SETTLEMENT

THE UNITED STATES OF AMERICA

AND

KANAWHA COUNTY PARKS AND RECREATION, WEST VIRGINIA

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ 204-84-51

BACKGROUND

SCOPE OF THE INVESTIGATION

The United States Department of Justice (Department) initiated this matter as a compliance review of Kanawha County Parks and Recreation (Parks), West Virginia, 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 Parks 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 Park's compliance with the following title II requirements:

∙          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;

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

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

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

∙          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. § 35.150, 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.

∙          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;

∙          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;

∙          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;

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

∙          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 facility, which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA's new construction or alterations requirements: Coonskin Park.

            The Department's program access review covered those of the Park's programs, services, and activities that operate in the following facilities: Pioneer Park, Big Bend Golf Course, Meadowood Soccer Complex & Family Park, and Shawnee Regional Park.

JURISDICTION

1.         The ADA applies to the Parks 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 Parks 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 Park'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 Parks 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 Kanawha County Parks and Recreation.

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 KANAWHA COUNTY PARKS AND RECREATION

7.         Parks began addressing accessibility issues at two facilities (Columbia Gas Shelter and Big Bend Golf Course) prior to signing this Agreement.

8.         Parks has actively worked with the Department to begin addressing accessibility concerns set out in this Agreement.

REMEDIAL ACTION

NOTIFICATION

9.         Within two months of the effective date of this Agreement, Parks 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 County; post the Notice on its Internet Home Page; and post copies in conspicuous locations in its public facilities. 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.

10.       Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, Parks 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 Park's accessible programs, services, and activities.

ADA COORDINATOR

11.       Within three months of the effective date of this Agreement, Parks will appoint or hire one or more ADA Coordinator(s). The ADA Coordinator(s) will coordinate the Park'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. Parks will make available to all interested individuals the name(s), office address(es), and telephone number(s) of the ADA Coordinator(s).

GRIEVANCE PROCEDURE

12.       Within three months of the effective date of this Agreement, Parks 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

13.       Within three months of the effective date of this Agreement, the Parks 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.).

14.       Parks will take steps to ensure that all appropriate employees are trained and practiced in using the West Virginia Relay Service to make and receive calls.

EMPLOYMENT

15.       Within three months of the effective date of this Agreement, Parks 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 Parks:

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

                        ∙          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.

                        ∙          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 Park's business. If an applicant or an employee requests a reasonable accommodation and the individual's disability and need for the accommodation are not readily apparent or otherwise known, Parks may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.

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

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

WEB-BASED SERVICES AND PROGRAMS

16.       Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, Parks 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 Parks (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).

17.       Within three months of the effective date of this Agreement, and throughout the life of the Agreement, Parks 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 people with disabilities to test its pages for ease of use.

PHYSICAL CHANGES TO FACILITIES

18.       The elements or features of the Park's facilities that do not comply with the Standards, including those listed in Attachments I, J, and K, prevent persons with disabilities from fully and equally enjoying the Park'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.

19.       Parks will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

20.       Within three months of the effective date of this Agreement, Parks 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.

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

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

23.       Program Access in County Existing Facilities: In order to ensure that each of the Park'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, Parks will take the actions listed in Attachment K.

MISCELLANEOUS PROVISIONS

24.       Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, Parks will submit written reports to the Department summarizing the actions Parks 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.

25.       Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), Parks 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).

26.       Within six months of the effective date of this Agreement, Parks will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. Parks 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.

27.       Within one year of the effective date of this Agreement, Parks will deliver its training program to all Parks employees who have direct contact with members of the public. At the end of that period, Parks 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

28.       If at any time Parks 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.

29.       The Department may review compliance with this Agreement at any time. If the Department believes that Parks 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 Parks 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 Parks, 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.

30.       For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the Parks 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.

31.       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.

32.       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 Parks or the Department on request.

33.       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 Park's continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

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

35.       The person signing for the Parks represents that he or she is authorized to bind the Parks to this Agreement.

36.       The effective date of this Agreement is the date of the last signature below.

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January 14, 2008