 C.F.R. Part 35 to investigate whether the City is in compliance with title II of the ADA;
WHEREAS, the City is a “public entity” for purposes of 42 U.S.C. § 12132 and the implementing regulations, 28 C.F.R. § 35.104, et seq;

WHEREAS, the United States is authorized to investigate the facts, issue findings and, where appropriate, attempt informal resolution of such complaints, see 28 C.F.R. §§ 35.170-172;

WHEREAS, the United States and the City have the mutual goal of ensuring that the City complies with the requirements of title II of the ADA;

IT IS HEREBY AGREED between the City and the United States:

1. that this Settlement Agreement (the “Agreement”) is entered into pursuant to 28 C.F.R. § 35.172, and

2. that in consideration for the City’s performance of its obligations under this Agreement, the United States agrees to refrain from undertaking further investigation or from filing a civil suit based on the complaints described above except as provided in paragraph VI.G. below.

I. PURPOSE

It is the intent of the United States and the City that this Agreement shall resolve all issues associated with the complaints filed by OPA on behalf of Valanzuolo and enable persons who are deaf and hard of hearing to fully participate in and benefit from the City’s services, programs, and activities on an equal basis with other individuals.

A.  To the extent that the City already complies with these terms, the Agreement memorializes the City’s continuing obligations to provide appropriate auxiliary aids and services whenever necessary to ensure effective communications with persons who are deaf or hard of hearing.

B.  To the extent that the City does not yet comply with these terms, the Agreement establishes the City’s obligations to provide appropriate auxiliary aids and services whenever necessary to ensure effective communications with persons who are deaf or hard of hearing.

II. GENERAL TERMS

A. Deadline: Unless otherwise indicated, within ninety (90) days after the effective date of this Agreement, the City agrees to implement fully the practices and policies set forth below.

B. Public Document: A copy of this Agreement may be made available to any person.

C. Parameters of Agreement: This Agreement does not purport to remedy any other potential violations of the ADA or any other Federal law not specifically referenced herein.  This Agreement does not affect the City’s continuing responsibility to comply with all aspects of the ADA.

D. Authorization: The individuals signing this Agreement represent that they are authorized to bind the parties to this Agreement.

E. No Retaliation: New Haven shall not retaliate against or coerce any individual who is receiving the City’s services, programs, or activities and who is trying to exercise his or her rights under this Agreement or title II of the ADA.

III.  DEFINITIONS

A.   Auxiliary aids and services includes qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.  28 C.F.R. § 36.303(b)(1).

B.   Qualified Interpreter means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.  Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.  28 C.F.R. § 36.104.  The interpreter must be able to interpret in the language the deaf person uses (e.g., American Sign Language or Signed English) and must be familiar with terms and phrases commonly used during in the particular situation (e.g., an arrest, an investigation, or a citation).

C.   Primary consideration means that the City shall defer to the choice expressed by the qualified individual with a disability unless the City can demonstrate:
1. that another equally effective means of communication is available, given the circumstances, length, complexity, and importance of the communication, as well as the communication skills of the person who is deaf or hard of hearing; or

2. that the preferred auxiliary aid or service would fundamentally alter the service, program, or activity, or would result in undue financial or administrative burdens, as determined by the City Agency head or his or her designee.  See 28 C.F.R. § 35.164.
IV. POLICIES

A. Nondiscrimination: The City agrees that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of its services, programs, or activities, or be subjected to discrimination by the City.  28 CFR § 35.130. 

B. Effective Communication: The City shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.  The City shall furnish, free of charge, appropriate auxiliary aids and services, as defined below in III.A., where necessary to afford individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, the City’s services, programs, and activities.  In order to be effective, the City shall provide auxiliary aids and services in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.  The City shall not require an individual with a disability to bring another individual to interpret for him or her.  28 CFR § 35.160.

1. Type of Auxiliary Aid or Service:  The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.  In determining what types of auxiliary aids and services are necessary, the City shall give primary consideration, as defined above in III.C., to the requests of individuals with disabilities.  28 CFR § 35.160. 

C. TELEPHONES: Where telephones are available to the public, the City shall make text telephones (“TTYs” or “TDDs”) or equally effective telecommunication systems available to individuals who are deaf or hard of hearing upon request.

D. INFORMING THE PUBLIC:
1. Signs: The City will post signs visible to individuals with disabilities, advising individuals of the availability of appropriate auxiliary aids and services to access City programs, activities and services.  Aids and services specified must include, but are not limited to, qualified sign or oral interpreters free of charge.  The signs will include the international symbols for interpreters and accessibility, and instructions on how to contact the office of the ADA Coordinator(s) and the availability of a grievance procedure.  See infra Part VI(D).
2. Internet: The City will conspicuously display the availability of auxiliary aids and services, including qualified interpreters, on informative internet resources such as its “Web 311.” http://www.cityofnewhaven.com/ask/index.asp.

3. Other Appropriate Means: To notify qualified people with disabilities about the provision of auxiliary aids and services, the City will distribute this information through pamphlets, newspaper notices, or other appropriate means in addition to signs, posters, and internet notices.
E. INTERPRETIVE SERVICES: The City will maintain a working relationship with one or more qualified oral/sign language interpreter agencies to ensure that interpreting services will be available upon request 24/7.   In addition or in the alternative, the City shall make other appropriate arrangements, such as contracting directly with or hiring qualified interpreters on a fee for service basis.

F. NEW HAVEN POLICE DEPARTMENT (“NHPD”): 
1. Within 90 days of the effective date of this Agreement, NHPD shall adopt the attached New Haven Police Department’s Policy on Communicating With People Who are Deaf or Hard of Hearing (attached hereto as Attachment A).

2. NHPD shall provide effective communication to individuals who are deaf or hard of hearing.  Whether at the scene of a call for service or simply interacting with a member of the public, upon becoming aware that a member of the public is deaf or hard of hearing, NHPD employees will focus on establishing effective communication by determining the auxiliary aid the person requires to communicate with NHPD employees. Generally, interpreter services are not required for simple transactions – such as checking a license or giving directions to a location – or for urgent situations – such as responding to a violent crime in progress.  However, an interpreter may be needed in lengthy or complex transactions – such as interviewing a victim, witness, suspect, or arrestee – if the person being interviewed normally relies on sign language or speech reading to understand what others are saying.  In non-emergency situations, scheduling the use of an interpreter at a mutually agreeable date and time may be the best option.

3. Primary consideration, as defined above in paragraph III.C., shall be given to the person’s preferred auxiliary aid or service.

4. Availability of Interpreters: NHPD shall develop a procedure for obtaining qualified interpreters.  All officers shall be trained on this procedure.  

5. NHPD shall not rely on an adult or child accompanying an individual with a disability to interpret or facilitate communication except under the circumstances identified in 28 C.F.R. 35.160(c)(2) and 160(c)(3).

6. If the arresting or transporting officer is aware that the suspect is deaf or hard of hearing and is transferring custody of the suspect, he or she shall verbally advise personnel taking custody of the suspect, and document before transportation of the suspect, that the suspect is deaf or hard of hearing.

7. When NHPD arrests an individual who is deaf or hard of hearing and uses sign language, NHPD shall handcuff the individual in front of his or her body so the individual can continue to sign, except when the officer has a reasonable concern for his/her safety or the safety of others.
V. TRAINING REQUIREMENTS

A. Training Curriculum for City Departments, Programs, and Services:
1. The City will provide ADA/Section 504 training to all departments that communicate with the public.  The purpose of the training is to ensure that staff understands the legal obligation to provide appropriate auxiliary aids and services when necessary to ensure effective communication with qualified individuals with disabilities.  Training for NHPD staff will include the NHPD’s Policy on Communicating with People Who are Deaf or Hard of Hearing.  The training will begin within ninety (90) days of the effective date of this Agreement, and will be completed within twelve (12) months of the effective date of this Agreement.  The City will ensure that new staff and recruits who will have contact with the public will receive this training as part of their orientation. The training material shall be subject to the approval of the United States. 
VI. MONITORING & ENFORCEMENT

A. The City shall document all requests that it receives for oral or sign language services, and shall document any action taken, or denial of services.  The document shall be provided to the United States upon request, and in annual compliance reports as required below.

B. Annual Report: For a period of three (3) years from the effective date of this Agreement, the City shall send the United States Attorney’s Office, Civil Rights Coordinator, 157 Church Street, 25th Floor, New Haven, CT 06511, on the anniversary date of the Agreement, a letter containing the following information:
1. A description of the actions taken to comply with this Agreement;

2. Documentation that qualified interpreter services are being made available;

3. The number of written grievances that have been filed during the relevant reporting period with the ADA Coordinator pursuant to the ADA Grievance Procedure, by persons with hearing impairments in regard to the availability of auxiliary aids and services for qualified individuals with hearing impairments;

4. A brief, general description of the nature of each grievance; and

5. A brief, general description of the nature of how each grievance was resolved.
C. ADA Coordinator: The City’s ADA Coordinator(s) will continue to provide the following:
1. The ADA Coordinator(s) will continue to serve as a resource for the public who have questions regarding access for qualified individuals with disabilities to the City’s departments, programs, activities and services.

2. The ADA Coordinator(s) will continue to serve as a resource to the City’s staff in all departments regarding the ADA.

3. The ADA Coordinator(s) will continue to know the specific procedures for requesting an interpreter.

4. Within ninety (90) days of the effective date of this Agreement, the ADA Coordinator(s) will, if he or she has not already this year, receive training concerning a public entity’s obligations under title II of the ADA.  The training material shall be subject to the approval of the United States. 
D. Grievance procedure: The City will continue to maintain a documented grievance procedure. If a person with a disability is dissatisfied with the auxiliary aid or service proposed or used by the City, the individual may file a grievance with the ADA Coordinator.  The ADA Coordinator will attempt to resolve the grievance within ten (10) business days.

E. Review at Any Time: The City agrees that the United States may review compliance with this Agreement at any time.

F. Duration of the Agreement.  This Agreement will be in effect for three (3) years from the Effective Date.

G. Notification of Noncompliance:  If the United States believes that the City is not in compliance with this Agreement, it shall notify the City and the City’s Corporation Counsel in writing of the alleged noncompliance and attempt to seek a resolution of the matter.  Such notice shall contain reasonable particulars concerning the alleged violation.  If the Parties are unable to reach a resolution within thirty (30) days of the date of the written notification, the United States may bring an action to enforce compliance with the ADA and to enforce the terms of this Agreement.

H. Nonwaiver of Enforcement:  Failure by the United States to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement. 

I. Entire Agreement.  This Agreement and the attachment hereto constitute the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written agreement, shall be enforceable.  This Agreement is limited to the facts set forth herein and does not purport to remedy any other potential violations of the ADA or any other federal law.

J. Binding.  This Agreement is final and binding on the parties, including all principals, agents, executors, administrators, representatives, successors in interest, beneficiaries, assigns, heirs and legal representatives thereof.  Each party has a duty to so inform any such successor in interest.

FOR THE UNITED STATES OF AMERICA
DAVID B. FEIN
UNITED STATES ATTORNEY

/s/ Ndidi Moses
Ndidi Moses
Assistant United States Attorney
UNITED STATES ATTORNEY’S OFFICE
157 Church Street, 25th Floor
New Haven, CT 06510
Ndidi.moses@usdoj.gov
Tel: (203) 821-3700
Fax: (203) 773-5373
May 20, 2013

Content for class "clearcol" Goes Here
FOR THE CITY OF NEW HAVEN
/s/ John DeStefano, Jr.
JOHN DeSTEFANO, JR., Its Mayor
Duly Authorized
165 Church St.
New Haven, CT 06510
May 9, 2013
 
 


Content Last Modified on 6/12/2013 7:52:23 AM