SETTLEMENT AGREEMENT BETWEEN

 

THE UNITED STATES OF AMERICA

 

AND

 

THE TOWN OF BRUNSWICK, MAINE

 

UNDER THE AMERICANS WITH DISABILITIES ACT

 

DJ 204-34-64

 

 

 

BACKGROUND

 

SCOPE OF THE INVESTIGATION

 

            The United States Department of Justice (Department) initiated this matter as a compliance review of the Town of Brunswick, Maine (Town) under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35.  Because the Town receives financial assistance from the Department of Justice, the review was also conducted under the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Department's implementing regulation, 28 C.F.R. Part 42, Subpart G.

 

            The review was conducted by the Disability Rights Section of the Department's Civil Rights Division and focused on the Town's compliance with the following title II requirements:

 

C           to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with the Department's title II regulation, 28 C.F.R. § 35.105;

 

C           to notify applicants, participants, beneficiaries, and other interested persons of their rights and the Town's obligations under title II and the Department's regulation, 28 C.F.R. § 35.106;

 

C           to designate a responsible employee to coordinate its efforts to comply with and carry out the Town's ADA responsibilities, 28 C.F.R. § 35.107(a);

 

C           to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);

 

C           to operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150, by:

 

• delivery of services, programs, or activities in alternate ways, including, for example, redesign of equipment, reassignment of services, assignment of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,

• physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department's title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.

 

C           to ensure that facilities for which construction or alteration was begun after January 26, 1992, are readily accessible to and usable by people with disabilities, in accordance with 1) the Department's title II regulation and 2) the Standards or UFAS, 28 C.F.R. § 35.151;

 

C           to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others, including furnishing auxiliary aids and services when necessary, 28 C.F.R. § 35.160;

 

C           to provide direct access via TTY (text telephone) or computer-to-telephone emergency services, including 9-1-1 services, for persons who use TTY's and computer modems, 28 C.F.R. § 35.162;

 

C           to provide information for interested persons with disabilities concerning the existence and location of the Town's accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and

 

C           to provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to information about accessible facilities, 28 C.F.R. § 35.163(b).

 

            As part of its compliance review, the Department reviewed the following facilities,  which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA's new construction or alterations requirements:

 

C           Androscoggin River Bike Path

C           Hambleton Avenue Playground

C           Town Commons

C           Skateboard Park

C           Mill Street Canoe Portage

C           Bay Bridge Landing

C           Cox Pinnacle

C           250th Anniversary Park

C           Curtis Memorial Library

 

            The Department's program access review covered those of the Town's programs, services, and activities that operate in the following facilities:

 

C           Town Hall

C           Longfellow Playground

C           Municipal Tennis Courts

C           Recreation Center

C           55+ Center (2 buildings)

C           Old High School: Municipal area (meetings and polling)

C           Old High School: Recreation area (gym)

C           Coffin Pond Recreation Area

C           Human Services Office

 

            The Department conducted a program access review of the following polling places:

 

C          Brunswick High School

C           Union Street School

C           Perryman Village

C           Coffin School

 

This review was limited to the areas of the facilities used by the voting public: parking, the route from the parking area to the area used for voting, and the area used for voting.

 

            The Department also conducted a program access review of the following facility listed in Attachment G that is designated as an emergency shelter:

 

C          Brunswick High School

 

This review was limited to the areas of the facilities used by members of the public during an emergency: parking, the route from the parking area to the area used as a shelter, the area used as a shelter, and toilet facilities serving that area.

 

            The Department reviewed the Town's policies and procedures regarding voting, emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.

 

            Finally, the Department reviewed the Town Police Department's policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.

 

JURISDICTION

 

1.         The ADA applies to the Town because it is a "public entity" as defined by title II.  42 U.S.C. § 12131(1).

 

2.         The Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the Town with title II of the ADA and the Department's title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action enforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.

 

3.         The Department is authorized under 28 C.F.R. Part 42, Subpart G, to determine the Town's compliance with section 504 of the Rehabilitation Act of 1973, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  Furthermore, the Attorney General is authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to suspend or terminate financial assistance to the Town provided by the Department of Justice should the Department fail to secure voluntary compliance pursuant to Subpart G or to bring a civil suit to enforce the rights of the United States under applicable federal, state, or local law.

 

4.         The parties to this Agreement are the United States of America and the Town of Brunswick, Maine.

 

5.         In order to avoid the burdens and expenses of an investigation and possible litigation, the parties enter into this Agreement.

 

6.         In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."

 

ACTIONS TAKEN BY TOWN

 

7.         In 1992, the Town formed an ADA Advisory Committee to review the Town's policies and facilities.

 

8.         Between 1992 and 1993, the Town completed its Self Evaluation.

 

9.         In 1993, the Town surveyed all of its sidewalks to determine what intersections lacked curb ramps.  The Town made sidewalk accessibility a priority during all subsequent street improvement projects. 

 

10.       The Town Council adopted the ADA Transition Plan on April 4, 1994.

 

11.       The Town accepts voter registration in a variety of ways, including at social service agencies, motor vehicle offices, Town Hall, and by mail.  In addition, the Town allows a third party to return a friend's or family member's completed voter registration application.

 

12.       The Town allows absentee voting for any reason, which can be done by mailing in the ballot or returning it in person to the Town Clerk's office.  Absentee ballots can be requested and returned up until the polls close on Election Day.

 

13.       The Town's 9-1-1 call station is equipped with TTY capabilities.

 

14.       The Parks and Recreation Department includes on all program registration forms that individuals with disabilities are encouraged to register, and a contact number is provided for further information.

 

15.       The Parks and Recreation Department regularly accommodates children with disabilities in its programs and activities.

 

16.       The Town's Technology Committee has guidelines to ensure web accessibility, including that images contain alt tags, navigation links are simplified, and applets should be avoided.

 

17.       The Town offers auxiliary aids to ensure effective communication at its Town Council meetings.

 

REMEDIAL ACTION

 

NOTIFICATION

 

18.       Within two months of the effective date of this Agreement, the Town will adopt the attached Notice (Attachment A); distribute it to all agency heads; publish the Notice in a local newspaper of general circulation serving the Town; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public buildings.  It will refresh the posted copies, and update the contact information contained on the Notice, as necessary, for the life of this Agreement.  Copies will also be provided to any person upon request.

 

19.       Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, the Town will implement and report to the Department its written procedures for providing information for interested persons with disabilities concerning the existence and location of the Town's accessible programs, services, and activities.

 

ADA COORDINATOR

 

20.       Within three months of the effective date of this Agreement, the Town will appoint or hire one or more ADA Coordinator(s).  The ADA Coordinator(s) will coordinate the Town's effort to comply with and carry out its responsibilities under the ADA, including any investigation of complaint communicated to it alleging its noncompliance with title II or alleging any actions that would be prohibited under title II.  The Town will make available to all interested individuals the name(s), office address(es), and telephone number(s) of the ADA Coordinator(s).

 

GRIEVANCE PROCEDURE

 

21.       Within three months of the effective date of this Agreement, the Town will adopt the attached ADA Grievance Procedure (Attachment B), distribute it to all agency heads, and post copies of it in conspicuous locations in each of its public buildings.  It will refresh the posted copies, and update the contact information contained on it, as necessary, for the life of the Agreement.  Copies will also be provided to any person upon request.

 

 

GENERAL EFFECTIVE COMMUNICATION PROVISIONS

 

22.       Within three months of the effective date of this Agreement, the Town will identify sources of qualified sign language and oral interpreters, real-time transcription services, and vendors that can put documents in Braille, and will implement and report to the Department its written procedures, with time frames, for fulfilling requests from the public for sign language or oral interpreters, real-time transcription services, and documents in alternate formats (Braille, large print, cassette tapes, etc.).

 

9-1-1

 

23.       The Town will incorporate correct TTY call-taking procedures into 9-1-1 call takers' performance evaluations and will amend its personnel policies to include written disciplinary procedures for call takers who fail to perform TTY call-taking consistent with the training and procedures.  The Town will implement and report to the Department its evaluation and procedures within three months of the effective date of this Agreement.

 

 

LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

 

24.       Within three months of the effective date of this Agreement, the Town will adapt for its own use and implement the Town Police Department's Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing (Attachment C) and distribute to all police officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing (Attachment D).

 

25.       Within three months of the effective date of this Agreement, the Town will contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its police department or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).

 

EMPLOYMENT

 

26.       Within three months of the effective date of this Agreement, the Town will amend its employment policies, as necessary, to comply with the regulations of the U.S. Equal Employment Opportunity Commission implementing title I of the Americans with Disabilities Act of 1990, codified at 29 C.F.R. Part 1630.  At minimum, those policies will provide that the Town:

 

C                       will not discriminate on the basis of disability in its hiring or employment practices.

 

C                       will not ask a job applicant about the existence, nature, or severity of a disability.  Applicants may be asked about their ability to perform specific job functions.  Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position.

 

C                       will make reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability upon request unless the accommodation would cause an undue hardship on the operation of the Town's business.

 

C                       will maintain any employee's medical records separate from personnel files and keep them confidential.

 

C                       will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions.  To the extent the Town's selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.

 

VOTING

 

27.       Some of the Town polling places may be owned or operated by other public entities subject to title II or by public accommodations subject to title III and, as such, would be subject to the obligation to provide program access or to remove barriers to accessibility under the ADA.  This Agreement does not limit such future enforcement action against the owners or operators of these polling places by any person or entity, including the Department.

 

28.       Within one month of the effective date of this Agreement, the Town's will request in writing that each of the owners and operators of the polling places listed in Attachment E below will remove the noted barriers to access for persons with disabilities and the Town will distribute to them the Department's ADA Checklist for Polling Places (www.ada.gov/votingck.htm).  The request will specify that the remediation be completed within two years of the effective date of this Agreement.  The Town will simultaneously send a courtesy copy of the request to the Department.

 

29.       Within three months of the effective date of this Agreement, the Town will provide opportunities for same-day balloting for voters with disabilities whose assigned polling place does not have accessible parking, exterior route, entrance, and interior route to the voting area.  The method for providing these opportunities may include vote by an absentee ballot or any other method that ensures that disabled voters have the same degree of information available to them when casting their ballots as others.

 

30.       Within one month prior to the next election that utilizes the Town's polling places and after the State-provided training, the Town will subsequently train election officials on the rights of people with disabilities and the practical aspects of assuring those rights.  The training will cover, at minimum, the need to maintain the physical accessibility of polling locations; how to assist people with disabilities, as necessary; and how to operate any non-standard voting equipment or accessible features of standard equipment (particularly new, accessible equipment).

 

SIDEWALKS

 

31.       Within three months of the effective date of this Agreement, the Town will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.

 

32.       Within 10 months of the effective date of this Agreement, the Town will identify and report to the Department all streets, roads, and highways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement.  Filling a pothole is not considered an alteration for the purposes of this Agreement.  Within 5 years of the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.

 

33.       Beginning no later than 12 months after the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.

 

34.       Within 10 months of the effective date of this Agreement, the Town will identify all street level pedestrian walkways that have been constructed or altered since January 26, 1992.  Paving, repaving, or resurfacing a walkway is considered an alteration for the purposes of this Agreement.  Within five years of the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.

 

35.       Beginning no later than three months after the effective date of this Agreement, the Town will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.

 

WEB-BASED SERVICES AND PROGRAMS

 

36.       Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the Town will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the Town (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).

 

37.       Within three months of the effective date of this Agreement, and throughout the life of the Agreement, the Town will do the following:

 

A.        Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;

 

B.         Ensure that all new and modified web pages and content are accessible;

 

C.        Develop and implement a plan for making existing web content more accessible;

 

D.        Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and

 

E.         Periodically (at least annually) enlist persons with disabilities to test its pages for ease of use.

 

PHYSICAL CHANGES TO FACILITIES

 

38.       The elements or features of the Town's facilities that do not comply with the Standards, including those listed in Attachments I, J, K, and L prevent persons with disabilities from fully and equally enjoying the Town's services, programs, or activities and constitute discrimination on the basis of disability within the meaning of 42 U.S.C. § 12132 and 28 C.F.R. §§ 35.149 and 35.150.

 

39.       The Town will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

 

40.       Within three months of the effective date of this Agreement, the Town will install signage as necessary to comply with 28 C.F.R. § 35.163(b), after having surveyed all facilities that are the subject of this Agreement for the purpose of identifying those that have multiple entrances not all of which are accessible.

 

41.       Newly Constructed Facilities:  In order to ensure that the spaces and elements in Town facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the Town will take the actions listed in Attachment I.

 

42.       Altered Facilities:  In order to ensure that the spaces and elements in Town facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the Town will take the actions listed in Attachment J.

 

43.       Program Access in Town Existing Facilities:  In order to ensure that each of the Town's programs, services, and activities operating at a facility that is the subject of this Agreement, when viewed in its entirety, is readily accessible to and usable by persons with mobility impairments, the Town will take the actions listed in Attachment K.

 

PROGRAM MODIFICATIONS

 

44.       Program Access in Additional Facilities:  In order to ensure that each of the Town's programs, services, and activities that are the subject of this Agreement when viewed in its entirety is readily accessible to and usable by persons with disabilities, the Town will take the actions listed in Attachment L.

 

MISCELLANEOUS PROVISIONS

 

45.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the Town will submit written reports to the Department summarizing the actions the Town has taken pursuant to this Agreement.  Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.

 

46.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the Town will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so.  This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.  28 C.F.R. § 35.133(b).

 

47.       Within six months of the effective date of this Agreement, the Town will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities.  The Town will use the ADA technical assistance materials developed by the Department and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.

 

48.       Within one year of the effective date of this Agreement, the Town will deliver its training program to all Town employees who have direct contact with members of the public.  At the end of that period, the Town will submit a copy of its training curriculum and materials to the Department, along with a list of employees trained and the name, title, and address of the trainer.

 

 

IMPLEMENTATION AND ENFORCEMENT

 

49.       If at any time the Town desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  Until there is written Agreement by the Department to the proposed modification, the proposed modification will not take effect.  These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.

 

50.       The Department may review compliance with this Agreement at any time.  If the Department believes that the Town has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the Town in writing and it will attempt to resolve the issue or issues in good faith.  If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the Town, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II and section 504 of the Rehabilitation Act.

 

51.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Town to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.

 

52.       Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.

 

53.       This Agreement is a public document.  A copy of this document or any information contained in it will be made available to any person by the Town or the Department on request.

 

54.       This Agreement constitutes 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 (including its Attachments, which are hereby incorporated by reference), will be enforceable.  This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law.  This Agreement does not affect the Town's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

 

55.       This Agreement will remain in effect for five years.