SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND CITY OF FERRIS, TEXAS DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-53-4 This matter was initiated by a complaint filed under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. SS 12141- 12134, with the United States Department of Justice (Department of Justice) against the City of Ferris (City). The complaint was received by the Civil Rights Division of the Department of Justice, under the authority of 28 C.F.R. Part 35, Subpart F. The complainant, who is deaf and uses American Sign Language to communicate, alleged that he was given a traffic citation by a member of the Ferris Police Department ("Police Department"), that he appeared on his prescribed date for hearing in the Ferris Municipal Court, that on the hearing date communication between him and the Municipal Judge was not effective because the provided interpreter was not qualified. The Department of Justice is authorized under 28 C.F.R. Part 35, Subpart F, to investigate fully the allegations of the complaint in this matter to determine the City's compliance with Title II of the ADA and the Justice Department's implementing regulation, issue findings, and, where appropriate, negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is authorized under 42 U.S.C. 12133, to bring civil action enforcing Title II of the ADA should the Department of Justice fail to secure voluntary compliance pursuant to Subpart F. In consideration of the terms of this Agreement as set forth below, the Attorney General agrees to refrain from undertaking further investigation or from filing civil suit in this matter. The parties to this Agreement are the United States of America and the City of Ferris. The parties agree that this Agreement is not an admission of violation and should not be construed as an admission by the City of any violation. In the interests of securing compliance by voluntary means, the parties hereby agree as follows: 1. The ADA applies to the Police Department because it is a public entity as defined in the Department of Justice's regulation implementing Title II., 28 C.F.R. 35.104. 2. The subject of this Settlement Agreement is a written policy which is attached, that requires that in those situations where the provision of interpreting services is necessary to ensure effective SETTLEMENT AGREEMENT - PAGE 1 01-07425 communication, the Police Department will, upon reasonable notice, secure qualified interpreting services. 3. In order to ensure effective communication with members of the public who are deaf or hard of hearing in the Police Department's programs, activities, and services, the City agrees: a. To provide, at the City's expense, appropriate auxiliary aids and services, including qualified interpreters, when necessary to afford a qualified individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by the Police Department. b. To give primary consideration to the requests of the individuals with disabilities, in determining what type of auxiliary aid or service is necessary. c. To notify individuals who are deaf or hard of hearing about the provision of auxiliary aids and services to ensure effective participation. The City will distribute this information through pamphlets, posters or other appropriate means. 4. Attached hereto as Exhibit "A" and incorported herein by reference for all purposes is Speech and Hearing Disabilities Policies of the Police Department of the City of Ferris, Texas. Said Exhibit "A" has been duly adopted by said Police Department and duly approved by the City Council of the City of Ferris, Texas. The policies contained therein shall remain in full force and effect unless the same are changed or amended with the prior written consent of the U.S. Justice Department. Within 30 days of the effective date of this Agreement, the Police Department will instruct all of its employees to comply with the provisions of this Agreement and the policies set forth in said Exhibit "A." 5. This document is a public agreement. A copy of this document or any information contained in it may be made available to any person pursuant to the Texas Open Act (Section 552.001 lt reg. of the Texas Government Code). The City of Ferris will provide a copy of this Agreement to any person on proper request. 6. The Department of Justice may review compliance with this Agreement at any time. If the Department of Justice believes that this Agreement or any requirement thereof has been violated, it may institute civil action seeking specific performance of the provisions of this Agreement in an appropriate Federal court. 7. Failure by the Department of Justice 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 its right to enforce other deadlines and provisions of this Agreement. SETTLEMENT AGREEMENT - PAGE 2 01-07426 8. The effective date of this Agreement is the date of the last signature below. 9. This Agreement contains the entire agreement of the parties hereto and supersedes all prior agreements, if any, and negotiations between the parties hereto. No modification, amendment, change or discharge of any term or provision of this Agreement shall be valid unless reduced to writing and signed by both parties hereto. This Agreement is limited to the facts set forth in the first paragraph, and it does not purport to remedy any other potential violations of the Americans with Disabilities Act or any other Federal law. This Agreement does not affect the City of Ferris's continuing responsibility to comply with all aspects of Title II of the ADA. For the City of Ferris: For the United States: (Signature) (Signature) RICK BARRETT, Mayor JOHN L. WODATCH, Chief City of Ferris JOAN MAGAGNA, Deputy Chief ROBERT J. MATHER, Attorney Disability Rights Section Civil Rights Division JEFF COTTONGAME, Chief U.S. Department of Justice of Police, City of Ferris P.O. Box 66738 Washington, D.C. 20035-6738 Date September 9, 1996 (Handwritten) Date December 10, 1996 (Handwritten) Attachment SETTLEMENT AGREEMENT - PAGE 3 01-07427 EXHIBIT "A" Speech and Hearing Disabilities Policies of the Police Department of the City of Ferris, Texas 1. The City of Ferris Police Department has occasions to deal with individuals who have hearing impairments. Occasionally, an officer will interview or interrogate an individual who is deaf or hard of hearing. a. Successful police contact with citizens is characterized by effective communication between the parties whether it is a suspect, victim, witness, or complainant with whom the officer is talking. As such, police officers encountering an individual with hearing impairments should use appropriate auxiliary aids and services whenever necessary to ensure effective communication with the individual. b. Police contact with citizens occurs most frequently during routine traffic stops. In situations involving drivers who are deaf and use sign language for communication, the officer should use appropriate sign language to initiate the exchange with the driver and should explain in writing the necessity for a stop and citation if the driver is to be charged with a traffic violation or provide the driver with written notification of the driver's right to have an interpreter available to him (her) during all municipal court proceedings involving the citation and at the City's expense. The officer may NOT ask a family member or friend of the driver to interpret. c. In situations where the legality of conversations between the police and an individual with a hearing impairment may be questioned in court proceedings, i.e., when a Miranda warning is given, the police must take appropriate steps including, but not limited to, securing the services of a qualified interpreter whenever necessary to ensure that the conversations are effective. 2. It is the policy of the Ferris Police Department that it will furnish appropriate auxiliary aids and services whenever necessary to ensure effective communication with individuals with hearing impairments. a. Auxiliary aids and services include qualified interpreters, written materials, note pads, and other effective methods of making aurally delivered materials available to individuals with hearing impairments. b. When an auxiliary aid or service is required to ensure effective communication, the Ferris Police Department must provide an opportunity for individuals with hearing impairments to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individuals. "Primary consideration" means that the Ferris Police Department must honor the choice, unless it can show that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration in the nature of its service, program, or activity, or in undue financial and administrative burdens. c. The procedures below address only those situations where a police officer, after consulting with the individual with the hearing impairment, determines that the services of a qualified interpreter are necessary to ensure effective communication. 3. Arrest Upon Probable Cause Without An Interview In circumstances where an individual without a hearing impairment would have been arrested on probable cause without an interview, then a suspect with a hearing impairment in the same situation usually does not need to be provided with a qualified interpreter. However, a qualified interpreter may be required if an officer is unable to convey to the arrestee the nature of the criminal charges by communicating on a note pad or by using another means of communication. The arrestee should be transported to a holding cell at the Police Department where either the arresting officer or the transporting officer can convey the information through the interpreter when he or she arrives. a. Interview Needed to Establish Probable Cause to Arrest If a police officer needs to interview a suspect with a hearing impairment to determine if there is probable cause to make an arrest, a qualified interpreter must be provided if the written communication is ineffective. When the services of a qualified interpreter are required to provide effective communication, but the officer cannot wait until a qualified interpreter arrives because the officer is to respond to another more urgent call, the following procedures apply: i. If the investigation does not involve a serious offense, the officer must postpone the interview and possible arrest until the officer can return to the scene when a qualified interpreter is present. If this is not possible, the officer must document his or her investigation as completely as possible and file the appropriate report. 01-07429 ii. If the investigation involves a serious offense, the officer, before leaving the scene, must contact the appropriate supervisor and advise the supervisor of the case. The supervisor will determine if an Investigator will be called in to wait for a qualified interpreter. If not, the officer must document his or her investigation as completely as possible and file the appropriate report. b. Interrogating An Arrestee If an officer cannot effectively inform the arrestee of the Miranda warnings without the use of an interpreter, then the officer must secure the services of a qualified interpreter in order to communicate accurately the warnings to the arrestee prior to any interrogation. An officer seeking to interrogate an arrestee with a hearing impairment must obtain the services of a qualified interpreter prior to any interrogation whenever an interpreter is needed for effective communication. If exigent circumstances do not permit a delay in the interrogation of the arrestee, if an interpreter cannot be located within a reasonable period of time (which should occur very infrequently), if written communication between the officer and the arrestee was effective in conveying an understanding of the Miranda warnings, or if the arrestee specifically declines the opportunity to communicate through an interpreter, the officer may proceed with the interrogation by using a note pad. However, if written communication becomes ineffective, for example, because the factual pattern is complex, because the arrestee is having difficulty communicating without an interpreter, or because the arrestee chooses to discontinue the interrogation, the officer must discontinue the interrogation and wait until a qualified interpreter is present before continuing the interrogation. In most instances a qualified interpreter will be available and the interrogation will not be delayed. c. Issuance of Appearance Ticket In circumstances in which an individual without a hearing impairment would be issued an appearance ticket without being questioned by the Investigating officer, then a suspect with a hearing impairment in the same situation does not need to be provided with a qualified interpreter. If an officer has stopped a suspect for committing a non-criminal infraction by communicating on a note pad or by using another means of communication, then the officer should use his or her discretion as to 01-07430 whether to call a qualified interpreter to the scene or whether to issue a warning rather than a citation. d. Interviewing a Victim or Critical Witness If an officer is able to communicate effectively by writing questions on a note pad and having the victim or witness with a hearing impairment write his or her responses, then the officer may proceed with the interview using a note pad. However, if an investigating officer is unable to communicate effectively with a victim or critical witness by using a note pad or some other means of communication other than a qualified interpreter, then the investigating officer must provide the victim or critical witness with a qualified interpreter. If the investigating officer cannot wait until a qualified interpreter arrives because the officer has to respond to another more urgent call, the following procedures apply: i. If the investigation does not involve a serious offense, then (a) the officer can have a qualified interpreter dispatched to the victim's or critical witness's location and request the dispatcher recontact the officer when the interpreter arrives. If a qualified interpreter is unable to respond or if the officer cannot return to the scene, the officer must document his or her investigation as completely as possible and file the appropriate report; or (b) the officer can ask the victim or critical witness to come voluntarily to the section office when a qualified interpreter is available. At that time, the investigating officer can return to the station to complete the investigation. If a qualified interpreter is unable to respond, the officer must document his or her investigation as completely as possible and file the appropriate report. ii. If the investigation does involve a serious offense and if the victim or witness with a hearing impairment is critical to establishing probable cause for an arrest or for completing the investigation, then the investigating officer, before leaving the scene, must contact his or her supervisor and advise the supervisor of the case. The supervisor will determine if an investigator will be called in to wait for a qualified interpreter. If the supervisor determines that an investigator will not be responding; and if neither option i. (a) nor i. (b) above is available, then the officer may leave the victim(s) or witness(es) at the scene. This investigating officer must then 01-07431 document his or her investigation as completely as possible and file the report. e. Obtaining Qualified Interpreters Officers will arrange for a qualified interpreter through their supervisor who will authorize the Office of Emergency Communications (OEC) supervisor to notify a qualified interpreter from the list maintained in OEC. f. Reports/Evidence All identifying information on the interpreter must be included inthe report, including the interpreter's name, the time the interpreter was called, and his/her time of arrival and departure. All written questions and responses between and among police officers and persons with hearing impairments must be treated as evidence and handled accordingly. f:\ferris\justdept.sa 01-07432