DEPARTMENT OF JUSTICE COMPLAINT NUMBER 204-53-64
This matter was initiated by a complaint filed under title II of the Americans with Disabilities Act (ADA), 42 U.S.C. ï½§ï½§ 12131-12134, with the United States Department of Justice (Department of Justice) against the Town of Phelps, New York. 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 alleged that the Town has not furnished appropriate auxiliary aids and services where necessary to afford individuals with hearing disabilities an equal opportunity to participate in, and enjoy the benefits of a service, program, or activity conducted by the Town, in violation of section 35.160(b)(1) of the title II regulation. Additionally, the complainant alleged that the Town has not given "primary consideration" to the requests of individuals with hearing disabilities in determining what type of auxiliary aid or service is necessary. 28 C.F.R. ï½§ 35.160(b)(2).
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 Town of Phelps'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. ï½§ 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 Town of Phelps. The parties agree that this Agreement is not an admission of violation and should not be construed as an admission by the Town of Phelps of any violation.
In the interest of securing compliance by voluntary means, the parties hereby agree as follows:
- The Town of Phelps (Town) is a "public entity" as defined in the Department of Justice's regulation implementing title II. 28 C.F.R. 35.104.
- The subject of this Settlement Agreement is a written policy, which is attached, that requires that the Town will provide auxiliary aids or services when necessary to ensure effective communication with persons with disabilities.
- In order to ensure effective communication with members of the public who are deaf or hard of hearing in the Town's programs, activities, and services, the Town will:
- Provide, at the Town'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 Town.
- Give primary consideration to the requests of the individuals with disabilities, in determining what type of auxiliary aid or service is necessary.
- In order to inform members of the public of the provisions of title II and their applicability to the Town's programs, services and activities, the Town will publish, within 30 days of the effective date of this Agreement, the following notice or an equivalent, on two separate occasions in a newspaper of general circulation serving the Town of Phelps, New York.
In accordance with the requirements of title II of the Americans with Disabilities Act of 1990, the Town of Phelps will not discriminate against qualified individuals with disabilities on the basis of disability in the Town's services, programs, or activities. The Town will provide appropriate auxiliary aids and services, including assistive listening devices and qualified interpreters, whenever necessary to ensure effective communication with members of the public who are deaf and hard of hearing.
- The Town of Phelps will provide a copy of the notice in paragraph 4 to any person upon request.
- Within 30 days of the effective date of this Agreement, the Town will post, in a conspicuous location in the Town Hall building, a notice of the Town's policy regarding effective communication. Such notice shall set forth the procedure for requesting an auxiliary aid or service and shall note the availability of assistive listening systems.
- Within 30 days of the effective date of this Agreement, the Town will instruct all of its employees to comply with the provisions of this Agreement.
- Within 60 days of the effective date of this Agreement, the Town of Phelps will submit a report to the Department of Justice detailing the actions it has taken to comply with the preceding provisions. This report will include copies of notices that have been posted in the Town Hall building and distributed in publications.
- This document is a public agreement. A copy of this document or any information contained in it may be made available to any person. The Town of Phelps will provide a copy of this Agreement to any person on request.
- 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, or reopen the investigation of this matter.
- 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.
- The effective date of this Agreement is the date of the last signature below.
- 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 under its provisions. This Agreement is limited to the matters alleged as 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 Town's continuing responsibility to comply with all aspects of title II of the ADA.
- This Agreement will remain in effect for two years from the effective date of this Agreement, or until full compliance with this Agreement by the Town has been achieved.
For the Town of Phelps:
GERALDINE VERSTRAETE, Town Supervisor
P.O. Box 187
79 Main Street
Phelps, New York 14532
For the United States:
NAOMI H. MILTON, Attorney
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
POLICY ON EFFECTIVE COMMUNICATION
WITH INDIVIDUALS WITH DISABILITIES
IN TOWN PROGRAMS, SERVICES AND ACTIVITIES
It is the policy of the Town of Phelps to ensure that communications with any disabled applicants for employment in Town-sponsored programs, services, or activities, or disabled members of the public, are as effective as communications with non-disabled persons. The Town will furnish appropriate auxiliary aids and services where necessary to provide an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, any service, program, or activity conducted by the Town.
AUXILIARY AIDS AND SERVICES
"Auxiliary aids and services" includes:
- Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
- Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments;
- Acquisition or modification of equipment or devices; and
- Other similar services and actions.
REQUESTS FOR AUXILIARY AIDS OR SERVICES
Requests for auxiliary aids or services should be made to the Town Clerk (315-548-5691) in advance of the meeting, proceeding or other program, service, or activity provided by the Town.
DETERMINING THE TYPE OF AUXILIARY AID OR SERVICE THAT IS NECESSARY
When an auxiliary aid or service is required to ensure effective communication, the appropriate Town official or responsible employee will:
- provide an opportunity for an individual with a disability to request the auxiliary aid and service of his or her choice; and
- give "primary consideration" to the choice expressed by the individual.
"Primary consideration" means that the Town must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program or activity or in undue financial burden.
If the preferred type of auxiliary aid or service is not available, or not required, the appropriate Town official or responsible employee will consult with the individual with a disability to determine whether an alternative means of communication will ensure effective communication.>