SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND WHATCOM COUNTY SHERIFF'S OFFICE
USAO #2019v00360; DJ #204-82-312

1. BACKGROUND
1. The parties (“Parties”) to this Settlement Agreement (“Agreement”) are the United States of America (“United States”) and the Whatcom County Sheriff’s Office (“WCSO”).
2. WCSO is a law enforcement agency that serves Whatcom County, a sizable county in Washington State (with approximately 220,000 residents). WCSO is headquartered in Bellingham, Washington and is headed by Sheriff Bill Elfo. WCSO provides law enforcement, corrections, and civil court processing services to Whatcom County through its law enforcement officers, corrections officers, and civilian personnel.
3. The United States opened an investigation into this matter in response to complaints by Complainant, who is deaf and uses American Sign Language (“ASL”) as his primary means of communication. Complainant alleged that WCSO failed to provide a qualified ASL interpreter during his encounter with WCSO deputies on June 20, 2018 during their response to a 911 call alleging a domestic dispute involving Complainant and his tenant. Complainant specifically alleged that WCSO deputies interviewed the tenant regarding her complaint that Mr. Pratt assaulted her.  He further alleged that although WCSO deputies knew Complainant was deaf from prior encounters with him, they did not request a sign language interpreter. Instead, they relied on brief written notes even though Complainant is not fluent in English. Complainant alleges that the deputies subsequently arrested him for investigation of Felony Harassment and Felony Interference. Complainant alleged that the failure to provide an ASL interpreter during the investigation and arrest prevented him from effectively communicating with WCSO personnel and deprived him of civil rights under the Americans with Disabilities Act.
2. INVESTIGATION AND DETERMINATIONS
4. The U.S. Attorney’s Office for the Western District of Washington (“U.S. Attorney’s Office”) is authorized under 28 C.F.R., Part 35, Subpart F to investigate the allegations of the complaints in this matter and to determine the WCSO’s compliance with Title II of the Americans with Disabilities Act (“ADA”) and the Title II implementing regulations at 28 C.F.R. Part 35. The Department of Justice is the designated agency for all programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions.  28 C.F.R. § 35.190(b)(6).  The Department is authorized, where appropriate, to attempt informal resolution, such as through the terms of this settlement agreement. 28 C.F.R. § 35.172. If resolution is not achieved, the Department is authorized to issue a noncompliance Letter of Findings, to thereafter initiate negotiations to secure voluntary compliance, and to take appropriate action, including filing suit in U.S. District Court, to enforce Title II if a resolution is not achieved, and to seek injunctive relief and monetary damages.  28 C.F.R. §§ 35.173-174.
5. Complainant is deaf and as such, is an individual with a “disability” within the meaning of the ADA. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.108.
6. WCSO is a “public entity” within the meaning of Title II of the ADA, 42 U.S.C. § 12131(1)(B), and therefore is subject to Title II of the ADA, 42 U.S.C. §§ 12131-34, and its implementing regulation, 28 C.F.R. Part 35. The ADA prohibits public entities, including sheriff’s departments, from discriminating on the basis of disability. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a). Discrimination includes the failure to take appropriate steps that ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others. 28 C.F.R. § 35.160. Thus, a public entity is required to furnish appropriate aids and services where necessary to afford individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. 28 C.F.R. § 35.160(b)(1).
7. WCSO fully cooperated with the U.S. Attorney’s Office’s investigation in this matter. Based on its investigation, the U.S. Attorney’s Office determined that WCSO failed to provide appropriate auxiliary aids or services, including a qualified interpreter where necessary, to ensure effective communication with an individual with a disability, for law enforcement investigatory communications. Instead, WCSO deputies relied upon ineffective handwritten notes for investigatory communications.
8. On the basis of these determinations, the U.S. Attorney’s Office concluded that WCSO denied Complainant appropriate auxiliary aids and services necessary for effective communication in violation of Title II of the ADA at various times during his encounter with WCSO on June 20, 2018. 
3. DEFINITIONS
9. Auxiliary Aids and Services” include qualified interpreters provided either on-site or through video remote interpreting (“VRI”) services; note takers; 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.
10. “WCSO Employee” means any law enforcement officer, corrections officer, or civilian employee of WCSO.
11. “Effective Communication” for purposes of this Agreement means communication with individuals who are deaf or hard of hearing that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford individuals with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of a public entity.
12. “Effective Date” means the date of the last signatory or signatories to this Agreement.
13. “Qualified Interpreter” means an interpreter who, via a VRI service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, given the deaf or hard of hearing individual’s language, skills, and education. Qualified Interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. See also 28 C.F.R. § 35.104 and 28 C.F.R. Pt. 35, App. A, Qualified Interpreter.
14. “Videophone” means a device with a video camera that can perform bi-directional video and audio transmissions between people in real-time.
15. “Video Remote Interpreting Service” or “VRI” means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images.
4. EQUITABLE AND MONETARY RELIEF
16. Nondiscrimination.  With respect to all of its programs, services, and activities, WCSO agrees not to engage in any act or practice, directly or through contracting, licensing, or other arrangements, that unlawfully discriminates or has the effect of discriminating against a person with a disability, including an individual who is deaf or hard of hearing, in violation of Title II of the ADA.
17. Coverage of Involuntary Participation. Throughout this Agreement, terms such as “enjoyment,” “benefit,” or “seek” that in other contexts might imply the voluntary and willing participation of an individual in a public entity’s programs, services, or activities, shall also refer to an individual’s involuntary participation in the WCSO’s programs, services, and activities, such as arrest or detention.
18. Provision of Appropriate Auxiliary Aids and Services. WCSO will ensure that appropriate Auxiliary Aids and Services, including Qualified Interpreters, are made available to individuals who are deaf or hard of hearing, free of charge, when such aids and services are necessary to ensure Effective Communication, so that they may participate in or benefit from the WCSO’s services, programs, or activities on an equal basis with others.  These requirements apply to all members of the public who participate in or benefit from WCSO’s services, programs, or activities, including but not limited to arrestees, detainees, suspects, victims, witnesses, and jail visitors.  It is to be presumed that a qualified interpreter is necessary for Effective Communication whenever WCSO: (a) conducts a criminal investigation involving the interviewing of a person who is hearing impaired, whether as a victim, witness, or suspect; or (b) arrests a person who is hearing impaired.  In either circumstance, the involved officers shall, at the earliest possible time, procure and arrange payment for a qualified interpreter for any notification of rights, warning, interrogation, interview, or taking of a statement unless the person states that he or she would prefer another method of communication and that preference is documented in writing either by the individual or by a WSCO as set forth in Paragraph 29.
19. Primary Consideration. In determining what type of Auxiliary Aids and Services are necessary to comply with the ADA and this Agreement, WCSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. “Primary consideration” means that WCSO will inquire as to the choice of Auxiliary Aid and Service of the individual who is deaf or hard of hearing and will honor the expressed choice unless the WCSO can demonstrate that another means of communication was provided that was equally effective.
20. Statement of Policy. WCSO agrees to adopt policies that implement the requirements of this Agreement. WCSO shall provide a draft of such policies (and the assessment forms referenced in Paragraph 21 below) to the U.S. Attorney’s Office for review within thirty (30) days of the Effective Date of this Agreement.  WCSO will implement the new policies within thirty (30 days) of receiving the U.S. Attorney’s Office approval.  WCSO will also provide a copy of the new policies to all WCSO Employees at the training(s) referenced in Paragraph 30 and will make the policy readily available for employee review thereafter.
21. Field Communication Assessment. WCSO Employees who encounter members of the public outside of the jail(s) or police department buildings during their official duties will use a Field Assessment Form that is substantially similar to the one attached hereto as Attachment A (and approved by the U.S. Attorney’s Office prior to use) to inquire as to the individual who is deaf or hard of hearing’s preference for auxiliary aids and services to achieve effective communication, unless doing so would compromise safety. WCSO Employees shall also use this form at WCSO locations in dealings with individuals who are deaf or hard of hearing who are not in WCSO custody (e.g., witnesses, victims, companions, visitors). WCSO will issue this field assessment form to all WCSO Employees who have regular contact with the public within ten (10) days of the training referenced in Paragraph 30, with the instruction that they keep them readily available for use during contacts with the public.
22. Use of Members of the Public to Facilitate Communication. 
    1. WCSO will not require an individual who is deaf or hard of hearing to bring another member of the public to interpret for him or her.
    2. WCSO will not rely on an adult accompanying an individual who is deaf or hard of hearing to interpret or facilitate communication except:
    1. In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or
    2. Where the individual who is deaf or hard of hearing specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees, and reliance on that adult for assistance is appropriate under the circumstances.
    3. WCSO will not rely on a minor child to interpret or facilitate communication except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where no interpreter is available.
23. Signage. Within sixty (60) days of the Effective Date, at all police stations and jails, and any other WCSO facilities at which employees are reasonably anticipated to engage with members of the public, WCSO will post conspicuous signs in public areas (including booking and holding areas) that advise individuals who are deaf or hard of hearing of the availability of appropriate auxiliary aids and services. The signs shall use the international pictographs for ASL interpreters and shall state:

    To ensure effective communication with individuals who are deaf or hard of hearing, Whatcom County Sheriff’s Department will provide auxiliary aids and services, such as qualified interpreters and videophones, free of charge.

    Please ask for assistance by contacting WCSO’s ADA Coordinator: [name and contact information] or asking any WCSO employee to assist you in contacting the ADA Coordinator using the attached card and pen.

24. Use of Interpreting Service Agency(ies). Within thirty (30) days of the Agreement, WCSO agrees to form and maintain working relationships with one or more qualified oral/sign language interpreter agencies to ensure that interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week. In the alternative, WCSO will make other appropriate arrangements such as contracting directly with or hiring qualified interpreters on a fee-for-service basis. WCSO shall include a description of the manner by which it makes interpreters available in its Six Month Report, see Paragraph 32.
25. Reasonable Modification of Handcuffing Policies. WCSO Employees will handcuff an individual who is deaf or hard of hearing in the front of his or her body unless, considering the totality of the circumstances, the WCSO Employee has a reasonable articulation why handcuffing that person in the front would present an immediate safety risk. Instances where an individual who is deaf or hard of hearing is handcuffed behind his or her body shall be logged, along with a with a description of the safety justification for doing so, the names of the individual who is Deaf or Hard of Hearing and the officers involved, and the date and time of the occurrence. The log shall be provided as part of WCSO’s Six Month Report, see Paragraph 32.
26. Retaliation and Coercion.  WCSO shall not discriminate, retaliate against or coerce in any way, any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA.
27. Grievance Procedure. Within sixty (60) days of the Effective Date, WCSO will implement and publish grievance procedures providing for prompt and equitable resolution of complaints related to law enforcement and related programs, services, and activities alleging acts or omissions that would be prohibited by the ADA or this Agreement. WCSO shall include a list of grievances made under this procedure in its Six Month Report, see Paragraph 32.
28. ADA Coordinator. Within forty-five (45) days of the Effective Date, WCSO shall hire or designate one WCSO Employee as the ADA Coordinator, to serve as the primary point of contact for the WCSO’s efforts to comply with and carry out its responsibilities under Title II of the ADA and this Agreement.
    1. The duties of the ADA Coordinator will include the investigation of any complaint communicated to WCSO, and/or any process initiated under the Grievance Procedures alleging its noncompliance with, or conduct prohibited by, Title II or by this Agreement.
    2. The ADA Coordinator will report directly to the Sheriff.
    3. WCSO shall provide the ADA Coordinator with sufficient authority, training and resources to perform the tasks required by this Agreement, including coordinating requests for accommodations, including Auxiliary Aids and Services, from persons with disabilities.
    4. The ADA Coordinator shall have the authority to make the final determination regarding actions and responses to grievances concerning disability-related issues, subject to the approval of the Sheriff.
    5. The ADA Coordinator shall be responsible for meeting all the requirements for WCSO’s Six Month Report, see Paragraph 32.
    6. The ADA Coordinator shall have experience, knowledge, or training relating to the legal rights of persons with disabilities, including but not limited to the obligations of public entities under federal and state laws covering individuals who are Deaf or Hard of Hearing.
    7. The name, office address, and telephone number of the ADA Coordinator shall be:
    1. conspicuously posted in all WCSO areas that are open to the public,
    2. included in the booking materials provided to inmates;
    3. listed in a readily accessible location on WCSO’s website; and
    4. made available upon request. 
29. Log of Requests for Auxiliary Aids and Services. WCSO will maintain a log in which all requests made to WCSO for auxiliary aids or services will be documented.
    1. The log will indicate the time and date the request was made, the name of the individual who is deaf or hard of hearing making the request, the nature of the auxiliary aid or service provided, and the time and date the auxiliary aid or service was provided.
    2. If a different auxiliary aid or service was provided than the auxiliary aid or service requested by the individual who is deaf or hard of hearing, the log will note why the requested aid or service was not provided and the basis for the belief that the aid or service provided was equally effective.
    3. If no auxiliary aid or service was provided, the log shall contain a statement why the auxiliary aid and service was not provided.
    4. The log should include the identity of the WCSO Employee who conducted the assessment and made the determination.
    5. A copy of this log shall be included in WCSO’s Six Month Report, see Paragraph 32.  
30. Training. WCSO will train all WCSO Employees who have regular contact with members of the public on the elements listed below within forty-five (45) days of the implementation of the policy/policies referenced in Paragraph 20. After this initial training, WCSO will train all newly hired WCSO Employees who have regular contact with members of the public on the elements listed below within forty-five (45) days of the commencement of their employment. The training will be sufficiently detailed to enable WCSO Employees to effectively implement all provisions of this Agreement, including, but not limited to:
    1. The content and meaning of the policy adopted pursuant to Paragraph 20;
    2. WCSO’s prohibition against discrimination, retaliation, or coercion against any person who made, or is making, a complaint according to the provisions of this Agreement or exercised, or is exercising, his or her rights under this Agreement or the ADA;
    3. How and when to use Attachment A, including the prohibitions against, and limited exceptions to the prohibition against, using persons other than a qualified interpreter for interpreting purposes;
    4. The use of the logs and data-collection requirements contained in this Agreement; and;
    5. The name and basic responsibilities of the ADA Coordinator and how he or she can be reached.

    WCSO will maintain records of all training provided in accordance with this paragraph, which will include the names, signature, and respective job titles of the attendees, as well as the date and time of the training session. This documentation shall be included in the Six Month Report, see Paragraph 32.

31. Telecommunications. In situations when an individual who is hearing would have access to a telephone, individuals who are deaf or hard of hearing will be informed that a Video Phone is available and given access to a Video Phone. Additional time will be provided, as needed, for effective communication due to the slower nature of Video Phone communications.
32. Six Month Reports and Compliance Review. During the term of this Agreement, WCSO will report every six months and at the end of the term of the Agreement, to the U.S. Attorney’s Office as to its compliance with this Agreement. The reports shall be forwarded by regular or electronic mail to the designated U.S. Attorney’s Office employee handling this matter. This report shall describe efforts to comply with the terms of this Agreement and shall include:
    1. A description of the means by which WCSO makes interpreting services available to individuals who are deaf or hard of hearing (Paragraph 23);
    2. The Log of Exceptions from the Reasonable Modification to Handcuffing Procedures (Paragraph 25);
    3. The Log of Grievances Related to the ADA (Paragraph 27);
    4. The Log of Requests for Auxiliary Aids and Services (Paragraph 29);
    5. The Training Log and either a statement that all WCSO Employees required to be trained under this Agreement have been trained or the number of WCSO Employees who have regular contact with the public who have not been trained, the reason(s) why, and a corrective plan of action (Paragraph 30); and
    6. A list of any complaints received (not already captured by the Grievance Procedure) relating to alleged failures of effective communication, including but not limited to any lawsuits filed against WCSO.
33. Remuneration for Complainant and Release. Within fourteen (14) days after receiving the executed Agreement and Complainant Donald Pratt’s signed release, Whatcom County Sheriff’s Office will pay Complainant Donald Pratt SIXTY THOUSAND DOLLARS ($60,000.00). This payment is compensation to Complainant Donald Pratt pursuant to 42 U.S.C. § 12188(b)(2)(B), for the effects of the alleged discrimination suffered as described in Paragraph 7. Full payment will be made by electronic funds transfer pursuant to instructions to be provided by the United States Attorney’s Office for the Western District of Washington.
34. Duration of the Agreement.  This Agreement will be in effect for two (2) years from the Effective Date.
35. Enforcement. In consideration of the terms of this Agreement as set forth above, the United States agrees to refrain from undertaking further investigation or from filing a civil suit under Title II in this matter, except as provided in Paragraph 36. Nothing contained in this Agreement is intended or shall be construed as a waiver by the United States of any right to institute proceedings against WCSO for violations of any statutes, regulations, or rules administered by the United States or to prevent or limit the right of the United States to obtain relief under the ADA for violations unrelated to this matter.
36. Compliance Review and Enforcement. The United States may review compliance with this Agreement at any time and can enforce this Agreement if the United States believes that it or any requirement thereof has been violated by instituting a civil action in U.S. District Court. If the United States believes that this Agreement or any portion of it has been violated, it will raise its claim(s) in writing with WCSO, and the parties will attempt to resolve the concern(s) in good faith. The United States will allow WCSO thirty (30) days from the date it notifies WCSO of any breach of this Agreement to reach an agreement as to the cure for said breach, prior to instituting any court action to enforce the ADA or the terms of the Agreement.
37. Entire Agreement. This Agreement and the attachments 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.
38. 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.
39. Non-Waiver. Failure by any party to seek enforcement of this Agreement pursuant to its terms with respect to any instance or provision shall not be construed as a waiver to such enforcement with regard to other instances or provisions.
40. Execution. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same Agreement. Electronically transmitted signatures shall constitute acceptable, binding signatures for purposes of this Agreement.