SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
THE CITY OF CONCORD, NEW HAMPSHIRE
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ# 204-47-62

Press Release

This Settlement Agreement (“Agreement”) is entered into between the United States of America and the City of Concord, New Hampshire (“Concord” or the “City”).

The United States and the City hereby stipulate and agree that:

BACKGROUND AND JURISDICTION

1. Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12134, as amended (“ADA”), and its implementing regulation, require public entities to make their programs, services, and activities accessible to qualified individuals with disabilities.  See 42 U.S.C. § 12132; 28 C.F.R. §§ 35.130, 35.160.
2. Under Title II and its implementing regulation, a public entity, in providing any aid, benefit, or service, may not: afford qualified individuals with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others; provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; or otherwise limit such individuals in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.  See 28 C.F.R. § 35.130(b)(1).
3. Under Title II and its implementing regulation, a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.  28 C.F.R. § 35.130(b)(7).
4. Under Title II and its implementing regulation, a public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity, unless the public entity can demonstrate that doing so would result in a fundamental alteration or in undue financial and administrative burdens.  In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.  28 C.F.R. § 35.160.
5. The City is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104, and is therefore subject to Title II of the ADA, 42 U.S. C. §§ 12131–12134, and its implementing regulation, 28 C.F.R. Part 35.
6. The City operates services, programs, and activities within the meaning of Title II, which includes holding biannual City Elections.
7. The Department is authorized under the ADA to determine the City’s compliance with Title II of the ADA and its implementing regulation, and to resolve the matter by informal resolution, such as through the terms of this Agreement.  If informal resolution is not achieved, the Department is authorized to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  28 C.F.R. pt. 35, Subpart F.  The Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action to enforce Title II of the ADA.

INVESTIGATION

8. On February 11, 2015, the United States notified the City by letter that it had opened an investigation in response to a complaint filed with the Department concerning the failure of the City to provide an accessible ballot to a person who is blind.  In particular, the complainant alleged that the City failed to provide him with an accessible voting system that offered privacy and independence in local elections and, instead, offered only a paper ballot and assistance in completing the ballot.
9. The United States maintains that the City’s failure to provide an accessible ballot to a person who is blind or vision impaired denies qualified individuals with disabilities equal access to participate in the City’s Election, in violation of Title II of the ADA and its implementing regulation.  42 U.S.C. § 12132; 28 C.F.R. §§ 35.130, 35.160.
10. The United States and the City, through counsel, have conferred and agree that any dispute concerning the City’s alleged failure to comply with Title II of the ADA and its implementing regulation should be settled without the delay and expense of protracted litigation. 
11. The United States and the City have negotiated in good faith and hereby agree to this Agreement as an appropriate means to remedy the City’s alleged violations of Title II of the ADA and its implementing regulation. 

TERMS OF AGREEMENT

General Provisions

12. The City shall not exclude qualified individuals with disabilities from participation in or deny them the benefits of its voting program or services, or subject them to discrimination, on the basis of disability, consistent with Title II of the ADA and its implementing regulation at any City Election.
13. The City shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including voters, an equal opportunity to participate in, and enjoy the benefits of the City Elections, consistent with Title II of the ADA and its implementing regulation, unless furnishing the auxiliary aids and services would fundamentally alter the nature of voting or cause undue financial and administrative burdens.  Such auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability unless furnishing the auxiliary aids and services would fundamentally alter the nature of voting or cause undue financial and administrative burdens.
14. The City will provide an accessible voting system for voters who are blind or visually impaired in future City Elections unless furnishing the auxiliary aids and services would fundamentally alter the nature of voting or cause undue financial and administrative burdens.  The City will provide at least one functioning accessible voting system or machine (to include appropriate assistive devices, including headsets) at each City voting or polling location unless furnishing the voting system or machine would fundamentally alter the nature of voting or cause undue financial and administrative burdens.
15. For the purposes of this Agreement, the term City Election shall only mean future City of Concord, New Hampshire elections starting in November 2019 for which the City of Concord City Clerk serves, by law, as the Chief Election Officer. The term shall not include federal, state or school district elections.  The City shall modify all election worker training materials and modules to convey that individuals with disabilities, including individuals who are blind or visually impaired, are eligible to vote on the accessible voting system.  In addition, the City will provide training to poll workers on the use of the accessible voting system (the equipment and assistive devices).  The training shall include instructions for the poll workers to provide to voters who are blind or visually impaired on the proper use of the accessible voting equipment and assistive devices. 

Record-Keeping

17. For the term of the Agreement, after each City Election, the City will record all complaints related to the accessible voting system brought to the attention of an election officer as defined in RSA 652:14, whether such complaints are written or oral.  For each complaint, the City will also record the voting or polling place where the complaint was made, whether the voter was allowed to vote on the accessible voting system, and if not, who made the decision to deny the request and the reason the request was denied.

Public Education

18. For the term of the Agreement, the City shall develop or adopt applicable state or federal public educational materials to inform citizens about the availability of the City’s accessible voting system for City Elections.  Such materials may include public service announcements, press releases to be distributed to local media, and updated content to be posted on the City’s websites. 

Monitoring and Reporting

19. The United States may review compliance with this Agreement at any time.  The City will cooperate with the United States.
20. For the term of the Agreement, after each City Election, the City shall inform the United States, in writing, of any substantive modifications made to the City’s accessible voting system.
21. For the term of the Agreement, after each City Election, the City shall submit to the United States a summary of efforts to implement each of the provisions and requirements of this Agreement, and the record of all complaints regarding the accessible voting system as provided in paragraph 17.
22. All materials sent to the United States pursuant to this Agreement shall be sent by email to Elizabeth.Johnson@usdoj.gov, or to the following address by common carrier Federal Express, delivery prepaid:  Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue, N.W., Fourth Floor, Washington, D.C. 20005.  All materials shall include a subject line referencing The City and DJ number 204-47-62.

Compliance

23. In consideration of the terms of this Agreement as set forth below, the United States agrees to refrain from filing a civil suit in this matter except as provided in paragraphs 24 and 25, below.
24. If at any time the United States obtains information that the City is or is about to be in breach of any of the terms of this Agreement, the United States shall advise the City Clerk in writing by notice sent to the City Clerk by overnight mail and email.  The City Clerk shall have 10 business days following the transmittal of such notice to respond in writing to the United States.  However, if it is within eight weeks of an election, the United States shall advise the City Clerk by whatever means practicable and the City Clerk shall respond as soon as possible.  The Parties shall thereafter attempt to resolve immediately any issues of noncompliance or potential noncompliance.  If the Parties are unable to agree on a resolution of all issues, the United States may take appropriate action to enforce the terms of this Agreement and enforce Title II of the ADA and its implementing regulation.  Nothing in this Agreement shall prevent the United States from taking any action required to enforce any and all other applicable provisions of Title II of the ADA and its implementing regulation.
25. Any legal proceeding arising in connection with this Agreement must be brought in the United States District Court for the District of New Hampshire, and all Parties consent to the jurisdiction of that court.
26. Any legal proceeding to enforce this Agreement may seek specific performance of the terms therein, and any other relief authorized by law.
27. Failure by the United States to enforce any provision of this Agreement shall not be construed as a waiver of its right to do so with regard to any provision of this Agreement.

Other Provisions

28. Signatories Bind Parties.  The persons signing for the Parties represent that they are authorized to bind their respective Parties to this Agreement.
29. Execution in Counterparts. This Agreement may be executed in counterparts and each copy, email, or pdf will be considered an original and taken together constitute one agreement.
30. Modification or Amendment.  This Agreement may be modified or amended only upon a written mutual agreement of the Parties.
31. Agents and Successors Bound.  This Agreement shall be applicable to and binding upon the City Clerk, the City, its officers, agents, employees, successors, and assigns.
32. Scope.  This Agreement is not intended to remedy any other potential violations of the ADA or any other law not specifically referenced herein.  This Agreement does not affect the City’s continuing obligation to comply with all aspects of the ADA, including its obligations in providing federal, state, and other elections.
33. Severability.  If any term of this Agreement is determined by any court to be unenforceable, the other terms of this Agreement shall nonetheless remain in full force and effect, provided, however, that if the severance of any such provision materially alters the rights or obligations of the Parties, the Parties shall engage in good faith negotiations in order to adopt mutually agreeable amendments to this Agreement as may be necessary to restore the Parties as closely as possible to the initially agreed upon relative rights and obligations.
34. Effective Date and Term.  The effective date of this Agreement is the date of the last signature below.  This Agreement will remain in effect for three (3) years from its effective date, unless extended by mutual consent of the Parties.  Any legal proceeding to enforce the terms of this Agreement brought prior to its termination date shall toll the Agreement’s termination during the pendency of that legal proceeding.
35. Notwithstanding Paragraph 34, this Agreement will terminate earlier than three years if the Department determines that the City has demonstrated durable compliance with Title II of the ADA with respect to its voting program.
36. Notwithstanding Paragraph 34, if the Department determines that the City has demonstrated durable compliance with a part of the Agreement and that part is sufficiently severable from the other requirements of the Agreement, the Parties agree to terminate that part of the Agreement.  In determining whether the City has demonstrated durable compliance with a part of the Agreement, the Department may assess collectively all the requirements of the Agreement to determine whether the intended outcome of the part has been achieved.

The undersigned agree to the terms of this Settlement Agreement.