VOLUNTARY COMPLIANCE AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND

THE TOWN OF LEWISBORO, NEW YORK



I.       BACKGROUND

A.     SCOPE OF THE INVESTIGATION

WHEREAS, this matter was initiated by a complaint filed under title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, with the United States Department of Justice (“Department”) against the Town of Lewisboro, New York (“Lewisboro”), which was received by the Civil Rights Division of the Department under the authority of 28 C.F.R. Part 35, and was referred to the United States Attorney’s Office for the Southern District of New York (the “U.S. Attorney’s Office”); 

WHEREAS, the complainant alleged that at least three of Lewisboro’s public structures, including the building located at 11 Main Street, South Salem, New York 10590, which houses the offices of the Supervisor, the Town Clerk and the Receiver of Taxes (the “Townhouse”), the building located at 99 Elmwood Road, South Salem, New York 10590, which houses the offices of the Assessor, the Building Department, and the Planning Board (the “Onatru Farmhouse”), and the building located at 81 Spring Street, South Salem, New York 10590, which houses Lewisboro’s Police Department (the “Police Station”), are not accessible because structural barriers and other deficiencies make the programs, services, and activities offered in the buildings inaccessible to persons with mobility impairments; 

WHEREAS, the U.S. Attorney’s Office’s investigation was later expanded to ensure that all of Lewisboro’s public structures are accessible to persons with disabilities and that persons with disabilities are not excluded from participation in, or denied the benefits of, all the services, programs, and activities offered by Lewisboro.   Specifically, the scope of the US Attorney’s investigation included Lewisboro’s compliance with the following title II requirements:

(a)  to conduct a self-evaluation of its services, policies, and practices by July 26, 1992, and make modifications necessary to comply with Department of Justice regulations implementing title II, 28 C.F.R. Part 35 (the “title II DOJ Regulations”); see 28 C.F.R. § 35.105;

(b)  to notify applicants, participants, beneficiaries, and other interested persons of their rights and Lewisboro’s obligations under title II and the title II DOJ Regulations; see 28 C.F.R. § 35.106;

(c)  to designate a responsible employee to coordinate its efforts to comply and carry out Lewisboro’s ADA responsibilities; see 28 C.F.R. § 35.107(a);

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

(e)  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, see 28 C.F.R. § 35.150,  by:

(f)  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 title II DOJ Regulations and 2) the Standards or UFAS; see 28 C.F.R. § 35.151;

(g)  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;

(h)  where Lewisboro communicates by telephone, to communicate through a teletypewriter (“TTY”), or other equally effective telecommunications system, with individuals who have hearing or speech impairments, 28 C.F.R. § 35.161;

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

(j)  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).

The U.S. Attorney’s Office’s program access review included Lewisboro’s programs, services, and activities that operate in the following facilities:

- the Townhouse, including the garage housing Lewisboro’s Highway Department;

- the Onatru Farmhouse, including the Onatru Farm Park;

- the Police Station;

- the Lewisboro Library, located at 15 Main Street, South Salem, New York;

- Goldens Bridge Community House, located at 65 Old Bedford Road, Goldens Bridge, New York;

- Cyprus Russell Community House, located at 779 Route 35, Cross River, New York;

- Vista Community House, located at the intersection of Route 123 and East Street, Vista, New York;

- Fox Valley Park; and

- Town Park.

B.    JURISDICTION

WHEREAS, title II of the ADA applies to Lewisboro because it is a “public entity;” 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104; and

WHEREAS, the Attorney General, through the U.S. Attorney’s Office, is authorized under 28 C.F.R. Part 35, Subpart F, to determine whether Lewisboro is in compliance with title II of the ADA and the title II DOJ Regulations, to issue findings, and, where appropriate, to negotiate and secure a voluntary compliance agreement to bring Lewisboro into compliance with title II.  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 U.S. Attorney’s Office fail to secure voluntary compliance.

II.      REMEDIAL ACTION

  1. The parties to this agreement are the United States of America and the Town of Lewisboro (collectively, the “Parties”).
  2. In consideration of the terms of this Agreement as set forth below, the U.S. Attorney’s Office agrees to refrain from undertaking further investigation or from filing a civil suit in this matter regarding paragraphs 5-27 below, except as provided in paragraphs 29-31.
  3. The Parties agree that the technical requirements and, where appropriate, the scoping requirements of the Standards are used as a guide for determining whether a program or activity held in an existing facility is “readily accessible to and usable by” persons with disabilities, and for determining what changes are necessary to make this program or activity accessible if it continues to be provided in the existing facility in question.  See 28 C.F.R. §§ 35.150(b)(1) and 35.151.
  4. Lewisboro will maintain in operable working condition those features of facilities that are required to be readily accessible to and usable by persons with disabilities by the ADA or this Agreement.  Isolated or temporary interruptions in service due to maintenance or repairs are permissible, but Lewisboro agrees to keep these to a minimum.  See 28 C.F.R. § 35.133. 
  5. A.   POLICIES AND PROCEDURES

  6. Within 90 days of the effective date of this Agreement, Lewisboro will distribute the attached Notice (“Attachment A”) to all agency heads; publish the Notice on its Internet homepage at http://www.lewisborogov.com (the “Homepage”); and post copies in conspicuous locations in its public buildings.  In addition, Lewisboro will publish the Notice in a newspaper of general circulation serving Lewisboro on two separate occasions approximately 90 days and 180 days after the effective date of this Agreement.  Lewisboro will refresh the posted copies of the Notice and update the ADA Coordinator information contained in the Notice, as necessary, for the life of this Agreement.  Lewisboro will provide copies of this Notice to any person upon request, including in large print format.
  7. Within 90 days of the effective date of this Agreement, Lewisboro will assign or hire an employee as the ADA Coordinator for Lewisboro.
  8. Within 90 days of the effective date of this Agreement, Lewisboro will adopt the attached ADA Grievance Procedure (“Attachment B”).  Lewisboro will distribute the ADA Grievance Procedure to all agency heads, post copies of it in conspicuous locations in its public buildings, and publish it in alternate formats so that they are immediately available upon request.  Lewisboro will refresh the posted copies and update the contact information contained on the ADA Grievance Procedure (including in large print format copies), as necessary, for the life of this Agreement.  Copies (including copies in large print format) will be provided to any person upon request.
  9. Within 120 days of the effective date of this Agreement, Lewisboro will amend its employment policies to comply with the regulations of the U.S. Equal Employment Opportunity Commission implementing title I of the ADA, codified at 29 C.F.R. Part 1630. At minimum, those policies will provide that Lewisboro:
    1. will not discriminate on the basis of disability in its hiring or employment practices.
    2. 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.
    3. 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 Lewisboro’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, Lewisboro may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.
    4. will maintain any employee’s medical records separate from personnel files and keep them confidential.
    5. will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent that Lewisboro’s selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
  10. Within 120 days of the effective date of this Agreement, Lewisboro will promulgate and enforce a Town of Lewisboro Police Department’s Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing (“Attachment C”) and will distribute to all new police officers a copy of the ADA Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing, which can be found at: http://www.ada.gov/lawenfcomm.pdf.
  11. Lewisboro will report to the U.S. Attorney’s Office within 180 days of the effective date of this Agreement the actions it has taken to comply with paragraphs 5 through 9 above.
  12. B.   EFFECTIVE COMMUNICATION

  13. Lewisboro agrees to provide qualified sign language and oral interpreters and other appropriate auxiliary aids and services, when needed for effective communication with qualified persons with disabilities in all Town programs, services and activities, except where doing so imposes an undue hardship or fundamentally alters the nature of the service provided.  Lewisboro will give primary consideration to the choice of auxiliary aid or service expressed by the person with a disability.
  14. Within 90 days of the effective date of this Agreement, Lewisboro will identify sources of qualified interpreters and vendors to provide Braille documents and will develop written procedures, with time frames, for fulfilling requests from the public for interpreters and documents in alternate formats (e.g., Braille, large print, cassette tapes).
  15. Lewisboro agrees that, within 90 days of the effective date of this Agreement, all letters sent to the public from every Town office will have the New York Relay Service TTY number printed on the letterhead.
  16. Lewisboro agrees that, within 90 days of the effective date of this Agreement, it will publicize the New York Relay Service TTY number on the same basis as its voice number, through such means as its title II public notice (Attachment A), official stationary, business cards, and the public telephone book.
  17. All persons calling Lewisboro’s personnel via the relay service will be provided an equivalent level of service as other callers (including the timeliness of response).
  18. Within 90 days of the effective date of this Agreement, Lewisboro will make such changes as necessary to ensure that all information provided through its Homepage complies with either the Section 508 standards on website accessibility, see http://www.section508.gov/index.cfm, or the Web Content Accessibility Guidelines, see http://www.w3.org/TR/WCAG10/.
  19. Within 180 days of the effective date of this Agreement, Lewisboro will report to the U.S. Attorney’s Office regarding accessibility of its telecommunications services, including its Homepage, and will submit to the U.S. Attorney’s Office any written procedures, the names of employees who have been trained, and a copy of any public notice that it has provided.
  20. C.   TRAINING

  21. Within 180 days of the effective date of this Agreement, Lewisboro will develop or procure a training program for all its employees on the requirements of the ADA and the etiquette of interacting with persons with disabilities.  Lewisboro will use the ADA technical assistance materials developed by the Department of Justice and will consult with interested persons, including individuals with disabilities, in developing or procuring the ADA training program.  At the end of that period, Lewisboro will submit a copy of its training curriculum and materials to the U.S. Attorney’s Office, along with a list of employees that it intends to train.
  22. Within 12 months of the effective date of this Agreement, Lewisboro will deliver its training program to all essential employees.  At the end of that period, Lewisboro will submit a list of the employees trained to the U.S. Attorney’s Office.
  23. D.   STRUCTURAL MODIFICATIONS

  24. To ensure that each of Lewisboro’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 disabilities, Lewisboro will take the following actions:
    1. Within 12 months of the effective date of this Agreement, Lewisboro will complete the renovations of the Onatru Farmhouse so as to ensure that that building complies with the Standards.  Specifically, such renovations shall be made in accordance with the architectural plans submitted by Martin W. Daino and Robert Benoit, P.E. and approved by the Town Board for Lewisboro on __________________, 2009.
    2. With respect to the Townhouse, the Police Station, the Highway Garage Building, the Lewisboro Library and the Community House at Goldens Bridge, at Cross River, and at Vista (collectively, the “Other Town Buildings”) and Lewisboro’s three public parks, the Onatru Farm Park, the Fox Valley Park and the Town Park (collectively, the “Lewisboro Parks”), Lewisboro will take the following actions:
      1. Within 180 days of the effective date of this Agreement, Lewisboro will prepare (A) a plan (the “Proposed Alternative Services Plan”) that sets forth the alternative means of delivering services offered at the Other Town Buildings or the Lewisboro Parks which currently are not accessible to individuals with disabilities on account of the structural barriers or deficiencies enumerated in the List of Additional Structural Barriers, Attachment D and (B) a plan (the “Proposed Structural Modifications Plan”) for remedying the structural barriers or deficiencies enumerated in the List of Additional Structural Barriers for which alternative means of delivering services are not effective. 
      2. Lewisboro will provide to the U.S. Attorney’s Office copies of the Proposed Alternative Services Plan and the Proposed Structural Modifications Plan within 30 days of both plans being available;
      3. Within 30 days of receiving comments from the U.S. Attorney’s Office on the Proposed Alternative Services Plan and the Proposed Structural Modifications Plan, Lewisboro will incorporate the comments received into a final plan for ensuring that all programs and services offered at Lewisboro’s public structures are accessible to individuals with disability (the “Alternative Services and Structural Modifications Plan”); a copy of the Alternative Services and Structural Modifications Plan will be provided to the U.S. Attorney’s Office promptly upon its being finalized;
      4. Within 120 days of the finalization of the Alternative Services and Structural Modifications Plan, Lewisboro will establish all the alternative means of delivering services identified in the Alternative Services and Structural Modifications Plan;
      5. Within 24 months of the effective date of this Agreement, Lewisboro will complete all structural modifications as set forth in the Alternative Services and Structural Modifications Plan.
  25. E.   EMERGENCY MANAGEMENT PROCEDURES AND POLICIES

  26. Within 90 days of the effective date of this Agreement, Lewisboro will prepare a proposed Emergency Operations Plan (the “Proposed EOP”) and provide the Proposed EOP to the U.S. Attorney’s Office, including all supporting documents, within 30 days of its being available (a guide for emergency preparedness and the ADA can be found at:  http://www.ada.gov/emergencyprepguide.htm).
  27. Within 30 days of receipt of the U.S. Attorney’s Office’s comments on the Proposed EOP, Lewisboro will incorporate the comments received from the U.S. Attorney’s Office and issue a revised Emergency Operations Plan (the “Final EOP”).  A copy of the Final EOP shall be provided to the U.S. Attorney’s Office, including all supporting documents, within 30 days of its being available.
  28. Lewisboro will implement the Final EOP consistent with title II and the title II DOJ Regulations.
  29. F.   SELF-EVALUATION

  30. To the extent not specifically described above, Lewisboro agrees that, within 180 days of the effective date of this Agreement, it will conduct a self-evaluation of its services, policies, and practices, including, but not limited to, the policies and procedures relating to police services, voting and court services, and produce a draft report (the “Draft Self-Evaluation Report”) setting forth (i) the limitations to providing individuals with disabilities with full access to its programs and services and (ii) the steps, in addition to those set forth in paragraphs 5 to 23, that are necessary to comply with title II and the title II DOJ Regulations.  See 28 C.F.R. § 35.105.
  31. Lewisboro will provide a copy of the Draft Self-Evaluation Report to the U.S. Attorney’s Office, including all supporting documents, within 30 days of its being available.
  32. Within 30 days of receipt of the U.S. Attorney’s Office’s comments on the Draft Self-Evaluation Report, Lewisboro will incorporate the comments received from the U.S. Attorney’s Office and issue a revised report (the “Final Self-Evaluation Report”).  A copy of the Final Self-Evaluation Report shall be provided to the U.S. Attorney’s Office, including all supporting documents, within 30 days of its being available.
  33. Within 24 months of the effective date of this Agreement, Lewisboro will implement the steps identified in the Final Self-Evaluation Report consistent with title II and the title II DOJ Regulations. 
  34. III.         IMPLEMENTATION AND ENFORCEMENT

  35. Except as otherwise specified in this Agreement, at 90 and 180 days after the effective date of this Agreement, and thereafter at yearly anniversaries of the effective date until the Agreement terminates, Lewisboro will submit written reports to the U.S. Attorney’s Office summarizing the actions Lewisboro has taken pursuant to this Agreement.  Reports will include photographs, architectural plans, notices published in the newspapers (including, but not limited to, the notice required by paragraph 5 above), and copies of adopted policies.
  36. Pursuant to paragraph 34, during such time as this Agreement remains in effect the U.S. Attorney’s Office may review compliance with this Agreement at any time.  If the U.S. Attorney’s Office believes this Agreement or any portion of it has been violated, it will so notify Lewisboro in writing and it will attempt to resolve the issue or issues in good faith.  If the U.S. Attorney’s Office is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to Lewisboro, it may institute a civil action in federal district court at any time thereafter directly to enforce title II or to enforce the terms of this Agreement.
  37. Except where Lewisboro has relied on a written agreement of the U.S. Attorney’s Office, failure by the U.S. Attorney’s Office 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 U.S. Attorney’s Office’s right to enforce other deadlines and provisions of this Agreement.
  38. In the event that Lewisboro fails to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the U.S. Attorney’s Office for a temporary modification of the relevant terms of this Agreement, the U.S. Attorney’s Office may, at any time hereafter, file suit in an appropriate federal district court to enforce the terms of the Agreement or, at its option, declare the Agreement null and void and file suit to enforce title II of the ADA.
  39. This Agreement is a public document.  A copy of this document or any information contained in it may be made available to any person by Lewisboro or the U.S. Attorney’s Office upon request.
  40. 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, shall 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 Lewisboro’s continuing responsibility to comply with all aspects of the ADA.
  41. This Agreement will remain in effect for three years from the effective date of this Agreement, or until the parties agree, in writing, that full compliance with this Agreement by Lewisboro has been achieved, whichever occurs first. 
  42. The effective date of this Agreement is the date of the last signature below.
  43. The persons signing for the Town of Lewisboro, New York represent that they are authorized to bind Lewisboro to this Agreement. 

 

For Lewisboro:

For the United States:

 

 

Preet Bharara
United States Attorney

 

 

By:                                           
Li Yu
Assistant United States Attorney
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2734

 

Dated:   Lewisboro, New York

               December __, 2009

 

 

By:                                          
Anthony R. Molé, Esq.
HERODES & MOLÉ, P.C.
888 Route Six
Mahopac, New York 10541

 

Dated:     Mahopac, New York

                December __, 2009

 

Dated:    New York, New York

                December 22, 2009

   

 

 





March 15, 2010