SETTLEMENT AGREEMENT

IN

U.S. DEPARTMENT OF JUSTICE ADA COMPLAINT NO. 204-39-139

UNITED STATES OF AMERICA
v.
DAKOTA COUNTY, MINNESOTA

 

 

RECITALS

1.This matter was initiated by a complaint against Dakota County filed by [redacted] on June 29, 2004, with the United States Attorney's Office for the District of Minnesota (the United States) under Title II of the Americans with Disabilities (ADA), 42 U.S.C. 12131-12134 . In his complaint, [redacted], who is deaf, alleged that Dakota County violated the ADA by not providing a qualified sign language interpreter when necessary to ensure effective communication with him while he was being booked at the Dakota County Jail. [redacted] further alleged that Dakota County failed to provide a Telecommunications Device for the Deaf ( TDD) or make other accommodations to enable him to make outgoing calls in the same manner as other arrestees at the Dakota County Jail.

2.The ADA applies to Dakota County because it is a local government and thus 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. The Dakota County Jail is a service, program, or activity of Dakota County.

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 Dakota County'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 [redacted]'s complaint were substantiated. Specifically, a sign language interpreter was never provided to [redacted] during his arrest and booking when it was necessary to achieve effective communication with him. As a result, [redacted] remained in jail for several additional hours and he was not booked until after his court appearance the day following his arrest. In addition, Dakota County did not provide [redacted] with an operational TDD, while other detainees had access to telephones.

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, Dakota County agrees to enter into this Agreement. It is understood that this Agreement does not constitute an admission by Dakota County of any wrongdoing or liability.

AGREEMENT

6. Definitions.

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

6.1 "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.

6.2 "Detainee" will mean and refer to any individual who is being booked at or being housed for any length of time at the Dakota County Jail.

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

6.4 "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.

6.5 "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 erg., 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) . auxiliary aids or services to be provided will be determined in accordance with paragraphs 7.4 and 7.5 below.

6.6 "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.

7.1Nondiscrimination.Dakota County 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 days after the effective date of this Agreement, Dakota County agrees to implement fully the practices and policies set forth below.

7.2 Provision of Auxiliary Aids and Services.Dakota County will ensure that appropriate auxiliary aids and services are made available to all detainees 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 Dakota County Jail on an equal basis with other individuals. Pursuant to 28 C.F.R. 35.135, Dakota County is not required to provide personal devices and services to detainees.

7.3 Services, Programs, and Activities Covered.Dakota County will ensure that appropriate auxiliary aids and services are made available and paid for by the County in all services, programs, or activities provided to detainees at the Dakota County Jail, including, but not limited to: the booking process; orientation; medical examinations; meetings with social workers; and during any other detention, rehabilitative, or educational program provided by the County to detainees at the Dakota County Jail. The particular auxiliary aids or services to be provided will be determined in accordance with paragraph 7.4 and 7.5 below.

7.4 Type of Auxiliary Aid or Service.In determining what type of auxiliary aid and service is necessary to comply with the ADA, or any provision of this Agreement, Dakota County will give primary consideration to the request of the detainee who is deaf or hard of hearing. See 28 C.F.R. 35.160(b)(2). Dakota County 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 Dakota County programs and services or in undue financial and administrative burdens. 28 C.F.R. 35.160.See 28 C.F.R. Pt. 35 App. A (Section 35.160 General) 535 (2006). The decision that a particular request for auxiliary aids and services would result in a fundamental alteration of Dakota County's programs and services or in undue financial and administrative burdens must be made by the head of the particular County agency or his or her designee after considering all the resources available for use in the funding and operation of that agency's programs and services and must be accompanied by a written statement of the reasons for reaching that conclusion. See 28 C.F.R. 35.164.

7.5Sign Language and Oral Interpreters.Dakota County will offer qualified sign language interpreters to detainees who are deaf or hard of hearing and who , pursuant to paragraph 7.4 above, indicate a preference for a sign language interpreter, and qualified oral interpreters to detainees who are deaf or hard of hearing and who, pursuant to paragraph 7.4 above, indicate a preference for oral interpreters. Dakota County will not rely upon family members, friends, or any other persons who are not qualified interpreters to interpret for deaf or hard of hearing detainees or members of the public. Dakota County inmates are not considered qualified interpreters for purposes of this Agreement.

7.6Prohibition of Surcharges.All appropriate auxiliary aids and services required by this Agreement will be provided to detainees free of charge.

7.7Training.Dakota County will develop an ADA/Section 504 training curriculum encompassing the policies and practices described in this Agreement for all staff who provide the County's programs and services to detainees. This training will include the following objectives: to inform staff of their legal obligations to provide appropriate auxiliary aids and services where necessary to ensure effective communication with detainees who are deaf or hard of hearing; to identify promptly communication needs and preferences of detainees receiving the County's programs or services who are deaf or hard of hearing; and to secure qualified interpreter services as quickly as reasonably possible when necessary. The County will begin conducting training sessions for existing employees within three (3) months of the effective date of this Agreement and will conclude the training sessions within twelve (12) months of the effective date of this Agreement. The County will ensure that all new employees who will have contact with detainees participating in the County's programs and services 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.

7.8 TDDs. Within three (3) months of the effective date of this Agreement, Dakota County will provide a TDD for use by detainees who are deaf or hard of hearing and who require use of a TDD for effective communication. Detainees who are deaf or hard of hearing will be permitted access to a TDD on the same terms as hearing detainees are permitted access to telephones, except that, to the extent detainees' telephone calls are subject to time limitations, these limitations will be reasonably extended for those detainees using a TDD. If a TDD is not available in the same location as telephones used by detainees who are not deaf or hard of hearing, detainees who use a TDD will be allocated reasonable additional time to walk to and from the TDD location. Dakota County will ensure that the privacy of telephone calls by detainees using a TDD is equal to that of other detainees' telephone calls.

7.9Volume-Control Mechanisms. Within three (3) months of the effective date of this Agreement, Dakota County will provide a telephone equipped with volume control mechanisms for use by detainees 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 detainees who are not deaf or hard of hearing, detainees who use volume control telephones will be allocated reasonable additional time to walk to and from the volume control telephone location. Dakota County will have twelve (12) months from the effective date of this Agreement to complete the installation of these volume-control mechanisms.

7.10Hearing Aid -Compatible Telephones. Within three (3) months of the effective date of this Agreement, Dakota County will provide a telephone that is hearing aid-compatible for use by detainees who are hard of hearing and who require a telephone that is hearing aid compatible for effective communication. If hearing aid-compatible telephone is not available in the same location as telephones used by detainees who are not deaf or hard of hearing, detainees who use hearing aid compatible telephones will be allocated reasonable additional time to walk to and from the hearing aid-compatible telephone location .

7.11 Emergency Notification Systems. Within three (3) months of the effective date of this Agreement, Dakota County will design a system to provide detainees who are deaf or hard of hearing with effective communication in any emergency notification at the facility.

7.12 County Policies and Procedures. Within two (2) months of the effective date of this Agreement, Dakota County will promulgate new policies and procedures for the Dakota County Jail that incorporate the equitable relief agreed to in this Agreement. The U.S. Attorney will have the right to review the new policies and procedures prior to final adoption by the County.

8. Miscellaneous Provisions.

8.1 Retaliation and Coercion. Dakota County agrees not to retaliate against or coerce any individual who is receiving the County'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.

8.2 Ongoing Review of Compliance. The United States may review compliance with this Agreement at any time.

8.3 Notification of Noncompliance.If the United States believes that Dakota County is not in compliance with this Agreement, it will notify the Dakota County Administrator and the Dakota County Attorney in writing of the alleged noncompliance and attempt to seek a resolution of the matter. Such notice will contain reasonable particulars concerning the alleged violation. If the Parties are unable to reach a resolution within thirty (30) days of the date of the written notification, the United States may bring an action to enforce compliance with the ADA and to enforce the terms of this agreement.

8.4Nonwaiver of Enforcement.Failure by the United States to enforce this entire Agreement or any provision  thereof with respect to any deadline or any other provision herein will not be construed as a waiver of their right to enforce other deadlines and provisions of this Agreement. 

8.5Covenant Not to Sue.In consideration of the terms of this Agreement, the United States agrees to refrain from filing a civil suit against Dakota County relating to the allegations contained in [redacted]'s complaint and relating to the findings made in this case, Department of Justice ADA Complaint No.  204-39-139. If there is noncompliance with this Agreement, the United States may commence suit against Dakota County pursuant to paragraph 8.3 above.

8.6Public Document.A copy of this Agreement may be made available to any person.

8.7 Parameters of Agreement. This Agreement is a complete and final disposition of all federal claims against Dakota County related to Department of Justice ADA Complaint No. 204-39-139. This Agreement does not purport to remedy any other potential violation of the ADA, or any other federal or state law. It also does not affect Dakota County's continuing responsibility to comply with all aspects of Title II of the ADA.

8.8 Entire Agreement.This Agreement constitutes the entire agreement between the parties on the federal claims against Dakota County related to Department of Justice ADA Complaint No.-204-39-139, and no other statement , promise, or agreement, either written or oral , made by the parties regarding the federal claim that is not contained in this written Agreement will be enforceable under its provisions.

8.9 Headings. The paragraph headings in this Agreement are for convenience only and will not be deemed to affect in any way the language of the provisions to which they refer.

8.10 Severability.If any term of this Agreement is demanded by any court to be unenforceable, the other terms of this Agreement will 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 parties will 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.

8.11 Signatories Bind Parties. Signatories on behalf of the parties represent that they are authorized to bind the parties to this Agreement.

8.12 Effective Date; Termination. The effective date of this Agreement is the date of the last signature below. This Agreement will remain in effect for thirty-six (36) months from its effective date.

 

SETTLEMENT AGREEMENT
IN
U.S. DEPARTMENT OF JUSTICE ADA COMPLAINT NO. 204-39-139

Dated: 10-3-08

FRANK J . MAGILL, JR.
Acting United States Attorney


BY: GREGORY G. BROOKER
Assistant U.S . Attorney
Attorney 10 Number 166066
600 U.S. Courthouse
300 South Fourth Street
Minneapolis, MN 55415
(612) 664-5600

Attorneys for the
United States of America

 

 

SETTLEMENT AGREEMENT
IN
U.S. DEPARTMENT OF JUSTICE ADA COMPLAINT NO.
204-39-139

Dated: 9-26-08

COUNTY OF DAKOTA
STATE OF MINNESOTA

BY:
Brandt Richardson
Dakota County Administrator


Dated: 9-24-08

COUNTY OF DAKOTA
STATE OF MINNESOTA

BY:
James C. Backstorm
Dakota County Attorney

 

Approved as to form:

9-24-08
Assistant County Attorney/Date

 


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