SETTLEMENT AGREEMENT

BETWEEN

THE ELK GROVE VILLAGE POLICE DEPARTMENT

AND

THE UNITED STATES OF AMERICA


1. This matter was initiated by a complaint against the Elk Grove Village Police Department ("the Department") filed by Timothy J. Zondlo ("Complainant") with the United States Attorney's Office for the Northern District of Illinois under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134. In his complaint, Complainant, who is deaf, alleged that he Department violated the ADA by not providing him with a qualified sign language interpreter, despite his request for an interpreter, when necessary to ensure effective communication with him when he was arrested and transported to the Elk Grove Village Police Station where he was held for several hours. Complainant further alleges that he was handcuffed behind his back while being transported to the Police Station and thus, unable to communicate in his primary language, ASL, and not provided with a TDD while he was in custody. The Department denies the allegations that it failed to provide effective communication " to the Complainant when he was arrested and taken to the police station. The Department further asserts that it is compliant with its responsibilities under the ADA and committed to ensuring effective communication with individuals who are deaf or hard of hearing through the use of qualified sign language interpreters and other auxiliary aids and services.

2. The ADA applies to the Elk Grove Village Police Department because it is a "public entity" pursuant to Title II of the ADA, 42 U.S.C. § 12131. Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in the "services, programs, or activities of a public entity." 42 U.S.C. § 12132.

3. The Attorney General is authorized, under 28 C.F.R. Part 35, Subpart F, to investigate the allegations of the complaint in this matter to determine the Department's compliance with Title II of the ADA. The United States has the authority to issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the United States is authorized, under 42 U.S.C. § 12133, to bring civil actions enforcing Title II of the ADA should it fail to secure voluntary compliance pursuant to Subpart F.

4. The U.S. Attorney's Office investigated the complaint and determined that the allegations set forth in Complainant's complaint were substantiated. Specifically, a sign language interpreter was never provided to Complainant, despite his request, when it was necessary to achieve effective communication with him. The U.S. Attorney's Office further determined that Complainant was not able to communicate effectively concerning the circumstances surrounding his arrest, nor was he able to communicate effectively when he was subsequently transported to the Police Station, where he was held for several hours with no means of effective communication. The Department denies that Complainant was not able to communicate effectively concerning the circumstances surrounding his arrest, denies that Complainant was not able to communicate effectively when he was subsequently transported to the Police Station, and denies that Complainant was held for several hours with no means of effective communication.

5. The Parties have determined that this complaint can be resolved without further federal enforcement action or litigation. In order to avoid the time and expense of litigation and in order to continue its efforts to comply fully with the ADA, the Department agrees to enter into this Agreement. It is understood that this Agreement does not constitute an admission by the· Department of any wrongdoing or liability.

6. The parties agree and stipulate that certain terms will be defined for purposes of this Agreement:

a. "Auxiliary aids and services" will mean qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, Telecommunications Devices for the Deaf (TDDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments. See 28 C.F.R. § 35.104.

b. "Disability" will be defined as it is in the ADA, 42 U.S.C. § 12102(2).

c. "Effective communication" will mean communication with persons with disabilities that is as effective as communication with others. Effective communication is achieved by furnishing appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities an equal opportunity to participate in or benefit from the services, programs, or activities of a public entity.

d. "Qualified interpreter" will mean and refer to a sign language or oral interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Accordingly, an interpreter must be able to sign to the deaf individual (or interpret orally to the person who does not use sign language) what is being said by the hearing person and to voice to the hearing person what is being signed or said by the deaf individual. 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 booking and detention. Additionally, although a qualified interpreter may be certified, a certified interpreter is not necessarily qualified, if he or she is not a good communications match for the deaf person (e.g., where the deaf person uses Signed English and the interpreter uses American Sign Language) or the situation (e.g., where the interpreter is unfamiliar with the necessary specialized vocabulary).

e. "TDDs" will mean devices that are used with a telephone to communicate with persons who are deaf or hard of hearing by typing and reading communications.

7. Equitable Relief.

a. The Department agrees not to engage in any act or practice, directly or through contractual, licensing, or other arrangements, that has the purpose or effect of unlawfully discriminating against any person with a disability in violation of Title II of the ADA. Unless otherwise indicated, within thirty (30) days after the effective date of this Agreement, the Department will implement fully the practices and policies set forth below.

b. The Department will ensure that appropriate auxiliary aids and services are made available to all members of the public who are deaf or hard of hearing, where such aids and services are necessary to ensure effective communication with these individuals, so that they may participate in or benefit from the services, programs, or activities of the Department on an equal basis with other individuals.

c. The Department will ensure that appropriate auxiliary aids and services are made available and paid for by the Department in all services, programs, or activities provided to persons with whom the Department has dealings, including, but not limited to arrestees and suspects interviewed prior to arrest if the situation bas been secured and there is no threat to human life, as consistent with the Model Law Enforcement Policy attached as Exhibit A.

d. In determining what type of auxiliary aid and service is necessary to comply with the ADA, or any provision of this Agreement, the Department will give primary consideration to the request of the person who is deaf or hard of hearing. See 28 C.F.R. § 35.160(b)(2). The Department will honor the request unless it can demonstrate that another effective means of communication exists or that use of the means requested would result in a fundamental alteration of the Department's programs and services or in undue financial and administrative burdens. See 28 C.F.R. Pt. 35 App. A (Section 35.160 General). The decision that a particular request for auxiliary aids and services would result in a fundamental alteration of the Department's programs and services or in undue financial and administrative burdens must be made by the Chief of Police or his or her designee after considering all the resources available for use in the funding and operation of the Department and must be accompanied by a written statement of the reasons for reaching that conclusion. See 28 C.F.R. § 35.164.

e. The Department will offer qualified sign language interpreters to persons who are deaf or hard of hearing and who, pursuant to paragraph 7.d above, indicate a preference for a sign language interpreter, and qualified oral interpreters to persons who are deaf or hard of hearing and who, pursuant to paragraph 7.d above, indicate a preference for oral interpreters; unless, consistent with the policies and procedures set forth in paragraph 7.d above, the Department can demonstrate that an effective means of communication exists or that use of the qualified sign language interpreter would result in a fundamental alteration of the Department's programs and services or in undue financial and administrative burdens. The Department will not rely upon family members, friends, or any other persons who are not qualified interpreters to interpret for deaf or hard of hearing persons, unless the person who is deaf or hard of hearing signs a written waiver stating he or she has been offered a qualified sign language interpreter and prefers instead to have a friend or family member interpret.

f. Prohibition of Surcharges. All appropriate auxiliary aids and services required by this Agreement will be provided to persons who are deaf or hard of hearing free of charge.

g. In cases in which the Department deems it necessary to handcuff a person who is deaf or hard of hearing, the Department will, safety permitting, modify its regular practice of handcuffing arrestees behind their backs, and instead handcuff deaf individuals in front in order for the person to sign or write notes.

h. The Department has developed an ADA training curriculum encompassing the policies and practices described in this Agreement for all staff who have contact with the public. This training includes the following objectives: to inform staff of their legal obligations to provide appropriate auxiliary aids and services where necessary to ensure effective communication with persons who are deaf or hard of hearing; to identify promptly communication needs and preferences of persons who are deaf or hard of hearing; and to secure qualified interpreter services as quickly as reasonably possible when necessary. Since the date of the filing of the Complaint, the Department conducted training sessions for existing employees. The Department will ensure that all new employees who will have contact with the public will receive the training as a component of pre-service training and orientation. Existing employees will receive the training as a component of regular in-service education.

i. Since the date of the filing of the Complaint, the Department has provided and will continue to provide a TDD for use by arrestees who are deaf or hard of hearing and who require use of a TDD for effective communication. Arrestees who are deaf or hard of hearing are permitted access to a TDD on the same terms as others are permitted access to telephones, except that, to the extent telephone calls are subject to time limitations, these limitations will be reasonably extended for those arrestees using a TDD. If a TDD is not available in the same location as telephones used by others, arrestees who use a TDD are allocated reasonable additional time to walk to and from the TDD location. The Department ensures that the privacy of telephone calls by arrestees using a TDD is equal to that of other telephone calls.

j. Since the date of the filing of the Complaint, the Department has provided and will continue to provide a telephone equipped with volume control mechanisms for use by arrestees who are hard of hearing and who require use of a telephone equipped with volume control for effective communication. If a volume control telephone is not available in the same location as telephones used by others, arrestees who use volume control telephones are and will be allocated reasonable additional time to walk to and from the volume control telephone location.

k. Since the date of the filing of the Complaint, the Department has provided and will continue to provide a telephone that is hearing aid-compatible for use by arrestees who are hard of hearing and who require a telephone that is hearing aid compatible for effective communication. If a hearing aid-compatible telephone is not available in the same location as telephones used by others, arrestees who use hearing aid-compatible telephones are and will be allocated reasonable additional time to walk to and from the hearing aid-compatible telephone location.

I. Since the date of the filing of the Complaint, the Department has incorporated into its General Orders a written policy substantially similar to the Model Policy attached as Exhibit A.

8. Monetary Relief

a. Within 30 days after the effective date of this Agreement, the Department shall deliver to the United States a check for $7,500.00 made payable to the order of Timothy Zondlo. Within ten days of receipt of said check, Timothy Zondlo shall sign the Release Agreement attached hereto as Exhibit B. Counsel for the United States shall not forward the check to Timothy Zondlo until the United States has received said executed Release Agreement.

9. No Admission. Nothing in this Settlement Agreement shall be construed as an admission by the Elk Grove Village Police Department of any liability or fault, that it has engaged in any wrongful or illegal activity, or that it accepts Complainant's allegations as true. Furthermore, the terms and conditions of this Agreement shall not be construed, deemed, or interpreted as an admission, presumption, concession, or evidence of liability or wrongdoing by the Elk Grove Village Police Department, Elk Grove Village, any departments, officials, employees, or agents have violated any provisions of federal or state law.

10. Miscellaneous Provisions

a. The Department agrees not to retaliate against or coerce any individual
Who is receiving the Department's services, programs, or activities and who is trying to exercise his or her rights under this Agreement, and/or Title II of the ADA.

b. The United States may review compliance with this Agreement at any time and may enforce this Agreement if the United States believes that it or any requirement thereof has been violated. If the United States believes that this Agreement or any portion of it has been violated, it will raise its concerns with the Department and the parties will attempt to resolve the concerns in good faith. The United States will give the Department ninety (90) days from the date it notifies the Department of any breach of this Agreement to cure that breach, prior to instituting any court action. If the parties are unable to reach a satisfactory resolution within that time frame, the United States may bring a civil action in federal district court to enforce this Agreement or Title II, and may in such action seek any relief available under law.

c. Failure by the United States to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein shall not be construed as a waiver of the United States' right to enforce other deadlines and provisions of this Agreement.

d. This Agreement constitutes the entire agreement between the parties, and no other statement, promise, or agreement, either written or oral, made by any of the parties or agents of any of the parties, that is not contained in this written Agreement, shall be enforceable regarding the matters raised herein.

e. This Agreement shall be in full force and effect for a period of three (3) years after the effective date of the Agreement. The effective date of this Agreement shall be the date of the last signature below.

f. 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 United States and the Department 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.

g. A signatory to this document in a representative capacity for the Department represents that he or she is authorized to bind the Department to this Agreement.

 

For the United States of America: PATRICK J. FITZGERALD
United States Attorney


 

By:______________________________
JOAN LASER
Assistant United States Attorney
219 S. Dearborn Street - 5th Floor
Chicago, Illinois 60604
(312) 353-1857


Date:          10/28/2008          


For Elk Grove Village Police Department:

CHIEF Stephen SCHMIDT
Elk Grove Village Police Department
901 Wellington Avenue
Elk Grove Village, IL 60007


Date:          10/22/2008          

   

 

 

EXHIBIT A

MODEL POLICY FOR LAW
ENFORCEMENT ON COMMUNICATING
WITH PEOPLE WHO ARE DEAF OR HARD OF HEARING

OVERVIEW

It is the policy of this law enforcement agency (Agency) to ensure that a consistently high level of service is provided to all community members, including those who are deaf or hard of hearing. This Agency has specific legal obligations under the Americans with Disabilities Act [insert the following text if your agency receives financial assistance from the Federal government: and the Rehabilitation Act] to communicate effectively with people who are deaf or hard of hearing. To carry out these policies and legal obligations, the Agency instructs its officers and employees as follows:

•  People who are deaf or hard of hearing are entitled to a level of service equivalent to that provided to other persons.

•   The Agency will make every effort to ensure that its officers and employees communicate effectively with people who are deaf or hard of hearing.

•   Effective communication with a person who is deaf or hard of hearing involved in an incident -- whether as a victim, witness, suspect, or arrestee -- is essential in ascertaining what actually occurred, the urgency of the matter, and type of situation.

•   Various types of communication aids - known as "auxiliary aids and services" - are used to communicate with people who are deaf or hard of hearing. These include use of gestures or visual aids to supplement oral communication; use of a notepad and pen or pencil to exchange written notes; use of an assistive listening system or device to amplify sound for persons who are hard of hearing; or use of a qualified oral or sign language interpreter.

•   The type of aid that will be required for effective communication will depend on the individual's usual method of communication, and the nature, importance, and duration of the communication at issue.

•   In many circumstances, oral communication supplemented by gestures and visual aids or an exchange of written notes will be an effective means of communicating with people who are deaf or hard of hearing. In other circumstances, a qualified sign language or oral interpreter may be needed to communicate effectively with persons who are deaf or hard of hearing. The more lengthy, complex, and important the communication, the more likely it is that a qualified interpreter will be required for effective communication. For example:

-   If there has been an incident and the officer is conducting witness interviews, a qualified sign language interpreter may be required to communicate effectively with someone whose primary means of communication is sign language. A qualified oral interpreter may be required to communicate effectively with someone who has been trained to speech read (read lips).

-   If a person is asking an officer for directions to a location, gestures or an exchange of written notes will likely be sufficient to communicate effectively.

•   To serve each individual effectively, primary consideration should be given to providing the type of communication aid or service requested by the individual. Officers should find out from the person who is deaf or hard of hearing what type of auxiliary aid or service he or she needs. Officers should defer to those expressed choices, unless:

•   there is another equally effective way of communicating, 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

•   doing so would fundamentally alter the nature of the law enforcement activity in question or would cause an undue administrative or financial burden; only the Agency head or his or her designee may make this determination.

•   The input of people who are deaf or hard of hearing who are involved in incidents is just as important to the law enforcement process as the input of others. Officers must not draw conclusions about incidents unless they fully understand -- and are understood by -- all those involved, including people who are deaf or hard of hearing.

•   People who are deaf or hard of hearing must not be charged for the cost of an auxiliary aid or service needed for effective communication.

ON-CALL INTERPRETIVE SERVICES

•   The Agency will maintain a list of sign language and oral interpreting services that are available (on-call 24 hours per day) and willing to provide qualified interpreters as needed. Each of these services will be chosen after having been screened for the quality and skill of its interpreters, its reliability, and other factors such as cost. The Agency will update this list annually.

•   A qualified sign language or oral interpreter is one who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Accordingly, an interpreter must be able to sign to the deaf individual (or interpret orally to the person who speech reads) what is being said by the officer and be able to voice to the officer what is being signed or said by the deaf individual. 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 law enforcement terms and phrases. Because a qualified interpreter must be able to interpret impartially, a family member, child, or friend of the individual who is deaf may not be qualified to render the necessary interpretation because of factors such as professional, emotional, or personal involvement, or considerations of confidentiality. Additionally, although a "qualified" interpreter may be certified, a certified interpreter is not necessarily "qualified," if he or she is not a good communications match for the deaf person (e.g., where the deaf person uses Signed English and the interpreter uses American Sign Language) or for the situation (e.g., where the interpreter is unfamiliar with law enforcement vocabulary).

TTY AND RELAY SERVICES

•   In situations when a nondisabled person would have access to a telephone, officers must provide persons who are deaf or hard of hearing the opportunity to place calls using a teletypewriter (TTY, also known as a telecommunications device for deaf people, or TDD). Officers must also accept telephone calls placed by persons who are deaf or hard of hearing through the Telecommunications Relay Service.

TECHNIQUES FOR OFFICERS TO COMMUNICATE EFFECTIVELY

•   Officers may utilize the following auxiliary aids, when available, to communicate effectively:

- Use of gestures;
- Use of visual aids;
- Use of a notepad and pen or pencil;
- Use of a computer or typewriter;
- Use of an assistive listening system or device;
- Use of a teletypewriter (TTY);
- Use of a qualified oral or sign language interpreter.

•   Officers must review and have a working knowledge of the publication
Communicating with People Who Are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers. This document reviews how officers should communicate effectively in the types of situations officers will encounter.

PROCEDURES FOR OBTAINING AUXILIARY AIDS AND SERVICES

[Insert an explanation of the department's procedures for obtaining auxiliary aids and services.]

 

 

EXHIBIT B

RELEASE OF CLAIMS

For and in consideration of the acceptance of the relief offered to me by the Elk Grove Village Police Department (EGPD) pursuant to the Settlement Agreement between the United States of America and EGPD in United States Department of Justice Matter Number 204-23-228:

  1. I, Timothy Zondlo, release and discharge Elk Grove Village, the Elk Grove Village Police Department and their current, former, and future agents, employees, officials, and designees, of and from all legal and equitable claims under the Americans with Disabilities Act, the Illinois Human Rights Act, and/or any other federal, state, or local statute, law, ordinance or regulation related to the events that occurred on August 17, 2007 involving my arrest and detention by the Elk Grove Village Police Department on that date. Excluded from this release are any claims or rights that cannot be waived by law. I am waiving, however, any right to monetary recovery should any commission or agency pursue any claim on my behalf relating to the events that occurred on August 17, 2007, involving my arrest and detention by the Elk Grove Village Police Department on that date.
  2. I agree and promise that I will not file suit, charge, complaint, proceeding or action at law, in equity, or otherwise in any court, or any other judicial or administrative forum against the Elk Grove Village, the Elk Grove Village Police Department and their current, former, and future agents, employees, officials, and designees in any way arising from or relating in any way to the events that occurred on August 17, 2007 involving my arrest and detention by the Elk Grove Village Police Department on that date. Excluded from this covenant not to sue are any rights and claims that cannot be waived by law.
  3. I acknowledge that a copy of the Settlement Agreement resolving the matter between them has been made available to me.

I HAVE READ THIS RELEASE AND UNDERSTAND THE CONTENTS THEREOF AND I EXECUTE THIS RELEASE OF MY OWN FREE ACT AND DEED.

Signed this __ day of ______, 2008.

 

__________________________
      Timothy J. Zondlo

 





November 24, 2008