HomeMy WebLinkAbout2409RESOLUTION NO.2409
A RESOLUTION designating an ADA Coordinator and adopting a grievance
procedure for compliance with the Americans With Disabilities Act of 1990.
WHEREAS, the Americans with Disabilities Act (ADA) was signed into law on July
26, 1990, and applies to the City of Bremerton; and
WHEREAS, this law prohibits discrimination against persons with disabilities and
requires that a qualified individual with a disability should not be subject to discrimination
in employment, access to public facilities, services, programs and activities; now, therefore,
BE IT RESOLVED by the City Council of the City of Bremerton:
That the Mayor shall designate an ADA Coordinator, whose duties shall include the
provision of proper notice of the ADA grievance procedure to City personnel and the
community at large, and the receipt and review of any ADA grievance directed to the City
of Bremerton.
BE IT FURTHER RESOLVED that the ADA Grievance Procedure, attached hereto
as Exhibit "A" ,is hereby adopted.
PASSED by the City Council of the City of Bremerton this 30th day of September, 1992.
LYNN HORTON
Council President
APPROVED this 2 day of Oct., 1992
LOUIS MENTOR, Mayor
ATTEST:
KATHLEEN L. McCLUSKEY, Clerk
CITY OF BREMERTON
ADA GRIEVANCE PROCEDURE
The City of Bremerton has adopted an internal grievance
procedure providing for prompt and equitable resolution of
complaints alleging any action prohibited by the Americans with
Disabilities Act. ADA states, in part, that "no otherwise
qualified disabled individual shall, solely by reason of such
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination" in programs or
activities sponsored by a public entity.
Complaints regarding access or discrimination should be
addressed to ADA Coordinator, City Clerk's Office, City of
Bremerton, 239 4th Street, Bremerton, WA. 98310, 478-5302, who has
been designated to coordinate ADA compliance efforts.
A complaint shall be filed in writing, contain the name and
address of the person filing it, and briefly describe the
alleged violation of the regulations. Other arrangements for
filing a complaint will be made available for those with
disabilities requiring further accommodation.
A complaint shall be filed during the time the perceived
violation exists or within sixty (60) calendar days after the
complainant becomes aware of the alleged violation.
An investigation, as may be appropriate, shall follow a filing
of complaint. The investigation shall be conducted by the
City of Bremerton's ADA Coordinator. These rules contemplate
informal but thorough investigations, affording all interested
persons and their representatives, if any, an opportunity to
submit evidence relevant to a complaint.
A written determination as to the validity of the complaint
and a description of the resolution or recommended action, if
any, shall be issued by the ADA Coordinator and a copy
forwarded to the complainant no later than sixty (60) calendar
days after the filing of the complaint.
The ADA Coordinator shall maintain the files and records of
the City of Bremerton relating to the complaints filed.
The complainant may request a reconsideration of the complaint
in instances where he or she is dissatisfied with the
resolution. The request for reconsideration shall be made in
writing within thirty (30) calendar days of notification of
the ADA Coordinator's decision, and mailed or delivered to the
Office of ADA Coordinator, 239 4th Street, Bremerton, WA.
98310.
10.
The ADA Coordinator shall forward the request for
reconsideration to the City of Bremerton's Disability Action
Committee and facilitate the scheduling of a convenient time
for the complaint to be heard by the Committee. A good faith
effort shall be made to schedule the hearing within thirty
(30) calendar days of receipt of the request for
reconsideration.
The Chairperson of the Disability Action Committee shall
convey the Committee's written advisory decision to the
complainant and to the Mayor of the City of Bremerton within
thirty (30) calendar days of the conclusion of its public
hearing. This advisory decision may uphold, overturn, or
change the decision rendered by the ADA Coordinator.
The right of a person to a prompt and equitable resolution of
the complaint filed hereunder shall not be impaired by the
person's pursuit of other remedies such as the filing of an
ADA complaint with the responsible federal department or
agency. Use of this grievance procedure does not effect nor
does it prevent the pursuit of other remedies.
These rules shall be construed to protect the substantive
rights of interested persons, tomeet appropriate due process
standards, and to assure that the City of Bremerton complies
with the ADA and implementing regulations.
35718
Federal Register [ Vol.
Trust Territory of the Pacific
an~ the Commonwealth of the Northern
Marlane Islands.
§ 3SJOS
(a) A public entity shall within one
yearof the effective date d this part,
evaluate its current services, policies,
and' practices. and the effects thereof,
that c~ not or may not meet the
requirements of this pa~ and, to the
extent modification of any such
sen, ices, policies, and practices is
required, the public. entity shall proceed=
to make the necessary modifications.
(b) A public enlity shall provide an
opportunity to imerested persons,
incluclin~ individuals with disabi~ies er
organizations representing individuals
with disaMities. to participate in the
self.evaluation process by submitting
colElnents.
(c) Apublic entity that employs 50 or
more person shalL, for at_ least three
years following completion of the self-
evaluation. maintain on file and make
available for public inspection:
(1) A list of tee intersted persons
consultack
(2) A description of areas examined
and any problems iden~eck and
(3} A description of any modL~cations
made.
(d) If a public entity has already.
complied with the RE-evaluation
requirement of a regulation
implementing section 504 of the
Rehabilitation Act of 1973, than the
requirements of this section shall apply
only to those policies and practices that
were not included in the previous self-
evaluation.
§ 35.166 Notice.
A public entity shah make available
to applicants. participants, beneficiaries.
and c~er h'.terested persons
infornmtion regarding the provisions of
tl'js part and Rs applicability to the
sen, ices, programs, or activities of the
public entity. and make suc. h
information available to them in such
manner as the head o£ the entity finds
necessary to spp~se such persons of the
protections against discrimination
assured them by the Act and this part.
§ 35.107 Desiqnet|on o~ responsible
employee sn~ sOo~tlo~ of grtevanc~
pmcedurss-
{a} Desi~naL;on of resfions/b/e
employee. A public entity that emplcys
50 or more persons shall designate at
least one employee to coordinate its
efforts to comply with and carry out its
responsibilities under this part,
including any investigation of any
ccmplaint communicated to it alleging
its noncom~liance with this part or
56~ No. 144 / Friday, Iulh' 26, 19C1'
alleging any actions that would be
prohibited by this part. The public entity
shall make available to all interested
individuals the name, office address,.
and telephone ntunber of the. employee
or employees designated pursuant to
this paragraph.
(b) Complaintprvcedure, A public
entity that employs 50 or more pe~ons
shall adopt and publish grie~'ance
procedures providing for prourpt and
equitable resolution of complaints
alleging any action that would be
prohibited by this part.
§§ 35,108-35,129 [Reserved]
Subpad B---General Requirements
§ 35.130 General prohibitions a, cj~in~
discrimination,
(a) No, qualified individ,aal with a
disability shall, on the basis of
disability, be excluded from
participation in or be denied the benefits
of the services, progains, at activities of
a publicentity, orbe subjected to
disa-i~nsfion by any public entity.
(b) (1) A public entity, in pren-idL-_g
any aid, benefit. or service, may not,
directly or through ccnlrac~ual,
licenag. or other~r~,.ngemev.~. on ~e
basis of disability-
(i) Deny a qualified individual with a
disability' the opportunity to partial'pate
in or benefit from the aid, benefit. or
service;
(ii] Afford a qualified individual with
a disability an opporttmity to participate
in or benefit from the ai~ bensilL or
service that is not equal to that afforded
others;
(ill) l:h'o~ide a qualified individual
with a disability v, ith an aid, beneft/, or
service that is not as effective in
affording equal opportunity to obtaL'~ the
same resuk, to gain the same benefit, or
to reach the same level of achievement
as that provided to others;
(iv) Provide different cr sepa..-ate aids.
bensEts, or services to individuals with
dieabilities or to any class of individuals
with disab~ities than is provided to
o~ers unless such action is necessary to
provide qualified individuals with
disabilities with aids, benefits, or
services that are as effective as those
provided to others;
(v} Aid or perpetuate discrimination
against a qualified individual with a
disability by providing significant
assistance to an agency, organization, or
person that discrhninates on the basis of
disability in providing any aid, benefit,
or service to beneficiaries of L~.e public
entity's prod'am;
(vi} Deny a qualified indiddual with a
disability the opportunity to participate
as a member of planning or ad"dsory
hoards;
/ Rules ~ Regulations
(vii] Otherwise limit a quali~ecr
individual with a disability in the
enjoyment d any riShL privLIege.
advantage, or opportunity enjoyed by
others receiving the aid, benefit. or
service.
(2) A public entity may not deny a
quali~ed individual with a disability the
oppanunity to participate in se~ices~
prodarea, or activities that are not
separate ar different, despite the
e.~stence of permissibly separate or
different Fograms or a~ti~ities.
(3} A publicentity may act. directly or
through contractual. or other
arrangemen~ ut~ize criteria m' methods
of administraUom
{i) That have the effect of subjecting-
qualified individuals with disabilities to
discrimination on the basis of disability;
(ii) That have the purpose or effect.
defeatin~ or substantially irapairing
accomplis.~ment of the ohiectives of the
public entity's program with respect to
individuals with disabilities; or
(iii) That perpetuate the
discrimination af anotherpublic entity
both public entities are subject to
common administrative control o." a.'~
agencies of the same State.
(4] A public entity may not. in
determining the-site or location of a
facility, make selections-
(i) That have the effect of excluding
individuals with disabilities from,
denying them the benefits oL or
otherwise subjecting them. to
disc~mination: or
(ii) That have the purpose or efteat of
defeating or substantially impairing the
accomplishment of the objectives of the
service, program, or activity with
respect to individuals with disabilities.
(5} A public entity. in the selection of
pro ,curement c~n~'actors. may not use
criteria that subject qualified individuals
with disabilities to discrimination on the
basis or dis."bility.
(6) A public en~ity may not administer
a licensing or certification program in a
manner that subiects quaiLfled
individuals with disabilities to
discrimination on ',he basis of disability,
nor me7 a public entity establish
requirements for the programs or
activities of licensees or certified
entities that sub!oct qualified
individuals wi~ disabilities to
discrhnination on the basis of disability.
The programs or activities of entities
that are licensed or certified by a public
entity are not, themselves, covered by
this part.
(7) A public entity shall make
reasonable modifications in poBcies,
practices, er procedures when the
modifications are necessary to avoid
discrimination cn the basis of disability.
CITY OF BREMERTON
OFFICE OF THE CITY ATTORNEY · IAN R. SIEVEKS, CITY ATTORNEY
Gateway to the Olympics and Home of the Puget Sound Naval Shipyard
DATE: September 17, 1992
TO: Council Operations Committee
FROM: Leila Mills, Assistant City Attorney
RE: ADA Coordinator
1. Would it be legal to designate the City's Risk Manager as its ADA Coordinator?
The federal regulations require public entities employing 50 or more persons to "designate
at least one employee to coordinate its efforts to comply with and carry out its
responsibilities under this part, including any investigation of any complaint communicated
to it alleging any action that would be prohibited by this part." Fed. Register Rules and
Regulations §35.107.
The City is required to designate "an employee". There is no specification or restriction of
the type of employee, or the position ordinarily held by the employee. As such, there is
nothing illegal about designating the Risk Manager.
2. What is the propriety of designating the City's Risk Manager as ADA Coordinator?
The Risk Manager currently has responsibilities which aim to not only protect the worker,
but to protect the City from liability. For example, she develops and administers the City's
Safety program and evaluates compliance with WISHA. The Risk Manager makes written
recommendations regarding employee safety and the safety of the public using City facilities
to the responsible department heard. If the department head disagrees with the
recommendation, the Risk Manager forwards the recommendation to the City Clerk, and
finally to the Mayor who directs compliance by the department head if there is concurrence.
Similarly, under the ADA, the Risk Manager would be coordinating the program to ensure
compliance, and would be communicating with the department heads if they are deemed to
be in non-compliance. As with the WISHA enforcement, the Risk Manager's intent is two-
fold: firstly to enforce the law (and thereby protect employees and the public) and secondly,
to comply with the law so as to avoid claims against the City.
)
BREMERT
Memorandum
September 17, 1992
Page 2
So far as the investigatory aspect of the position is concemed, there is an appeal system set
up in the grievance procedure to ensure that anybody who is not satisfied with the Risk
Manager's analysis may have the complaint reconsidered by the Disability Action
Committee. The Risk Manager does not sit on the committee and therefore, the
recommendation would not be affected by any other bias if, in fact, it exists.
3. Would the EEO Officer be a more suitable designee?
From the perspective of bias or influence, there is little foundation to believe that the EEO
Officer would have any less conflict or bias than the Risk Manager. The EEO Officer is
also a City employee, and currently is performed by the Civil Service Officer. (In the past,
other positions have held this post, such as the Purchasing Supervisor.) Whether or not it
is the Risk Manager, the Civil Service Officer, or any other City position, all would
presumably have an interest in protecting the City and avoiding claims against it. There will
be an inherent bias incorporated into any employee's position, simply by virtue of being a
City employee. However, the federal regulations require that an employee be designated
as coordinator.
Presently, the EEO Officer ensures compliance with the EEO program. The policy states
that recruitment, upgrading and training shall be without regard to "race, color, sex, age,
religion, mental status, national origin, political affiliation, and mental, sensory and physical
handicap. Give that the ADA Coordinator (and the ADA Action Committee) will address
the issues regarding mental, sensory and physical handicap, it is proposed that BMC 2.28.040
be amended to address complaints pertaining to discrimination in the areas of sex, race, and
national origin and the ADA Coordinator and the Action Committee will address issues of
mental, sensory or physical handicaps. It should be noted that handicap grievances have
already been separated from the EEO grievance procedure through the procedures set forth
in BMC 2.88 (Handicapped Action Committee).
CONCLUSION:
It is legal and propitious to designate the Risk Manager as the ADA Coordinator. The
EEO Officer is not necessarily a more suitable position for this function, and this will
ultimately be a discretionary decision for the City. The EEO responsibilities are already
quite extensive, and it may simply be more practical and efficient to spread the ADA
function to another City employee.
LX,,X :j rd
ADA.Mem - 9/17/92