SETTLEMENT AGREEMENT

BETWEEN

THE UNITED STATES OF AMERICA

AND THE CITY OF

PHILADELPHIA, PENNSYLVANIA

 


 

This settlement agreement (the “Agreement”) is entered into as of April 16, 2009 (“Effective Date”), between the United States of America and the City of Philadelphia (collectively, the “Parties”).

RECITALS

WHEREAS, in the fall of 2005, the United States Department of Justice (the “Department”) initiated a compliance review of the City of Philadelphia, Pennsylvania (the “City”) under title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131 - 12134, and the Department’s title II implementing regulations;

WHEREAS, the City uses 1,681 polling divisions for elections. One polling place site may house one or more polling divisions. In the fall of 2005, the City had 1,202 polling place sites that housed the 1,681 polling divisions;

WHEREAS, pursuant to the Commonwealth of Pennsylvania’s guidelines, the City reviews the accessibility of each polling place. The City then designates them as “fully accessible,” which complies with Commonwealth guidelines; “building accessible through alternative entrance;” “substantially accessible;” or “not accessible.” The City further designates whether accessible parking is available at each polling place;

WHEREAS, during polling place reviews in October and November 2005, and November 2006, the Department concluded that many of the City’s polling places contain barriers to access for persons with disabilities;

WHEREAS, the City, a municipality within the Commonwealth of Pennsylvania (also a county for purposes of Pennsylvania law), is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1), 28 C.F.R. § 35.104, and is, therefore, subject to title II of the ADA, 42. U.S.C. §§ 12131 – 12134;

WHEREAS, the Department is authorized under 28 C.F.R. Part 35, Subpart F, to determine the City’s compliance 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;

WHEREAS, the City denies all of the Department’s allegations.

TERMS OF SETTLEMENT

1. This Agreement is conditioned on approval of the settlement agreement entered into as of April 16, 2009 (the “Kerrigan Settlement”), between the parties to the litigation captioned, or otherwise referred to, as Kerrigan, et al. v. The City of Philadelphia, et al., C.A. No. 07-00687 (E.D. Pa.) (“Litigation”), which was filed in the United States District Court for the Eastern District of Pennsylvania on February 21, 2007. A copy of the Kerrigan Settlement is attached as Attachment 1 and is incorporated by specific reference.

Obligations of the City of Philadelphia

2. Accessible polling places are and shall be the cornerstone of the City’s voting accessibility program. The City has an obligation to provide an accessible voting program under federal law. As part of the Kerrigan Settlement, the City and the Commonwealth of Pennsylvania are financially responsible for the survey and evaluation work conducted by a Private Third Party (selected by the Kerrigan Magistrate Judge), as provided for in Paragraph I in the Kerrigan Settlement. The Kerrigan Private Third Party will evaluate one-half of the polling places listed on Attachment 2.

3. The City shall maintain in operable working condition on election day those features of facilities and equipment that are required to make polling places temporarily accessible to and usable by persons with disabilities, excluding isolated or temporary interruptions in service or access due to maintenance or repairs, which are not prohibited.

4. The City will continue to provide access, through the application process established by the Commonwealth of Pennsylvania, to the Alternative Ballot for all persons with disabilities, who are assigned to vote at a polling place that has not been designated as fully accessible under the terms of this Agreement For the May 2009 Primary Election, all polling place sites, except for those sites identified by the Department as accessible in Attachment 3 to this Agreement, will be considered inaccessible for purposes of the Alternative Ballot procedures.

5. Beginning with the May 2009 election, 30 days before the election, the City will notify the appropriate person for each polling place that if parking is provided at the polling place location, then a van-accessible space must be provided temporarily on election day, through the use of traffic cones and appropriate signage, or in some other manner.

6. Throughout the life of this Agreement, the City will make reasonable efforts to maintain equipment such as ramps used to ensure the accessibility of polling places.

7. The City will cooperate fully with the Department as it conducts its survey work, including but not limited to, providing the Department with timely access to ward maps and other reasonably requested information The City will provide to the Department a copy of the notice attached as Attachment 4.

8. The City will use the Survey Instrument (Attachment 5) to assess the accessibility of all future proposed polling place locations. After the effective date of this Agreement, the City shall continue to make accessibility a major criterion when it selects new locations for polling places. The City will continue its policy and practice of reviewing each newly proposed polling place site to determine whether it is accessible to persons with disabilities or could be made temporarily accessible on election day through the use of a threshold or one-step ramp, or through another reasonable temporary manner, before the City’s selection of the site as a polling place. If the City ultimately determines that a newly proposed site is not accessible or cannot be made temporarily accessible on election day, and that no other accessible site exists in the division or in an adjacent division, then the polling place site shall be designated as not accessible and the City will provide, through the established application process of the Commonwealth of Pennsylvania, the Alternative Ballot to all persons with disabilities, who are assigned to vote at such a polling place.

9. The City will provide the Department with timely notice of its decision-making regarding polling places as provided for in the Kerrigan Settlement, in particular, whether the City rejects or accepts recommendations from the Department or the Kerrigan Private Third Party, whether a polling place's accessibility designation has been changed, and whether a new polling place has been selected.

10. The City will implement recommendations made pursuant to Paragraph 18 of this Agreement and recommendations made by the Kerrigan Private Third Party to which it agreed or that are required by court order as set forth below.

a. Other than the exception stated in Paragraph 10.c below, during the term of this Agreement, the City will implement all recommendations of the Department or the Kerrigan Private Third Party to which it agreed, except for recommendations for permanent modifications, beginning in the elections immediately subsequent to their agreement, unless: (i) the City agreed to the recommendation before it was required to notify the Department pursuant to Paragraph 9 of this Agreement; (ii) the City’s agreement was made within 45 days before the next election, and (iii) the City determines that it is in its best interest to implement the recommendation in the next subsequent election, in which case the recommendation will be implemented in the next subsequent election.

b. Other than the exception stated in Paragraph 10.c below, the City also will implement all orders of the Kerrigan Magistrate Judge in the elections that take place after the orders are issued during the term of this Agreement unless they are appealed to the District Court pursuant to the Kerrigan Settlement, and will implement all orders of the District Court in the elections that take place after the orders are issued during the term of this Agreement unless they are appealed to the United States Court of Appeals for the Third Circuit pursuant to the Kerrigan Settlement. Nothing in this paragraph expands the authority of the Magistrate Judge to enter any order.

c. The City is not required to implement a recommendation in a subsequent election as otherwise required by Paragraphs 10.a and 10.b above if recommended equipment, such as temporary ramps, has been ordered but will not arrive before the election following the recommendations, in which case the recommended equipment will be used beginning in the election following its receipt.

d. If the City finds that it cannot reasonably implement a previously agreed to recommendation, except for a recommendation for a permanent modification, the City will notify the Department and the plaintiffs’ counsel in the Litigation (“Kerrigan Plaintiffs’ Counsel”) and, upon request, meet and confer with the Department and the Kerrigan Plaintiffs’ Counsel (or their representatives). If the City and the Department or the Kerrigan Plaintiffs’ Counsel are unable to agree, the City may petition the Kerrigan Magistrate Judge for relief from the applicable recommendation pursuant to Rule 60 of the Federal Rules of Civil Procedure, subject to appeal. The City does not have to implement any recommendation from which it is seeking relief unless and until the Magistrate Judge, or if appealed, the District Court or Court of Appeals, orders the City to do so.

e. The City will be deemed to comply with any recommendation by the Department or the Kerrigan Private Third Party to post temporary signs on election day to direct voters with disabilities to an alternate accessible entrance if the City: (i) causes temporary signs to be posted before election day; (ii) instructs in poll worker training sessions that the signs must be posted; (iii) provides additional signs for poll workers to post if the previously posted signs are no longer there on election day; and (iv) instructs election day inspectors to check that the signs are posted on election day and, if they are not, to replace them.

11. The City will not oppose the Department’s participation in any proceedings conducted pursuant to the Kerrigan Settlement held before the Kerrigan Magistrate Judge.

Survey and Evaluation of Polling Places

12. In order to assist the City to meets its obligations under the ADA, beginning immediately after the Effective Date of the Kerrigan Settlement or this Agreement, the Department will conduct surveys of as many polling places as practicable, with a goal of no fewer than 120 polling places every two months (“Survey Period”). The polling place survey goals shall not apply during the survey periods that include the May and November 2009 elections.

13. The Department will use the survey instrument attached as Attachment 5 to evaluate polling places pursuant to Paragraphs 14 and 15 of this Agreement.

14. The Department will evaluate one-half of the polling places listed on Attachment 2.

15. The Department will evaluate the polling places listed on Attachment 6.

16. During the May 19, 2009 election and the November 3, 2009 election and, if necessary, the primary election in the spring of 2010, the Department will evaluate further those polling place locations previously surveyed that were found to be inaccessible but the City has designated as accessible on election day (i.e., polling places listed on Attachment 2) and not previously found to be accessible by the Department.

17. Within 20 days of the end of each Survey Period, the Department will provide to the City and the Kerrigan Plaintiffs’ Counsel copies of all Survey Instruments completed during the previous Survey Period.

18. Within 30 days of the end of each Survey Period, the Department will report to the Kerrigan Magistrate Judge, the City, and the Kerrigan Plaintiffs’ Counsel in writing, the results of the surveys completed pursuant to Paragraphs 14 and 15 of this Agreement. Each report will include:

a. Whether each surveyed polling place can reasonably be temporarily modified to be accessible on election day.

(i) If the Department determines that any surveyed polling place can reasonably be temporarily modified, it will identify what temporary modifications can be made and how. The Department will consider whether any of the following temporary modifications will resolve any accessibility issues: (1) six-foot portable ramps, (2) threshold ramps and (3) re-designating alternative entrances as exclusive entrances to the polling places If none of the above temporary modifications will resolve a polling place’s accessibility issues, the Department may recommend other temporary modifications.

(ii) If the Department determines that the alternative entrance to a polling place cannot be re-designated as the exclusive entrance to the polling place, or that any surveyed polling place cannot be temporarily modified, it will explain why.

b. If the polling place is located in a publicly owned building, whether it is reasonable to permanently modify any inaccessible polling place to make it accessible and how such modifications would be made.

c. If a surveyed polling place cannot reasonably be modified temporarily, whether it can reasonably be relocated to a building that is accessible or can reasonably be made temporarily accessible on election day, and the specific location(s) it recommends as the relocation site.

(i) In determining whether a polling place can reasonably be relocated, the Department will use the following criteria: (1) the proposed relocation site must be in the same division the polling place serves or a division adjacent to the division the polling place serves; (2) the proposed relocation site cannot be more than five city blocks from the furthest edge of the division the polling place serves; (3) there are no significant dangers or obstacles that would preclude pedestrians from safely traveling to the proposed location, such as a park, river, or major road or highway that cannot be safely traversed; (4) the building in which the polling place is proposed to be relocated is too small to accommodate a polling place or, if a polling division(s) is already located there, the building is not too small to accommodate an additional polling place; or (5) the location is unable to accommodate a polling place for mechanical or other physical or operational reasons.

(ii) When making contact for the first time with any person regarding a prospective privately owned polling place location, the Department will provide to that person a copy of the notice attached as Attachment 4 immediately upon initiating contact with the person.

(iii) If the Department recommends a relocation site that is not accessible but can reasonably be made temporarily accessible on election day, the Department also will identify what temporary modifications can be made and how.

d. Whether a temporary sign should be posted on election day to direct voters with disabilities to an alternate accessible entrance and where the sign should be posted.

19. The Department will train the Kerrigan Private Third Party on using the Survey Instrument and will work closely with the Kerrigan Private Third Party to facilitate consistency in the evaluation of the polling places, recommendations and in the format of the reports described in Paragraph 18 of this Agreement.

20. The survey and evaluation processes pursuant to Paragraphs 14 and 15 of this Agreement will be put in abeyance for a period from 21 days before any election through 21 days after any election (i.e., no surveys or evaluations will be conducted during this timeframe with the exception of the surveys conducted under Paragraph 16 of this Agreement).

21. The survey process pursuant to Paragraphs 12 through 18 of this Agreement will cover elections up to and including the November 2012 election, which will be the last election covered by this Agreement.

22. After July15, 2009, the Department will train employees of the City on using the Survey Instrument and determining whether a polling place location is or can be made accessible. No later than 60 days before beginning the training, the Department will provide the City with a copy of the training materials the Department intends to use and will provide the City with a list of equipment and/or supplies the City inspectors will need to accurately assess the accessibility of the City’s polling places. During the life of this agreement, the City may request additional training on a reasonable basis.

Enforcement Provisions

23. If at any time one of the parties to this Agreement desires to modify any portion of this Agreement, it will promptly notify the other party in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. An in-person meeting between the parties will be held at the request of either party. The party receiving a request to modify the Agreement will not unreasonably delay notifying the requesting party as to whether it will agree to the proposed modification. No modification will take effect unless and until the parties memorialize the agreed upon modification in writing.

24. In consideration of the mutual promises contained in this Agreement, good and valuable consideration, the receipt and sufficiency of which is acknowledged, and to avoid the costs, expenses and uncertainty of protracted litigation, the Parties, intending to be legally bound, enter into this Agreement.

25. In consideration of, and consistent with the terms of this Agreement, the Department agrees to refrain from filing any civil suit related to the accessibility of Philadelphia’s polling places for voters with mobility disabilities until and including March 31, 2013, except as provided in Paragraph 26 of this Agreement.

26. The parties may institute a civil action in federal district court to enforce the terms of this Agreement. The parties do not waive defenses, arguments or claims for a failure to comply with the terms of this Agreement.

27. Failure by the Department to enforce this entire Agreement or any provision of it with regard to any deadline or any other provision of the Agreement will not be construed as a waiver of the Department’s right to enforce other deadlines and provisions of this Agreement.

28. A copy of this document will be made available to any person by the City or the Department on request.

29. This Agreement shall be applicable to and binding upon both parties, their officers, agents, employees, and assigns.

30. 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, will be enforceable. This Agreement does not purport to remedy any other disputes regarding the ADA or any other federal law, except to the extent they are related to the accessibility of Philadelphia’s polling places to voters with mobility disabilities.

31. This Agreement will remain in effect through March 31, 2013. Any disputes, motions or appeals related to this Agreement pending before any court will be moot as of this termination date.

32. The person signing for the City represents that he or she is authorized to bind the City to this Agreement. The person signing for the United States represents that he or she is authorized to bind the United States to this Agreement.

33. The Agreement may be signed in counterparts.

 

For the City of Philadelphia:

For the United States:

 

___________________________________
SHELLEY R. SMITH City Solicitor

ABBE F. FLETMAN
Flaster/Greenberg, P.C.

___________________________________
LORETTA L. KING
Acting Assistant Attorney General for Civil Rights

_______________________
JOHN L. WODATCH, Chief
ALLISON NICHOL, Deputy Chief
PHILIP L. BREEN, Special Legal Counsel
ELIZABETH JOHNSON, Senior Trial Attorney
SHEILA K. DELANEY, Senior Trial Attorney
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530

 

Date:              4/15/2009             

Date:              4/16/2009             

 


 

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June 8, 2009